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Sandra G. v. Berryhill

United States District Court, D. Kansas

May 31, 2019

SANDRA 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) pursuant to sections 216(i) and 223 of the Social Security Act, 42 U.S.C. §§ 416(i) and 423 (hereinafter the Act). 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 when he accorded substantial weight to the opinions of certain medical sources but failed to include limitations opined by those sources in the residual functional capacity (RFC) assessed or to explain why he rejected those limitations.

         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; 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 RFC. 20 C.F.R. § 404.1520(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).

         II. Discussion

         Plaintiff admits that the ALJ properly explained the amount of weight accorded to the medical source opinions. (Pl. Br. 9). She argues, however, that “the problem with [the] ALJ's decision is that he found opinions persuasive and consistent with the record but excluded material limitations within those decisions from the RFC.” Id. She argues that the limitations which were erroneously excluded from the RFC assessed were Dr. Vitosh's and APRN (Advanced Practice Registered Nurse) Marshall's opinions that Plaintiff would miss work more than two days a month, Dr. Vitosh's opinion Plaintiff would be off-task 25% of a workday, and especially APRN Marshall's opinion of numerous moderate mental limitations. Id. at 9-10. Plaintiff concludes her argument that “the ALJ does not have to adopt an opinion, but he does have to explain why he ignored portions he did not include in the RFC.” Id. at 14.

         The Commissioner argues that “the ALJ reasonably limited Plaintiff to a restricted range of light work, ” and substantial evidence supports that determination. (Comm'r Br. 8). She argues the mental RFC assessed is also supported by substantial evidence, id. at 9, and “this Court [sic] should not disturb the ALJ's decision upon appeal.” Id. at 10. She then argues that “Plaintiff's argument is based on a misinterpretation of how the ALJ weighed the relevant opinion evidence” (Comm'r Br. 11) and ignores the ALJ's actual analyses of Dr. Vitosh's and APRN Marshall's opinions. Id. at 11-13. She argues that the evaluation of an “other medical source” opinion such as that of Ms. Marshall requires only that the “decision allows a claimant or subsequent reviewer to follow the adjudicator's reasoning.” Id. at 13 (quoting Soc. Sec. Ruling (SSR) 06-3p). She concludes by arguing “the ALJ's decision reflects that the ALJ decided to attribute greater weight to the acceptable medical source opinions from Dr. Maxfield and Dr. Ogden, who both opined that Plaintiff was capable of performing full-time work without excessive absenteeism.” Id. at 14.

         A. The Legal Standard Applicable

         The court agrees with Plaintiff's statement of the standard applicable to this case. The Commissioner issued SSR 96-8p “[t]o state the Social Security Administration's policies and policy interpretations regarding the assessment of residual functional capacity (RFC) in initial claims for disability benefits.” West's Soc. Sec. Reporting Serv., Rulings 143 (Supp. 2018). The Ruling includes narrative discussion requirements for an RFC assessment. Id. at 149. The discussion is to cite specific medical facts and nonmedical evidence to describe how the evidence supports each conclusion, discuss how the claimant is able to perform sustained work activities, and describe the maximum amount of each work activity the claimant can perform. Id. The discussion must include an explanation how any ambiguities and material inconsistencies in the evidence were considered and resolved. Id. If the ALJ's RFC assessment conflicts with a medical source opinion, the ALJ must explain why he did not adopt the opinion. Id. at 150.

         The RFC assessment is based on all the evidence of record and is an administrative assessment. SSR 96-8p, 1996 WL 374184 (Soc. Sec. Admin. July 2, 1996). It is the Commissioner's final responsibility to determine the RFC. 20 C.F.R. §§ 404.1527(e)(2), 404.1546. The ALJ's RFC, however, must be supported by the substantial evidence of record. Cowan v. Astrue, 552 F.3d 1182, 1190 (10th Cir. 2008). In addition to requiring an explanation regarding any material inconsistencies or ambiguities in the evidence, SSR 96-8p requires that “[i]f the RFC assessment conflicts with an opinion from a medical source, the ALJ must explain why the opinion was not adopted.” 1996 WL 374184 at *7. In Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. April 3, 2007), the Tenth Circuit explained that when an ALJ gives weight to an opinion, the ALJ must explain why he rejects some of the limitations ...


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