Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Michael T. G. v. Berryhill

United States District Court, D. Kansas

May 3, 2019

MICHAEL T. G., [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 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 decision.

         I. Background

         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 Dr. Millhuff's limitations within the residual functional capacity (RFC) he assessed. (Pl. Br. 9).

         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. §§ 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.

         The 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).

         The 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 opinion.

         II. Discussion

         As 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.

         Plaintiff 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.