United States District Court, D. Kansas
DAVID W. OBERMEIER, 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) 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.
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
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; 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.
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).
court considers the issues in the order presented in
Plaintiff's Brief and finds no error in the ALJ's
Dr. Schemmel's Medical Opinion
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.
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.
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).
The ALJ's Evaluation of Dr. ...