Anderson v. Apfel

• Decision Date: 31 May 2000
• Docket Number: No. 98-4100-SAC.,98-4100-SAC.
• Parties: John L. ANDERSON, Plaintiff, v. Kenneth S. APFEL, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — District of Kansas

100 F.Supp.2d 1278

John L. ANDERSON, Plaintiff, v. Kenneth S. APFEL, Commissioner of Social Security, Defendant.

No. 98-4100-SAC.

United States District Court, D. Kansas.

May 31, 2000.

Kevin W. Babbit, Kansas Legal Svcs. of Emporia, Emporia, KS, for plaintiff.

Nancy Landis Caplinger, Mary K. Ramirez, Office of United States Attorney, Topeka, KS, for defendant.

MEMORANDUM AND ORDER

CROW, Senior District Judge.

This is an action to review the final decision of the defendant Commissioner of Social Security ("Commissioner") denying the claimant John L. Anderson's applications for disability insurance benefits under Title II of the Social Security Act ("Act") and for supplemental security income ("SSI") under Title XVI of the Act. The case is ripe for decision on the parties' briefs filed pursuant to D.Kan. Rule 83.7.

PROCEDURAL HISTORY

The claimant applied for disability benefits and SSI on June 15, 1995, asserting he had been disabled as of May 27, 1995. His claims were denied initially and on reconsideration. At the claimant's request, a hearing before an administrative law judge ("ALJ") was held on June 25, 1996, and he appeared in person and with counsel. (Tr. 39-95). Witnesses at the hearing were the claimant and a vocational expert. The ALJ subsequently issued his decision on September 24, 1996, finding that the claimant was not disabled as defined under the Social Security Act. The Appeals Council denied the claimant's request for review after also considering a letter from the claimant's attorney and a report from the claimant's treating physician. Thus, the ALJ's decision stands as the Commissioner's final decision. O'Dell v. Shalala, 44 F.3d 855, 858 (10th Cir.1994) (citing See 20 C.F.R. § 404.981).

STANDARD OF REVIEW

The court's standard of review is set forth in 42 U.S.C. § 405(g), which provides that the Commissioner's finding "as to any fact, if supported by substantial evidence, shall be conclusive." Substantial evidence is more than a scintilla and is that evidence which a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401-02, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Ray v. Bowen, 865 F.2d 222, 224 (10th Cir.1989). "A finding of `"no substantial evidence" will be found only where there is a "conspicuous absence of credible choices" or "no contrary medical evidence."'" Trimiar v. Sullivan, 966 F.2d 1326, 1328 (10th Cir.1992) (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir.1983)) (quoting Hemphill v. Weinberger, 483 F.2d 1137 (5th Cir.1973)). "Evidence is insubstantial if it is overwhelmingly contradicted by other evidence." O'Dell v. Shalala, 44 F.3d at 858 (citation omitted).

The court's review also extends to determining whether the Commissioner applied the correct legal standards. Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994). Besides the lack of substantial evidence, reversal may be appropriate when the Commissioner uses the wrong legal standards or the Commissioner fails to demonstrate reliance on the correct legal standards. Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir.1994).

The court's duty to assess whether substantial evidence exists:

"is not merely a quantitative exercise. Evidence is not substantial `if it is overwhelmed by other evidence — particularly certain types of evidence (e.g., that offered by treating physicians) — or if it really constitutes not evidence but mere conclusion.'"

Gossett v. Bowen, 862 F.2d 802, 805 (10th Cir.1988) (quoting Fulton v. Heckler, 760 F.2d 1052, 1055 (10th Cir.1985)). The court "must examine the record closely to determine whether substantial evidence supports" the Commissioner's determination. Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir.1996). The court is not to reweigh the evidence or substitute its judgment for the Commissioner's. Glass v. Shalala, 43 F.3d at 1395. The court typically defers to the ALJ on issues of witness credibility. Hamilton v. Secretary of Health & Human Services, 961 F.2d 1495, 1498 (10th Cir.1992). Nonetheless, "`[f]indings as to credibility should be closely and affirmatively linked to substantial evidence ....'" Winfrey, 92 F.3d at 1020 (quoting Huston v. Bowen, 838 F.2d 1125, 1133 (10th Cir.1988)). The courts do not mechanically accept the Commissioner's findings. Claassen v. Heckler, 600 F.Supp. 1507, 1509 (D.Kan.1985); see Ehrhart v. Secretary of Health & Human Services, 969 F.2d 534, 538 (7th Cir.1992) ("By the same token, we must do more than merely rubber stamp the decisions of the" Commissioner. (citation omitted)). Nor will the findings be affirmed by isolating facts and labeling them substantial evidence, as the court must scrutinize the entire record in determining whether the Commissioner's conclusions are rational. Holloway v. Heckler, 607 F.Supp. 71, 72 (D.Kan.1985). "`We examine the record as a whole, including whatever in the record fairly detracts from the weight of the ... [Commissioner's] decision and, on that basis determine if the substantiality of the evidence test has been met.'" 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)); see Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951). The court's review of the record includes evidence plaintiff presented for the first time to the Appeals Council. See O'Dell v. Shalala, 44 F.3d at 858, 859.

The qualifications for disability insurance benefits under the Social Security Act are that the claimant meets the insured status requirements, is less than 65 years of age, and is under a "disability." Flint v. Sullivan, 951 F.2d 264, 267 (10th Cir.1991). An individual "shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy...." 42 U.S.C. § 423(d)(2)(A). The claimant has the burden of proving a disability that prevents him from engaging in his prior work for a continuous period of twelve months. Trimiar, 966 F.2d at 1329. The burden then shifts to the Commissioner to show that the claimant retains the ability to do other work activity and that jobs the claimant could perform exist in the national economy. Sorenson v. Bowen, 888 F.2d 706, 710 (10th Cir.1989). The Commissioner satisfies this burden if substantial evidence supports it. Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir.1993).

A five-step sequential process is used in evaluating a claim of disability. Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). This process comes to an end if at any point the Commissioner determines the claimant is disabled or not. Gossett, 862 F.2d at 805. Step one is whether the claimant is currently engaged in substantial gainful activity. If claimant is not, the fact finder in step two decides whether "the claimant has a medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 141, 107 S.Ct. 2287. Step three entails looking at whether the impairment is equivalent to one of a number of listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. If no equivalency, step four requires the claimant to show that because of the impairment he is unable to perform his past work. The final step is to determine whether the claimant has the residual functional capacity ("RFC") to perform other work available in the national economy, considering such additional factors as age, education, and past work experience. See Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988).

ALJ'S FINDINGS

In his order of September 24, 1996, the ALJ made the following findings:

1. John L. Anderson, Social Security Account Number 509-58-3282, filed applications seeking a period of disability, disability insurance benefits, and supplemental security income on June 15, 1995.

2. The evidence establishes that the claimant had the requisite insured status on May 27, 1995, his alleged onset date of disability, and continues to have such insured status through at least the date of this decision.

3. There is no evidence that the claimant has engaged in work activity subsequent to May 27, 1995.

4. The medical evidence establishes that the claimant has fibromyalgia and depression secondary to his physical condition.

5. The claimant's testimony with respect to his subjective complaints, associated restrictions, and inability to work was not entirely credible for reasons more fully set forth in the Rationale.

6. Since May 27, 1995, the claimant has retained the residual functional capacity to lift and carry no more than 10 pounds frequently and 25 pounds occasionally; he should engage in no more than occasional stooping, twisting, squatting, kneeling, and crawling; he requires the ability to alternate between sitting and standing; is restricted from climbing ropes, ladders and scaffolding; can only occasionally climb ramps or stairs; can do no repetitive pushing and pulling of foot controls; can do no repetitive work with his arms above the head; must avoid concentrations of heat and humidity, as well as the cold; and must avoid unprotected heights and hazardous moving machinery. He also is able to perform only simple, routine, repetitive work.

7. The claimant cannot do his past relevant work.

8. Given the claimant's age of 42 to 43 years of age, with a high school education and four years of college, with his past work experience providing him with no transferable skills, and his residual functional capacity set out above, the vocational expert identified the jobs of cashier, security monitor and self service laundry attendant which such an individual could perform and the undersigned finds the numbers of jobs...