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Doyal v. Berryhill

United States District Court, D. Kansas

October 11, 2017

NANCY A. BERRYHILL, [1]Acting Commissioner of Social Security, Defendant.



         Plaintiff seeks review of a decision of the Acting Commissioner of Social Security (hereinafter Commissioner) denying Disability Insurance benefits (DIB) under sections 216(i) and 223 of the Social Security Act. 42 U.S.C. §§ 416(i) and 423 (hereinafter the Act). Finding the Administrative Law Judge's (ALJ) decision is not supported by the record evidence and is inadequately explained, the court ORDERS that the decision shall be REVERSED and that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) REMANDING the case for proceedings consistent with this decision.

         I. Background

         Plaintiff applied for DIB, alleging disability beginning April 1, 2012. (R. 23, 196). Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. She argues that the ALJ erred in assessing Plaintiff's residual functional capacity (RFC), posed hypothetical questions which did not precisely fit Plaintiff's limitations and relied on erroneous responses thereto from the vocational expert (VE), and erred in determining the credibility of Plaintiff's allegations of symptoms resulting from her impairments.

         The court's review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). It 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 she 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. 1988).

         The 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. 1989).

         The Commissioner uses the familiar five-step sequential process to evaluate a claim for disability. 20 C.F.R. § 404.1520; 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 she has a severe impairment(s), and whether the severity of her 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 RFC. 20 C.F.R. § 404.1520(e). This assessment is used at both step four and step five of the sequential evaluation process. Id.

         The Commissioner next evaluates steps four and five of the sequential process--determining whether, in light of the RFC assessed, claimant can perform her 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).

         The court finds that remand is necessary because the decision is not adequately explained or supported by the record evidence.

         II. Discussion

         The ALJ determined in her step two analysis that Plaintiff has a rather extensive severe combination of impairments including left carpal tunnel syndrome, left shoulder rotator cuff impingement, sciatica, and diabetes. (R. 25). In her list of impairments that “are severe because they cause significant limitations in the claimant's ability to do basic work related activities, ” the ALJ listed both diabetes and impairments which can be caused by diabetes and which the medical records in this case suggest are caused by diabetes here--polyneuropathy, glaucoma, cataracts, and diabetic retinopathy. (R. 25). She determined at step three that Plaintiff's impairments do not meet or medically equal the severity of any Listed impairment, and continued on to assess Plaintiff's RFC. Id. She found that Plaintiff has the RFC to “lift and carry 10 pounds with the left non-dominant arm;” that she must be allowed to “alternate between sitting and standing for a brief position change every 30 minutes;” cannot climb ropes, ladders, or scaffolds; and can only occasionally finger or feel and cannot reach overhead with the left hand and arm. Id. at 25-26. With regard to Plaintiff's eyes, the ALJ found that she cannot perform “work tasks requiring good depth perception and good bilateral vision, ” or “continuous good mono vision, ” and that she can perform jobs requiring “only frequent adequate vision.” Id. at 26. Finally, the ALJ found that Plaintiff should avoid concentrated exposure to extreme cold, vibration, work hazards, and unprotected heights. Id.

         In her assessment, the ALJ noted EMG “findings consistent with bilateral median nerve entrapment at the wrist, and suggestive of carpal tunnel syndrome.” Id. at 27. She noted that on a report dated July 18, 2013, Dr. Danushkodl[2] found “diabetic polyneuropathy, diabetic retinopathy with left eye legal blindness, left shoulder rotator cuff impingement, and bilateral carpal tunnel syndrome.” (R. 27) (citing Ex. 5F (R. 496-504)). She summarized another report dated November 9, 2013from Central Medical Consultants, and noted “function in the right hand was normal, ” and “there is no evidence of end organ damage from diabetes or hypertension.” (R. 28).

         The ALJ found that Plaintiff's allegations of limitations resulting from her symptoms are not entirely credible for several reasons. She found that the “objective evidence does not support the degree of limitation alleged, ” because “examinations reveal normal range of motion and no pain on hip movement, ” she can still grip forty pounds with the left hand and “[f]unction in the right hand is normal.” Id. She acknowledged that Plaintiff has “an excellent work history, ” but found that she was laid off from work and did not quit because of health complaints, she has been noncompliant with her insulin, there is no evidence of end organ damage, and she alleges taking an aerobics class but admits only a five-pound weight loss. Id. at 29.

         The ALJ considered the opinion evidence in the record. She accorded minimal weight to the opinion of Plaintiff's nurse practitioner because she is not an acceptable medical source and because objective evidence does “not impose such strict postural limitations.” Id. She accorded only partial weight to the opinions of the state agency physicians because they found Plaintiff capable of medium work with hand and vision limitations, but the medical evidence suggests ...

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