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T.D.P. v. Saul

United States District Court, D. Kansas

November 19, 2019

T.D.P., 1 Plaintiff,
v.
ANDREW M. SAUL, Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          Sam A. Crow, United District Senior Judge.

         This is an action reviewing the final decision of the defendant Commissioner of Social Security ("Commissioner") that denied the claimant T.D.P.'s application for disability insurance benefits filed on March 24, 2016. The application alleged an onset date of April 14, 2011. The application was denied, initially and on reconsideration, and a hearing before an administrative law judge (“ALJ”) ended with a denial of benefits. The Appeals Council denied a request for review, so the ALJ's decision stands as the Commissioner's final decision. The claimant seeks to reverse and remand for a new administrative hearing.

         STANDARD OF REVIEW

         The court's standard of review is set forth in 42 U.S.C. § 405(g), 1 The use of initials is to preserve privacy interests. which provides that the Commissioner's finding "as to any fact, if supported by substantial evidence, shall be conclusive." The court also reviews “whether the correct legal standards were applied.” Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010) (internal quotation marks and citation omitted). “It requires more than a scintilla, but less than a preponderance.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citation omitted). “The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence.” Id. (internal quotation marks and citation omitted). The review for substantial evidence “must be based upon the record taken as a whole” while keeping in mind “evidence is not substantial if it is overwhelmed by other evidence in the record.” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (internal quotation marks and citations omitted). In its review of “whether the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases, . . . [the court] will not reweigh the evidence or substitute . . . [its] judgment for the Commissioner's.” Lax, 489 F.3d at 1084 (internal quotation marks and citation omitted). Findings will not be affirmed by isolating facts and labeling them as substantial evidence, for the court must scrutinize the entire record to assess the rationality of the Commissioner's decision. Graham v. Sullivan, 794 F.Supp. 1045, 1047 (D. Kan. 1992).

         ALJ's DECISION

         The ALJ employed the following five-step sequential evaluation process (20 C.F.R. § 404.1520) for determining a disability application. (Tr. 14-16). The first step is whether the claimant is engaging in substantial gainful activity. Next, the ALJ decides whether the claimant has a medically determinable impairment that is “severe” or a combination of impairments which are “severe.” Step three asks whether the claimant's impairments or combination of impairments meet or medically equal the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ at step four determines the claimant's residual functional capacity (“RFC”) and then decides whether the claimant has the RFC to perform the requirements of his or her past relevant work. The last step has the ALJ determine whether the claimant is able to do any other work considering his or her RFC, age, education and work experience. For steps one through four, the burden rests with the claimant to prove a disability that prevents performance of past relevant work, but the burden shifts to the Commissioner at step five. Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006).

         In his decision, the ALJ found for step one that the “claimant has not engaged in substantial gainful activity since the alleged onset date of April 14, 2011.” ECF# 8, Transcript 18. The ALJ's step-two findings were that the claimant has “the following severe impairments: auto-immune impairment manifesting as sicca syndrome (dry eyes), fibromyalgia, obesity, and depression (20 C.F.R. 404.1520(c)).” (Tr. 19) He found these impairments to “significantly limit the ability to perform basic work activities.” Id. At step three, the ALJ found that the “claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments.” Id. The ALJ determined at step four that the claimant retained the following RFC:

to perform sedentary work as defined in 20 C.F.R. 404.1567(a) with the following limitations: she can occasionally climb ramps and stairs but never ladders, ropes, or scaffolds. She can occasionally balance, kneel and crawl, rarely (less than occasionally but more than never) stoop, and never crouch. She needs to alternate standing to sitting every 30 minutes and alternate sitting to standing every 60 minutes. She has the capacity for simple to intermediate occupations with essentially repetitive task requirements involving only simple and few work-related decisions and relatively few workplace changes.

(Tr. 21). Relying on vocational expert testimony, the ALJ concluded that the claimant was “unable to perform any past relevant work, ” as a registered nurse (Tr. 27), but that she was “able to perform the requirements of representative unskilled SVP 2 occupations at the sedentary level, such as Order clerk, . . ., Telephone solicitor, . . ., Inspector . . . .” (Tr. 28). Consequently, the ALJ found at step five that the plaintiff was not disabled.

         ARGUMENTS

         Failed to Weigh Properly Treating Nurse Practitioner's Opinion

         In making the RFC findings, the ALJ afforded “partial weight” to the medical source statement dated February 15, 2018, from Ruth Busch, an APRN (“Advanced Practice Registered Nurse”). Tr. 21. The ALJ's findings at issue are as follow:

The undersigned has considered the medical source statement of Ruth Busch, APRN, dated February 15, 2018 (Exhibit 13F). Ms. Busch opined the claimant can lift and/or carry ten pounds occasionally and twenty pounds rarely (Exhibit 13F at 3). She can constantly balance, occasionally twist, rarely stoop and climb, and never crouch or crawl (Exhibit 13F at 3). She can sit one hour at one time and less than two hours total in an eight-hour workday and stand thirty minutes at one time and two hours total in an eight-hour workday and stand thirty minutes at one time and two hours in an eight-hour workday (Exhibit 13F at 3). She needs to shift positions at will from sitting, standing, or walking (Exhibit 13F at 3). She needs to take unscheduled breaks during an eight-hour workday every one to two hours (Exhibit 13F at 4). She is likely to be off task fifteen percent of a typical eight-hour workday (Exhibit 13F at 4). She would be absent three days a month because of her conditions (Exhibit 13F at 4). Again, this opinion is partially consistent with the medical evidence of record, particularly in the claimant's need to alternate between sitting and standing. However, the opinion the claimant would be off task fifteen percent of a typical eight-hour workday is not supported by the medical evidence of record. On the contrary, the record shows the claimant's attention and concentration were normal when she reported increased pain (Exhibit 6F). Thus, this opinion is afforded partial weight. There is no reason to determine claimant likely to be off-task or absent beyond usual employer tolerance as testified to by the Vocational Expert at hearing.

Tr. 21-22. The claimant argues the ALJ's decision fails to give “adequate reasons for discounting portions” of APRN Busch's opinion, and this failure requires a remand. ECF #9, p. 10. The ALJ “specifically discounted the limitations in off-task behavior and absenteeism” without providing sufficient grounds for doing so. Id. at 11. The ALJ also failed to include in the RFC certain limitations opined by Busch that claimant could sit for less than two hours and stand for two hours total in an eight-hour work day. (Tr. 738). Busch also opined that claimant could sit no longer than an hour before changing positions and stand no longer than 30 minutes before needing to sit down or walk around. Id. The claimant argues that Busch's opinion on these limitations are consistent with the medical record. Instead of incorporating ...


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