United States District Court, D. Kansas
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.
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.
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.
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.
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.
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).
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
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).
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.
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).
Consideration of VA Disability Rating and C&P
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 ...