United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE
Moyer applied for Disability Insurance Benefits (DIB) under
Title II of the Social Security Act, 42 U.S.C. §§
401-433 on September 20, 2013. The Commissioner of Social
Security denied her application upon initial review (Tr.
72-79) and on reconsideration (Tr. 101-08), and Moyer sought
review by an Administrative Law Judge (ALJ). Following a
hearing on June 1, 2015, ALJ Timothy Stueve determined that
Moyer was not disabled within the meaning of the Act. (Tr.
40-71). The decision of the Commissioner became final when
the Appeals Council declined Moyer's request for review.
(Tr. 1-3) on October 31, 2016. (Tr. 1-6).
then filed this appeal, raising three arguments. First, she
contends that, after receiving a post-hearing consultative
report by Abigail Blackman (M.D.), the ALJ should either have
sought clarification of Dr. Blackman's report, or
obtained a medical source statement from an alternative
source. She also argues that the ALJ erred in assessing her
residual functional capacity (RFC), and failed to properly
include all of her limitations when questioning a vocational
expert at the hearing. For the reasons provided herein, the
court finds that the Commissioner's decision was
supported by substantial evidence contained in the record,
and the decision of the Commissioner is affirmed.
Moyer was born on July 22, 1957, and has stated that she
became disabled on April 30, 2008, due to ailments - a
congenital pelvic kidney condition, pain in her back and
extremities, liver problems, hypertension, mild degenerative
joint disease in her left knee, asthma, and obesity. Moyer
was not gainfully employed after April 30, 2008, and was last
insured under the Act on December 31, 2013. She previously
worked as an account sales manager.
found that Moyer had an RFC which would permit her to lift
and carry 20 pounds occasionally and 10 pounds frequently.
She could stand or walk a total of six hours in an eight-hour
day, and sit up to six hours. She could occasionally climb
ramps or stairs, but never ladders, ropes, or scaffolds. She
can occasionally stoop, crouch and crawl. She can
occasionally tolerate exposure to atmospheric conditions as
defined in Appendix D of the Selected Characteristics of
Occupations. These restrictions arose from plaintiff's
asthma, obesity, and knee impairments.
determined that Moyer's kidney, liver, hypertension, and
reported pain were not severe impairments. The complaints of
pain were not documented in the medical record while she was
insured under the Act, and Moyer apparently never sought
treatment for it. (Tr. 30). Similarly, she has not sought
treatment for her kidney condition.
medical history taken on May 22, 2012 noted, with respect to
her left kidney, that “at one time she was told she
would need to have this removed, but she has done okay with
this so far, has not had anything checked in years.”
are also indications in the record that Moyer has been
diagnosed with hypertension and in August 2012 was found to
have elevated liver enzymes. However, the record does not
indicate permanent liver damage or show any abdominal imaging
to support such a conclusion. Moyer's blood pressure is
controlled with medication.
the Act, the court takes as conclusive the factual findings
of the Commissioner so long as these are “supported by
substantial evidence.” 42 U.S.C. § 405(g). The
court thus looks to whether those factual findings have such
support, and whether the ALJ applied the correct legal
standard. Lax v. Astrue, 489 F.3d 1080, 1084 (10th
Cir. 2007). “Substantial evidence” means
“more than a scintilla, but less than a preponderance;
in short, it is such evidence as a reasonable mind might
accept to support the conclusion.” Barkley v.
Astrue, 2010 WL 3001753, *1 (D. Kan. July 28, 2010)
(citing Castellano v. Sec'y of Health & Human
Servs., 26 F.3d 1027, 1028 (10th Cir. 1994)). In making
this determination, the court must “neither reweigh the
evidence nor substitute [its] judgment for that of the
[Commissioner].” Bowman v. Astrue, 511 F.3d
1270, 1272 (10th Cir. 2008) (quoting Casias v. Sec'y
of Health & Human Servs., 933 F.3d 799, 800 (10th
claimant is disabled if he or she suffers from “a
physical or mental impairment” which stops the claimant
“from engaging in substantial gainful activity and is
expected to result in death or to last for a continuous
period of at least twelve months.” Brennan v.
Astrue, 501 F.Supp.2d 1303, 1306-07 (D. Kan. 2007)
(citing 42 U.S.C. § 423(d)). This impairment “must
be severe enough that she is unable to perform her past
relevant work, and further cannot engage in other substantial
gainful work existing in the national economy, considering
her age, education, and work experience.”
Barkley, 2010 WL 3001753, at *2 (citing Barnhart
v. Walton, 535 U.S. 212, 217-22 (2002)).
to the Act, the Social Security Administration has
established a five-step sequential evaluation process for
determining whether an individual is disabled. Wilson v.
Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010); see
also 20 C.F.R. § 404.1520(a). The steps are
designed to be followed in order. If it is determined, at any
step of the evaluation process, that the claimant is or is
not disabled, further evaluation under a subsequent step is
unnecessary. Barkley, 2010 WL 3001753, at *2.
first three steps of the sequential evaluation require the
Commissioner to assess: (1) whether the claimant has engaged
in substantial gainful activity since the onset of the
alleged disability; (2) whether the claimant has a severe, or
combination of severe, impairments; and (3) whether the
severity of those impairments meets or equals a designated
list of impairments. Lax, 489 F.3d at 1084; see
also Barkley, 2010 WL 3001753, at *2 (citing
Williams v. Bowen, 844 F.2d 748, 751 (10th Cir.
1988)). If the impairment does not meet or equal one of these
designated impairments, the ALJ must then determine the
claimant's residual functional capacity, which is the
claimant's ability “to do physical and mental work
activities on a sustained basis despite limitations from her
impairments.” Barkley, 2010 WL 3001753, at *2;
see also 20 C.F.R. §§ 404.1520(e),
assessing the claimant's residual functional capacity,
the Commissioner moves on to steps four and five, which
require the Commissioner to determine whether the claimant
can either perform his or her past relevant work or whether
he or she can generally perform other work that exists in the
national economy, respectively. Barkley, 2010 WL
3001753, at *2 (citing Williams, 844 F.2d at 751).
The claimant bears the burden in steps one through four to
prove a disability that prevents performance of his or her
past relevant work. Lax, 489 F.3d at 1084. The
burden then shifts to the Commissioner at step five to show
that, despite his or her alleged impairments, the claimant
can perform other work in the national economy. Id.
conclusion of the hearing, counsel for plaintiff asked the
ALJ to consider approving a consultative examination to
supplement the record. The ALJ took the matter under
advisement, and later approved an examination which was
conducted on July 7, 2015 by Dr. Blackman, who issued a
report (Tr. 389-92) and a Medical Source Statement (Tr.
393-398). Moyer complains that the statement is ambiguous
because it contains modifications and alterations, and
suggests that the ALJ ...