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J.M.V. v. Berryhill

United States District Court, D. Kansas

June 5, 2019

J.M.V., [1] Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff filed this action for review of a final decision of the Commissioner of Social Security denying Plaintiff's application for social security disability benefits. The matter is fully briefed by the parties. (Docs. 15, 16, 19.) The Commissioner's decision is REVERSED and REMANDED for the reasons stated 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. 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.

         The Commissioner has established a five-step sequential evaluation process to determine disability. 20 C.F.R. § 404.1520; Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010). If at any step a finding of disability or non-disability can be made, the Commissioner will not review the claim further. At step one, the agency will find non-disability unless the claimant can show that he or she is not working at a “substantial gainful activity.” Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988). At step two, the agency will find non-disability unless the claimant shows that he or she has a severe impairment. At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled. Id. at 750-51. If the claimant's impairment does not meet or equal a listed impairment, the agency determines the claimant's residual functional capacity (“RFC”). 20 C.F.R. § 404.1520(e). The RFC assessment is used to evaluate the claim at both step four and step five. 20 C.F.R. § 404.1520(a)(4); § 404.1520(f), (g). At step four, the agency must determine whether the claimant can perform previous work. If a claimant shows that she cannot perform the previous work, the fifth and final step requires the agency to consider vocational factors (the claimant's age, education, and past work experience) and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy. Barnhart v. Thomas, 540 U.S. 20, 25 (2003).

         The claimant bears the burden of proof through step four of the analysis. Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006). At step five, the burden shifts to the Commissioner to show that the claimant can perform other work that exists in the national economy. Id.; Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993). The Commissioner meets this burden if the decision is supported by substantial evidence. Thompson, 987 F.2d at 1487.

         II. Background and Procedural History

         Plaintiff applied for disability insurance benefits and supplemental security income, alleging a disability beginning December 4, 2014, when she was 39 years of age. (Tr. at 18, 257.) Prior to that time, Plaintiff held jobs as a customer service representative, freight manager, and healthcare resident assistant. (Tr. at 337.)

         Plaintiff's claims were administratively denied both initially and upon reconsideration, prompting her to request a hearing before an Administrative Law Judge (ALJ). Plaintiff appeared and testified at a hearing in Wichita on August 16, 2017, before ALJ Susan Toth. Plaintiff's daughter and vocational expert Kristine Skahan also testified. On January 17, 2018, the ALJ issued a written decision unfavorable to Plaintiff. (Tr. at 18-34.)

         At step one, the ALJ found Plaintiff had not been engaged in substantial gainful activity since the alleged onset date of December 4, 2014. (Tr. at 21.) At step two, the ALJ found Plaintiff suffered from the following severe impairments: migraine headaches, major depressive disorder, generalized anxiety disorder with social anxiety features, lumbar degenerative disc disease, bilateral chondromalacia patellofemoral syndrome, left knee synovial cyst, right shoulder impingement with osteoarthritis, right-side paresthesia, and left shoulder pain. (Id.) The ALJ also found Plaintiff had undergone treatment for hypertension, hypothyroidism, hepatic steatosis, mild (symptomatic) lymphocytosis and a renal calculus, but found these impairments were not severe. (Id.) The ALJ noted Plaintiff also reported having multiple sclerosis (MS), carpal tunnel syndrome, peripheral artery disease, pancreatitis, and irritable bowel disease, but the ALJ concluded there was “no evidence in the record, including documented physical symptoms, functional limitations, [or] diagnostic findings or techniques, which would demonstrate the existence of these conditions, ” such that the conditions were not medically determinable. (Id. at 22.) At step three, the ALJ found that none of Plaintiff's impairments, alone or in combination, met or exceeded any impairment listed in the regulations. (Id. at 23.)

         The ALJ next determined that Plaintiff has the RFC to perform sedentary work, as defined in the regulations, in that she can lift, carry, push and/or pull 10 pounds occasionally and less then 10 pounds frequently; can stand and walk in combination for 2 hours in an 8-hour workday; can sit for a total of 6 hours in an 8-hour workday; can occasionally climb ramps and stairs; may not climb ladders, ropes, or scaffolds; can occasionally stoop, kneel, crouch, and crawl; can have no more than occasional exposure to extreme cold and heat; cannot be exposed to hazards including unprotected heights and machinery with moving parts; can understand, remember, and carry out simple instructions and maintain concentration, persistence, and pace for simple, routine, and repetitive tasks; can occasionally interact with the general public; and can adapt to changes in the work setting consistent with the foregoing limitations. (Id. at 24-25.)

         In determining Plaintiff's RFC, the ALJ found Plaintiff's medically determinable impairments could reasonably be expected to cause her symptoms, but Plaintiff's statements as to the intensity, persistence, and limiting effects of the symptoms were not entirely consistent with the medical and other evidence. (Tr. at 26.) The ALJ noted Plaintiff had sought treatment for migraine headaches and back, shoulder, and knee pain, but found the treatment records and objective evidence did not support debilitating limitations. The ALJ reviewed medical and other evidence pertaining to Plaintiff's symptoms. The ALJ gave partial weight to the opinions of T.A. Moeller, Ph.D., who performed a consultative psychological exam, and who diagnosed Plaintiff with mild major depressive disorder and a possible somatoform disorder. Dr. Moeller opined that Plaintiff's mental impairment, standing alone, would not prevent her from working. (Tr. at 30; 474.) The ALJ also gave partial weight to the opinion of David Simmonds, Ph.D., who performed a second consultative psychological exam, and who diagnosed Plaintiff with moderate and recurrent major depressive disorder and generalized anxiety disorder with social anxiety features. (Tr. at 620.) The ALJ considered the opinions of two state agency psychological consultants, E. Bergman-Harms, Ph.D. and Carol L. Adams, Psy.D., and gave greater weight to the latter's opinions that Plaintiff could understand, remember, and carry out simple instructions; could maintain concentration, persistence, and pace for simple, routine and repetitive tasks; could occasionally interact with the public; and retained the ability to adapt to change. (Tr. at 32.) The ALJ also considered but gave little weight to the opinion of a consultative medical examiner, Gary W. Coleman, M.D., who opined that Plaintiff would have no exertional limitations but would have postural and environmental restrictions. The ALJ agreed with the postural and environmental restrictions but found Plaintiff would also have exertional imitations. (Id.) The ALJ additionally considered evidence of Plaintiff's activities of daily living and third-party statements by Plaintiff's husband and daughter.

         At step four, the ALJ found that Plaintiff was unable to perform any of her past relevant work. (Tr. at 32.) Finally, at step five, the ALJ found that given Plaintiff's age, education, work experience, and RFC, there were three sedentary jobs in the national economy in significant numbers that she could perform, including Document Preparer (DOT 249.587-018), ...

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