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 his
residual functional capacity (RFC) assessment, failed his
duty to develop the record, erroneously rejected
Plaintiff's allegations of symptoms, and failed to
consider properly the Medical-Vocational Guidelines (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
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. 1989).
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
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). This
assessment is used at both step four and step five of the
sequential evaluation process. Id.
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).
court considers the issues in the order presented in
Plaintiff's Brief, except it first considers
Plaintiff's claim the ALJ failed his duty to develop the
Duty to Develop the Record
single paragraph, Plaintiff claims error because the ALJ
failed to secure a medical opinion regarding Plaintiff's
physical and mental abilities from a treating or examining
source. (Pl. Br. 16-17). He argues, “The ALJ is
precluded from relying on his own ‘medical
expertise' in establishing the RFC.” Id.
at 16 (citing Kemp v. Bowen, 186816 F.2d 1469, 1476
(10th Cir. 1987)).
Commissioner “has broad latitude in ordering
consultative examinations.” Hawkins v.
Chater, 113 F.3d 1162, 1166 (10th Cir. 1997).
The ALJ has a basic obligation in every social security case
to ensure that an adequate record is developed during the
disability hearing consistent with the issues raised. This is
true despite the presence of counsel, although the duty is
heightened when the claimant is unrepresented. The duty is
one of inquiry, ensuring that the ALJ is informed about facts
relevant to his decision and learns the claimant's own
version of those facts.
Henrie v. U.S. Dep't of Health & Human
Servs., 13 F.3d 359, 360-61 (10th Cir. 1993) (citations,
quotations, and brackets omitted). Further, under 20
C.F.R.' 404.1512(e), “[w]hen the evidence [the
agency] receive[s] from [a claimant's] treating physician
or psychologist or other medical source is inadequate for
[the agency] to determine whether [the claimant is] disabled,
[the agency] will need additional information to reach a
determination or a decision.”
Cowan v. Astrue, 552 F.3d 1182, 1187 (10th Cir.
court finds no error in this regard. Plaintiff has not
demonstrated that the ALJ in this case was uninformed
regarding the facts in the case, or regarding Plaintiff's
own version of those facts as required by Henrie.
Moreover, he has not shown that the record evidence is
inadequate to determine whether Plaintiff is disabled. The
cases cited by Plaintiff do not require a different result.
In Kemp, “there was not even evidence from a
consulting physician retained by the agency to contradict the
medical diagnosis, findings, and conclusions of her treating
physician.” Kemp, 816 F.2d at 1476. Here, on
the other hand, there are opinions from state agency
consulting physicians and psychologists and there are reports
from both a physician and a psychologist who examined
Plaintiff, and there is no medical opinion from a treating
physician or psychologist which is contrary to the opinions
relied upon or to the RFC assessed by the ALJ. In Baker
v. Barnhart, 84 Fed. App'x 10, 14 (10th Cir. 2003),
“the only document in the record that could conceivably
support [the ALJ's] conclusion [wa]s a checkmark-style
RFC assessment done by an agency medical consultant.”
Here, there is much more upon which the ALJ could, and did,
rely to make an RFC assessment.