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Dean S. v. Berryhill

United States District Court, D. Kansas

April 22, 2019

JEWELL DEAN S., [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 Supplemental Security Income (SSI) benefits pursuant to sections 1602, and 1614(a)(3)(A) of the Social Security Act, 42 U.S.C. §§ 1381a, and 1382c(a)(3)(A) (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 erroneously failed to consider her medically determinable impairments of carpal tunnel syndrome, peripheral neuropathy, and back pain; erred in weighing the medical opinions; erred in assessing Plaintiff's residual functional capacity (RFC); and erred in finding that Plaintiff can perform other work.

         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 he 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. § 416.920; 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 she has a severe impairment(s), and whether the severity of her 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 RFC. 20 C.F.R. § 416.920(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 her past relevant work; and at step five whether, when also considering the vocational factors of age, education, and work experience, she 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 considers the issues as presented in Plaintiff's Brief.

         II. Medically Determinable Impairments

         Plaintiff claims the ALJ did not consider her medically determinable impairments; of carpal tunnel syndrome which was diagnosed by an EMG (electromyogram) study (Pl. Brief 14), [2] of peripheral neuropathy which was diagnosed on November 3, 2015 by an Advanced Practice Registered Nurse (APRN) performing a monofilament test, and of back pain medically determined by an imaging study performed on November 3, 2016. Id. at 15. The Commissioner argues that the ALJ's failure to find these impairments severe was a reasonable interpretation of the record evidence. (Comm'r Br. 8). She argues that none of Plaintiff's treating providers assessed Plaintiff with carpal tunnel syndrome during the adjudicated period, id. at 9, that during the relevant period Plaintiff did not complain to her treating providers of neuropathy symptoms and that an APRN is not an acceptable medical source qualified to diagnose a medically determinable impairment. Id. at 10. Finally, she points out that back pain is a symptom, not an impairment, that the ALJ found that Plaintiff has the severe impairment of inflammatory arthritis and she suggests that such an impairment is capable of producing back pain. (Comm'r Br. 11).

         In her Reply Brief, Plaintiff responds that she consistently reported symptoms of carpal tunnel syndrome and neuropathy and reported these diagnoses to her new providers when she changed providers. (Reply 1). She reiterates her arguments regarding diagnosis with each of these impairments and argues that she is not required to expend her limited resources on confirmatory diagnoses, but that it is the ALJ's duty to further develop an inadequate or insufficient record, and if additional testing was necessary he should have ordered it. Id. at 2-6.

         A. Step Two Standard

         An impairment is not considered severe if it does not significantly limit Plaintiff's ability to do basic work activities such as walking, standing, sitting, carrying, understanding simple instructions, responding appropriately to usual work situations, and dealing with changes in a routine work setting. 20 C.F.R. § 416.921. The Tenth Circuit has interpreted the regulations and determined that to establish a “severe” impairment or combination of impairments at step two of the sequential evaluation process, Plaintiff must make only a “de minimis” showing. Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997). Plaintiff need only show that an impairment would have more than a minimal effect on her ability to do basic work activities. Williams, 844 F.2d at 751. However, she must show more than the mere presence of a condition or ailment. Hinkle, 132 F.3d at 1352 (citing Bowen v. Yuckert, 482 U.S. 137, 153 (1987)). If an impairment's medical severity is so slight that it could not interfere with or have a serious impact on plaintiff's ability to do basic work activities, it could not prevent Plaintiff from engaging in substantial work activity and will not be considered severe. Hinkle, 132 F.3d at 1352.

         B. Analysis

         The ALJ found that Plaintiff has “severe” impairments of inflammatory arthritis, obesity, asthma, and depression. (R. 19). He found Plaintiff also has the medically determinable impairments of Raynaud's syndrome and diabetes mellitus which are not “severe” within the meaning of the Act and regulations. Id. The ALJ specifically found “no indications ...


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