Alvarez v. Astrue, CIVIL ACTION No. 11-2512-JWL
| Decision Date | 14 August 2012 |
| Docket Number | CIVIL ACTION No. 11-2512-JWL |
| Parties | FLOR M. ALVAREZ, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — District of Kansas |
Plaintiff seeks review of a decision of the Commissioner of Social Security (hereinafter Commissioner) denying Social Security disability (SSD) benefits and Supplemental Security income (SSI) benefits under sections 216(i), 223, 1602, and 1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 416(i), 423, 1381a, and 1382c(a)(3)(A) (hereinafter the Act). Finding no error as alleged by Plaintiff, the court ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner's decision.
Plaintiff applied for both SSD and SSI benefits on November 10, 2008, alleging disability beginning July 13, 2007. (R. 15, 127-63). The applications were denied initially and upon reconsideration, and Plaintiff requested a hearing before anAdministrative Law Judge (ALJ). (R. 15, 64-67, 94-95). Plaintiff's request was granted, and Plaintiff appeared with counsel for a hearing before ALJ George M. Bock on July 6, 2010. (R. 15, 45, 103-18). At the hearing, testimony was taken from Plaintiff and from a vocational expert. (R. 15, 45-63). On September 2, 2010, ALJ Bock issued a lengthy, thorough, and unusually detailed decision. (R. 15-39). In his decision, the ALJ found that the work Plaintiff began in late June 2007 consisted of substantial gainful activity precluding a finding of disability in that year but not thereafter, and that he would consider "the entirety of the relevant period at issue from and after July 13, 2007,1 at all remaining relevant steps of the sequential evaluation process." (R. 18). He found that Plaintiff has a severe combination of impairments including fibromyalgia, degenerative disc disease, headaches, an episodic history of seizure-like activity, affective disorder, and possible somatoform disorder, but that those impairments do not meet or equal the severity of any impairment listed in the Listing of Impairments. (R. 18-19).
The ALJ's residual functional capacity (RFC) discussion and analysis constitutes the bulk of the decision at issue and consists of eighteen pages wherein the ALJ summarized the evidence, including Plaintiff's allegations of symptoms and limitations, the medical records, and the medical opinions. (R. 19-36). Throughout his discussion the ALJ pointed to record evidence and medical opinion evidence both consistent with andinconsistent with Plaintiff's allegations of symptoms and limitations, and concluded that Plaintiff's "allegations regarding the intensity persistence, and overall limiting effects of these symptoms are not credible as they are inconsistent with objective and clinical findings reflected in medical record [sic] and inconsistent with other substantial evidence of record." (R. 35).
Intertwined within this discussion and analysis, the ALJ considered and assigned weight to the medical opinions of eight medical sources: Dr. Huet-Vaughn, a treating2 physician; Dr. Duncan, a nontreating physician who examined Plaintiff at the request of the Social Security Administration (SSA, or agency); Dr. Stern, a nontreating psychologist who examined Plaintiff for the SSA; Dr. Jessop, a nonexamining psychologist who reviewed the record for the agency at the initial determination; Dr. Mongeau, a nontreating physician who examined Plaintiff for the agency; Dr. Schlosberg, a nontreating psychologist who examined Plaintiff for the agency; Dr. Bullock, a nonexamining physician who reviewed the record for the agency at the reconsideration determination; and Dr. Schulman, a nonexamining psychologist who also reviewed the record for the agency at the reconsideration determination. (R. 21-33). The ALJdetermined he could not accord controlling weight to Dr. Huet-Vaughn's opinion, but he accorded "significant weight" to her opinion that Plaintiff was restricted to lifting twenty pounds, and he determined that Dr. Huet-Vaughn's records "are indicative of her medical opinion that claimant's fibromyalgia and overall medical condition was [sic] not of disabling severity." (R. 22-23). He noted that during the initial determination Dr. Jessop opined that the record evidence at that time was insufficient to establish a disabling impairment, and he accorded "significant weight" to that opinion. (R. 29). He also accorded "significant weight" to the opinions of Dr. Duncan, Dr. Stern, Dr. Mongeau, Dr. Bullock, and Dr. Schulman. (R. 25, 26, 29, 30, 32, 33). The ALJ accorded "little weight" to Dr. Schlosberg's opinion that Plaintiff was limited in the abilities to persist with simple tasks, work with others without distraction, or maintain a regular work schedule, but he accorded "significant weight" to Dr. Schlosberg's opinion that Plaintiff's judgment and reasoning was not impaired, that she retains adequate judgment, and that she retains the capacity to make appropriate social interactions in a work setting. (R. 32).
The ALJ assessed Plaintiff with the RFC for a range of light work with certain additional limitations:
She is precluded from any jobs that require crawling or climbing upon ladders, ropes, or scaffolding, and she is restricted to jobs requiring no more than occasional performance of other basic postural work-related activities. She is precluded from any job requiring above-shoulder work, but is capable of performing other basic manipulative work-related activities within the above-cited limitations. She is precluded from any jobs that require exposure to unprotected heights or work around hazards. She retains limited ability to speak English and requires job instructions by demonstration only. She is limited to 1-step to 2-step, repetitive, unskilledwork. She otherwise retains the capacity to understand, remember, and carry out simple instructions or tasks; use simple judgement; respond appropriately to supervisors, coworkers, and usual work situations; and deal with changes in a typical work setting.
The ALJ determined that Plaintiff is unable to perform any of her past relevant work, is a "younger individual age 18-49" within the meaning of the regulations, is literate with at least a limited, 11th-grade education, can effectively communicate in English, and has acquired no skills which are transferable to work within her RFC. (R. 36-38). Based upon Plaintiff's age, education, past work experience, and RFC, the ALJ determined that jobs exist in significant numbers in the economy that Plaintiff is able to perform, represented by such jobs as a deli cutter/slicer, a marker, or a photocopy machine operator. (R. 38-39). Therefore, he determined that Plaintiff is not disabled within the meaning of the Act, and denied her applications for benefits. (R. 39).
Plaintiff sought review by the Appeals Council, and submitted a brief noting her allegations of error in the decision. (R. 8-11, 279-81). The Appeals Council made the brief a part of the administrative record in this case, and considered the arguments in that brief, but found no reason under SSA rules to review the ALJ's decision, and denied Plaintiff's request for review. (R. 1-5). Therefore, the ALJ's decision is the final decision of the Commissioner. (R. 1); Blea v. Barnhart, 466 F.3d 903, 908 (10th Cir. 2006). Plaintiff now seeks judicial review of that decision. (Doc. 1).
The court's jurisdiction and review are guided by the Act. Weinberger v. Salfi, 422 U.S. 749, 763 (1975) (citing 42 U.S.C. § 405(g)); Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (same); Brandtner v. Dep't of Health and Human Servs., 150 F.3d 1306, 1307 (10th Cir. 1998) (). Section 405(g) of the Act provides for review of a final decision of the Commissioner made after a hearing in which the Plaintiff was a party. It also 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 factual findings are supported by substantial evidence in the record and whether the ALJ 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 is more than a scintilla, but it is less than a preponderance; it is such evidence as a reasonable mind might accept to support a conclusion. 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). 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).
An individual is under a disability only if that individual can establish that she has a physical or mental impairment which prevents her from engaging in any substantial gainful activity, and which is expected to result in death or to last for a continuous period of at least twelve months. Knipe v. Heckler, 755 F.2d 141, 145 (10th Cir. 1985) (); accord, Lax, 489 F.3d at 1084 (citing 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A)). The claimant's impairments must be of such severity that she is not only unable to perform her past relevant work, but cannot, considering her age, education, and work...
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