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) 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.
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.
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.
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, 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
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 considers the issues presented in Plaintiff's Brief
and finds no error in the ALJ's decision.
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.
opinions are statements from physicians and psychologists or
other acceptable medical sources 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).
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.
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