United States District Court, D. Kansas
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 Commissioner's final decision, the court
ORDERS that judgment shall be entered pursuant to the fourth
sentence of 42 U.S.C. § 405(g) AFFIRMING that decision.
December 15, 2015, Plaintiff applied for DIB. (R. 192). His
application was denied initially on February 22, 2016, and he
exhausted administrative proceedings before the Commissioner.
(R. 1, 16, 84, 98). Plaintiff now seeks judicial review of
the Commissioner's final decision denying benefits. (Doc.
1). He argues that although the ALJ afforded substantial
weight to the state agency psychologists' opinions, he
did not include a limitation corresponding to their opinion
regarding his inability to work in proximity to others. (Pl.
Br. 9) (citing R. 95, 111). He argues that therein the ALJ
erred by failing to include the limitation or explain 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 residual functional capacity (RFC). 20 C.F.R.
§ 404.1520(e). This assessment is used at both step four
and step five of the sequential evaluation process.
Commissioner next evaluates steps four and five of the
sequential process--determining at step four whether,
considering the RFC assessed, claimant can perform his 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 finds no error in the ALJ's decision.
Discussion and Analysis
Plaintiff points out that the state agency psychologists, Dr.
Wilkinson and Dr. Cohen, opined that he “is vulnerable
to becoming anxious or distracted working in proximity to
others and likely will need accommodations.” (Pl. Br.
9) (quoting R. 95, 111). He argues that the ALJ failed
“to include the limitation for working in proximity to
others” in his assessment of Plaintiff's RFC, but
that the record evidence supports the limitation.
Id. at 13. He argues this is so because he
“explained that being around too many people caused
anxiety, … that he was not comfortable in crowded
places anymore and that group sessions or therapies made him
feel ‘very anxious.'” Id. (citing R.
49, and quoting R. 307). Plaintiff points to the vocational
expert testimony “that if a person would be off task
more than 15% of the day due to anxiety from being in
proximity to others, there would be no jobs available.”
Id. at 14 (citing R. 59-60). He argues that
“[t]he ALJ's limitation to the amount of
interaction with others is insufficient to cover a limitation
to [Mr.] Maldonado's ability to work in proximity to
others and the ALJ should have clarified this
Commissioner argues that the ALJ's failure to include a
specific limitation on working in proximity to others does
not require remand. (Comm'r Br. 4). She argues that
reading the state agency consultants' opinions as a whole
reveals that despite vulnerability to anxiety or distraction
while working in proximity to others they opined that
Plaintiff would be able to work with only one limitation in
social interaction- occasional interaction. Id. She
points out that the state agency consultants' comment
regarding anxiety or distraction from working in proximity to
others did not specify a particular degree of limitation, and
did not say that Plaintiff would be off task 15% of a workday
as Plaintiff suggests based on his questioning of the
vocational expert. Id. at 5. And she argues that
Plaintiff cites no authority equating the consultants'
comment to an opinion that Plaintiff would be off task for
15% of a workday. Id. And, she argues that the
record evidence does not support such a limitation.
Id. at 5-7.
Reply Brief, Plaintiff argues that the Commissioner's
concern about lack of a specific functional limitation in the
consultants' comment is no more than an impermissible
post hoc rationalization, and if the ALJ found a lack of
specificity in the opinion he should have addressed and
resolved the issue. (Reply 1-2). He argues that since the
vocational expert testified that there are no jobs available
to an individual who is off task 15% of a workday, it was the
ALJ's duty to address that limitation and determine
whether the consultants' opinion reached that threshold
and explain why he did not accept it. Id. at 2-3. He
concludes once again that “[t]he ALJ's limitation
to the amount of interaction with others was inadequate to
cover a limitation in [Mr.] Maldonado's ability to work
in proximity to others.” Id. at 4.
is correct that it is an ALJ's duty to explain why he did
not adopt a medical opinion which conflicts with the RFC he
assessed. Social Security Ruling (SSR) 96-8p, West's Soc.
Sec. Reporting Serv., Rulings 150 (Supp. 2017). Moreover, he
must explain how any ambiguities and material inconsistencies
in the evidence were considered and resolved. Id. at
149. The problem with Plaintiff's argument is that he has
not shown that the opinion of the state agency psychological
consultants conflicts with the RFC assessed by the ALJ, ...