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Turner v. Berryhill

United States District Court, D. Kansas

July 12, 2018

ELIZABETH WAGONER TURNER, Plaintiff,
v.
NANCY A. BERRYHILL, Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          JOHN W. BROOMES, UNITED STATES DISTRICT JUDGE

         This is an action for review of a final decision of the Commissioner of Social Security denying Plaintiff's claim for disability insurance benefits. The matter has been fully briefed and the court is prepared to rule. (Docs. 13, 14, 15.) For the reasons stated herein, the decision of the Commissioner is AFFIRMED.

         I. General Legal Standards

         The court's standard of review is set forth in 42 U.S.C. § 405(g), which provides that "the findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." The Commissioner's decision will be reviewed to determine only whether the decision was supported by substantial evidence and whether the Commissioner applied the correct legal standards. Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994). Substantial evidence requires more than a scintilla, but less than a preponderance, and is satisfied by such evidence that a reasonable mind might accept to support the conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). Although the court is not to reweigh the evidence, the findings of the Commissioner will not be mechanically accepted. Nor will the findings be affirmed by isolating facts and labeling them substantial evidence, as the court must scrutinize the entire record in determining whether the Commissioner's conclusions are rational. Graham v. Sullivan, 794 F.Supp. 1045, 1047 (D. Kan. 1992). The court should examine the record as a whole, including whatever in the record fairly detracts from the weight of the Commissioner's decision and, on that basis, determine if the substantiality of the evidence test has been met. Glenn, 21 F.3d at 984.

         The Commissioner has established a five-step sequential evaluation process to determine disability. 20 C.F.R. § 404.1520; Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010). If at any step a finding of disability or non-disability can be made, the Commissioner will not review the claim further. At step one, the agency will find non-disability unless the claimant can show that he or she is not working at a “substantial gainful activity.” Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988). At step two, the agency will find non-disability unless the claimant shows that he or she has a severe impairment. At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled. Id. at 750-51. If the claimant's impairment does not meet or equal a listed impairment, the agency determines the claimant's residual functional capacity (“RFC”). 20 C.F.R. § 404.1520(e). The RFC assessment is used to evaluate the claim at both step four and step five. 20 C.F.R. § 404.1520(a)(4); § 404.1520(f), (g). At step four, the agency must determine whether the claimant can perform previous work. If a claimant shows that she cannot perform the previous work, the fifth and final step requires the agency to consider vocational factors (the claimant's age, education, and past work experience) and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy. Barnhart v. Thomas, 124 S.Ct. 376, 379-380 (2003).

         The claimant bears the burden of proof through step four of the analysis. Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006). At step five, the burden shifts to the Commissioner to show that the claimant can perform other work that exists in the national economy. Id.; Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993). The Commissioner meets this burden if the decision is supported by substantial evidence. Thompson, 987 F.2d at 1487.

         II. History of Case

         Plaintiff filed an application for disability insurance benefits on January 4, 2013. (R. at 303.) She was 27 years old at the time of the application. She had previously (2007-2010) worked in a bank as an account associate. On July 29, 2016, ALJ Cynthia K. Hale denied Plaintiff's application. (R. at 34-48.) At step one, the ALJ determined Plaintiff had not engaged in substantial gainful activity from the alleged onset date, September 4, 2010, through the last date Plaintiff was insured under the Act, December 31, 2014. (R. at 36.) At step two, the ALJ found Plaintiff suffered from the following severe impairments: fibromyalgia, chronic fatigue, opiate dependence, anxiety disorder, depressive disorder, bipolar disorder, and marijuana dependence. (Id.) At step three, the ALJ found that none of Plaintiff's impairments, alone or in combination, met or medically equaled the severity of an impairment listed in the regulations. (R. at 37.)

         The ALJ proceeded to determine Plaintiff's RFC, concluding that Plaintiff could perform sedentary work as defined in 20 C.F.R. § 404.1567(a), except she needed to be able to alternate between sitting and standing every 30 minutes for a brief position change; she needed to avoid concentrated exposure to fumes, odors, and gases, avoid poor ventilation, and avoid anything more than moderation noise levels. She was limited to performing simple to intermediate work tasks with instructions, with no interaction with the general public, and only occasional interaction with coworkers; no constant motion or production-rate work tasks; and she required a low-stress work environment. (R. at 39.)

         At step four, the ALJ found Plaintiff was unable to perform any past relevant work. (R. at 46.) At step five, the ALJ found that, through the date Plaintiff was last insured, and considering Plaintiff's age, education, work experience, and RFC, there were jobs in significant numbers in the national economy that Plaintiff could perform, including Final Assembler (DOT 713.687-018), Document Preparer (DOT 249.587-018), and Administrative Support Worker (DOT 209.587-010). (R. at 47.) The ALJ thus found Plaintiff was not disabled within the meaning of the Social Security Act.

         III. Analysis

         A. RFC - physical impairments.

         Plaintiff argues the ALJ's physical RFC is unsupported by substantial evidence. (Doc. 13 at 24.) In particular, Plaintiff contends the ALJ erroneously rejected the opinion of Stewart Grote, D.O., a treating physician, based on the ALJ's misunderstanding of fibromyalgia and chronic fatigue syndrome. Plaintiff contends these impairments “will not be manifested in motor or neurological deficits, ” and the ALJ thus erred in rejecting Grote's opinion on grounds that his treatment notes “do not document any motor or neurological deficits reasonably consistent with his conclusions, ” or because Plaintiff may have had normal results on range-of-motion, strength, or cognitive function tests. (Id. at 24-25.) Plaintiff also challenges the ALJ's rejection of Grote's opinion for consisting of mere “checkbox forms, ” arguing the ALJ ignored Grote's treatment records showing the severity of Plaintiff's impairments. (Id. at 25.)

         “When analyzing a treating physician's opinion, an ALJ first considers ‘whether the opinion is well supported by medically acceptable clinical and laboratory diagnostic techniques and is consistent with the other substantial evidence in the record.'” Allman v. Colvin, 813 F.3d 1326, 1331 (10th Cir. 2016) (quoting Pisciotta v. Astrue,500 F.3d 1074, 1077 (10th Cir.2007)). If the opinion is well supported, the ALJ must give it controlling weight. Id. If the ALJ decides the opinion is not entitled to controlling weight, the ALJ ...


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