United States District Court, D. Kansas
PATRICIA L. 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 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.
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).
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
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
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).
considering Plaintiff's allegations of error, the court
finds no error in the decision at issue.
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
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.
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).
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
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).
Step Three Standard
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.
[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).
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. §§
The ALJ's Step Three Findings
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
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,
(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.
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 ...