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 the Commissioner's
applied for DIB and SSI benefits, alleging disability
beginning October 29, 2010. (R. 24, 302, 304). 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 treating source
opinions of his primary care provider, Dr. Hisel, and his
neurologist, Dr. Martinez.
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
determines 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 at step four whether, in
light of the RFC assessed, claimant can perform his past
relevant work; and at step five 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 the
medical opinions of Dr. Hisel or Dr. Martinez.
argues that the ALJ erred in weighing Dr. Hisel's medical
opinion because he provided only one reason to discount the
opinion, and that reason is not supported by the record
evidence. (Pl. 17-18). He alleges error in weighing Dr.
Martinez's medical opinion, arguing that four of the
bases given to discount the opinion are not supported by the
record evidence. Id., at 19-21. The Commissioner
argues that the ALJ's reason for discounting Dr.
Hisel's opinion is valid and based on the record
evidence, and should be affirmed by the court. (Comm'r
Br. 7-8). She argues that in any case, the ALJ's
evaluation of Dr. Hisel's opinion is supported by other
rationale and Plaintiff has not shown prejudice from any
alleged error in this regard. Id. at 9. With regard
to Dr. Martinez's medical opinion, the Commissioner
argues that the ALJ's reasons for discounting the opinion
are supported by the record evidence, that Dr. Martinez did
not administer psychological testing to determine the degree
of limitation resulting from Plaintiff's traumatic brain
injury, and did not explain the bases for the limitations he
found. Id., at 11-12. She argues that
“Plaintiff's argument is simply a veiled request
for this Court [sic] to consider and weigh the evidence
differently to support a finding of disability.”
Id., at 13. In his Reply Brief, Plaintiff argues
that the Commissioner misunderstood Plaintiff's arguments
in his Social Security Brief, and did not actually rebut
them. (Reply 1-2).
The ALJ's Evaluation of the Treating Source
court begins, as it must, with the ALJ's decision as he
characterized it, not as Plaintiff or as the Commissioner
view it. This is so because if the record evidence will
support two or more conclusions, and one of those is the
conclusion reached in the decision at issue, the court must
affirm the decision. “The possibility of drawing two
inconsistent conclusions from the evidence does not prevent
an administrative agency's findings from being supported
by substantial evidence. We may not displace the agency's
choice between two fairly conflicting views, even though the
court would justifiably have made a different choice had the
matter been before it de novo.” Lax, 489 F.3d
at 1084 (citations, quotations, and bracket omitted); see
also, Consolo v. Fed. Maritime Comm'n, 383
U.S. 607, 620 (1966).
decision the ALJ summarized the record medical evidence. (R.
30-32). In that summary, he noted that Plaintiff received
treatment for his mental impairments from Valeo Behavioral
Health, that his mental impairments responded well to
psychotropic medication, and the 2014 treatment records
showed overall improvement. (R. 31-32). He noted that
Plaintiff “also received behavior therapy, cognitive
therapy, and therapeutic living services in 2014 and 2015
through Minds Matter, LLC, an organization for individuals
with traumatic ...