United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. LUNGSTRUM UNITED STATES DISTRICT JUDGE.
seeks review of a decision of the Acting Commissioner of
Social Security (hereinafter Commissioner) denying Disability
Insurance benefits (DIB) and Supplemental Security Income
(SSI) benefits under sections 216(i), 223, 1602, and
1614(a)(3)(A) of the Social Security Act. 42 U.S.C.
§§ 416(i), 423, 1381a, and 1382c(a)(3)(A)
(hereinafter the Act). Finding no error in the Administrative
Law Judge's (ALJ) decision, the court ORDERS that
judgment shall be entered pursuant to the fourth sentence of
42 U.S.C. § 405(g) AFFIRMING that decision.
applied for DIB and SSI benefits, alleging disability
beginning April 17, 2012. (R. 10, 231, 239). Plaintiff
exhausted proceedings before the Commissioner, and now seeks
judicial review of the final decision denying benefits. He
argues that the ALJ erred in weighing the medical opinion of
a consultative psychologist, Dr. Berg, in that he accorded
great weight to the opinion but failed to assess limitations
consistent with, or adequately discount certain limitations
opined by Dr. Berg in that opinion.
court's review is guided by the Act. Wall v.
Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). The Act
provides that “[t]he findings of the Commissioner as to
any fact, if supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). The court must
determine whether the ALJ's factual findings are
supported by substantial evidence in the record and whether
he applied the correct legal standard. Lax v.
Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007);
accord, White v. Barnhart, 287 F.3d 903,
905 (10th Cir. 2001). Substantial evidence is more than a
scintilla, but it is less than a preponderance; it is
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971);
see also, Wall, 561 F.3d at 1052;
Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir.
court may “neither reweigh the evidence nor substitute
[its] judgment for that of the agency.” Bowman v.
Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting
Casias v. Sec'y of Health & Human Servs.,
933 F.2d 799, 800 (10th Cir. 1991)); accord,
Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir.
2005); see also, Bowling v. Shalala, 36
F.3d 431, 434 (5th Cir. 1994) (The court “may not
reweigh the evidence in the record, nor try the issues de
novo, nor substitute [the Court's] judgment for the
[Commissioner's], even if the evidence preponderates
against the [Commissioner's] decision.”) (quoting
Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir.
1988)). Nonetheless, the determination whether substantial
evidence supports the Commissioner's decision is not
simply a quantitative exercise, for evidence is not
substantial if it is overwhelmed by other evidence or if it
constitutes mere conclusion. Gossett, 862 F.2d at
804-05; Ray v. Bowen, 865 F.2d 222, 224 (10th Cir.
Commissioner uses the familiar five-step sequential process
to evaluate a claim for disability. 20 C.F.R. §§
404.1520, 416.920; Wilson v. Astrue, 602 F.3d 1136,
1139 (10th Cir. 2010) (citing Williams v. Bowen, 844
F.2d 748, 750 (10th Cir. 1988)). “If a determination
can be made at any of the steps that a claimant is or is not
disabled, evaluation under a subsequent step is not
necessary.” Wilson, 602 F.3d at 1139 (quoting
Lax, 489 F.3d at 1084). In the first three steps,
the Commissioner determines whether claimant has engaged in
substantial gainful activity since the alleged onset, whether
he has a severe impairment(s), and whether the severity of
his impairment(s) meets or equals the severity of any
impairment in the Listing of Impairments (20 C.F.R., Pt. 404,
Subpt. P, App. 1). Williams, 844 F.2d at 750-51.
After evaluating step three, the Commissioner assesses
claimant's residual functional capacity (RFC). 20 C.F.R.
§§ 404.1520(e), 416.920(e). This assessment is used
at both step four and step five of the sequential evaluation
Commissioner next evaluates steps four and five of the
sequential process--determining whether, in light of the RFC
assessed, claimant can perform his past relevant work; and
whether, when also considering the vocational factors of age,
education, and work experience, claimant is able to perform
other work in the economy. Wilson, 602 F.3d at 1139
(quoting Lax, 489 F.3d at 1084). In steps one
through four the burden is on Plaintiff to prove a disability
that prevents performance of past relevant work. Blea v.
Barnhart, 466 F.3d 903, 907 (10th Cir. 2006);
accord, Dikeman v. Halter, 245 F.3d 1182,
1184 (10th Cir. 2001); Williams, 844 F.2d at 751
n.2. At step five, the burden shifts to the Commissioner to
show that there are jobs in the economy which are within the
RFC assessed. Id.; Haddock v. Apfel, 196
F.3d 1084, 1088 (10th Cir. 1999).
court finds no error in the ALJ's evaluation of Dr.
argues, “Due to [Mr.] Groom's preoccupation with
his pain, Dr. Berg opined that [Mr.] Groom was able to attend
to, process, and execute simple instructions, learn and
retain new information, and accommodate to the demands of
superficial interpersonal interactions.” (Pl. Br.
(citing R. 402). Plaintiff points out that a sales clerk job
requires a reasoning level of three, and argues that Dr.
Berg's opinion precludes the job of sales clerk on two
bases. Id. First, he argues that “the plain
language reading of Dr. Berg's opinion supports that
[Mr.] Groom retained the capacity for only simple work,
” and that the Tenth Circuit has found that simple work
“is inconsistent with the demands of level three
reasoning. (Pl. Br. 12) (citing Hackett, 395 F.3d at
1176). He also argues that Dr. Berg's “limitation
to superficial interpersonal interaction would preclude work
as a sales attendant.” Id. He argues that Dr.
Berg's opinion is supported by Plaintiff's testimony
that he occasionally has problems relating to other and by
his neighbors' reports that he has a tendency to
“blow up.” Id. at 12-13. He points out
that since he is limited to light work and is over fifty-five
years old, if as he argues, he is unable to perform his past
relevant work, the Medical-Vocational Guidelines require a
finding of “disabled.” Id. at 13.
Commissioner argues that Dr. Berg stated Plaintiff's
abilities, not his limitations, but that Plaintiff has
recharacterized Dr. Berg's opinion to state limitations
and mischaracterizes the basis of Dr. Berg's opinion as
Plaintiff's preoccupation with pain. (Comm'r Br.
4-5). She argues that regardless of the alleged basis of Dr.
Berg's opinion, he “did not limit Plaintiff in any
way.” Id. at 5. She argues that the ALJ's
finding is supported by the opinions of the state agency
psychologists, and the fact that during the alleged period of
disability Plaintiff was working at highly skilled SVP-7
(specific vocational preparation) level work. Id. at
Reply Brief, Plaintiff argues that Dr. Berg's statement
is a medical opinion regarding the nature and severity of
Plaintiff's condition and that even though the ALJ
considered the opinion at step two of the sequential process
and found Plaintiff's mental impairments not severe, he
was required to, but didn't, include the limitations
resulting from such a non-severe impairment in his RFC
assessment. (Reply 2).