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Maldonado v. Berryhill

United States District Court, D. Kansas

March 28, 2018

ANDRES MALDONADO SR., 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) 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.

         I. Background

         On 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 inconsistency. Id.

         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 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. Id.

         The 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).

         The court finds no error in the ALJ's decision.

         II. 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 inconsistency.” Id.

         The 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.

         In his 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.

         Plaintiff 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, ...


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