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Gleue v. Berryhill

United States District Court, D. Kansas

January 12, 2018

LINDSEY M. GLEUE, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          John W. Lungstrum United States District Judge.

         Plaintiff 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 final decision.

         I. Background

         Plaintiff 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).

         The 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. 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, 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.

         The 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).

         The court addresses the alleged errors in the order presented in Plaintiff's Brief, and finds no error in the Commissioner's decision.

         II. Medical Opinions

         Plaintiff 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.

         The 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.

         In her 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.

         A. The ALJ's Evaluation of the Medical Opinions of Dr. Hatcher and ...


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