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 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.
the second time this case has been before this court. (R.
561-70). After the court’s remand on October 6, 2014
(R. 561-70), an ALJ issued another decision on August 12,
2015, Plaintiff filed exceptions with the Appeals Council,
the Council assumed jurisdiction, found errors and remanded
to the ALJ with instructions. (R. 614-16). After that remand,
the ALJ conducted further proceedings and issued a decision
dated February 6, 2017. (R. 451-66). Plaintiff disagreed with
the ALJ’s decision and sent a letter brief to the
Appeals Council along with a statement from Plaintiff’s
former employer, seeking reversal of the decision. (R.
767-76). The Appeals Council received the letter brief and
the statement and made them a part of the administrative
record, but declined to assume jurisdiction, thereby
rendering the ALJ’s decision the final decision of the
Commissioner. (R. 440-46). Plaintiff claims the ALJ erred
both in weighing the medical opinion of Dr. Sharpe who
treated her for her rotator cuff injury and in finding that
she can do past relevant work (PRW) as a cashier II. (Pl. Br.
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”
refers to the weight of the evidence. It requires more than a
scintilla, but 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).
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).
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 residual functional capacity (RFC). 20
C.F.R. § 404.1520(e). This assessment is used at both
step four and step five of the sequential evaluation process.
Commissioner next evaluates steps four and five of the
process-determining at step four whether, considering the RFC
assessed, claimant can perform her PRW; 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 PRW. 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). This case was decided at step
four of the process, and the burden remained always on
Dr. Sharpe’s Opinion
argues the ALJ “provided a new rationale that was not
included in his previous decision” when discounting Dr.
Sharpe’s opinion-that Dr. Sharpe’s opinion did
not specify objective testing supporting his limitations.
(Pl. Br. 15). She argues that Dr. Sharpe relied on an MRI
showing a full-thickness rotator cuff tear which, when doing
an arthroscopy proved to be irreparable, and this MRI and
procedure is objective testing supporting his limitations.
(Pl. Br. 15). She argues it was error to suggest Dr.
Sharpe’s treatment notes did not reflect the
restrictive activities he opined because Dr. Sharpe’s
positive comments about Plaintiff’s recovery or
abilities “were always accompanied by additional
statements that indicated how well she was doing in light of
her irreparable right rotator cuff and the significant
internal derangement of her right shoulder.”
Id. Plaintiff questions the ALJ’s comment that
Plaintiff requested a note from Dr. Sharpe stating her
rotator cuff was irreparable and argues that a treating
source opinion is worthy of deference but “the ALJ did
not identify any other substantial evidence that contradicts
or conflicts with Dr. Sharpe’s opinion.”
Id. at 15-16.
Commissioner does not concede that Dr. Sharpe’s opinion
is worthy of controlling weight but argues that even if it
were, the outcome would be the same in the decision at issue
and reversal would not be warranted. (Comm’r Br. 5).
This is so in the Commissioner’s view because
“Dr. Sharpe opined that Plaintiff was unable to perform
any overhead reaching with her right arm and was limited to
lifting and carrying no more than 10 pounds using her right
arm,” but the ALJ assessed a limitation of no overhead
reaching with the right arm and an ability to occasionally
lift and carry up to 20 pounds. Id. at 5-6. He
acknowledges that it is arguable, therefore, that Dr. Sharpe
limited Plaintiff to lifting and carrying 10 pounds whereas
the ALJ allowed her to lift and carry 20 pounds, but he
argues that the vocational expert (VE) testified that even an
individual who could lift and carry no more than 10 pounds
either frequently or occasionally would still be able to
perform the cashier II job as generally performed in the
economy. (Comm’r Br. 6) (citing R. 499-500). He argues
that consequently even if the ALJ completely accepted Dr.
Sharpe’s limitations, he still would have found
Plaintiff able to perform her past work as generally
performed, as the ALJ noted in his decision. Id. at
7 (quoting R. 465). Plaintiff does not respond to the
Commissioner’s argument in this regard in her Reply
court agrees with the Commissioner’s argument, but goes
a little further. Dr. Sharpe’s only opinion to which
Plaintiff appeals was his opinion dated October 15, 2015 in
which he stated that since November 30, 2010 Plaintiff
“is unable to perform any overhead reaching with
her right arm and she [is] limited to lifting and
carrying no more than ten pounds using her right
arm.” (R. 1308) (emphases added) (cited in Pl. Br.
At 14). The ALJ assessed Plaintiff with
the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) with the following
restrictions: The claimant is able to occasionally lift 20
pounds, frequently lift or carry ten pounds, sit for up to
six hours, and stand or walk for approximately six hours in
an 8 hour day with normal breaks. She is able to occasionally
climb ramps or stairs; never climb ladders, ropes or
scaffolds; never crawl; and occasionally stoop, kneel and
crouch. She is restricted from overhead reaching with the
dominant right upper extremity. She is able to perform
occasional reaching with the dominant right upper extremity
in front, or laterally. She is occasionally able to push and