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Schlein v. Berryhill

United States District Court, D. Kansas

November 19, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff 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 error in the Administrative Law Judge's (ALJ) evaluation of the state agency psychologist's and psychiatrist's opinions, 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 ALJ erred when he afforded “considerable weight” to the opinions of the state agency consultants, Dr. Smith, PsyD., and Dr. Martin, M.D., but did not include their prohibition of frequent changes in routine in the residual functional capacity (RFC) assessed and did not explain why he did not include that limitation. (Pl. Br. 12).

         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. 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; 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 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.

         The 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).

         The court considers the issue of the state agency consultants' opinions as presented in Plaintiff's Brief. The court notes that Plaintiff also claimed “[t]he ALJ did not adequately evaluate [Ms.] Schlein's symptoms in this case” (Pl. Br. 21), but the Commissioner argues this discussion was “entirely to support her argument that the ALJ erred by not incorporating an adaptation limitation from the State agency psychologists' [sic] opinions.” (Comm'r Br. 4, n.5). Because the decision must be remanded, the court need not consider this additional issue. Plaintiff may make any argument she desires in this regard to the Commissioner on remand.

         II. Discussion

         Plaintiff argues the ALJ erred by affording considerable weight to Dr. Smith's and Dr. Martin's opinions but failing to resolve the conflict between those opinions and the mental RFC assessed. She argues, “the ALJ's mental RFC differed from the opinions in the ability to adapt, and the ALJ failed to explain why he omitted” that limitation. (Pl. Br. 13). Plaintiff argues that although the ALJ failed to explain three differences between the doctor's opinions and the RFC assessed, the failure was harmless as to two of the differences but not as to the ability to adapt because the ability to deal with changes in a routine work setting is a basic work activity necessary even in unskilled work. Id. at 15- 17. Plaintiff also points out that her treating physician, Dr. Davis, opined that she is markedly limited in the ability to respond appropriately to changes in the work setting, and her treating psychologist, Dr. Rosenak, opined that she is extremely limited in this ability. (Pl. Br. 19).

         The Commissioner argues that even if an explicit adaptation limitation is necessary in this case, the error would be harmless because the representative jobs of which the ALJ found Plaintiff is capable are unskilled jobs, involving only repetitive or short-cycle work, and would not require frequent changes in routine. (Comm'r Br. 4-6). She asserts that “Plaintiff acknowledges that the jobs identified at step five can ‘accommodate' alleged problems with the RFC.” Id. at 4 (citing Pl. Br. at 15). She argues that the ALJ's narrative discussion was sufficient in the circumstances. Id. at 7.

         In her Reply Brief, Plaintiff argues that she conceded harmless error as to certain of the differences between the state agency consultants' opinions and the RFC assessed, but not as to the inability to adapt to frequent changes in routine. (Reply 2). She argues that the Commissioner's Brief relies only on her unsupported interpretation of the job descriptions at issue and provides no support for her assertions that unskilled, repetitive, or short-cycle work never involves frequent changes in routine.

         A. Standard ...

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