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Bennett v. Berryhill

United States District Court, D. Kansas

November 30, 2018

BARRY A. BENNETT, Plaintiff,
v.
NANCY A. BERRYHILL, Commissioner of Social Security Administration, Defendant.

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE.

         Barry 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.

         Procedural Background

          On 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, 2016).

         On 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 Commissioner.

         Standard Of Review

          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).

         Framework For Analyzing Claims Of Disability

         Plaintiff 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.

         At step 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.

         Factual Background

          The following is a brief summary of the record.

         Plaintiff 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.

         I. Medical Evidence

         Between 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.

         On 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. Id.

         During 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 remission).[1]

         II. Plaintiff's Testimony

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         III. Medical Opinions

         On 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.

         Regarding 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. 631.

         On 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.

         On 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.

         IV. Third-Party Opinions

         On July 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.

         On May 11 and July 27, 2010, and June 18 and September 6, 2015, plaintiff's wife submitted third-party function reports regarding plaintiff's ...


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