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) 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, 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
evaluating her subjective statements. She seeks remand for
further administrative proceedings.
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.
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; 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.
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).
court considers the issue as presented in Plaintiff's
Brief and finds no error in the ALJ's decision.
sole claim of error is that “[t]he ALJ's analysis
of Ms. Barlow's subjective statements was legally flawed
and not supported by substantial evidence.” (Pl. Br.
11) (bolding omitted). She argues that although the ALJ's
evaluation of her subjective statements “certainly
touched on several of the relevant factors” provided by
case law and the regulations, “nothing [in the
decision] actually constituted a legally sufficient
explanation, supported by substantial evidence, indicating
why the evidence as applied to those factors supported
discounting [Plaintiff's] allegations regarding her
physical impairments during the period at issue.”
Id. at 14 (citing Kepler v. Chater, 68 F.3d
387, 390-91 (10th Cir. 1995)). Plaintiff then explains her
view of the evidence and how it supports a finding that her
allegations were credible. Id. at 15-17.
Commissioner argues that the ALJ's evaluation of
Plaintiff's subjective symptoms was in accordance with
the regulations and is supported by substantial evidence. She
argues that assessment of symptom allegations by ALJs
“warrant particular deference” because of their
institutional advantage in such assessments. (Comm'r Br.
6-7) (quoting White, 287 F.3d at 910). Finally, she
explains how, in her view, the record evidence supports the
ALJ's determination, id. at 8-13, and argues
that even if Plaintiff's testimony is given greater
weight, as the ALJ found she has not shown symptoms of
disabling severity lasting twelve or more consecutive months
as required for a finding of disability. (Comm'r Br. 12).
court's review of an ALJ's credibility determinations
is deferential. They are generally treated as binding on
review. Talley v. Sullivan, 908 F.2d 585, 587 (10th
Cir. 1990); Broadbent v. Harris, 698 F.2d 407, 413
(10th Cir. 1983). “Credibility determinations are
peculiarly the province of the finder of fact” and will
not be overturned when supported by substantial evidence.
Wilson, 602 F.3d at 1144; accord Hackett,
395 F.3d at 1173. Therefore, in reviewing the ALJ's
credibility determinations, the court will usually defer to
the ALJ on matters involving witness credibility. Glass
v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994).
“However, ‘[f]indings as to credibility should be
closely and affirmatively linked to substantial evidence and
not just a conclusion in the guise of findings.'”
Wilson, 602 F.3d at 1144 (quoting Huston v.
Bowen, 838 F.2d 1125, 1133 (10th Cir. 1988));
Hackett, 395 F.3d at 1173 (same).
Tenth Circuit has explained the analysis for considering
subjective testimony regarding symptoms. Thompson v.
Sullivan, 987 F.2d 1482, 1488 ...