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Cynthia K. v. Saul

United States District Court, D. Kansas

August 30, 2019

CYNTHIA K.,[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 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

         This is 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. 5-6).

         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” 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).

         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 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. 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 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 Plaintiff.

         II. Dr. Sharpe’s Opinion

         Plaintiff 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.

         The 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 Brief.

         The 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 ...

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