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Oliver v. Berryhill

United States District Court, D. Kansas

November 21, 2017

ROBERT R. OLIVER, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM AND ORDER

          JULIE A. ROBINSON, CHIEF UNITED STATES DISTRICT JUDGE.

         Plaintiff Robert R. Oliver seeks review of a final decision by the Commissioner of Social Security (“Commissioner”) denying his application for supplemental security income under the Social Security Act.[1] Plaintiff alleges error with regard to the Administrative Law Judge's (“ALJ”) residual functional capacity assessment. Finding no error, the Court affirms the Commissioner's decision.

         I. Factual and Procedural Background

         Plaintiff applied for supplemental security income on January 31, 2013, alleging an onset date of January 31, 2013, due to depression, anti-social behavior, anxiety, low back arthritis, and problems with both feet.[2] The Commissioner denied Plaintiff's application upon initial review and upon consideration. Plaintiff timely requested a hearing before an ALJ. He appeared and testified at a hearing before ALJ Robert Burbank on August 13, 2015.

         The ALJ issued an unfavorable decision against Plaintiff on January 25, 2016. He concluded that Plaintiff was not disabled within the meaning of the Act. The Appeals Council denied Plaintiff's request for review of the ALJ's decision, and Plaintiff timely filed an appeal with this Court pursuant to 42 U.S.C. § 405(g).

         II. Standard for Judicial Review

         Judicial review under 42 U.S.C. § 405(g) is limited to whether the ALJ's decision is supported by substantial evidence in the record as a whole and whether the ALJ applied the correct legal standards.[3] The Tenth Circuit has defined “substantial evidence” as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”[4] In the course of its review, the Court may not re-weigh the evidence or substitute its judgment for that of the agency.[5]

         III. Legal Standards and Analytical Framework

         Under the Social Security Act, “disability” means the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment.”[6] An individual “shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.”[7] The Commissioner has established a five-step sequential evaluation process to determine whether a claimant is disabled.[8] If the ALJ determines the claimant is disabled or not disabled at any step along the way, the evaluation ends.[9]

         The ALJ determined at step one that Plaintiff had not engaged in substantial gainful activity since the alleged onset date. He determined at step two that Plaintiff has the following severe impairments: anti-social personality disorder, depressive disorder, and polysubstance abuse.[10] He determined at step three that Plaintiff's mental impairments did not meet or equal the severity of one of the listed impairments in 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526. Continuing, he determined that Plaintiff has the residual function capacity (“RFC”) to perform a full range of work at all exertional levels, except:

[Plaintiff] is limited to jobs that involve understanding, remembering, and carrying out instructions of intermediate complexity, consistent with semi-skilled work. Additionally, [Plaintiff] is limited to jobs that involve no more than occasional interpersonal contact with the general public or co-workers.[11]

         He determined at step four that Plaintiff had no past relevant work. At step five, the ALJ concluded that Plaintiff was not disabled because considering his age, education, work experience, and RFC, he was capable of making a successful adjustment to jobs that exists in significant numbers in the national economy. Specifically, Plaintiff would be able to perform the requirements of representative jobs such as tumbler operator, laundry worker, bagger, bottling line attendant, bonder, or final assembler.

         IV. Analysis

         Stanley I. Mintz, Ph. D., a state agency psychological consultant, performed a psychological consultative examination of Plaintiff on September 16, 2015. Plaintiff reported a history of alcohol, marijuana, crack cocaine, and methamphetamine abuse. He also reported a history of incarceration for robbery, breaking and entering, larceny, and destruction of property. He has spent almost half of his life (about twenty-two years) incarcerated. Plaintiff told Dr. Mintz, “I can't work. I can't get along with a lot of people.”[12]

         Dr. Mintz summarized Plaintiff's condition and recommended as follows:

Robert Oliver exhibits a history of mental illness symptoms, particularly personality disorder symptoms. He appears capable of doing simple manual jobs for a full 40 hour work week in my opinion. He appears able to understand simple and intermediate job instructions. He appears capable of doing unskilled and semi-skilled work tasks. He appears capable of being able to concentrate and persist in terms of simple work tasks in a normal work day. He appears capable of interacting in a limited capacity in terms of co-workers and supervisors and he would have difficulty interacting well with the public in my opinion. He would do best and adapt best in terms of simple job environment. He does not appear capable of handling his own funds due to his history and his continued use of alcohol and drugs.
Mr. Oliver exhibits psychologic impairment. If he were back within the full range of mental health treatment, I would view him as being capable of minimal improvement in the foreseeable future due to the fact that his most significant symptoms related to an ingrained personality disorder and an antisocial lifestyle. He continues using drugs and alcohol. In my opinion, his capacity for working would be at least moderately increased from that of the present time if he were fully abstinent in terms of alcohol and drugs.
The claimant's symptoms appear consistent with my observations of him. He appeared reasonably cooperative with the examination. His allegations were reasonably well stated and I do not have reason to question the veracity of his presentation.[13]

         On Form HA-1152-U3, Dr. Mintz rated Plaintiff as having “mild” impairments with respect to simple work, “moderate” and “marked” impairments with respect to complex work, “moderate” limitations in interacting with the public, supervisor(s), and co-workers, and “moderate” limitations in the ability to respond appropriately to usual work situations and changes in a routine work setting.[14]

         The ALJ extended significant weight to Dr. Mintz's opinion that “Plaintiff had the capacity to perform non-complex, detailed (semi-skilled) work with limited social interactions.”[15] The ALJ concluded Plaintiff had the following mental RFC:

The objective medical evidence of record supports a finding that the claimant has impairments that impose symptoms and limitations that mentally preclude the claimant from performing more than non-complex, semi-skilled work activity with limited interaction with the public or coworkers. Weighing all relevant factors, the undersigned concludes that the claimant's subjective complaints do not warrant any further limitation. The undersigned cannot find the allegation that the claimant is incapable of all substantial gainful work activity credible because of significant inconsistencies in the record as a whole.[16]

         The ALJ asked the vocational expert (“VE”) to “assume . . . the claimant is limited to jobs that involve understanding, remembering, and carrying out instructions of intermediate complexity, consistent with semi-skilled work. Additionally, the claimant is limited to jobs that involve no more than occasional interpersonal contact with the general public or co-workers.”[17] The VE identified two jobs from each exertional level that Plaintiff could perform: tumbler operation and laundry worker for medium work; bagger and bottling line attendant for light work; and bonder/semi-conduct and final assembler for sedentary work.[18]

         Plaintiff argues the ALJ did not assess an RFC that encapsulates Dr. Mintz's opinion because he omitted Dr. Mintz's limitations regarding supervisor contact and work adaptability. Defendant counters the ALJ did not omit the supervisor limitation because the term “co-workers” could include “supervisors.” Even if that was not the case, Defendant argues any error was harmless because: 1) the jobs identified by the VE require the same amount of interaction with supervisors as with coworkers, and 2) Plaintiff failed to ...


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