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K.C. v. Saul

United States District Court, D. Kansas

December 11, 2019

K.C.,[1] Plaintiff,
v.
ANDREW M. SAUL, Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          JOHN W. BROOMES UNITED STATES DISTRICT JUDGE.

         Plaintiff 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.

         I. Standard of Review

         The 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).

         Although 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.

         The 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).

         The 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.

         II. Background and Procedural History

         Plaintiff 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.)

         At step 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 34-35.)

         The ALJ 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.)

         In 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 Plaintiff's symptoms.

         Plaintiff 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.)

         Plaintiff 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.

         Plaintiff 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 water ...


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