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K.G. v. Berryhill

United States District Court, D. Kansas

April 18, 2019

K.G., [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. 11, 12, 13.) 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 as adequate 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.

         In discussing his findings, the ALJ reviewed the testimony and the medical evidence.[2]Plaintiff has a significant history of treatment for mental health that dates back to 1995. Plaintiff has a history of two mental health hospitalizations and three suicide attempts. In February 2014, Plaintiff sought treatment for panic attacks and saw Mariam Njoku, A.P.R.N., at Comcare. The notes reflect that Plaintiff reported that her panic attacks were worsening; she also suffered mood instability, and depression. (Tr. at 679.) Plaintiff was diagnosed with bipolar disorder, post-traumatic stress disorder, and personality disorder. Plaintiff was started on medication and a treatment plan. (Tr. at 683-84.) On March 27, 2014, Plaintiff saw German Gonzalez, M.D. for medication management at Comcare. She reported that she was having fewer symptoms with the medications. (Tr. at 685.) Dr. Gonzalez noted that her mood was neutral, her affect was congruent and full, her concentration was intact, her thought form was logical, and her insight and judgment were fair. (Tr. at 687.)

         On June 27, 2014, Plaintiff again saw Dr. Gonzalez. Plaintiff reported that she had not been working, was having mood swings, and could not concentrate on task. Dr. Gonzalez recommended that Plaintiff return to work in one week. (Tr. at 692.) Again, Dr. Gonzalez noted that her mood was neutral, her affect was congruent and full, her concentration was intact, her thought form was logical, and her insight and judgment were fair. Plaintiff missed her appointment with Dr. Gonzalez in September 2014. (Tr. at 697.)

         In December 2014, Plaintiff reported that her medications were not working but that she had previously been doing better on Buproprion and Lexapro. Plaintiff reported that she had mood swings. Dr. Gonzalez adjusted her medications. (Tr. at 700.) Again, Dr. Gonzalez noted that her mood was neutral, her affect was congruent and full, her concentration was intact, her thought form was logical, and her insight and judgment were fair. Plaintiff's records note that Plaintiff next saw Dr. Gonzalez on May 1, 2015. The records reflect that Plaintiff reported mood swings and getting angry easily. Plaintiff stated that she did not want to take any medications that would make her gain weight. Dr. Gonzalez examined Plaintiff and found that her mood was neutral, and her affect was congruent and full. Plaintiff's memory, attention and concentration were intact and her thought form was logical. (Tr. at 19.)

         Plaintiff also participated in therapy with Kezia Ramey, L.M.S.W., at Comcare. On February 8, 2016, Plaintiff's records entered by Ramey note that she was depressed, just wanted to be alone and sleep. (Tr. at 940.) On February 10, 2016, Plaintiff met with Dr. Gonzalez for a medication management appointment. According to the treatment note, Plaintiff was doing well on certain medications and reported that she was complying with the medications. (Tr. at 934.) Again, Dr. Gonzalez noted that her mood was neutral, her affect was congruent and full, her concentration was intact, her thought form was logical, and her insight and judgment were fair. (Tr. at 938.) On that same date, Dr. Gonzalez completed a medical source statement. In that opinion, Dr. Gonzalez found that Plaintiff was moderately limited or markedly limited in categories of understanding and memory, sustained concentration and persistence, social interaction, and adaptation. (Tr. at 729-30.) Dr. Gonzalez also opined that Plaintiff would miss four days of work per month and be off task 25% of the time.

         Plaintiff also had individual therapy with Amanda Vann during early 2017. During these sessions, Plaintiff reported depression, feeling hopeless, and having suicidal ideations. (Tr. at 861, 863, 865.) On May 8, 2017, Kayla Del Rio, A.P.R.N, at the University of Kansas, completed a medical source statement. In the opinion, Del Rio opined that Plaintiff would be off task at work 25% of the time, was incapable of low stress work and would miss more than four days of work per month. (Tr. at 1010.) Del Rio ...


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