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K.M. v. Commissioner of Social Security Administration

United States District Court, D. Kansas

January 7, 2020

K.M., [1] Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          MEMORANDUM AND ORDER

          Sam A. Crow, U.S. District Senior Judge.

         On June 15, 2015, plaintiff filed applications for social security child's insurance disability benefits and for supplemental security income benefits. Plaintiff alleged a disability onset date of December 16, 2014. The applications were denied initially and on reconsideration. An administrative hearing was conducted on October 4, 2017. The administrative law judge (ALJ) considered the evidence and decided on February 14, 2018 that plaintiff was not qualified to receive benefits. This decision has been adopted by defendant. This case is now before the court upon plaintiff's request to reverse and remand the decision to deny plaintiff's applications for benefits.

         I. STANDARD OF REVIEW

         To qualify for disability benefits, plaintiff must establish that before she reached the age of 22 she was “disabled” under the Social Security Act. To be “disabled” means that the claimant is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).

         The court must affirm the ALJ's decision if it is supported by substantial evidence and if the ALJ applied the proper legal standards. See Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). “Substantial evidence” is “'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019)(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). This standard is “not high, ” but it is “more than a mere scintilla.'” Id. (quoting Consolidated Edison, 305 U.S. at 229). It does not require a preponderance of the evidence. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). The court must examine the record as a whole, including whatever in the record fairly detracts from the weight of the defendant's decision, and on that basis decide if substantial evidence supports the defendant's decision. Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994) (quoting Casias v. Secretary of Health & Human Services, 933 F.2d 799, 800-01 (10th Cir. 1991)). The court may not reverse the defendant's choice between two reasonable but conflicting views, even if the court would have made a different choice if the matter were referred to the court de novo. Lax, 489 F.3d at 1084 (quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)). The court reviews “only the sufficiency of the evidence, not its weight.” Oldham v. Astrue, 509 F.3d 1254, 1257 (10th Cir. 2007).

         II. THE ALJ'S DECISION (Tr. 12-24).

         There is a five-step evaluation process followed in these cases which is described in the ALJ's decision. (Tr. 13-14). First, it is determined whether the claimant is engaging in substantial gainful activity. Second, the ALJ decides whether the claimant has a medically determinable impairment that is “severe” or a combination of impairments which are “severe.” At step three, the ALJ decides 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. Next, the ALJ determines the claimant's residual functional capacity and then decides whether the claimant has the residual functional capacity to perform the requirements of his or her past relevant work. Finally, at the last step of the sequential evaluation process, the ALJ determines whether the claimant is able to do any other work considering his or her residual functional capacity, age, education and work experience.

         In steps one through four the burden is on the claimant to prove a disability that prevents performance of past relevant work. Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006). At step five, the burden shifts to the Commissioner to show that there are jobs in the economy with the claimant's residual functional capacity. Id. In this case, the ALJ decided plaintiff's application should be denied at the fifth step of the evaluation process. The ALJ made the following specific findings in her decision. First, plaintiff was born in 1994 and had not reached the age of 22 as of the alleged onset of her disability. Second, plaintiff has not engaged in substantial gainful activity since December 26, 2014, the alleged onset date. Third, plaintiff has the following severe impairments: Landau Kleffner Syndrome, borderline intellectual functioning, cognitive disorder not otherwise specified and rule-out psychotic disorder. Fourth, plaintiff does not have an impairment or combination of impairments that meet or medically equal the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Fifth, plaintiff has the residual functional capacity (RFC) to perform a range of medium work as defined in 20 C.F.R. 404.1567(a) and 416.967(c). Also, plaintiff:

can understand, remember and apply simple instructions and can maintain concentration, persistence and pace for simple, routine and repetitive tasks that are not performed at a fast-paced production rate or as an integral part of a team. [Plaintiff] can occasionally interact with the general public. [Plaintiff] can adapt to changes in the work environment that are consistent with the aforementioned limitations.

(Tr. 17).

         Sixth, the ALJ found that plaintiff has no relevant work. Finally, based upon the testimony of a vocational expert, the ALJ decided that considering plaintiff's age, education, work experience and residual functioning capacity, plaintiff could perform jobs that exist in significant numbers in the national economy, such as salvage laborer, lab equipment cleaner and packager.

         III. DISCUSSION

         Plaintiff's argument to reverse and remand the denial of benefits concerns the ALJ's consideration of a consultative psychological evaluation by Dr. Gary Hackney. The consultative examination was conducted in December 2012 which was approximately two years before the alleged onset date of disability.

         Dr. Hackney found that plaintiff had no trouble walking, sitting or standing; that her speech was understandable; that her thought processes were logical, linear and goal-directed although slow; and that there were no signs of psychosis or perceptual abnormalities. (Tr. 394). He also found that plaintiff's abstraction skills were poor but her judgment was typical of individuals functioning at the borderline range of intelligence. Id. ...


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