United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. BROOMES UNITED STATES DISTRICT JUDGE.
filed this action for review of a final decision of the
Commissioner of Social Security denying Plaintiff's
application for disability insurance benefits. The matter is
fully briefed by the parties and the court is prepared to
rule. (Docs. 11, 14, 15.) The Commissioner's decision is
AFFIRMED for the reasons set forth herein.
Standard of Review
court's standard of review is set forth in 42 U.S.C.
§ 405(g), which provides that “the findings of the
Commissioner as to any fact, if supported by substantial
evidence, shall be conclusive.” The Commissioner's
decision will be reviewed to determine only whether the
decision was supported by substantial evidence and whether
the Commissioner applied the correct legal standards.
Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994).
Substantial evidence requires more than a scintilla, but less
than a preponderance, and is satisfied by such evidence as a
reasonable mind might accept to support the conclusion.
Richardson v. Perales, 402 U.S. 389, 401 (1971).
the court is not to reweigh the evidence, the findings of the
Commissioner will not be mechanically accepted. Nor will the
findings be affirmed by isolating facts and labeling them
substantial evidence, as the court must scrutinize the entire
record in determining whether the Commissioner's
conclusions are rational. Graham v. Sullivan, 794
F.Supp. 1045, 1047 (D. Kan. 1992). The court should examine
the record as a whole, including whatever fairly detracts
from the weight of the Commissioner's decision and, on
that basis, determine if the substantiality of the evidence
test has been met. Glenn, 21 F.3d at 984.
Commissioner has established a five-step sequential
evaluation process to determine disability. 20 C.F.R. §
404.1520; Wilson v. Astrue, 602 F.3d 1136, 1139
(10th Cir. 2010). If at any step a finding of disability or
non-disability can be made, the Commissioner will not review
the claim further. At step one, the agency will find
non-disability unless the claimant can show that he or she is
not working at a “substantial gainful activity.”
Williams v. Bowen, 844 F.2d 748, 750 (10th Cir.
1988). At step two, the agency will find non-disability
unless the claimant shows that she has a severe impairment.
At step three, the agency determines whether the impairment
which enabled the claimant to survive step two is on the list
of impairments presumed severe enough to render one disabled.
Id. at 750-51. If the claimant's impairment does
not meet or equal a listed impairment, the agency determines
the claimant's residual functional capacity
(“RFC”). 20 C.F.R. § 404.1520(e). The RFC
assessment is used to evaluate the claim at both step four
and step five. 20 C.F.R. § 404.1520(a)(4); §
404.1520(f), (g). At step four, the agency must determine
whether the claimant can perform previous work. If a claimant
shows that she cannot perform the previous work, the fifth
and final step requires the agency to consider vocational
factors (the claimant's age, education, and past work
experience) and to determine whether the claimant is capable
of performing other jobs existing in significant numbers in
the national economy. Barnhart v. Thomas, 124 S.Ct.
376, 379-380 (2003).
claimant bears the burden of proof through step four of the
analysis. Blea v. Barnhart, 466 F.3d 903, 907 (10th
Cir. 2006). At step five, the burden shifts to the
Commissioner to show that the claimant can perform other work
that exists in the national economy. Id.;
Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir.
1993). The Commissioner meets this burden if the decision is
supported by substantial evidence. Thompson, 987
F.2d at 1487.
Background and Procedural History
applied for disability insurance benefits, alleging a
disability beginning December 17, 2015, when she was 57 years
of age. (Tr. at 29, 190.) Prior to that time, Plaintiff held
jobs as an administrative assistant and office manager. (Tr.
at 229.) Plaintiff's claims were administratively denied
both initially and upon reconsideration, prompting her to
request a hearing before an Administrative Law Judge (ALJ).
Plaintiff appeared and testified at a hearing in Kansas City,
Missouri, on January 30, 2018. (Tr. at 29.) ALJ Michael
Burrichter presided over the hearing from Topeka, Kansas. On
May 8, 2018, the ALJ issued a written decision unfavorable to
Plaintiff. (Tr. at 29-44.)
one, the ALJ found Plaintiff had not been engaged in
substantial gainful activity since the alleged onset date.
(Tr. at 31.) At step two, the ALJ found Plaintiff suffered
from the following severe impairments: degenerative disc
disease of lumbar, thoracic, and cervical spine with disc
bulge and scoliosis; left lung cancer status-post lower lobe
resection; post-thoracotomy pain syndrome; and obesity. (Tr.
at 31.) The ALJ reviewed Plaintiff's allegation of
limited range of motion of her dominant left arm but
determined that it was not a medically determinable
impairment. The ALJ noted that he considered all of the
impairments and records when assessing the RFC. (Tr. at
33-34.) At step three, the ALJ found that none of
Plaintiff's impairments, alone or in combination, met or
exceeded any impairment listed in the regulations. (Tr. at
next determined that Plaintiff has the RFC to perform
sedentary work, as defined in the regulations, in that she
can lift and carry up to 10 pounds occasionally and lift or
carry less than 10 pounds frequently; can stand and/or walk
for 2 hours in an 8-hour workday; and can sit for 6 hours in
an 8-hour workday. (Tr. at 35.) Plaintiff should be allowed
to sit, stand or walk alternatively; is off task less than
10% of the time; can never climb ladders, ropes and
scaffolds, kneel, crouch and crawl; can occasionally climb
ramps and stairs, stoop and balance; can frequently reach
overhead and in all other directions with the left upper
extremity. (Tr. at 35.)
determining Plaintiff's RFC, the ALJ found
Plaintiff's medically determinable impairments could
reasonably be expected to cause her symptoms, but
Plaintiff's statements as to the intensity, persistence,
and limiting effects of the symptoms were not entirely
consistent with the medical and other evidence. (Tr. at 36.)
The ALJ reviewed medical and other evidence pertaining to
has a history of scoliosis but the evidence showed that she
has been able to work full-time despite this impairment. (Tr.
at 36.) In 2014, Plaintiff received injections for cervical
and right upper extremity pain. (Tr. at 36, 350-51.)
Plaintiff began receiving chiropractic treatment in March
2015. In May 2015, while still working full-time, she
reported that her back felt great. (Tr. at 36, 406.) In
November 2015, she reported that her back and neck pain were
minimal. (Tr. at 420.) In December 2015, Plaintiff testified
that she stopped working full-time to prepare for her
surgery. (Tr. at 64.)
was hospitalized for pneumonia in December 2015 and in
January 2016 to undergo a left lower lobe sleeve resection
due to a tumor. (Tr. at 36, 461-64, 510-12, 541-43.) The
cancer was removed and Plaintiff has not had any recurrence.
Plaintiff testified that her pain symptoms increased
following surgery. In early February 2016, Plaintiff went to
the emergency room for nausea, vomiting, and diarrhea, but
exhibited full range of motion and no tenderness on
examination. (Tr. at 37, 640.) In March 2016, Plaintiff
reported pain on her side and at the incision. In May 2016,
Plaintiff complained of chest wall pain and that she was
unable to reach out of her car window with her left arm. On
examination, her left shoulder movement was noted to be
intact and Plaintiff did not exhibit any neurological
deficits. (Tr. at 37, 911.) Plaintiff was referred to
physical and occupational therapy and pain management
treatment. Plaintiff also saw Dr. Carabetta for her scoliosis
back pain in May 2016. On examination, there were prominent
muscle spasms towards the left thoracolumbar region but not
much tenderness. Plaintiff exhibited normal gait, normal
movements, and fair posture. (Tr. at 889-92.) Plaintiff
informed Dr. Carabetta that her spinal symptoms were not an
issue when she was using pain medication but that she did not
want to use pain medication because of constipation. (Tr. at
891.) Plaintiff was instructed to start a Lidoderm patch.
underwent physical therapy for her left upper extremity pain
and the records show that some physical therapy goals were
met. (Tr. at 1013.) The physical therapy records show that
she was able to complete full internal rotation for dressing
and exhibited 4-/5 strength for left external rotation. (Tr.
at 1061.) In September 2016, Plaintiff reported that physical
therapy markedly improved her discomfort but there was a
recurrence of pain in August. (Tr. at 1026.) In November
2016, Plaintiff had worsening left shoulder pain after doing
laundry at the laundromat. In March 2017, Plaintiff saw Dr.
Burton, an orthopedic surgeon, for her scoliosis. Plaintiff
complained of back pain. Dr. Burton recommended physical
therapy, a daily home core strengthening program, and warm