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Lynn B. v. Saul

United States District Court, D. Kansas

January 14, 2020

FERYL LYNN B., [1] Plaintiff,
v.
ANDREW M. SAUL, [2]Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          John W. Lungstrum United States District Judge

         Plaintiff seeks review of a decision of the Commissioner of Social Security denying Disability Insurance Benefits (DIB) pursuant to sections 216(i) and 223 of the Social Security Act, 42 U.S.C. §§ 416(i) and 423 (hereinafter the Act). Finding no error in the Administrative Law Judge's (ALJ) decision, the court ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner's final decision.

         I.Background

         Plaintiff filed an application for DIB on February 1, 2016 alleging disability beginning August 30, 2014. (R. 12, 194-95). After exhausting administrative remedies before the Social Security Administration (SSA), Plaintiff filed this case seeking judicial review of the Commissioner's decision pursuant to 42 U.S.C. § 405(g). (Doc.1). Plaintiff argues that remand is necessary because the ALJ erred when he “failed to give good reasons to discredit [Plaintiff's] allegations concerning the frequency and intensity of [her] migraines.” (Pl. Br. 9).

         The court's review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Section 405(g) of the Act provides that in judicial review “[t]he findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). The court must determine whether the ALJ's factual findings are supported by substantial evidence in the record and whether he applied the correct legal standard. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); accord, White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001). “Substantial evidence” refers to the weight of the evidence. It requires more than a scintilla, but less than a preponderance; it is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); see also, Wall, 561 F.3d at 1052; Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir. 1988).

         The court may “neither reweigh the evidence nor substitute [its] judgment for that of the agency.” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)); accord, Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005); see also, Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994) (The court “may not reweigh the evidence in the record, nor try the issues de novo, nor substitute [the Court's] judgment for the [Commissioner's], even if the evidence preponderates against the [Commissioner's] decision.”) (quoting Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988)). Nonetheless, the determination whether substantial evidence supports the Commissioner's decision is not simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by other evidence or if it constitutes mere conclusion. Gossett, 862 F.2d at 804-05; Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).

         The Commissioner uses the familiar five-step sequential process to evaluate a claim for disability. 20 C.F.R. § 404.1520; Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010) (citing Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)). “If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary.” Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In the first three steps, the Commissioner determines whether claimant has engaged in substantial gainful activity since the alleged onset, whether she has a severe impairment(s), and whether the severity of her impairment(s) meets or equals the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt. P, App. 1). Williams, 844 F.2d at 750-51. After evaluating step three, the Commissioner assesses the claimant's residual functional capacity (RFC). 20 C.F.R. § 404.1520(e). This assessment is used at both step four and step five of the sequential evaluation process. Id.

         The Commissioner next evaluates steps four and five of the process-determining at step four whether, considering the RFC assessed, the claimant can perform her past relevant work; and at step five whether, when also considering the vocational factors of age, education, and work experience, she is able to perform other work in the economy. Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In steps one through four the burden is on Plaintiff to prove a disability that prevents performance of past relevant work. Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006); accord, Dikeman v. Halter, 245 F.3d 1182, 1184 (10th Cir. 2001); Williams, 844 F.2d at 751 n.2. At step five, the burden shifts to the Commissioner to show that there are jobs in the economy which are within the RFC previously assessed. Id.; Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).

         II. Discussion

         Plaintiff notes she testified that she cannot be exposed to fluorescent lighting and that she would miss more than one to two days of work each month due to migraine headaches and the vocational expert (VE) testified that an individual with such limitations could not perform competitive work. She argues the ALJ did not provide good reasons to discount her allegations, and remand is necessary. She argues Social Security Ruling (SSR) 16-3p prohibits an ALJ's conclusory statement that he considered a claimant's allegations of symptoms, but requires that he explain the allegations he found consistent and those he found inconsistent with the evidence. (Pl. Br. 10).

         Plaintiff agues her allegations should be credited because medical records support her allegations (Pl. Br. 10-11), because her description of her allegations “was consistent throughout the record, ” id. at 11, and because she persisted in seeking treatment. Id. at 12. She argues that the reasons provided by the ALJ to discount her allegations (“a prior administrative denial for similar allegations, physical examinations were normal during the relevant period, and there was an allegation of drug-seeking behavior”) “do not constitute valid reasons to discount [her] testimony.” Id.

         Plaintiff acknowledges that a factor-by-factor analysis is not required but argues that the ALJ's discounting her allegations because of “unremarkable objective findings fails for the same reasons outlined in Pennington [v. Chater, 113 F.3d 1246, (10th Cir. 1997) (unpublished table decision, available at 1997 WL 297684)].” Id. at 13. She argues that the ALJ's reliance on an allegation of failing a drug screen is error because the failure to test positive for prescribed pain-relieving drugs is insufficient to “diminish the volumes of other records that show [Plaintiff] had uncontrolled migraines.” Id. Finally, Plaintiff argues the ALJ's reliance on a prior administrative denial is error because she has a right to de novo review of this application. Id. at 14.

         The Commissioner argues that the decision below is supported by the record evidence. (Comm'r Br. 6-11). He notes several of the reasons the ALJ provided and cites to specific evidence supporting those findings. Id. at 7-8. He points out that Plaintiff's arguments largely focus on evidence that could have been accorded greater weight, but argues that the evidence supports the ALJ's interpretation and in such a case the ALJ's interpretation must be accepted. Id. at 8 (citing Lax, 489 F.3d at 1084). Finally, the Commissioner distinguishes Pennington (Comm'r Br. 9), and argues that the ALJ's reliance on the evidence of drug-seeking behavior is proper in the circumstances of this case. Id. at 10-11. Although the Commissioner's Brief does not directly address Plaintiff's argument that the ALJ's reliance on a prior administrative denial is error, in a footnote he does argue, “While the prior ALJ decision is not within the scope of the Court's [sic] review here, it does provide context for the current (March 2018) decision. That is particularly so here, where the prior ALJ decision was affirmed by this Court [sic], on appeal, in December 2016.” Id. at 1, n.1 (citing R. 97-110 (the court's 2016 decision)).

         In her Reply Brief, Plaintiff once again argues, “the ALJ's reliance on [Plaintiff]'s appearance at the hearing and a single notation of drug-seeking behavior in a voluminous record do not constitute substantial evidence.” (Reply 1). She quotes a portion of SSR 16-3p:

The focus of the evaluation of an individual's symptoms should not be to determine whether he or she is a truthful person. Rather, our adjudicators will focus on whether the evidence establishes a medically determinable impairment that could reasonably be expected to produce the individual's symptoms and given the adjudicator's evaluation of the individual's symptoms, whether the intensity and persistence of the symptoms limit the individual's ability to perform work-related activities.

(Reply 2) (quoting SSR 16-3p, 2016 WL 1119029 at *10 (March 16. 2016)). She then argues, “SSR 16-3p does not give the ALJ's [sic] the same latitude to rely on their observations as SSR 96-7p because the Commissioner wanted the ALJ's [sic] to focus on symptom evaluation rather than character assessments.” Id. Plaintiff argues the record shows a long history of uncontrolled migraine headaches and the ALJ's reliance on normal physical exams does not outweigh that history. (Reply 2-3). She concludes by arguing, “The deference due to an ALJ's symptoms evaluation is not absolute. The Court [sic] should remand the claim because the ALJ's analysis did not comply with the framework of SSR 16-3p, which focuses more on the consistency of [Plaintiff]'s allegations with the medical records and less with her character.” Id. at 3.

         A.The ALJ's Evaluation of Plaintiff's ...


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