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A.T. v. Berryhill

United States District Court, D. Kansas

January 14, 2019

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

          MEMORANDUM AND ORDER

          JOHN W. BROOMES UNITED STATES DISTRICT JUDGE.

         Plaintiff filed this action for review of a final decision of the Commissioner of Social Security denying Plaintiff's application for social security disability benefits. The matter is fully briefed by the parties and the court is prepared to rule. (Docs. 17, 24, 25, 28.) The Commissioner's decision is AFFIRMED for the reasons set forth herein.

         I. Standard of Review

         The court's standard of review is set forth in 42 U.S.C. § 405(g), which provides that “the findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive.” The Commissioner's decision will be reviewed to determine only whether the decision was supported by substantial evidence and whether the Commissioner applied the correct legal standards. Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994). Substantial evidence requires more than a scintilla, but less than a preponderance, and is satisfied by such evidence as a reasonable mind might accept to support the conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971).

         Although the court is not to reweigh the evidence, the findings of the Commissioner will not be mechanically accepted. Nor will the findings be affirmed by isolating facts and labeling them substantial evidence, as the court must scrutinize the entire record in determining whether the Commissioner's conclusions are rational. Graham v. Sullivan, 794 F.Supp. 1045, 1047 (D. Kan. 1992). The court should examine the record as a whole, including whatever fairly detracts from the weight of the Commissioner's decision and, on that basis, determine if the substantiality of the evidence test has been met. Glenn, 21 F.3d at 984.

         The Commissioner has established a five-step sequential evaluation process to determine disability. 20 C.F.R. § 404.1520; Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010). If at any step a finding of disability or non-disability can be made, the Commissioner will not review the claim further. At step one, the agency will find non-disability unless the claimant can show that he or she is not working at a “substantial gainful activity.” Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988). At step two, the agency will find non-disability unless the claimant shows that he or she has a severe impairment. At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled. Id. at 750-51. If the claimant's impairment does not meet or equal a listed impairment, the agency determines the claimant's residual functional capacity (“RFC”). 20 C.F.R. § 404.1520(e). The RFC assessment is used to evaluate the claim at both step four and step five. 20 C.F.R. § 404.1520(a)(4); § 404.1520(f), (g). At step four, the agency must determine whether the claimant can perform previous work. If a claimant shows that she cannot perform the previous work, the fifth and final step requires the agency to consider vocational factors (the claimant's age, education, and past work experience) and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy. Barnhart v. Thomas, 124 S.Ct. 376, 379-380 (2003).

         The claimant bears the burden of proof through step four of the analysis. Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006). At step five, the burden shifts to the Commissioner to show that the claimant can perform other work that exists in the national economy. Id.; Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993). The Commissioner meets this burden if the decision is supported by substantial evidence. Thompson, 987 F.2d at 1487.

         II. History of Case

         A. Summary of the evidence.

         Plaintiff received treatment for several years at Bert Nash Community Mental Health Center. He was diagnosed in 2011 with schizophreniform disorder. (R. at 22.) On July 14, 2011, when Plaintiff was 25 years old, he was referred to Stormont-Vail Hospital in Topeka for psychiatric inpatient treatment. His symptoms included impaired thought processes, delusional thinking, and talking to unseen others. During his stay, his psychotropic medication was changed from Abilify to injectable Invega Sustenna (an extended-release anti-psychotic medication), and he was also treated with Klonopin for anxiety. He was discharged after eleven days with a diagnosis of schizophrenia and anxiety disorder. (R. 490, 522.) He declined placement in a residential treatment center and was referred for outpatient treatment.

         Marsha Ward, a nurse practitioner who saw Plaintiff on June 20, 2012, noted that Plaintiff's symptoms were in full remission. (R. at 381.) Plaintiff was receiving monthly injections of Invega Sustenna and was taking anti-anxiety medication. His energy was good and his judgment and insight were fair. (Id.) He expressed concern that his medication was causing him to gain weight. Plaintiff was working a night shift job. He reported annual earnings of more than $18, 000 from 2012 through 2014. (R. 381; 225-26.)

         Nurse practitioner Ward saw Plaintiff on April 5, 2013, and noted his compliance with his medication regimen at that point was poor, and his symptoms (including disorganized thinking and delusions) were recurring. (R. at 461.) Plaintiff apparently quit taking Invega Sustenna injections over concerns it was causing him to gain weight. Ward noted that Plaintiff was still working but would likely end up back in the hospital without his medications. Plaintiff agreed to start taking his medications again. (Id.)

         On September 19, 2014, nurse practitioner Cora Franklin completed a “Certificate of Disability” relating to Plaintiff's request for housing benefits from the Lawrence Housing Authority. She checked a form indicating Plaintiff met the definition of disability under the Social Security Act. (R. at 465.) On October 2, 2014, and again on May 22, 2015, Franklin completed disability forms stating that Plaintiff was diagnosed with “295.10 Schizophrenia Disorganized type” and checked a box indicating the condition prevented gainful employment. (R. at 464, 466.)

         On November 10, 2014, nurse practitioner Franklin saw Plaintiff and noted his mental status had improved with medication; his thoughts were coherent, organized, and logical; and his mood was good, although he complained of anxiety and restlessness. The note stated Plaintiff denied depression but “[l]ost his job [and had] nothing to do.” (R. at 408.) It stated Plaintiff was pleasant and responsive but there was “still some resistance to medication.” (Id.) Franklin prescribed Hydroxyzine for ...


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