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Angelina B. v. Saul

United States District Court, D. Kansas

July 24, 2019

ANGELINA B., [1] Plaintiff,
v.
ANDREW M. SAUL, [2]Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          John W. Lungstrum United States District Judge.

         Plaintiff seeks review of a decision of the Commissioner of Social Security denying Disability Insurance Benefits (DIB) pursuant to sections 216(i), and 223(d) of the Social Security Act. 42 U.S.C. §§ 416(i), and 423(d) (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, “Remand is required in this case because the ALJ did not accurately assess [Plaintiff]'s credibility and failed to give [legally] sufficient reasons for discounting the opinion of the treating physician[s]. Specifically, the ALJ failed to consider all the evidence when assessing [Plaintiff]'s credibility, instead picking and choosing parts of the record to support his credibility determination.[3] Because the ALJ did not properly evaluate [Plaintiff]'s credibility, the RFC [(residual functional capacity)] is not supported by substantial evidence and remand is required.” (Pl. Br. 11)

         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 she 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” refers to the weight of the evidence. It 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, he 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 previously assessed. Id.; Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999). The ALJ decided this case at step four, finding, “Through the date last insured, the claimant was capable of performing past relevant work as a housekeeping /hospital cleaner, Dictionary of Occupational Title (DOT) #323.687-010, unskilled, light work as performed by the claimant.” (R. 20) (finding no. 6) (bold omitted). Consequently, the Commissioner never had a burden in this case.

         The court considers the issues in the order they are reached when applying the sequential evaluation process.

         II. Discussion

         The Commissioner recognizes Plaintiff's argument that the ALJ erroneously discounted the medical opinions of Dr. Lansdowne and Dr. Tubre, Plaintiff's examining physical therapist and examining physician respectively (Comm'r Br. 6-7) but argues that she has waived that argument by failing to develop it. Id. at 7. Though the argument is sparse, the Commissioner recognizes Plaintiff's argument that the ALJ erroneously “discredited two medical source opinions ‘for the same bad reasons she discredited [her] credibility.'” Id. at 6 (quoting Pl. Br. at 16). This is sufficient argument to be meaningfully reviewed by the court, and therefore, it is not so undeveloped as to be waived.

         A. Evaluation of Plaintiff's Allegations of Symptoms

         Quoting Kellams v. Berryhill, 696 Fed.Appx. 909, 914 (10th Cir. June 23, 2017), [4]Plaintiff argues that the examination findings relied on by the ALJ to discount Plaintiff's allegation do “not necessarily undermine [Plaintiff's] subjective allegations of pain, however, and there were other findings that corroborate h[er] testimony.” Plaintiff then cites other record evidence tending to corroborate her testimony. (Pl. Br. 14-15). She argues that the ALJ's reliance on a finding of conservative treatment is similarly flawed, cites to evidence of her continuing search for effective treatment, and quotes Kellams's holding that “[s]uch efforts to find relief generally bolster, rather than detract from, the credibility of subjective complaints of pain.” (Pl. Br. 15) (quoting 696 Fed.Appx. at 915). She finally argues that the diagnostic testing does not support the ALJ's finding of inconsistencies and cites to MRI testing performed in March of 2009 (R. 321), December of 2010 (R. 310), and October of 2015. (R. 676). She argues that this testing represents a progressive worsening of her degenerative disc disease which the ALJ failed to recognize.

         The Commissioner points out that in order to qualify for DIB Plaintiff must show disability within the meaning of the Act within the period of her alleged disability onset date, June 4, 2014 through her date last insured for DIB, June 30, 2016. He argues that the ALJ considered the record evidence during this relevant period but found that evidence did not support her allegations of disabling symptoms. He points to the ALJ's findings that the 2015 imaging showed mild degenerative changes and that Plaintiff's back pain was treated conservatively, and to the ALJ's reliance on the medical opinions of the state agency physicians. (Comm'r Br. 4-5). He argues that Plaintiff's arguments rely “almost entirely on evidence that pre-dated her June 2014 alleged onset of disability by four or more years or post-dated her June 2016 date last insured.” Id. at 5-6 (arguing in a footnote, “Much of the evidence contained in Plaintiff's statement of the facts also pre-dated her June 2014 alleged onset date or post-dated her June 2016 date last insured.”) (citations omitted). He argues, “The ALJ's interpretation of the treatment notes of record was reasonable and should not be disturbed on substantial evidence review.” (Comm'r Br. 6).

         In her Reply Brief, Plaintiff argues it was error for the Commissioner to suggest Plaintiff's argument relied almost entirely on evidence outside the relevant period because her “medical history is complex and includes a work injury and a progression of her illness” and the entire medical ...


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