United States District Court, D. Kansas
MEMORANDUM AND ORDER
Crow, U.S. District Senior Judge.
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.
STANDARD OF REVIEW
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).
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).
ALJ'S DECISION (Tr. 12-24).
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
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,
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
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.
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
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. ...