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Haugen v. Berryhill

United States District Court, D. Kansas

April 25, 2018

MARY HAUGEN, 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) pursuant to sections 216(i) and 223 of the Social Security Act, 42 U.S.C. §§ 416(i) and 423 (hereinafter the Act). Finding no error 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

         Plaintiff argues that the Administrative Law Judge (ALJ) erred when he accorded “the treating source opinion substantial weight, but then failed to include the limitations that opinion suggested.” (Pl. Br. 1) (issue 1). The court does not agree.

         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 she has a severe impairment(s), and whether the severity of her 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 her 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

         Plaintiff argues that:

the ALJ gave “significant weight” to opinions from Dr. Shah, [Ms.] Haugen's treating psychiatrist, Dr. Berg, an examining source, and Dr. R. E. Schulman, a non-examining source. (Tr. at 20). However, the ALJ failed to include many of the limitations within Dr. Shah's opinion. This omission demands a remand because the ALJ is responsible for formulating an RFC that include[s] all of Haugen's credible limitations, especially those more restrictive than what he assessed.

(Pl. Br. 8). She points to two limitations allegedly opined by Dr. Shah (that Plaintiff would be off task 10 percent of a workday and that she “would be unable to perform activities within a schedule, maintain regular attendance, and be punctual up to thirty percent of the time”) and argues that despite according significant weight to Dr. Shah's opinion and finding the opinion well supported and consistent with the evidence, he erred in failing to include these limitations in the RFC assessed. Id. at 8-9 (citing R. 579, 580). She argues that the ALJ explicitly found the opinion “well-supported” and “implicitly found the opinion consistent with other substantial evidence when he found it consistent with Dr. Berg's findings and other treatment notes.” Id. at 9. Consequently, she concludes that “the ALJ had no choice but to give controlling weight to Dr. Shah's opinion, ” and Dr. Shah's opinion “trumps” any differing opinion. Id. at 9-10. Plaintiff cites opinions from several courts of this District for the proposition that when an ALJ accords weight to a medical source opinion, does not accept the entire opinion, and fails to explain why he did not accept portions of the opinion, he has erred. (Pl. Br. 10-11) (citing Frakes v. Berryhill, CV 16-1066-JWL, 2017 WL 1354863, at *4 (D. Kan. Apr. 13, 2017); James v. Colvin, No. 13-1387-JWL, 2014 WL 6610308 (D. Kan. Nov. 20, 2014); Schmitt v. Colvin, No. 13-1129-SAC, 2014 WL 3519091, at *6-7 (D. Kan. July 16, 2014); Henderson v. Astrue, No. 11-2645-JWL, 2013 WL 141610, at *4 (D. Kan. Jan. 11, 2013); and Lodwick v. Astrue, No. 10-1394-SAC, 2011 WL 6253799, at *4 (D. Kan. Dec. 13, 2011)).

         In her brief, the Commissioner cites considerable record evidence which supports the decision of the ALJ, including the medical opinions of Dr. Shah, Dr. Berg, Dr. Locke, and Dr. Schulman. (Comm'r Br. 9-13). She then argues that “[t]o the extent Dr. Shah's opinion connotes further restrictions, the ALJ did not adopt such.” Id. a 13. She argues that the ALJ properly declined to afford controlling weight to Dr. Shah's opinion, and that the two ...


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