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R.S. v. Commissioner of Social Security Administration

United States District Court, D. Kansas

April 22, 2019

R.S., [1] Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          MEMORANDUM AND ORDER

          SAM A. CROW, U.S. DISTRICT SENIOR JUDGE

         On June 30, 2015, plaintiff filed an application for social security disability insurance benefits. Plaintiff alleged a disability onset date of May 26, 2011. The application was denied initially and on reconsideration. An administrative hearing was conducted on July 18, 2017. The administrative law judge (ALJ) considered the evidence and decided on November 8, 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 application 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).

         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)). The court reviews “only the sufficiency of the evidence, not its weight.” Oldham v. Astrue, 509 F.3d 1254, 1257 (10th Cir. 2007).

         II. THE ALJ'S DECISION (Tr. 11-22).

         There is a five-step evaluation process followed in these cases which is described in the ALJ's decision. (Tr. 12-13). 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 fourth or 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 December 31, 2016. Second, plaintiff has not engaged in substantial gainful activity since February 13, 2014.[2] Third, plaintiff has the following severe impairments: arthritis of the right shoulder and obesity. 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 (RFC) to perform light work as defined in 20 C.F.R. 404.1567(b) in that: she can lift and carry 20 pounds occasionally and 10 pounds frequently; she can stand or walk a total of 6 hours in an 8-hour workday and sit up to 6 hours in an 8-hour workday; she can frequently climb ramps or stairs and occasionally climb ladders, ropes, or scaffolds; she can frequently stoop, kneel, crouch, and crawl; she can occasionally reach overhead with her dominant right upper extremity; and she can occasionally tolerate exposure to vibration and to unprotected moving mechanical parts or unprotected heights. Finally, the ALJ determined that plaintiff can perform past relevant work as a cake decorator and photography counter worker and other jobs existing in the national economy, such as marker, routing clerk, and photocopy machine operator.

         III. ARGUMENTS

         A. Obesity

         Plaintiff's first argument is that the ALJ failed to properly consider plaintiff's obesity pursuant to SSR 02-1p and SSR 96-8p in making his decision.[3] The court rejects this argument for the following reasons. First, the ALJ did consider and discuss plaintiff's obesity. He listed plaintiff's height, weight and body mass index as an indicator of obesity. (Tr. 18). He stated that plaintiff's obesity was a severe impairment. (Tr. 13). He also noted the provisions of SSR 02-01p and said that the effects of plaintiff's obesity were considered in determining plaintiff's RFC. Tr. 18 and Tr. 19 (“The claimant's obese body habitus [and other factors] support the . . . residual functional capacity assessment.”). Second, the ALJ considered the opinion of an examining doctor, Dr. Fishman.[4] (Tr. 19). Plaintiff's obesity must have been a factor in his findings. The ALJ considered plaintiff's activities of daily living (Tr. 18), which also must have involved the limitations from obesity. Third, during the administrative hearing, plaintiff did not claim obesity as a disabling factor. (Tr. 118-19); see also Tr. 171, 179. This limits the impact of the alleged error in considering and discussing the obesity factor.

         The court finds that these three factors distinguish this case from the case cited by plaintiff, DeWitt v. Astrue, 381 Fed.Appx. 782, 784-86 (10th Cir. 2010)[5] and that the ALJ's approach is similar to that approved by the Tenth Circuit in Smith v. Colvin, 625 Fed.Appx. 896, 899 (10th Cir. 2015); Arles v. Astrue, 438 Fed.Appx. 735, 740 (10th Cir. 2011); see also, Razo v. Colvin, 663 Fed.Appx. 710, 716-17 (10th Cir. 2016); Rose v. Colvin, 634 Fed.Appx. 632, 637 (10th Cir. 2015).

         B. Wrist pain and migraines

         Plaintiff asserts that the ALJ did not properly evaluate the impact of plaintiff's right wrist pain and migraine headaches when calculating plaintiff's RFC. The ALJ did not explicitly discuss these ailments during his step four analysis. But, he stated that he had considered “all symptoms” and the “intensity, persistence, and limiting effects of the . . . symptoms to determine the extent to which they limit [plaintiff's RFC].” (Tr. 16). The Tenth Circuit's practice is to give credence to such comments. Wall, 561 F.3d at 1070. The ALJ also addressed in some detail the evidence regarding plaintiff's right wrist and migraine impairments at Tr. 14 where he determined that neither was “severe.” He noted that plaintiff's “hand and wrist pain had no more than a minimal effect on her ability to perform basic work related activities, ” and that her migraines had been treated with a NSAID for pain control. (Tr. 14).

         An ALJ must consider the combined effect of all impairments, severe or non-severe, in deciding a claimant's RFC. Wells v. Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013). Upon a review of the record, the court credits the ALJ's remark that “all symptoms” were considered and finds that plaintiff's wrist pain and migraine headaches were reasonably accounted for in the RFC determination.

         C. Dr. ...


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