United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. Lungstrum United States District Judge
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.
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).
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).
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.
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.
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).
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).
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.”
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
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)).
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
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.
ALJ's Evaluation of Plaintiff's ...