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Ong v. Berryhill

United States District Court, D. Kansas

May 4, 2018

DAVID ONG, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff seeks review of a decision of the Acting Commissioner of Social Security (hereinafter Commissioner) denying Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) benefits pursuant to sections 216(i), 223, 1602, and 1614(a)(3)(A) of the Social Security Act, 42 U.S.C. §§ 416(i), 423, 1381a, and 1382c(a)(3)(A) (hereinafter the Act). Finding no error, 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.

         I. Background

         Plaintiff argues that the Administrative Law Judge (ALJ) erred in finding his condition does not meet or medically equal Listing 12.02, Organic Mental Disorders, and that she erred in weighing the medical opinions of Mr. Keough, M.A., Ms. Epperson, M.S., Dr. Poje, and Dr. Israel, all psychologists licensed in the states of Missouri or Kansas.

         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 she 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, 416.920; 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), 416.920(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 considers the issues presented in Plaintiff's Brief and finds no error in the ALJ's decision.


         Plaintiff's argument that the ALJ erred in evaluating his impairments pursuant to Listing 12.02 is based on his testimony, on the opinions of Mr. Keough, Ms. Epperson, and Dr. Poje, and on the lay opinions of his friend and his sisters. (Pl. Br. 13-17). Thus, Plaintiff's Listing argument rests on whether the ALJ properly discounted Plaintiff's testimony and properly weighed the opinion evidence. The ALJ found that Plaintiff's statements regarding his symptoms “are not entirely credible.” (R. 19). He made this finding because Plaintiff's “activities of daily living are inconsistent with his allegations, ” his “treatment has been routine, infrequent, and conservative, . . . [and] he has not been entirely compliant with recommended treatment and medication, ” id. at 20, he worked only sporadically before his alleged onset of disability, and the medical records reveal inconsistencies, and “apparent malingering.” (R. 20). Plaintiff makes no argument that the ALJ erred in his findings in this regard, and the record evidence supports those findings. It was proper for the ALJ to discount Plaintiff's allegations of symptoms.

         “Medical opinions are statements from physicians and psychologists or other acceptable medical sources[1] that reflect judgments about the nature and severity of [a claimant's] impairment(s) including [claimant's] symptoms, diagnosis and prognosis.” 20 C.F.R. '' 404.1527(a)(2), 416.927(a)(2). Such opinions may not be ignored and, unless a treating source opinion is given controlling weight, all medical opinions will be evaluated by the Commissioner in accordance with factors contained in the regulations. Id. '' 404.1527(c), 416.927(c); Soc. Sec. Ruling (SSR) 96-5p, West's Soc. Sec. Reporting Serv., Rulings 123-24 (Supp. 2017). Here, Plaintiff does not argue that there is a treating source opinion which was worthy of controlling weight or even deference, and the medical opinions at issue here are the opinions of nontreating sources who examined Plaintiff and provided a report of that examination, except for the opinion of Dr. Isenberg, a state agency consultant psychologist, a nonexamining source who reviewed the record, including the reports of Mr. Keough and Dr. Israel, and provided his opinion. (R. 22-24). The ALJ also considered and weighed the opinions of Ms. Caldwell, Ms. Siverinac, and Plaintiff's sisters, Ms. Marks, an Ms. Pettus. (R. 23-25).

         The ALJ afforded partial weight to the opinion of Mr. Keough because although she found Mr. Keough's opinion “somewhat consistent with the weight of the evidence, ” she found that Mr. Keough's opinions regarding “marked limitations are not supported by the claimant's mental status examinations, ” and “are not consistent with the claimant's tendency to over-report his problems.” (R. 22). In arguing that the ALJ erred in weighing the medical opinions, Plaintiff summarizes Mr. Keough's opinion and argues that it is “mutually supportive” with the opinions of Ms. Eperson and Dr. Poje, but he does not show any error in the ALJ's reasons for discounting Mr. Keough's opinion. Those reasons are supported by the record evidence, and the court may not substitute its judgment for that of the ALJ.

         Dr. Israel also examined Plaintiff and issued a report of that examination. (R. 410-13). The ALJ afforded significant weight to Dr. Israel's opinion, focusing primarily on Plaintiff's ...

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