Buchan v. Astrue, CIVIL ACTION No. 10-4081-JWL
| Decision Date | 24 August 2011 |
| Docket Number | CIVIL ACTION No. 10-4081-JWL |
| Parties | CHEARRIE D. BUCHAN, 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 disability insurance benefits (DIB) under sections 216(i) and 223 of the Social Security Act. 42 U.S.C. §§ 416(i) and 423 (hereinafter the Act). Finding no error, 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 DIB on May 17, 2005 alleging she has been disabled since September 28, 1999. (R. 637-43, 657). The application was denied in proceedings before the Commissioner, and in due course Plaintiff sought judicial review of the Commissioner's final decision. (R. 2-5, 657); see also Buchan v. Astrue, No. 08-4099-JAR, 2009 WL 2176046 (D. Kan. July 21, 2009).1 On judicial review, a Magistrate Judge found that the Commissioner had erred in using Plaintiff's receipt of workers' compensation benefits to suggest that Plaintiff might not be motivated to work and had provided a weak credibility analysis with regard to Plaintiff's daily activities, and recommended that the district court remand for further proceedings. (R. 699-702). The district court adopted the Magistrate Judge's Report and Recommendation and remanded the case for further proceedings. (R. 685-86). On remand, the Appeals Council vacated the decision and remanded to an Administrative Law Judge (ALJ) for further proceedings consistent with the court's order. (R. 708). After remand, Plaintiff submitted additional medical evidence, and a second hearing was held before ALJ Guy E. Taylor. (R. 710-988). Plaintiff appeared with counsel at the hearing, and testimony was taken from Plaintiff and from a vocational expert (VE). (R. 948-49).
On April 23, 2010, ALJ Taylor issued a decision in which he found that Plaintiff's date last insured (DLI) was March 31, 2005 and that although Plaintiff was unable to perform her past relevant work between September 28, 1999 and March 31, 2005, there were jobs that existed at that time in significant numbers in the national economy that Plaintiff was able to perform. (R. 657-72). Therefore, he found that Plaintiff was not disabled within the meaning of the Act between September 28, 1999, and March 31,2005, and denied her application for disability insurance benefits. Id. at 672. Because the Appeals Council did not assume jurisdiction thereafter, the ALJ's decision became the final decision of the Commissioner after remand. 20 C.F.R. §§ 404.984, 416.1484 (2010) (); Lax v. Astrue, 489 F.3d 1080, 1082 (10th Cir. 2007) (citing 20 C.F.R. §§ 404.984, 416.1484). Plaintiff filed a complaint in this court seeking judicial review, and the issue is now before the court. (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, 489 F.3d at 1084; 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, 862F.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. Thompson v. Sullivan, 987 F.2d 1482, 1486 (10th Cir. 1993) (citing 42 U.S.C. § 423(d)); see also, 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 experience, engage in any other substantial gainful work existing in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
The Commissioner uses a five-step sequential process to evaluate disability. 20 C.F.R. §§ 404.1520, 416.920; 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, and whether the severity of her impairment(s) meets or equals the severity of any impairment in the Listing of Impairments . Williams, 844 F.2d at 750-51. If claimant's impairment(s) does not meet or equal a listed impairment, the Commissioner assesses claimant's residual functional capacity (hereinafter RFC). 20 C.F.R. §§ 404.1520(e), 416.920(e). This assessment is used at both step four and step five of the sequential evaluation process. Id.
After assessing claimant's RFC, the Commissioner evaluates steps four and five--whether claimant can perform her past relevant work, and whether, when considering vocational factors of age, education, and work experience, claimant 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 claimant 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 jobs in the economy within Plaintiff's capability. Id.; Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).
Plaintiff claims that the ALJ failed to properly account for her fecal incontinence in his RFC assessment, failed to make a proper credibility determination, and failed to properly weigh the medical opinions and that, as a result of these errors, the ALJ's RFC assessment is also erroneous. The Commissioner argues that the ALJ properly considered Plaintiff's fecal incontinence, the medical opinions, and the credibility of Plaintiff's allegations, and consequently, his decision is proper. The court agrees with the Commissioner, and will address each issue raised.
As a preliminary matter, the court notes that both Plaintiff and the Commissioner agree with the ALJ's finding that Plaintiff's date last insured (DLI) for DIB was March 31, 2005. (Pl. Br. 1, n.1); (Comm'r Br. 2, n.2). As the Commissioner points out, in order to receive DIB pursuant to Title II of the Act, Plaintiff must show she was disabled before her DLI. Potter v. Sec'y of Health & Human Servs., 905 F.2d 1346, 1347 (10th Cir. 1990) (citing 20 C.F.R. § 404.130). While a claimant may be entitled to supplemental security income (SSI) payments under Title XVI of the Act for a condition which becomes disabling after her DLI for DIB, she may not receive Title II (DIB) benefits in such a case. Markham v. Califano, 601 F.2d 533, 536 (10th Cir. 1979) (). Because Plaintiff here applied only for DIB and makes no claim for SSI, evidence regarding Plaintiff's condition after March 31, 2005 is relevant to the question of disability in this case only if it can be shown to establish that Plaintiff'scondition was of disabling severity before her DLI. Therefore, the court will only consider evidence relating to the severity of Plaintiff's condition before March 31, 2005.
Plaintiff's first allegation of error is that in his RFC assessment the ALJ failed to properly account for Plaintiff's fecal incontinence. (Pl. Br. 44-48). Plaintiff implies that the ALJ found Plaintiff does not have fecal incontinence; and argues that (1) the evidence establishes that Plaintiff's incontinence is a severe impairment within the meaning of the Act, that (2) the ALJ improperly discounted the...
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