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Roederer L. R. v. Berryhill

United States District Court, D. Kansas

January 3, 2019

LAWRENCE L. R.,[1] Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          John W. Lungstrum United States District Judge

         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 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.

         I. Background

         Plaintiff 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).

         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 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.

         The 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.

         II. Evaluation at Steps Two and Three

         Plaintiff claims the ALJ “only considered plaintiff’s[2] [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.[3] 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 SSR 96-9p).

         The 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.

         In his 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 12-16.

         A. The ALJ’s Step Two and Three Findings

          At 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 ...


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