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Patricia L. G. v. Berryhill

United States District Court, D. Kansas

May 29, 2019

PATRICIA L. 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 Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) benefits pursuant to sections 216(i), 223, 1602, and 1614(a)(3)(A) of the Social Security Act, 42 U.S.C. §§ 416(i), 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 erred at steps two, three, and four of the Commissioner's sequential evaluation process by failing to cite evidence to support his finding that certain of Plaintiff's impairments are not “severe” within the meaning of the Act, by finding that Plaintiff's condition neither meets not equals the severity of a Listed Impairment, in weighing the medical opinions, by inadequately evaluating the three phases of the step four evaluation of Plaintiff's past relevant work as required by the court in Winfrey v. Chater, 92 F.3d 1017 (10th Cir. 1996), by inadequately evaluating Plaintiff's allegations of symptoms resulting from her impairments, by relying on portions of the evidence favorable to his findings while ignoring or mischaracterizing other evidence, by inadequately evaluating the medical records from Saint Vincent Clinic, by inadequately considering the testimony of her friend and co-worker, Louise Bailes, by failing “to make any ‘findings regarding the actual functional demands of [P]laintiff's past relevant work'” (Pl. Brief 33) (quoting Clardy v. Barnhart, No. 03-2347-JWL, 2004 WL 737486, at *6 (D. Kan. Apr. 5, 2004)), and by failing to include all of Plaintiff's limitations in the hypothetical question he posed to the vocational expert (VE).

         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 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 residual functional capacity (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 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).

         After considering Plaintiff's allegations of error, the court finds no error in the decision at issue.

         II. Preliminary Discussion

         This case was decided at step four of the sequential evaluation process (R. 564), and Plaintiff alleges errors at step two, step three, and step four of the process, without particularly organizing her Brief to provide all her arguments regarding a single issue (such as medical opinions or Plaintiff's allegations of limitations resulting from her symptoms) in one place. The court has considered each of her arguments and will generally address them in the order they appear when applying the Commissioner's sequential evaluation process.

         The court notes that because this case was decided at step four of the sequential evaluation process the burden was on Plaintiff at every step of the process to demonstrate the requisite facts to show that she is disabled within the meaning of the Act and the regulations and that she is unable to perform her past relevant work as a dispatcher either as she performed it or as it is generally performed within the economy. The organization of Plaintiff's Brief presents the narrative that at step two she has more impairments that are “severe” within the meaning of the Act and the regulations than the ALJ found; that at step three her condition meets or equals the severity criteria of Listing 1.04A for disorders of the spine with evidence of nerve root compression; that at step four she is unable to perform her past relevant work as a dispatcher; and that “substantial and uncontradicted evidence indicates Plaintiff is disabled and entitled to benefits” (Pl. Br. 34) requiring remand for an immediate award of benefits. Throughout her Brief, Plaintiff points to record evidence tending to support her view and a finding of disability. Moreover, although Plaintiff argues that the ALJ did not properly evaluate her allegations of disabling symptoms and did not properly evaluate the opinion evidence, she spread portions of these arguments throughout her briefing and did not organize each argument into a cohesive unit.

         The approach Plaintiff has taken in her Brief ignores both the legal standard applicable and the court's responsibility in judicial review of a decision of the Commissioner. The court must determine whether the Commissioner applied the correct legal standard in evaluating Plaintiff's application for benefits and whether substantial evidence in the record as a whole (“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion”) supports the Commissioner's final decision. And, it is Plaintiff's burden to prove that the Commissioner erred. The beginning point in the court's review is the final decision of the Commissioner (the ALJ's decision in this case), and Plaintiff must demonstrate that the ALJ applied an erroneous legal standard and/or that the record evidence is insufficient to support the ALJ's findings--that the record evidence supporting the ALJ's findings is not “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” The evidence in a Social Security record is almost always equivocal. Therefore, Plaintiff must demonstrate the error in the ALJ's rationale or finding; the mere fact that there is evidence which might support a contrary finding will not establish error in the ALJ's determination. “The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence. [The court] may not displace the agency's choice between two fairly conflicting views, even though [it] would justifiably have made a different choice had the matter been before it de novo.” Lax, 489 F.3d at 1084 (citations, quotations, and bracket omitted); see also, Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966).

         III. Step Two

         Plaintiff acknowledges the ALJ found she has “severe” impairments of degenerative disc disease (DDD), degenerative joint disease (DJD), and a remote laminectomy, but argues that “the ALJ found Plaintiff's Chronic Obstructive Pulmonary Disease and Insomnia were not severe because they were controlled by medication, but cited no evidence to support his determination.” (Pl. Br. 4). Contrary to Plaintiff's assertion, the ALJ cited as an example for his determination Exhibit 19F at p. 155 (R. 1037) which reveals that Plaintiff's COPD was assessed as stable and the plan was to “continue medications as prescribed, ” thereby suggesting that COPD is controlled by medication-and Plaintiff has not shown otherwise. The question for judicial review is whether the ALJ's findings are supported by record evidence, not whether he cited to all the record evidence supporting each finding. The burden of proof at step two is on Plaintiff, and she does not direct the court to evidence demonstrating her insomnia and COPD are “severe” within the meaning of the Act and regulations. In any case, as the Commissioner argues, where the ALJ has found one or more severe impairments at step two, the failure to find additional impairments are severe is not cause for reversal so long as the ALJ, in determining the claimant's RFC, considers the effects “of all of the claimant's medically determinable impairments, both those he deems ‘severe' and those ‘not severe.'” Hill v. Astrue, 289 Fed.Appx. 289, 292, (10th Cir. 2008) (emphasis in original). Plaintiff has not made the requisite showing.

         IV. Step Three

         Plaintiff argues that the ALJ erred in finding Plaintiff's condition does not meet or medically equal the severity of Listing 1.04A. She argues this constitutes failure to apply the correct legal standard because the ALJ failed to provide the “‘specific weighing of the evidence' or ‘minimal level of articulation'” required by the Tenth Circuit. (Pl. Br. 6) (quoting Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996)). Plaintiff explains how, in her view, the evidence, including medical opinions, demonstrates that the Listing is met-or at least medically equaled-and she argues that “the ALJ failed to identify the objective evidence he relied on or rejected in determining Plaintiff's spine impairments did not meet or equal the requirements of Listing 1.04A.” (Pl. Br. 11).

         A. Step Three Standard

         The Commissioner has provided a “Listing of Impairments” which describes certain impairments that she considers disabling. 20 C.F.R. §§ 404.1525(a), 416.925(a); see also, Pt. 404, Subpt. P, App. 1 (Listing of Impairments). If Plaintiff's condition meets or equals the severity of a listed impairment, that impairment is conclusively presumed disabling. Williams, 844 F.2d at 751; see also Bowen v. Yuckert, 482 U.S. 137, 141 (1987) (if claimant's impairment “meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled”). However, Plaintiff “has the burden at step three of demonstrating, through medical evidence, that h[er] impairments ‘meet all of the specified medical criteria' contained in a particular listing.” Riddle v. Halter, No. 00-7043, 2001 WL 282344 at *1 (10th Cir. Mar. 22, 2001) (quoting Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (emphasis in Zebley)). “An impairment that manifests only some of [the Listing] criteria, no matter how severely, does not qualify” to meet or equal the listing. Zebley, 493 U.S. at 530.

         “The [Commissioner] explicitly has set the medical criteria defining the listed impairments at a higher level of severity than the statutory standard. The listings define impairments that would prevent an adult, regardless of h[er] age, education, or work experience, from performing any gainful activity, not just ‘substantial gainful activity.'” Zebley, 493 U.S. at 532-33 (emphasis in original) (citing 20 C.F.R.' 416.925(a) (1989)). The listings “streamlin[e] the decision process by identifying those claimants whose medical impairments are so severe that it is likely they would be found disabled regardless of their vocational background.” Yuckert, 482 U.S. at 153. “Because the Listings, if met, operate to cut off further detailed inquiry, they should not be read expansively.” Caviness v. Apfel, 4 F.Supp.2d 813, 818 (S.D. Ind. 1998).

         Medical equivalence to a listing may be established by showing that the claimant's impairment(s) “is at least equal in severity and duration to the criteria of any listed impairment.” 20 C.F.R. §§ 404.1526(a), 416.926(a). The determination of medical equivalence is made without consideration of vocational factors of age, education, or work experience. 20 C.F.R. §§ 404.1526(c), 416.926(c).

         B. The ALJ's Step Three Findings

         The ALJ explained that he had reviewed all the evidence, and he concluded that Plaintiff's impairments do not meet or equal the severity of any Listing. (R. 551). He noted that he had specifically considered Listing 1.04 (Disorders of the spine). Id. He discussed two medical opinions which concluded that Plaintiff's condition does not meet or medically equal the severity of any Listing-those of the medical expert (ME) who testified at the first ALJ hearing in this case, Dr. Axline, and of the state agency medical consultant who reviewed the record evidence at the reconsideration level, Dr. Siemsen. Id. He also discussed the opinion of Plaintiff's treating physician, Dr. Rettinger, that Plaintiff's condition meets the severity of Listing 1.04A. Id. at 560-61. Here is his discussion:

With regard to the claimant's physical impairments, the undersigned has specifically considered Listing 1.02 (Major dysfunction of a joint(s) (due to any cause) and Listing 1.04 (Disorders of the spine). The medical expert who testified in this case, John W. Axline, M.D., who is a board certified orthopedic surgeon, testified that in his opinion, the claimant's lumbar spine disorder does not meet or medically equal any listing. The undersigned gives significant weight to this opinion from Dr. Axline because it is consistent with the objective medical evidence in the record and because he is an orthopedic specialist.
The undersigned also gives significant weight to the opinion of the State [sic] agency medical consultant, Gerald Siemsen, M.D., on this issue because it is consistent with the medical records in evidence. On November 3, 2010, Dr. Siemsen affirmed the “Physical Residual Functional Capacity Assessment” form that had previously been submitted by the State [sic] agency on July 9, 2010 after opining that the claimant's impairments do not meet or medically equal any listed impairment (Exhibits 3A, 5A, 8F [(R. 98, 100-07, 459)]).

(R. 551-52) (italics in original).

On July 12, 2016, following his most recent office visit with the claimant in the record, Dr. Rettinger completed medical source statements that included a “Medical Questionnaire” form and an annotation on a print out of “l.04 Disorders of the spine” (l6F [(R. 872-75)]). Dr. Rettinger opined in his hand written annotation that the claimant “meets condition l.04A based on physical exam, MRI findings, and clinical history, ” and that “she has met these conditions since April, 2008.” The undersigned gives no weight to this opinion because it is conclusory and not supported by the objective evidence expressly cited above in this decision.
In order to meet the criteria of Listing l.04A, the medical evidence must show the following:
1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord. With:
A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine).
Since the claimant's medical records do not show nerve root compression, the claimant's DDD of the lumbar spine does not ...

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