United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. Lungstrum United States District Judge
appearing pro se,  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.
asserts that she is disabled and she can barely walk without
pain in her knees and lower back.
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 Administrative Law Judge's (ALJ)
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, 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
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), 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 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).
filed this case against the Commissioner, alleging
jurisdiction founded in 28 U.S.C. § 1343 because of
violation of her civil rights, and claiming the Commissioner
wrongly denied her applications for disability benefits.
(Doc. 1). Plaintiff made a second claim against the
Commissioner pursuant to the Americans with Disabilities Act,
id., which was dismissed on November 2, 2017. (Doc.
15). She argues that she “has the right to have her
disability insurance benefits, ” and the Social
Security Administration (hereinafter SSA) has denied her that
fundamental right. (Pl. Br. 2). In Plaintiff's motion for
hearing (Doc. 14) she suggests that the SSA denied her due
process in that it did not hear her evidence, it was
unreasonable, and it overlooked her evidence. (Doc. 14, p.2).
She argues that she cannot be employed because she is a
liability to any employer due to her use of a cane.
Id. And, she argues that the denial of her
disability benefits is unconstitutional. Id. She has
attached an operative report from her total left knee
replacement surgery performed on May 8, 2017. Id. at
4-5. Plaintiff also filed a “Motion for
Reconsideration” on October 31, 2017, in which she
asserts she “deserves relief, ” and
“deserves social security disability income, ”
and “prays for mercy and any other relief the Court
deems fit.” (Doc. 18, p.2). To this motion, Plaintiff
also attached the operative report discussed above and nine
additional pages of medical records for the court's
consideration. Id. at 5-13.
Commissioner filed her Brief on December 22, 2017, and argues
primarily that Plaintiff failed to develop arguments of error
in the ALJ's decision and thereby “waived review of
the Commissioner's final decision.” (Doc. 21, p.4).
In her secondary argument, the Commissioner argues that the
ALJ properly evaluated the opinion evidence and his RFC
assessment is supported by substantial evidence. Id.
at 4-7. Finally, she argues that the ALJ properly evaluated
Plaintiff's allegations of disabling symptoms.
Id. at 7-8.
Jurisdiction and Due Process
suggestion that the court has jurisdiction over this case
pursuant to 28 U.S.C. § 1343 is erroneous. Plaintiff
points to no authority for the proposition that the receipt
of disability benefits is a civil right, fundamental or
otherwise. Moreover, the Social Security Act, 42 U.S.C.
§ 405(h), provides that “No findings of fact or
decision of the Commissioner of Social Security shall be
reviewed by any person, tribunal, or governmental agency
except as herein provided.” Nonetheless, this court has
jurisdiction over this case because, as noted above, the Act
provides for judicial review of “any final decision of
the Commissioner of Social Security made after a
hearing” to which the Plaintiff was a party. 42 U.S.C.
§ 405(g) (sentence one).
the court finds that Plaintiff was not denied her due process
rights. “Social security hearings are subject to
procedural due process considerations.” Yount v.
Barnhart, 416 F.3d 1233, 1235 (10th Cir. 2005). “A
claimant whose application for such benefits is denied is
entitled to ‘reasonable notice and opportunity for a
hearing with respect to such decision.'”
Allison v. Heckler, 711 F.2d 145, 147 (10th Cir.
1983) (quoting 42 U.S.C. § 405(b)(1)). However, the
record in this case reveals that Plaintiff received both
notice and a hearing before the ALJ, and exhausted her
administrative review procedures before the Commissioner. She
does not explain in any manner how that process was
constitutionally deficient, and the court finds ...