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Booker v. Berryhill

United States District Court, D. Kansas

October 26, 2018

WESLEY BOOKER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          John W. Lungstrum United States District Judge.

         Plaintiff 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 error in the ALJ's consideration of the report and medical opinion of Dr. Berg, Ph.D., the court ORDERS that the Commissioner's final decision shall be reversed and that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) REMANDING the case for further proceedings consistent with this decision.

         I. Background

         Plaintiff argues that the Administrative Law Judge (ALJ) erred in her residual functional capacity (RFC) assessment because she “did not include all credible limitations in the RFC.” (Pl. Br. 7) (bolding omitted).

         The 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. 1988).

         The 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. 1989).

         The 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 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 process. Id.

         The 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).

         The court considers the issue as presented in Plaintiff's Brief.

         II. Discussion

         Plaintiff claims error “because the ALJ failed to assess an RFC that was consistent with the portions of Dr. Berg's opinion she found credible, … did not provide an explanation for choosing some limitations to include while discarding others, ” and consequently, “substantial evidence does not support the RFC” assessed. (Pl. Br. 7). He argues that although the ALJ accorded partial weight to Dr. Berg's opinion, she “did not provide an explanation for accepting some of the limitations while rejecting others.” Id. at 10. He argues that the step four finding that Plaintiff can do his past work as a housekeeper is not supported because “the ability to respond appropriately to supervision and coworkers is a basic demand of all unskilled work, ” id. at 12 (citing SSR (Soc. Sec. Ruling) 85-15), Dr. Berg opined that Plaintiff had a limited capacity to accommodate to the demands of superficial interpersonal interactions because of his psychotic symptoms and irritability, and the ALJ did not explain how that limitation was met or discounted. Id. at 11-12.

         The Commissioner argues, “Judicial review of the Commissioner's final decision under 42 U.S.C. § 405(g) is limited to whether the decision is supported by substantial evidence in the record as a whole.” (Comm'r Br. 5) (citing Cowan v. Astrue, 552 F.3d 1182, 1184-85 (10th Cir. 2008)). She argues that when the Commissioner's findings are supported by substantial evidence, they “are conclusive and must be affirmed.” (Comm'r Br. 5) (citing Perales, 402 U.S. at 401). The Commissioner argues that it is a claimant's burden to establish disability and Plaintiff did not sustain his burden. Id. She acknowledges that Plaintiff has “severe” schizophrenia, but argues that he did not establish that his mental limitations prevent him from engaging in substantial gainful activity. Id. at 6. She cites record evidence which in her view “provided substantial evidence supporting the Commissioner's decision.” Id. at 6-7. She argues that “the ALJ expressly acknowledged Dr. Berg's opinion, ” afforded it only partial weight, and “gave good reasons for the weight afforded Dr. Berg's opinion.” Id. at 8. She cites record evidence which, in her view justifies discounting portions of Dr. Berg's opinion. Id. at 8-9. She argues that although the record contains evidence contrary to the ALJ's RFC assessment, “the issue is not whether Plaintiff's position was supported by substantial evidence, but whether the ALJ's decision was so supported.” Id. at 9-10 (citing Perales, 402 U.S. at 401, and 42 U.S.C. § 405(g)) (emphasis in Pl. Br.). The Commissioner concludes that although the ALJ recognized Plaintiff has a severe mental impairment, she “reasonably concluded that such did not prevent a range of unskilled work based on favorable evidence of his functioning.” Id. at 10. She argues that the ALJ's RFC assessment was reasonable based upon evidence in the record, Social Security Rulings, and the Social Security Administration's interpretation of “a substantial loss of mental ability.” Id. at 10-11 (citing Program Operations Manual System (POMS) § DI 25020.010).

         The Commissioner argues that the ALJ “reasonably considered Plaintiff's subjective complaints in assessing his RFC.” (Comm'r Br. 12). She argues that the ALJ's finding that Plaintiff's allegations of symptoms are not entirely consistent with record evidence is supported by the record evidence. Id. at 12-13. She ends her argument, asserting “[t]he ALJ's decision was supported by substantial evidence, is a correct application of the law and regulations, and should be affirmed.” Id. at 13.

         In his Reply Brief, Plaintiff argues that the Commissioner's Brief “failed to address the central tenant [sic] of [Mr.] Booker's objection to the ALJ's decision.” (Reply 1). He points out that his argument was that the ALJ accorded partial weight to Dr. Berg's opinion but failed to accept all the limitations opined or to explain why they were discounted, and that the Commissioner did not address this error in her Brief. Id. at 1-2. He ends his brief by reminding the court that it “may not ...


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