United States District Court, D. Kansas
LAWRENCE L. R., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
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 in the
Administrative Law Judge’s (ALJ) decision, 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 ALJ erred in evaluating his claim at steps
two and three of the sequential evaluation process (Pl. Br.
4), that the ALJ’s residual functional capacity (RFC)
assessment “is Legally Deficient and not Supported by
Substantial Evidence in the Record as a Whole”
id. at 9 (bold omitted), and the ALJ’s
“Step Four Evaluation Constitutes Legal Error and is
not Supported by Substantial Evidence.” Id. at
21 (bold omitted).
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
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, he
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 issues as presented
in Plaintiff’s Brief and finds no error.
Evaluation at Steps Two and Three
claims the ALJ “only considered
plaintiff’s [sic] impairments singly” (Pl. Br.
4), and found Plaintiff’s fibromyalgia did not meet the
severity of a Listing by relying on the report of Dr.
Pakseresht, who examined Plaintiff at the request of the
state agency, while ignoring the evidence from
Plaintiff’s treating rheumatologist, Dr.
Ruhlman. Id. at 4-5. He argues that
“[l]ike the state agency physicians, the ALJ ignored
the effect of Plaintiff’s Fibromyalgia and its’
[sic] symptoms, on his ability to sustain activity,”
and that “[n]either the state agency physicians [n]or
the ALJ addressed Plaintiff’s Fibromyalgia symptoms
and/or their effect on his ability to sustain competitive
employment.” Id. at 6. He argues that the ALJ
“failed to consider Plaintiff’s other severe
impairments in combination with his Fibromyalgia at Step
Three,” “failed to evaluate Plaintiff’s
upper extremity impairments in accordance with Listing
1.02B,” and did not “articulate how he evaluated
Plaintiff’s upper extremity impairments and/or
symptoms.” (Pl. Br. 7). He points out that
“sedentary work activity requires bilateral manual
dexterity for repetitive actions.” Id. at 8
(citing Soc. Sec. Ruling (SSR) 83-10, SSR 83-14, and
Commissioner argues, generally, that the ALJ properly
evaluated the evidence, including evidence regarding
Plaintiff’s fibromyalgia, and the record evidence
supports his RFC assessment. (Comm’r Br. 5-8). She
argues, “The Court should affirm the ALJ’s
finding that Plaintiff had the RFC to perform sedentary work,
because that finding is supported by substantial evidence,
including the relatively normal examination findings,
Plaintiff’s extremely limited treatment, evidence that
Plaintiff’s arm and hand symptoms improved after
surgery, and the fact that no medical professional found
Plaintiff more limited than the ALJ did.” Id.
at 5-6. Specifically, she argues that the ALJ considered
Plaintiff’s fibromyalgia symptoms in combination with
his other impairments, and properly considered
Plaintiff’s allegations of limitations resulting from
symptoms. Id. at 6. She argues that “neither
Dr. Pakseresht nor Dr. Ruhlman rendered an opinion about
Plaintiff’s functional limitations,” and the ALJ
gave no “greater credence to either physician’s
findings.” Id. at 7. She argues that the ALJ
did not ignore record evidence despite Plaintiff’s
suggestion to that effect. Id.
Reply Brief, Plaintiff focuses on the Commissioner’s
general argument quoted above and explains how in his view
the evidence does not demonstrate “relatively normal
examination findings” (Reply 1-9); does not support
finding “extremely limited treatment,”
id. at 9-10; demonstrates that Plaintiff reported
hand, wrist, and arm symptoms both before and after carpal
tunnel release surgery, negating “improvement in his
hand and arm symptoms after surgery” (Reply 10-12); and
demonstrates greater limitations than assessed by the ALJ
despite that “no medical professional found a more
restrictive RFC” than the ALJ did. Id. at
The ALJ’s Step Two and Three Findings
step two, the ALJ found that Plaintiff has the following
impairments which are “severe” within the meaning
of the regulations: ischemic heart disease status post
coronary artery bypass grafting, fibromyalgia, and status
post bilateral carpal tunnel releases. (R. 17). He found in
his step three analysis that Plaintiff’s impairments,
individually or in combination do not meet or medically equal
the severity of a listed impairment. Id. at 18. He
specifically noted that he had considered Listing 4.04C
(coronary artery disease), Listings in sections 1.00
(musculoskeletal system) and 14.00 (immune system disorders),
the neurological listings (§ 11.00 listings), and had
considered fibromyalgia pursuant to SSR 12-2p. He found in
relation to carpal tunnel syndrome that Plaintiff’s
“functioning in terms of activities of daily living and
use of his arms and wrists was not severe enough to [sic]
individually or in combination, to meet or equal a
listing.” Id. Regarding fibromyalgia, he noted
the issue of medical equivalence had ...