United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. Lungstrum United States District Judge.
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.
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. 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)
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.
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; 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.
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.
court considers the issues in the order they are reached when
applying the sequential evaluation process.
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.
Evaluation of Plaintiff's Allegations of
Kellams v. Berryhill, 696 Fed.Appx. 909, 914 (10th
Cir. June 23, 2017), 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.
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).
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 ...