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Grant H. v. Berryhill

United States District Court, D. Kansas

April 11, 2019

JOSHUA GRANT H., [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 claims the ALJ failed adequately either to weigh the treating source opinion of Dr. Bradshaw or to consider the other evidence from the Veteran's Affairs Department--the VA disability determination and the Compensation & Pension examinations (hereinafter C&P exams) performed by the VA.

         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 she 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 residual functional capacity (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 finds no error as alleged by Plaintiff. The court notes that Plaintiff does not allege error in the physical RFC assessed, and the court's analysis does not address that issue.

         II. Discussion

         Plaintiff argues that the ALJ “virtually overlooked the VA's C&P exams and disability ratings, ” and failed to recontact his treating physician, Dr. Bradshaw, or to order a consultative examination. (Pl. Brief 9). Specifically, he argues that the ALJ provided inadequate bases to discount Dr. Bradshaw's opinion that Plaintiff's “PTSD and TBI make him unemployable in the competitive market, ” id. at 12 (quoting R. 27) and argues that “the ALJ only mentions the VA disability rating in passing.” Id. at 14 (citing R. 25).

         The Commissioner argues that the ALJ properly considered Dr. Bradshaw's opinion and the evidence from the VA. (Comm'r Br. 5). She points to the ALJ's decision and the record evidence and argues that the decision is supported by substantial evidence. Id. at 6-8. She argues that the ALJ had no duty to recontact Dr. Bradshaw, and the cases Plaintiff relies upon are distinguishable from this case. Id. at 8-9. She argues that the VA disability rating and the C&P exams were adequately considered in the circumstances of this case. Id. at 10-12.

         In his Reply Brief, Plaintiff reasserts the arguments from his Social Security Brief. He also argues that the cases relied upon in his Brief are not so easily distinguishable as the Commissioner argues, and that Dr. Bradshaw did opine regarding functional limitations. (Reply 1-2).

         A. Consideration of VA Disability Rating and C&P Exams

         Plaintiff complains that “the ALJ only mentions the VA disability rating in passing, ” and that “[a]lthough findings by other agencies are not binding on the [Commissioner], they are entitled to weight and must be considered.” (Pl. Br. 14) (citing Baca v. Dep't of Health & Human Servs., 5 F.3d 476, 480 (10th Cir. 1993)). What Baca requires is precisely what occurred here. As Plaintiff argues, a disability determination made by another agency is not binding on the Social Security Administration. 20 C.F.R. § 404.1504. And here the ALJ considered the VA disability rating. (R. 25) (“The claimant has a 90% service connected disability through VA.”). The problem the Baca court found was, in that case the Social Security Administration (SSA) found the evidence submitted to it was inadequate, in part, because the VA records submitted to the agency “began more than a year after the expiration of [the claimant's] insured status, ” and the district court found “that the VA's disability determination was not relevant.” Baca, 5 F.3d at 478. Therefore, after the Tenth Circuit decided remand was necessary, it instructed the agency to “make every reasonable effort to obtain the records from the VA.” Baca, 5 F.3d at ...


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