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J.H. v. Berryhill

United States District Court, D. Kansas

May 24, 2019

J.H., [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 terminating Plaintiff's social security disability benefits under section 223 of the Social Security Act, 42 U.S.C. § 423. The matter is fully briefed by the parties and the court is prepared to rule. (Docs. 9, 12.) The Commissioner's decision is REVERSED AND REMANDED 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. Hayden v. Barnhart, 374 F.3d 986, 988 (10th Cir. 2004) (terminating benefits) (citing 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.

         As this case involves a termination of benefits, an eight-step sequential process is used by the Commissioner. Hayden v. Barnhart, 374 F.3d 986, 988 (10th Cir. 2004); 20 C.F.R. § 404.1594(f)(1-8). If a determination is made that a recipient is unable to engage in substantial gainful activity at any step in the process, evaluation under a subsequent step is not necessary. 20 C.F.R. § 404.1594(f). At step one, the Commissioner determines whether the recipient is engaged in substantial gainful activity. Id. § 404.1594(f)(1). If not, the Commissioner then considers at step two whether the recipient has a medically severe impairment or combination of impairments. Id. § 404.1594(f)(2). If any current impairment(s) meets or equals a listed impairment, his disability is conclusively presumed to continue. Id. At step three, the Commissioner determines if the impairment(s) present at the most recent favorable decision has undergone medical improvement. Id. § 404.1594(f)(3) & (b)(1). In evaluating medical improvement, the ALJ compares “the current medical severity of that impairment(s) which was present at the time of the most recent favorable medical decision . . . to the medical severity of that impairment(s) at that time.” Id. § 404.1594(b)(7). If medical improvement is found in step three, step four requires a determination regarding whether the recipient's medical improvement is related to his ability to work. Id. § 404.1594(f)(4). At step five, if there is no medical improvement or if the medical improvement is not related to the ability to work, the Commissioner considers a number of exceptions. If none of the exceptions apply, the disability is found to continue.

         At step six, if medical improvement is found, the Commissioner will determine whether the current impairments in combination are severe. Id. § 404.1594(f)(6). If the current impairments in combination are severe, the RFC will be assessed at step seven based on all the current impairments, and the Commissioner will consider whether the recipient can still do work he has done in the past. Id. § 404.1594(f)(7). If so, the disability benefits will be terminated. Id. If not, at step eight, the Commissioner will determine whether he can perform other work existing in the economy given Plaintiff's RFC. Id. § 404.1594(f)(8). If he can, the disability benefits will be terminated. Id. In a termination case, the burden is on the Commissioner to show both (1) medical improvement related to Plaintiff's ability to work, and (2) that Plaintiff is currently able to engage in substantial gainful activity. Patton v. Massanari, 20 Fed.Appx. 788, 789 (10th Cir. 2001) (citing Glenn, 21 F.3d at 987; 20 C.F.R. 404.1594(a)).

         II. Background and Procedural History

         In May 2001, Plaintiff was found disabled, as of June 28, 2000, because of fractures of his arms requiring ongoing medical management. A continuing disability review on August 30, 2003, found that Plaintiff's disability was continuing. Another disability review occurred on May 19, 2008, and found that Plaintiff's condition had medically improved beginning May 15, 2008. Plaintiff's period of disability was terminated effective July 31, 2008. Plaintiff sought judicial review after exhausting his administrative remedies. On October 24, 2013, Judge Lungstrum reversed and remanded the decision of the Commissioner because of his failure to evaluate the medical opinion of Dr. Majure-Lees. (R. at 490-500.) On June 2, 2015, administrative law judge (ALJ) George M. Bock issued his decision finding that Plaintiff was not disabled as of May 1, 2008. (R. at 469-476.) Plaintiff again exhausted his administrative remedies and appealed to the district court. On February 10, 2017, Judge Crow reversed and remanded the decision of the Commissioner because of his failure to evaluate the medical opinion of Dr. Brooks. (R. at 953-975.)

         On October 17, 2017, a hearing was held before ALJ Robert Burbank. After reviewing the record, the AJL determined that Plaintiff's disability ended as of May 15, 2008. (R. at 935-952.) The ALJ determined that Plaintiff had the following severe impairments as of May 15, 2008: previous fracture with malunion of the left upper extremity, alcohol abuse, major depressive disorder, dysthymia, anxiety disorder, history of traumatic brain injury, diabetes mellitus, epicondylitis and tendinitis of the right wrist and elbow. (R. at 937.) The ALJ determined that the impairments did not meet or equal a listed impairment. (R. at 939.) The ALJ found that medical improvement occurred as of May 15, 2008, and that the medical improvement was related to the ability to work. The ALJ determined that Plaintiff has had the RFC to perform light work with the following limitations: lift and carry 20 pounds occasionally and 10 pounds frequently; he could stand or walk a total of 6 hours in an 8-hour workday and sit up to 6 hours in an 8-hour workday; he could not climb ladders, ropes, or scaffolds; he could not crawl and should avoid work in hazardous conditions; he could use the non-dominant left arm and hand for assist only; and he has been limited to jobs that involve understanding, remembering, and carrying out simple instructions and performing routine, repetitive tasks. (R. at 941.)

         The ALJ further found that Plaintiff has not been able to perform past relevant work as of May 15, 2008. However, the ALJ ultimately found that Plaintiff was able to perform a significant number of jobs in the national economy as of May 15, 2008, considering Plaintiff's RFC. (R. at 951-52.) Plaintiff exhausted his administrative review of the decision. Plaintiff appealed the decision to this court and raises several arguments. They will be addressed in turn.

         III. Analysis

         A. RFC Physical Determination

         Plaintiff raises several arguments asserting that the ALJ's physical RFC determination is not ...


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