United States District Court, D. Kansas
BARRY A. BENNETT, Plaintiff,
NANCY A. BERRYHILL, Commissioner of Social Security Administration, Defendant.
MEMORANDUM AND ORDER
KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE.
A. Bennett appeals the final decision of the Commissioner of
Social Security to partially grant disability benefits under
Title II of the Social Security Act (“SSA”), 42
U.S.C. § 401 et seq. and supplemental security
income benefits under Title XVI of the SSA, 42 U.S.C. §
1381 et seq. For reasons stated below, the Court
affirms the Commissioner's decision.
April 22, 2010, plaintiff filed applications for disability
insurance and supplemental security income benefits, alleging
that he became disabled on January 1, 2009. The State agency
denied plaintiff's claims initially and on
reconsideration. On January 5, 2012, an Administrative Law
Judge (“ALJ”) issued a decision finding that
plaintiff was not disabled and denying benefits. Tr. 119. On
November 9, 2012, the Appeals Council issued a decision
remanding the case back to the ALJ for further hearing. Tr.
137. On September 3, 2013, a second ALJ issued a decision
finding that plaintiff was not disabled and denying benefits.
Tr. 23. On August 21, 2014, the Appeals Council declined
review of that decision. Tr. 6. Plaintiff then sought
judicial review. On January 27, 2016, District Judge Sam A.
Crow issued an order reversing the Commissioner's
decision and remanding for further hearing. See Bennett
v. Colvin, 2016 WL 320218, at *7 (D. Kan. Jan. 27,
September 20, 2017, pursuant to Judge Crow's remand
order, a third ALJ issued the decision presently before the
Court. Tr. 701. The ALJ found that based on the application
for a period of disability and disability insurance benefits
filed on April 22, 2010, plaintiff was not disabled under
Sections 216(i) and 223(d) of the SSA through June 30, 2014,
the date last insured. Tr. 720. Based on the application for
supplemental security income protectively filed on April 22,
2010, the ALJ found that under Section 1614(a)(3)(A) of the
SSA plaintiff has been disabled since December 1, 2016, when
he became an individual of advanced age. Id.
Plaintiff appeals to this Court the final decision of the
Court reviews the Commissioner's decision to determine
whether it is “free from legal error and supported by
substantial evidence.” Wall v. Astrue, 561
F.3d 1048, 1052 (10th Cir. 2009); see 42 U.S.C.
§ 405(g). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Lax v. Astrue, 489 F.3d
1080, 1084 (10th Cir. 2007) (citation omitted). It requires
“more than a scintilla, but less than a
preponderance.” Id. Evidence is not
substantial if it is “overwhelmed by other evidence in
the record or constitutes mere conclusion.” Grogan
v. Barnhart, 399 F.3d 1257, 1261-62 (10th Cir. 2005). To
determine if the decision is supported by substantial
evidence, the Court will not reweigh the evidence or retry
the case, but will examine the record as a whole, including
anything that may undercut or detract from the
Commissioner's findings. Flaherty v. Astrue, 515
F.3d 1067, 1070 (10th Cir. 2007).
For Analyzing Claims Of Disability
bears the burden of proving disability under the SSA.
Wall, 561 F.3d at 1062. Plaintiff is under a
disability if he has a physical or mental impairment which
prevents him from engaging in any substantial gainful
activity, and which is expected to result in death or to last
for a continuous period of at least 12 months. Thompson
v. Sullivan, 987 F.2d 1482, 1486 (10th Cir. 1993)
(citing 42 U.S.C. § 423(d)(1)(A)). The Commissioner uses
a five-step sequential process to evaluate 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)). In the first
three steps, the Commissioner determines (1) whether
plaintiff has engaged in substantial gainful activity since
the alleged onset, (2) whether he has a severe impairment or
combination of impairments and (3) whether the severity of
any impairment is equivalent to one of the listed impairments
that are so severe as to preclude substantial gainful
activity. 20 C.F.R. § 404.1520(c), (d); see
Williams, 844 F.2d at 750-51. If plaintiff satisfies
steps one, two and three, the Commissioner will automatically
find him disabled. If plaintiff satisfies steps one and two
but not three, the analysis proceeds to step four.
four, the ALJ must make specific factual findings regarding
plaintiff's abilities in three phases. See Winfrey v.
Chater, 92 F.3d 1017, 1023-25 (10th Cir. 1996). First,
the ALJ determines plaintiff's physical and mental
residual functional capacity (“RFC”).
Id. at 1023. Second, the ALJ determines the physical
and mental demands of plaintiff's past relevant work.
Id. Third, the ALJ determines whether despite the
mental and/or physical limitations found in phase one,
plaintiff has the ability to meet the job demands found in
phase two. Id. If plaintiff satisfies step four,
i.e. if plaintiff shows that he is not capable of
performing past relevant work, the burden shifts to the
Commissioner at step five to establish that plaintiff is
capable of performing other work in the national economy.
Williams, 844 F.2d at 750-51.
following is a brief summary of the record.
was born on December 2, 1961. He claims disability beginning
on January 1, 2009, at age 47, because of an anxiety
disorder, depression, hypertension, diabetes, insomnia, left
shoulder pain, back pain and right flank pain. Tr. 743-47,
751, 754. Plaintiff has a high school equivalent education
and has previous work experience as a bus driver, route
delivery driver and tractor trailer operator. Tr. 742, 758,
1179. Plaintiff has not engaged in substantial gainful
activity since January 1, 2009. Tr. 708.
2010 and plaintiff's most recent administrative hearing
held on May 3, 2017, plaintiff sought treatment from at least
14 doctors, Licensed Clinical Social Workers
(“LCSW”), nurse practitioners and therapists.
See Plaintiff's Social Security Brief (Doc. #8)
filed March 22, 2018 at 5-27. On March 19, 2009, plaintiff
began receiving treatment initially for back pain and then
for left shoulder pain that radiated to his hand. Tr. 454-57,
462-63, 644, 665-68, 678. On July 16, 2010, plaintiff met
with an LCSW regarding various complaints including trouble
sleeping, stress regarding inability to work, shoulder pain,
feelings of sadness, depression and weight loss. Tr. 482. The
LCSW diagnosed plaintiff with Dysthymic Disorder, Generalized
Anxiety Disorder, Major Depressive Disorder (Recurrent, Mild)
and Adjustment Disorder With Mixed Anxiety And Depressed
Mood. Tr. 485.
October 23, 2010, Dr. Jay Hughey conducted a consultative
exam of plaintiff's physical RFC. Tr. 512-15. Dr. Hughey
reported that plaintiff had a limited range of motion in his
left shoulder. Tr. 513. Plaintiff's grip strength and
dexterity were preserved. Tr. 514. Plaintiff walked without
difficulty, had mild difficulty squatting and rising from a
sitting position and moderate difficulty hopping.
the relevant period, plaintiff continued to seek treatment
for anxiety, depression, pain and insomnia. Tr. 579-99,
651-61, 670-73, 677-86, 1285-1307, 1320-1324. With some
variability, his depression and anxiety improved over time.
See, e.g., Tr. 1290, 1297, 1299; see
also Tr. 745 (plaintiff's depression in
testified that he bathes and dresses himself, sometimes
prepares his own meals and shops with his wife. Tr. 750. On
an average day, plaintiff can walk ten or 15 minutes and can
stand for five to ten minutes. Tr. 751. Plaintiff can sit for
two hours and can push five pounds. Id. Plaintiff
has a very limited ability to drive. Tr. 750.
testified that he has an anxiety disorder which prevents him
from completing tasks and causes panic attacks. Tr. 743.
Deadlines and timeframes cause him stress. Tr. 755. Plaintiff
has difficulty communicating and experiences medication side
effects such as slowness and drowsiness. Tr. 755-56.
testified that he has problems with his left shoulder related
to rotator cuff surgery in his twenties. Tr. 744, 746. He
experiences pain on his right side, which he attributes to
overuse and a childhood fall. Tr. 746, 752. Plaintiff's
right-side pain is aggravated by bending over or twisting in
a certain way, and when he tries to vacuum. Tr. 754.
November 5, 2010, Dr. Gerald Siemsen, a State agency medical
consultant, reviewed the record and affirmed the initial
physical RFC assessment from July 12, 2010, which found that
plaintiff could perform light work with no overhead reaching.
Tr. 107-118, 518-19. On reconsideration, the agency's
single decision-maker recommended that Dr. Siemsen affirm the
initial RFC. Tr. 518. Dr. Siemsen's case analysis does
not set forth specific findings and only states, “I
have reviewed all the evidence in the file and the RFC and/or
assessment of 7-12-10 is affirmed as written.” Tr. 519.
plaintiff's mental RFC, Dr. Regina Carolina gave
conflicting opinions. See Tr. 716-17. In her first
opinion dated December 28, 2010, Dr. Carolina found that
plaintiff had only slight impairments in 13 categories and
moderate impairments in three categories. Tr. 549-51. She
opined that these limitations began in January of 2010. Tr.
551. In her second opinion dated April 24, 2012, Dr. Carolina
found that plaintiff had nine moderate and ten extreme mental
impairments. Tr. 629-31. She opined that these more severe
limitations began when she first saw plaintiff on July 26,
2010, i.e. before she issued her first opinion. Tr.
January 14, 2011, LCSW James Reinerio evaluated
plaintiff's mental RFC. Tr. 552-54. Reinerio found eight
slight, one moderate, five marked and four extreme
impairments. Id. Reinerio noted that plaintiff had
an “extreme and firm belief that he is going to die
when anxiety sets in which invariably brings about panic
symptoms.” Tr. 553. Reinerio stated in his opinion that
plaintiff's limitations began in 2001. Tr. 554.
October 8, 2010, Dr. Charles Fantz, Ph.D., a State agency
reviewing psychologist, assessed plaintiff's mental RFC.
Tr. 507-09. He found that plaintiff was moderately limited in
three categories. Dr. Fantz determined that plaintiff (1) has
the ability to understand and remember simple and
intermediate level instructions; (2) could focus and persist
at simple routine and intermediate level tasks for an
eight-hour day but would have difficulty with more complex
tasks, particularly tasks that required sustained
concentration for more than two hours without a break; (3)
had no social interaction limitations; and (4) could adapt to
most work situations that did not require independent
planning and goal setting. Tr. 509.
16, 2010, Social Security Administration employee J. Harper
conducted a 30-minute in-person interview with plaintiff and
completed plaintiff's disability report. Tr. 342-44.
Harper reported that plaintiff had difficulty using his
hands, sat without much movement and showed discomfort or
pain. Tr. 343.
11 and July 27, 2010, and June 18 and September 6, 2015,
plaintiff's wife submitted third-party function reports
regarding plaintiff's ...