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Berry v. Berryhill

United States District Court, D. Kansas

January 10, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff Tiffany Berry protectively filed applications for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. Her claims were denied by the Social Security Administration. She then requested and received an evidentiary hearing before an Administrative Law Judge (ALJ). Plaintiff testified at the hearing on November 5, 2014, before ALJ Susan W. Conyers in Wichita, Kansas. Vocational expert Cynthia A. Younger also testified. The ALJ issued a written opinion on June 17, 2015, finding plaintiff was not disabled within the meaning of the Act because she retained the capacity to perform several sedentary jobs. Plaintiff appeals, arguing the ALJ committed a number of errors, including by erroneously finding that plaintiff's mental impairments did not meet a listed impairment, by determining a residual functional capacity (RFC) that was not supported by substantial evidence, and by erroneously assessing medical opinions. For the reasons that follow, the court concludes the decision of the Commissioner should be affirmed.

         I. Legal Standard

         Under the Act, the court must accept the factual findings of the Commissioner if they are supported by substantial evidence. 42 U.S.C. § 405(g). The court accordingly looks to whether the factual findings are supported by substantial evidence and whether the ALJ applied the correct legal standard. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). “Substantial evidence” means “more than a scintilla, but less than a preponderance; in short, it is such evidence as a reasonable mind might accept to support the conclusion.” Barkley v. Astrue, No. 09-1163-JTM, 2010 WL 3001753, *1 (D. Kan. July 28, 2010) (citing Castellano v. Sec'y of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994)). In making this determination, the court must “neither reweigh the evidence nor substitute [its] judgment for that of the [Commissioner].” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting Casias v. Sec'y of Health & Human Servs., 933 F.3d 799, 800 (10th Cir. 1991)).

         A claimant is disabled if she suffers from a physical or mental impairment which stops her “from engaging in substantial gainful activity and is expected to result in death or to last for a continuous period of at least twelve months.” Brennan v. Astrue, 501 F.Supp.2d 1303, 1306-07 (D. Kan. 2007) (citing 42 U.S.C. § 423(d)). This impairment “must be severe enough that she is unable to perform her past relevant work, and further cannot engage in other substantial gainful work existing in the national economy, considering her age, education, and work experience.” Barkley, 2010 WL 3001753, *2 (citing Barnhart v. Walton, 535 U.S. 212, 217-22 (2002)).

         Pursuant to the Act, the Social Security Administration has established a five-step sequential evaluation process for determining whether an individual is disabled. Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010); see also 20 C.F.R. § 404.1520(a). The steps are designed to be followed in order. If it is determined at any step of the evaluation process that the claimant is or is not disabled, further evaluation is unnecessary. Barkley, 2010 WL 3001753, at *2. The first three steps require the Commissioner to assess: (1) whether the claimant has engaged in substantial gainful activity since the onset of the alleged disability; (2) whether the claimant has a severe, or combination of severe, impairments; and (3) whether the severity of those impairments meets or equals a designated list of impairments. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); see also Barkley, 2010 WL 3001753, *2 (citing Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988)). If the impairment does not meet or equal a designated impairment, the ALJ must then determine the claimant's residual functional capacity, which is the claimant's ability “to do physical and mental work activities on a sustained basis despite limitations from her impairments.” Barkley, 2010 WL 3001753, *2; see also 20 C.F.R. §§ 404.1520(e), 404.1545. Upon determining the claimant's residual functional capacity, the Commissioner moves on to steps four and five, which require a determination of whether the claimant can either perform his past relevant work or can perform other work that exists in the national economy. Barkley, 2010 WL 3001753, *2 (citing Williams, 844 F.2d at 751).

         The claimant bears the burden at steps one through four to prove a disability that prevents performance of her past relevant work. Lax, 489 F.3d at 1084. The burden then shifts to the Commissioner at step five to show that, despite the impairments, the claimant can perform other work in the national economy. Id. See Weir v. Colvin, No. 15-1300-JTM, 2016 WL 6164313, at *1-2 (D. Kan. Oct. 24, 2016). See Johnston v. Berryhill, No. 16-2342-JTM, 2017 WL 1738037, at *1-2 (D. Kan. May 4, 2017).

         II. Discussion

         A. Summary of ALJ ruling.

         Plaintiff was born in 1972, making her 40 years old as of June 6, 2012, the alleged onset date. The ALJ found that plaintiff was insured under the Act through March 31, 2013. At the first step of the sequential process, the ALJ found that although plaintiff had performed some work after the alleged onset date, it did not rise to the level of substantial gainful activity. At step two, the ALJ found plaintiff suffered from the following severe impairments: bilateral knee osteoarthritis; obesity; delusional disorder and schizophrenia, paranoid type; anxiety disorder; mood disorder and schizoaffective disorder. At step three, the ALJ determined that plaintiff's impairments did not meet or medically equal any of the impairments listed in the regulations.

         The ALJ next determined plaintiff's RFC, finding plaintiff could perform sedentary work as defined in the regulations, except she can rarely climb ramps and stairs (no more than one sixth of the workday); should avoid climbing ladders, ropes, and scaffolds; could occasionally balance and stoop but should avoid kneeling, crouching, and crawling; avoid concentrated exposure to vibration or even a moderate exposure to hazards including unprotected height and hazardous machinery; unable to traverse an upward incline; she will occasionally require the use of a cane; she can perform simple and some intermediate tasks not requiring complex or detailed independent planning or goal setting and involving no more than occasional, superficial interaction with the general public, coworkers, and supervisors; and she would do better working with things and data than with people.

         At step four of the sequential process, the ALJ determined plaintiff was unable to perform any of her past relevant work. Finally, at step five, the ALJ relied on the testimony of the vocational expert to find plaintiff could perform jobs that exist in significant numbers in the national economy, including bonder of electronic components, document preparer, and patcher (or wire wrapper). The ALJ thus determined that plaintiff was not disabled within the meaning of the Act.

         B. Whether plaintiff meets mental impairment listings.

         Plaintiff contends the ALJ erroneously found plaintiff's mental impairments did not meet or exceed the impairments listed in 20 C.F.R. § Pt. 404, Subpt. P, App. 1, specifically § 12.03 (schizophrenia and psychotic disorders), § 12.04 (depressive and bipolar disorders), and § 12.06 (anxiety and obsessive-compulsive disorders). Plaintiff argues the findings of psychologist T.A. Moeller, Ph.D., show that plaintiff had marked restrictions in social functioning and in maintaining concentration, ...

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