United States District Court, D. Kansas
MICHAEL T. G.,  Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
W. LUNGSTRUM UNITED STATES DISTRICT JUDGE.
seeks review of a decision of the Acting Commissioner of
Social Security (hereinafter Commissioner) denying
Child's Insurance Benefits based on Disability (CBD) and
Supplemental Security Income (SSI) benefits pursuant to
sections 202(d), 223, 1602, and 1614(a)(3)(A) of the Social
Security Act, 42 U.S.C. §§ 402(d), 423, 1381a, and
1382c(a)(3)(A). 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
argues that the ALJ gave some weight to the treating source
opinion of Dr. Millhuff and found that “the mild to
moderate limitations contained in [Dr. Millhuff's]
opinion are consistent with the claimant's activities of
daily living, including the ability to socialize with
friends, shop, play video games, read for pleasure, cook
simple meals, and perform household chores and personal care
with some prompting.” (R. 18). But he claims error
because the ALJ failed to include Dr. Millhuff's
limitations within the residual functional capacity (RFC) he
assessed. (Pl. Br. 9).
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.
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, 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
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 RFC. 20 C.F.R. §§ 404.1520(e),
416.920(e). This assessment is used at both step four and
step five of the sequential evaluation process. Id.
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 considers the issue as presented in Plaintiff's
Brief and finds no error in the ALJ's RFC assessment in
light of his agreement with a portion of Dr. Millhuff's
noted above, Plaintiff argues that the ALJ gave some weight
to the treating source opinion of Dr. Millhuff and found that
“the mild to moderate limitations contained in [Dr.
Millhuff's] opinion are consistent with the
claimant's activities of daily living, including the
ability to socialize with friends, shop, play video games,
read for pleasure, cook simple meals, and perform household
chores and personal care with some prompting.” (R. 18).
But he claims error because the ALJ failed to include the
limitations Dr. Millhuff opined within the RFC he assessed.
(Pl. Br. 9). Plaintiff's claim is based on the definition
of “Moderately Limited” in the “Medical
Source Statement - Mental” Dr. Millhuff completed and
signed, providing his “professional opinion of the
claimant's limitations.” (R. 507-08).
Plaintiff's counsel submitted the form for the ALJ to
evaluate in his consideration of this case. (R. 506). The
form defines “Moderately Limited” to mean
“Impairment levels are compatible with some, but not
all, useful functioning. Considered to be l standard
deviation below the norm, or 30% overall reduction in
performance.” Id. at 507.
points out that Dr. Millhuff opined that Plaintiff has
moderate limitations (as defined above)
in the ability[ies] to remember locations and work-like
procedures, carry out detailed instructions, maintain
attention and concentration for extended periods, sustain an
ordinary routine without special supervision, work in
coordination with others without being distracted by them,
make simple work related decisions, complete a normal workday
or workweek, respond to changes in the work setting, and
travel to unfamiliar places.
(Pl. Br. 9) (citing R. 507-08). He then argues Dr. Millhuff
opined of “a 30% reduction” in these abilities,
and the vocational expert (VE) testified no competitive
employment is available ...