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S.C. v. Berryhill

United States District Court, D. Kansas

May 28, 2019

S.C., [1] Plaintiff,
v.
NANCY A. BERRYHILL, Acting COMMISSIONER OF Social Security ADMINISTRATION, Defendant.

          MEMORANDUM AND ORDER

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

         On April 8, 2015, plaintiff filed an application for social security disability insurance benefits and for supplemental security income benefits. The applications alleged a disability onset date of December 31, 2004. The applications were denied initially and on reconsideration. An administrative hearing was conducted on July 25, 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 applications 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).

         For supplemental security income claims, a claimant becomes eligible in the first month where he or she is both disabled and has an application on file. 20 C.F.R. §§ 416.202-03, 416.330, 416.335.

         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)). II. THE ALJ'S DECISION (Tr. 12-25).

         There is a five-step evaluation process followed in these cases which is described in the ALJ's decision. (Tr. 13-14). 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 there was no evidence to support plaintiff's claim of disability during the time period when plaintiff had insured status. (Tr. 15). Thus, plaintiff was not qualified for disability insurance benefits. The ALJ further decided that plaintiff's application for supplemental security income benefits should be denied at the fifth step of the evaluation process.

         The ALJ made the following specific findings in her decision. First, plaintiff last met the insured status requirements for Social Security benefits on December 31, 2004. Second, plaintiff has not engaged in substantial gainful activity since April 8, 2015. Third, since April 8, 2015, plaintiff has had the following severe impairments: arthropathies/leg length discrepancy; major depressive disorder; anxiety, and temporomandibular joint dysfunction (TMJ). 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 to perform medium work as defined in 20 C.F.R. § 416.967(c) except that: plaintiff can lift/carry 50 pounds occasionally and 25 pounds frequently, with pushing and pulling limited to the same weights; plaintiff can stand/walk 6 hours in an 8-hour day with normal breaks, and sit for 6 hours in an 8-hour workday with normal breaks; plaintiff can occasionally climb, balance, stoop, kneel, crouch, and crawl; he can understand, remember, and carry out intermediate (SVP 3 and 4) instructions; he can have occasional public contact and occasional supervisor and coworker contact. Finally, the ALJ determined that, considering plaintiff's age, education, work experience and residual functional capacity (RFC) that there are jobs that exist in significant numbers in the national economy he can perform, such as lamination assembler, machine finisher, and metal spraying machine operator. These jobs were described by the vocational expert as SVP 2, unskilled jobs. (Tr. 55).

         III. THE DENIAL OF BENEFITS SHALL BE AFFIRMED.

         A. Dr. Porter's opinion

         Plaintiff's arguments to reverse the denial of benefits focus upon the opinion of Dr. Garry Porter. Dr. Porter provided mental health care to plaintiff. In 2017, he completed a medical source statement which is largely a check-a-box form. The statement indicates that plaintiff has an alcohol abuse disorder and a depressive disorder. (Tr. 1048). It states that plaintiff “can do well” when he is “clean.” Id. The form also states that plaintiff would miss as many as four days a month because he was having a “bad day.” Id. Of twenty categories of mental functioning, Dr. Porter checked four as “moderately limited” and the rest as “mildly limited.”[2] (Tr. 1048-49). The four “moderately limited” categories were: the ability to carry out very short and simple instructions; the ability to carry out detailed instructions; the ability to maintain attention and concentration for extended periods; and the ability to maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness. (Tr. 1049). The form defines “moderately limited” as: “Impairment levels are compatible with some, but not all, useful functioning. Considered to be 1 standard deviation below the norm, or 30% overall reduction in performance.” (Tr. 1048). Dr. Porter did not provide a narrative discussion of plaintiff's functional capacity on the form, aside from indicating that plaintiff can do well when he is sober.

         The ALJ gave Dr. Porter's opinion only “partial weight.” (Tr.22). The ALJ stated:

Dr. Porter's opinion as to moderate limitations is generally consistent with the medical evidence which showed only few adverse findings, mostly mild (Exhibits B16F/22 and B19F/4-6). The consultative psychological examination also showed only mild issues (Exhibit B17F/7-10). However, Dr. Porter's opinion as to missing work appears to be related to the claimant's alcohol use. The record ...

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