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Christine P. v. Commissioner of Social Security Administration

United States District Court, D. Kansas

January 29, 2019

CHRISTINE P., [1] Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          MEMORANDUM AND ORDER

          Sam A. Crow, U.S. District Senior Judge

         On March 28, 2014, plaintiff filed an application for social security disability insurance benefits and, on April 7, 2014, plaintiff filed an application for supplemental security income benefits. These applications alleged a disability onset date of August 1, 2012, but plaintiff amended the onset date to December 10, 2014 at her administrative hearing. The applications were denied initially and on reconsideration. An administrative hearing was conducted on June 16, 2016. The administrative law judge (ALJ) considered the evidence and decided on August 30, 2017 that plaintiff was not qualified to receive benefits. This decision has been adopted by defendant. This case is now before the court upon plaintiff's request to reverse and remand the decision to deny plaintiff's applications for benefits.

         I. STANDARD OF REVIEW

         To qualify for disability benefits, a claimant must establish that he or she was “disabled” under the Social Security Act, 42 U.S.C. § 423(a)(1)(E), during the time when the claimant had “insured status” under the Social Security program. See Potter v. Secretary of Health & Human Services, 905 F.2d 1346, 1347 (10th Cir. 1990); 20 C.F.R. §§ 404.130, 404.131. To be “disabled” means that the claimant is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).

         For supplemental security income claims, a claimant becomes eligible in the first month where he or she is both disabled and has an application on file. 20 C.F.R. §§ 416.202-03, 416.330, 416.335.

         The court must affirm the ALJ's decision if it is supported by substantial evidence and if the ALJ applied the proper legal standards. See Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010)(internal quotation marks omitted). “It requires more than a scintilla, but less than a preponderance.” Lax v. Astrue, 489 F.3d 1080, 1084

         (10th Cir. 2007). The court must examine the record as a whole, including whatever in the record fairly detracts from the weight of the defendant's decision, and on that basis decide if substantial evidence supports the defendant's decision. Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994) (quoting Casias v. Secretary of Health & Human Services, 933 F.2d 799, 800-01 (10th Cir. 1991)). The court may not reverse the defendant's choice between two reasonable but conflicting views, even if the court would have made a different choice if the matter were referred to the court de novo. Lax, 489 F.3d at 1084 (quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)). II. THE ALJ'S DECISION (Tr. 10-21).

         There is a five-step evaluation process followed in these cases which is described in the ALJ's decision. (Tr. 11-12). First, it is determined whether the claimant is engaging in substantial gainful activity. Second, the ALJ decides whether the claimant has a medically determinable impairment that is “severe” or a combination of impairments which are “severe.” At step three, the ALJ decides whether the claimant's impairments or combination of impairments meet or medically equal the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Next, the ALJ determines the claimant's residual functional capacity and then decides whether the claimant has the residual functional capacity to perform the requirements of his or her past relevant work. Finally, at the last step of the sequential evaluation process, the ALJ determines whether the claimant is able to do any other work considering his or her residual functional capacity, age, education and work experience.

         In steps one through four the burden is on the claimant to prove a disability that prevents performance of past relevant work. Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006). At step five, the burden shifts to the Commissioner to show that there are jobs in the economy with the claimant's residual functional capacity. Id. In this case, the ALJ decided plaintiff's application should be denied at the fifth step of the evaluation process.

         The ALJ made the following specific findings in his decision. First, plaintiff meets the insured status requirements for Social Security benefits through March 31, 2018. Second, plaintiff has not engaged in substantial gainful activity since August 1, 2012. Third, plaintiff has the following severe impairments: degenerative changes of the lumbar spine; obesity; history of umbilical hernia; history of left knee surgery; history of left shoulder surgery; history of bipolar disorder; posttraumatic stress disorder; personality disorder, and history of polysubstance abuse. Fourth, plaintiff does not have an impairment or combination of impairments that meet or medically equal the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.

         Fifth, plaintiff has the residual functional capacity to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) except that: plaintiff can lift/carry 20 pounds occasionally and 10 pounds frequently, with pushing and pulling limited to the same weights; plaintiff can stand/walk 6 hours total, and sit for 6 hours total, all in an 8-hour workday with normal breaks; plaintiff can occasionally climb stairs, ramps, ladders, and scaffolds; plaintiff can frequently balance and occasionally stoop, kneel, crouch, and crawl; plaintiff can tolerate frequent exposure to extreme cold and vibrations; plaintiff can understand and remember simple instructions; plaintiff can maintain concentration, persistence and pace to complete simple tasks that are not performed at a fast pace; and plaintiff can adapt to normal change in a simple work environment. Finally, the ALJ determined that, although plaintiff cannot perform any past jobs she once was capable of doing, she could perform such jobs as office helper, mail clerk and collator operator. The ALJ further found that these jobs exist in significant numbers in the national and state economy.

         III. BORDERLINE INTELLECTUAL FUNCTIONING - STEP TWO ANALYSIS

         Plaintiff's first argument to reverse the denial of benefits contends that the ALJ failed consider the impact of plaintiff's borderline intellectual functioning upon plaintiff's RFC and at step two of his analysis. There is no dispute that plaintiff was diagnosed with borderline intellectual functioning in December 2016, several months after the administrative hearing. (Tr. 1454). The ALJ stated that he gave substantial weight to the report containing this diagnosis. (Tr. 19). The ALJ was obligated to discuss uncontroverted evidence which is not relied upon as well as significantly probative evidence that is rejected. Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). The ALJ did not discuss borderline intellectual functioning, explain why he did not consider it a “severe” impairment, or state its impact, if any, upon plaintiff's RFC. This is grounds to reverse the decision to deny benefits, although the court agrees with defendant that the omission of borderline intellectual functioning from the ALJ's step two analysis was inconsequential. As the Tenth Circuit stated in Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016): “[T]he failure to find a particular impairment severe at step two is not reversible error when the ALJ finds that at least one other impairment is severe.” Id.

         IV. STEP THREE ANALYSIS

         A. Dr. Nguyen's opinion

         Plaintiff's next argument is that the ALJ erred in finding at step three that plaintiff did not meet or equal a regulatory listing of impairments which warrants an award of benefits. The ALJ expressly considered listings 1.02 and 1.04 which concern physical impairments, and listings 12.04 and 12.15 which concern mental impairments. (Tr. 13-15). Plaintiff asserts that the ALJ failed to consider the medical opinion of Dr. Kim-Doan Katrina Nguyen when making his decision. Dr. Nguyen stated, in conclusory fashion, that plaintiff met the requirements of listing 12.04 for affective disorders. (Tr. 1305-06).

         The court disagrees with plaintiff's position. The ALJ stated that Dr. Nguyen's opinion as to plaintiff's mental impairments was given “little weight” and that “deference” was given to the psychological opinions from other sources as discussed in the opinion. (Tr. 17). In his discussion of the mental impairment listings, the ALJ referred to the opinion of Dr. Kent, a licensed psychologist who performed diagnostic testing upon plaintiff, and the opinion of plaintiff's treating source - Dr. McCleeary, a licensed psychologist. The ALJ acted within his discretion to defer to the opinions of treating and examining specialists in mental health over the opinion of Dr. Nguyen, an internal medicine doctor who did not examine or treat plaintiff. See Krauser v. Astrue, 638 F.3d 1324, 1331 (10th Cir. 2011)(citing relevant factors for weighing a medical opinion). The ALJ also stated that the ...


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