United States District Court, D. Kansas
MEMORANDUM AND ORDER
Kathryn H. Vratil, United States District Judge.
Robinson appeals the final decision of the Commissioner of
Social Security to deny her claim for disability insurance
benefits under Title II of the Social Security Act
(“SSA”), 42 U.S.C. § 401 et seq.
For reasons below, the Court affirms the judgment of the
August 29, 2014, plaintiff applied for disability insurance
benefits. See Transcript (hereinafter
“Tr.”) in Administrative Record (Doc.
#8) filed December 12, 2017 at 142-48. Upon initial review
and reconsideration, disability examiners denied her
application. Tr. 63-68, 70-75. On May 29, 2015, she requested
a hearing before an Administrative Law Judge
(“ALJ”). Tr. at 76-77. On October 18, 2016, ALJ
Michael D. Shilling heard her case. Tr. at 27-44. On December
16, 2016, the ALJ concluded that plaintiff did not have a
disability under the SSA. Tr. at 16-22. On August 7, 2017,
the Appeals Council denied plaintiff's request for review
of the ALJ decision, which for purposes of judicial review,
made it the final decision of the Commissioner. Tr. at 1-4;
See 20 C.F.R. § 422.210(a).
Court reviews the Commissioner's decision to determine
whether it is “free from legal error and supported by
substantial evidence.” Wall v. Astrue, 561
F.3d 1048, 1052 (10th Cir. 2009) (citation and quotation
marks omitted); see 42 U.S.C. § 405(g). The
substantial evidence standard requires “such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Wall, 561 F.3d at 1052;
Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).
The decision must be supported by “more than a
scintilla, but less than a preponderance [of the
evidence].” Wall, 561 F.3d at 1052;
Lax, 489 F.3d at 1084. The Court analyzes the
Commissioner's decision based on the record as a whole.
Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir.
1994). Evidence is not substantial if it is
“overwhelmed by other evidence in the record or
constitutes mere conclusion.” Grogan v.
Barnhart, 399 F.3d 1257, 1261-62 (10th Cir. 2005)
(citation and quotation marks omitted). When determining if
substantial evidence supports the decision, the Court does
not reweigh the evidence or retry the case, but examines the
record as a whole, including anything that undercuts or
detracts from the Commissioner's findings. Flaherty
v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007).
claimant bears the burden of proving disability.
Wall, 561 F.3d at 1062. To meet this burden, a
claimant must show she has a physical or mental impairment
which prevents her from engaging in any substantial gainful
activity, and which is expected to result in death or to last
for a continuous period of at least 12 months. Thompson
v. Sullivan, 987 F.2d 1482, 1486 (10th Cir. 1993)
(citing 42 U.S.C. § 423(d)(1)(A)).
Commissioner uses a five-step process to evaluate 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)). In the first
three steps, the Commissioner determines whether (1) a
claimant has engaged in substantial gainful activity since
the alleged onset; (2) a claimant has a severe medically
determinable impairment or combination of impairments; and
(3) the severity of any impairment is equivalent to one of
the listed impairments that are so severe as to preclude
substantial gainful activity. See Williams, 844 F.2d
at 750-51; 20 C.F.R. § 404.1520(a), (c), (d). If a
claimant satisfies these three steps, the Commissioner will
automatically find her disabled. If a claimant satisfies
steps one and two but not three, the analysis proceeds to
four, the ALJ makes specific factual findings regarding a
claimant's abilities in three phases, determining (1) the
claimant's physical and mental residual functioning
capacity (“RFC”), (2) the physical and mental
demands of past relevant work and (3) whether, given her RFC,
she can meet the demands of relevant employment. See
Winfrey v. Chater, 92 F.3d 1017, 1023-25 (10th Cir.
1996); Henrie v. U.S. Dep't of Health & Human
Servs., 13 F.3d 359, 361 (10th Cir. 1993). If a claimant
satisfies step four, i.e. if she shows that she is
not capable of performing past relevant work, the burden
shifts to the Commissioner to establish at step five that the
claimant is capable of performing other work in the national
economy. Williams, 844 F.2d at 750-51
asserts that her disability began in September 20, 2008, and
she was last insured on December 31, 2013. Tr. at 45. Thus,
the relevant period of alleged disability is from September
20, 2008 through December 31, 2013. Tr. at 45. She has
alleged the following conditions: pulmonary embolism, blood
clots in her lungs and legs, TMJ, gastroesophageal reflux
disease (“GERD”), depression, anxiety,
hypertension and difficulty breathing. Tr. at 45-46.
is 56 years old, five feet, eight and a half inches tall, and
weighs 248 pounds. Tr. at 31, 142. On March 5, 2008, she went
to Holton Hospital after experiencing left calf pain, chest
heaviness and trouble breathing. Tr. at 248. After initial
tests revealed a blood clot in her left leg, plaintiff went
to St. Francis Hospital to receive in-patient treatment. Tr.
at 248. At St. Francis, Dr. Samuel Y. Ho diagnosed her with
pulmonary emboli, chronic obstructive pulmonary disease and
deep vein thrombosis. Tr. at 260-61. She received in-patient
treatment for four days. Tr. at 260-61. Upon discharge, Dr.
Vance R. Lassey prescribed her Coumadin, a blood thinner. Tr.
her hospitalization, plaintiff began follow-up treatment with
Dr. Lassey. Tr. at 238, 240-41, 243, 247. On March 12, 2008,
he opined that plaintiff could not return to work because she
still had symptoms from her pulmonary embolism, such as chest
pains and shortness of breath. Tr. at 247. Five days later,
Dr. Lassey again advised her to not return to work because of
these lingering symptoms. Tr. at 243. Although he noted
progress throughout March, plaintiff's post-embolism
symptoms persisted. Tr. at 238, 241, 243, 247. On April 2,
2008, Dr. Lassey opined that she “was making steady
improvement” and would likely be able to return to work
in two to four weeks. Tr. at 240. He also stated that her
symptoms will “slowly improve . . . over the coming
weeks to months” and asked plaintiff to explore
“light duty” work options. Tr. at 240, 243. On
April 7, 2008, Dr. Lassey allowed plaintiff to return to work
for five hours per day. Tr. at 236-39.
April 22, 2008, plaintiff told Dr. Lassey that she felt
faint, shaky, lightheaded, anxious and heartburn. Tr. at
236-37. At the same visit, plaintiff stated recent family
issues had increased her stress levels. Tr. at 236-37. Dr.
Lassey noted that she no longer experienced pulmonary emobli
symptoms but recommended that she see a cardiologist. Tr. at
237. On June 24, 2008, plaintiff reported shortness of breath
upon exertion, mild chest discomfort and mild numbness and
tingling sensations in her fingertips. Tr. at 234-35.
Plaintiff also expressed concern about possible interaction
between Prozac, for which she recently received a
prescription, and Coumadin. Tr. at 234-35. Dr. Lassey noted
that her deep vein thrombosis and pulmonary emboli could be
causing these new symptoms. Tr. at 234-35. He advised that
she take the rest of the week off work, start taking Prozac
and continue taking Coumadin. Tr. at 234-35. Notably, the
foregoing events occurred months before plaintiff's
alleged period of disability, which began in September of
2008. Tr. at 45.
January 20, 2010, plaintiff reported pain and numbness in her
left leg. Tr. at 321. Tests revealed no abnormalities or
evidence of venous insufficiency. Tr. at 321. Throughout the
remainder of 2010, plaintiff visited the Holton Family Health
Clinic regularly for check-ups and did not report pain or
numbness in her left leg. Tr. at 278-97. In May of 2011 and
July of 2012, plaintiff visited the doctor for persistent
coughing. Tr. at 319-20. On July 23, 2012, tests revealed
partial atelectasis (a partial collapse of a lung or lobe in
the lungs) but no pulmonary emboli or acute abnormalities.
Tr. at 278, 319.
2012 and early 2013, plaintiff reported multiple episodes of
chest pain and trouble breathing. Tr. at 277, 322-24, 377. In
March of 2013, plaintiff reported to a physician assistant
under the supervision of Dr. David Allen that she had
numbness on her left side and chest pains. Tr. at 324-25. The
physician assistant ordered a head CT and an EKG, which
revealed results consistent with “residual of previous
sinus disease.” Tr. at 325, 344. Both tests were
otherwise negative. Tr. at 325, 344. On April 10, 2013, the
physician assistant noted that the numbness had
“resolved without recurrence.” Tr. at 322;
see tr. at 330 (describing “a[ two-week]
episode” of numbness). That same day, Dr. Gilbert Katz,
a cardiologist, ran multiple exams. He concluded that
“it is unclear what her symptoms represent, ”
recommended that plaintiff seek pulmonary and neurological
evaluations and planned to follow up with plaintiff in two to
three months. Tr. at 330.
of 2013, plaintiff saw a pulmonary specialist regarding her
shortness of breath. Tr. at 352. At this appointment, she
reported left-side numbness, vision issues, fatigue and
headaches. Tr. at 352. After a “fairly extensive
cardiac workup, ” the specialist opined that pulmonary
hypertension or chronic pulmonary disease did not cause her
symptoms. Tr. at 349-50. He noted that plaintiff had gained
approximately 70 pounds in three years and smoked seven to
eight cigarettes a day. ...