United States District Court, D. Kansas
LINDSEY M. GLEUE, Plaintiff,
NANCY A. BERRYHILL,  Acting Commissioner of Social Security, Defendant.
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 August 13, 2012. (R. 11, 207, 213). Plaintiff
exhausted proceedings before the Commissioner, and now seeks
judicial review of the final decision denying benefits. She
argues that the ALJ erred in evaluating the medical opinions
of her psychiatrist, Dr. Hatcher, and of the state agency
psychologists; in evaluating the third party opinion of her
mother; in evaluating the credibility of her allegations of
disabling symptoms; and consequently also erred in assessing
her residual functional capacity (RFC).
court's review is guided by the Act. Wall v.
Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Section
405(g) of the Act provides that in judicial review
“[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
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.
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 her 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 addresses the alleged errors in the order presented in
Plaintiff's Brief, and finds no error in the
claims the reasons given by the ALJ for discounting Dr.
Hatcher's opinion are erroneous. (Pl. Br. 25-27). She
claims the ALJ erred in according significant weight to the
state agency psychologists' opinions because those
psychologists did not have all of the record medical evidence
in front of them. Id. at 28. She argues that
although the ALJ found the state agency psychologists'
opinion supported by certain healthcare providers'
opinion that Plaintiff needed vocational training, that fact
is also supportive of a finding that Plaintiff is currently
unemployable. Id. Finally, she argues that she
received a vocational rehabilitation assessment report after
the ALJ decision which was presented to, and admitted into
the administrative record by the Appeals Council, which
reveals that Plaintiff is limited to part-time work and
demonstrates the error of the ALJ's according significant
weight to the state agency psychologists' opinions.
Id. at 28-29.
Commissioner argues that in appropriate circumstances the
opinions of state agency psychologists may be entitled to
greater weight than the opinions of treating sources, and
that because it is the ALJ's duty to review the evidence,
assess RFC, and make the decision regarding disability, he is
entitled to rely on such opinions even if the state agency
psychologists did not have all of the evidence available to
review. (Comm'r Br. 12). And, she argues that the
ALJ's determination to accord significant weight to the
state agency psychologists' opinions is supported by the
record evidence. (Comm'r Br. 12-13). She argues that the
reasons given to discount Dr. Hatcher's opinion are
within the province of the ALJ and are supported by the
record evidence. Id. at 13-18.
Reply Brief, Plaintiff once again argues that the ALJ
accorded “inadequate weight to Dr. Hatcher's
opinions, ” and explains why, in her view, the evidence
better supports a finding of disability than the ALJ's
finding that the state agency psychologists' opinions
should be accorded greater weight than Dr. Hatcher's
opinion. (Reply 2-7). Plaintiff argues once again that the
vocational assessment report completed after the ALJ's
decision in this case contradicts the state agency
psychologists' opinions and the ALJ's reliance on
those opinions. Id. at 7. Finally, she argues that
it is not clear that the Appeals Council considered the
vocational assessment properly, and that had it done so it
“would have found the assessment is substantial
evidence further refuting the ALJ's flawed RFC finding
and being [sic] another basis for it [(the ALJ's RFC
assessment)] not being supported by the record.”
Id. at 9.
The ALJ's Evaluation of the Medical Opinions of Dr.
Hatcher and ...