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Obermeier v. Berryhill

United States District Court, D. Kansas

February 15, 2018

DAVID W. OBERMEIER, Plaintiff,
v.
NANCY A. BERRYHILL, 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)[1] under sections 216(i) and 223 of the Social Security Act. 42 U.S.C. §§ 416(i) and 423 (hereinafter the Act). Finding no error as alleged by Plaintiff 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, alleging disability beginning March 15, 2013. (R. 20, 147). Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. He argues that the ALJ erred in discounting the medical opinion of the consultative psychologist, Dr. Schemmel, and that the mental residual functional capacity (RFC) assessed is not supported by the evidence.

         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; 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 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 whether, in light of the RFC assessed, claimant can perform his past relevant work; and 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 considers the issues in the order presented in Plaintiff's Brief and finds no error in the ALJ's decision.

         II. Dr. Schemmel's Medical Opinion

         Plaintiff argues that it is unclear what actual weight was accorded Dr. Schemmel's opinion, that no record medical opinion contradicts Dr. Schemmel's medical opinion, and the ALJ's finding of inconsistencies “is confusing at best.” (Pl. Br. 11). He argues that it “is disingenuous” for the ALJ to “attempt to disregard Dr. Schemmel's opinion [as] a one-time evaluation and [as conflicting] with the medical evidence of record” because it “is the only mental health evaluation of record, ” and “[c]onsequently, there is no substantial medical evidence that supports the ALJ's mental residual functional capacity findings, ” but the hearing testimony of the plaintiff and his sister fully support Dr. Schemmel's opinion. Id. at 12. Plaintiff points out that the ALJ stated at the hearing that he would attempt to obtain the records of Plaintiff's emergency room visit after his suicide attempt, but argues that “[t]here is no evidence that the ALJ attempted to obtain any additional medical records.” Id. at 13.

         The Commissioner argues that the ALJ properly weighed Dr. Schemmel's opinions and explained the portions of those opinions he accepted, those he did not, and the reasons for his determination. (Comm'r Br. 7). She argues that Plaintiff's reliance upon less favorable evidence is misplaced because the question is whether the ALJ's view of the evidence is supported by record evidence, not whether the evidence might also support a different view. (Comm'r Br. 8). She argues that the ALJ's securing a consultative examination to develop the record does not defeat the need to evaluate the evidence thereby obtained, nor require him to accept the opinions of the consultative examiner. Id. at 10.

         In his Reply Brief, Plaintiff argues that there is no record medical evidence contrary to Dr. Schemmel's opinion, that the Commissioner points to no better or more thorough medical evidence supporting the ALJ's mental RFC, and the ALJ erroneously “relied on his own assessment and interpretation of the medical records.” (Reply 1-2).

         A. The ALJ's Evaluation of Dr. ...


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