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Brandy W. v. Berryhill

United States District Court, D. Kansas

December 14, 2018

BRANDY W., [1] Plaintiff,
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 Supplemental Security Income (SSI) benefits pursuant to sections 1602 and 1614(a)(3)(A) of the Social Security Act, 42 U.S.C. §§ 1381a, and 1382c(a)(3)(A) (hereinafter the Act). Finding error in the Administrative Law Judge's (ALJ) failure to apply the correct legal standard at step two of the sequential evaluation process, 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 “failed to properly evaluate and account for [Plaintiff's] conversion disorder.” (Pl. Br. 10) (underline 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 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. § 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 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 residual functional capacity (RFC). 20 C.F.R. § 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 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).

         II. Discussion

         Plaintiff argues that the ALJ failed to evaluate properly Plaintiff's conversion disorder. (Pl. Br. 10). She argues that he never discussed her conversion disorder at step two of the sequential evaluation process even though the medical evidence establishes the presence of a medically determinable impairment of conversion disorder in this case. Id. at 10-11. Plaintiff discusses the record evidence suggesting conversion disorder and argues that the ALJ should have discussed it at step two and found it is medically determinable in this case. Id. at 11-14. She further argues the evidence also establishes that her conversion disorder is severe within the meaning of the Act, and that its effects should have been considered at the later steps of the evaluation process. Id. at 14-16. Plaintiff acknowledges the ALJ recognized Dr. Athey's opinion that Plaintiff's progressive decline is the result of conversion disorder, but accorded more weight to the Cooperative Disability Investigations (CDI) Unit report which revealed Plaintiff's abilities. Id. at 17. Plaintiff argues this also is erroneous. Id. at 18-20.

         The Commissioner argues that the ALJ “Reasonably Accounted for Plaintiff's Mental Impairments by Limiting Her to a Range of Unskilled Work.” (Comm'r Br. 7) (bolding omitted). She argues that the RFC limitations assessed “reflected a reasonable assessment of the treatment records, medical opinions, and other evidence, and were consistent with the opinions of two state agency psychologists.” (Comm'r Br. 7). She argues that “Plaintiff overstates the evidence” when she attempts to show conversion disorder as a medically determinable impairment, although she acknowledges that Dr. Athley “did conclude that Plaintiff's functioning was consistent with a conversion disorder.” Id. at 8. She argues that “at most, only one psychologist … diagnosed [Plaintiff] with a conversion disorder, ” and that the state agency psychologist, Dr. Fantz, [2]had the benefit of almost the entire record including the CDI report, and concluded “that Plaintiff's history and symptoms were not consistent with a conversion disorder.” Id. at 8-9 (quoting R. 105). She argues that the ALJ summarized all of the evidence relevant to the issue of conversion disorder, accorded little weight to Dr. Athey's opinion and significant weight to Dr. Fantz's opinion, gave good reasons for doing so, and accordingly “had a reasonable basis for his step two finding.” Id. at 9. She argues, “Because the ALJ found that Plaintiff had severe impairments at step two and thus continued with the sequential evaluation process, any such step two error was harmless so long as the functional limitations supported by the record were properly accounted for in the RFC finding.” Id. (citing 20 C.F.R. § 416.945(a)(2), and Ray v. Colvin, 657 Fed.Appx. 733, 734 (10th Cir. 2016)). The Commissioner argues, “Because the ALJ considered the relevant evidence, weighed the medical opinions, and reached a reasoned decision supported by the evidence, his conclusions should not be disturbed on appeal.” Id. at 11.

         In her Reply Brief, Plaintiff reiterates her argument that the ALJ failed to find a medically determinable impairment of conversion disorder, and argues that the Commissioner's argument regarding harmless error at step two “would be appropriate had the ALJ found [Plaintiff]'s conversion disorder to be medically determinable, but not severe, ” but because he found it not medically determinable he was prohibited from considering any limitations resulting from it in assessing Plaintiff's RFC. (Reply 4) (citing Ireland v. Colvin, 14-1012-JWL, 2014 WL 7185008, at *6 (D. Kan. Dec. 16, 2014) (“Limitations attributed to impairments which are medically determinable but are not severe must be considered at later steps in the evaluation, but limitations attributable to impairments which are not medically determinable must not be considered.”) (emphases in original)).

         A. The ALJ's Findings Regarding Conversion Disorder

         As Plaintiff points out, the ALJ did not mention conversion disorder in his step two discussion. He found that Plaintiff has severe impairments consisting of a “history of head trauma; headaches; diabetes mellitus type 2; asthma by history; history of cervicalgia; post-concussion syndrome; affective disorder[, ] and anxiety disorder.” (R. 15) (bolding omitted). He also noted the record referred to a past diagnosis of fibromyalgia and to degenerative changes to Plaintiff's cervical and lumbar spine, id., but found ‚Äúthat the impairments of fibromyalgia, [and] degenerative changes of cervical and lumbar spine do not meet the ...

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