Case v. Social Security Administration, Commissioner of

Filing 18

MEMORANDUM AND ORDER. The judgment of the Commissioner is affirmed pursuant to the fourth sentence of 42 U.S.C. § 405(g). See attached for more details. Signed by U.S. District Senior Judge Sam A. Crow on 5/30/2012. (bmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ROSE CASE,
Plaintiff,
vs.

Case No. 11-2174-SAC

MICHAEL J. ASTRUE,
Commissioner of
Social Security,
Defendant.
MEMORANDUM AND ORDER
This is an action reviewing the final decision of the
Commissioner of Social Security denying the plaintiff disability
insurance benefits.

The matter has been fully briefed by the

parties.
I.

General legal standards
The court's standard of review is set forth in 42 U.S.C.

§ 405(g), which provides that "the findings of the Commissioner
as to any fact, if supported by substantial evidence, shall be
conclusive."

The court should review the Commissioner's decision

to determine only whether the decision was supported by
substantial evidence and whether the Commissioner applied the
correct legal standards.
(10th Cir. 1994).

Glenn v. Shalala, 21 F.3d 983, 984

Substantial evidence requires more than a

scintilla, but less than a preponderance, and is satisfied by
such evidence that a reasonable mind might accept to support the

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conclusion.

The determination of 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 really constitutes mere conclusion.
v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).

Ray

Although the court

is not to reweigh the evidence, the findings of the Commissioner
will not be mechanically accepted.

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.
Graham v. Sullivan, 794 F. Supp. 1045, 1047 (D. Kan. 1992).

The

court should 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, 21 F.3d at 984.

The Social Security Act provides that an individual shall be
determined to be under a disability only if the claimant can
establish that they have a physical or mental impairment expected
to result in death or last for a continuous period of twelve
months which prevents the claimant from engaging in substantial
gainful activity (SGA).

The claimant's physical or mental

impairment or impairments must be of such severity that they are
not only unable to perform their previous work but cannot,
considering their age, education, and work experience, engage in

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any other kind of substantial gainful work which exists in the
national economy.

42 U.S.C. § 423(d).

The Commissioner has established a five-step sequential
evaluation process to determine disability.

If at any step a

finding of disability or non-disability can be made, the
Commissioner will not review the claim further.

At step one, the

agency will find non-disability unless the claimant can show that
he or she is not working at a “substantial gainful activity.”

At

step two, the agency will find non-disability unless the claimant
shows that he or she has a “severe impairment,” which is defined
as any “impairment or combination of impairments which
significantly limits [the claimant’s] physical or mental ability
to do basic work activities.”

At step three, the agency

determines whether the impairment which enabled the claimant to
survive step two is on the list of impairments presumed severe
enough to render one disabled.

If the claimant’s impairment does

not meet or equal a listed impairment, the inquiry proceeds to
step four, at which the agency assesses whether the claimant can
do his or her previous work; unless the claimant shows that he or
she cannot perform their previous work, they are determined not
to be disabled.

If the claimant survives step four, the fifth

and final step requires the agency to consider vocational factors
(the claimant’s age, education, and past work experience) and to
determine whether the claimant is capable of performing other

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jobs existing in significant numbers in the national economy.
Barnhart v. Thomas, 124 S. Ct. 376, 379-380 (2003).
The claimant bears the burden of proof through step four of
the analysis.
1993).

Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir.

At step five, the burden shifts to the Commissioner to

show that the claimant can perform other work that exists in the
national economy.

Nielson, 992 F.2d at 1120; Thompson v.

Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).

The Commissioner

meets this burden if the decision is supported by substantial
evidence.

Thompson, 987 F.2d at 1487.

Before going from step three to step four, the agency will
assess the claimant’s residual functional capacity (RFC).

This

RFC assessment is used to evaluate the claim at both step four
and step five.

20 C.F.R. §§ 404.1520(a)(4), 404.1520(e,f,g);

416.920(a)(4), 416.920(e,f,g).
II.

History of case

On October 28, 2008, administrative law judge (ALJ) Susan B.
Blaney issued her 1st decision, finding that plaintiff could
perform work that exists in significant numbers in the national
economy

(R. at 11-18).

agency decision.

Plaintiff sought judicial review of the

On December 23, 2009, the U.S. District Court

for the District of Kansas reversed the decision of the
Commissioner, and remanded the case for further hearing (R. at
272-285; Case No. 09-2058-KHV).

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On November 23, 2010, ALJ Susan B. Blaney issued her 2nd
decision (R. at 440-448).1

Plaintiff alleged disability

beginning June 23, 2003 (R. at 440).

Plaintiff was insured for

disability insurance benefits through December 31, 2005 (R. at
440).

Thus, in order to be eligible for disability insurance

benefits, the evidence must demonstrate that plaintiff was
disabled some time between June 23, 2003 and December 31, 2005
(R. at 440).

At step one, the ALJ found that plaintiff has not

engaged in substantial gainful activity since June 23, 2003, her
alleged onset date (R. at 441, 447).

At step two, the ALJ found

that plaintiff had the following severe impairments: status post
thyroidectomy, non ST segment myocardial infarction requiring
angioplasty and stenting of two arteries, and status post removal
of a colon abscess (R. at 442, 447).

At step three, the ALJ

determined that plaintiff’s impairments do not meet or equal a
listed impairment (R. at 447).

After determining plaintiff’s RFC

(R. at 445-446, 447), the ALJ determined at step four that
plaintiff could not perform her past relevant work (R. at 446,
447).

At step five, the ALJ determined that other jobs exist in

significant numbers in the national economy that plaintiff could
perform (R. at 446, 447).

Therefore, the ALJ concluded that

plaintiff was not disabled (R. at 448).

1

ALJ Blaney had issued a decision on September 24, 2010 (R. at 260-268); however, she
issued an “amended” decision on November 23, 2010.
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III.

Did the ALJ err in his determination at step five that

plaintiff can perform other work in the national economy?
At step five, the burden shifts to the Commissioner to
show that the claimant can perform other work that exists in the
national economy.

Nielson, 992 F.2d at 1120; Thompson v.

Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).

Plaintiff argues

that the ALJ failed to meet their burden at step five because the
ALJ (at the 2nd hearing, prior to the 2nd decision by the ALJ)
failed to ask the vocational expert (VE) what jobs in the
national economy plaintiff could perform after providing the VE
with the limitations contained in the ALJ’s RFC findings (Doc. 14
at 16-17).
In the ALJ’s first decision, the ALJ made the following RFC
findings:
Claimant had the following residual
functional capacity from June 23, 2003 to
December 31, 2005: could stand/walk up to six
hours in an eight hour day; could sit six
hours in an eight hour day; could lift 20
pounds occasionally and 10 pounds frequently;
could occasionally bend, stoop, and twist;
could not climb ladders; and could not
tolerate excessive dust, fume[s], chemicals,
or temperature extremes.
(R. at 17, see R. at 15).

In her second decision, the ALJ made

the same RFC findings:
Accordingly, on review of all of the credible
evidence of record the undersigned finds that
from June 23, 2003 through December 31, 2005
claimant retained the following residual
functional capacity: could stand/walk up to

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six hours in an eight hour day; could sit six
hours in an eight hour day; could lift 20
pounds occasionally and 10 pounds frequently;
could occasionally bend, stoop, and twist;
could not climb ladders; and could not
tolerate excessive dust, fumes, chemicals, or
temperature extremes. This is the same
residual functional capacity found to be
supported by the record in the prior
decision.
(R. at 445-446, see R. at 447).

As the record demonstrates, the

ALJ made the same RFC findings in both decisions.
At the hearing on September 5, 2008, prior to the 1st ALJ
decision, the ALJ presented the VE with the above RFC findings.
The VE testified that plaintiff could perform the following jobs:
small parts assembler, bench assembler, inserting machine
operator, administrative support worker, printer circuit board
screener, and order clerk (R. at 244-245).

In her 1st decision,

the ALJ found that, based on the VE testimony, plaintiff could
perform these other jobs in the national economy (R. at 16).

In

her 2nd decision, the ALJ again identified the six jobs that had
previously been found to be jobs that plaintiff could perform
after taking into consideration plaintiff’s RFC (R. at 446).
At the hearing prior to the 2nd ALJ decision, the ALJ asked
the VE whether plaintiff could perform the above jobs if
plaintiff had some limitations described in the report of a
medical provider, ARNP (advanced registered nurse practitioner)
Frick (R. at 431-432, 446, 195, 197).

The VE at the 2nd hearing

said that the limitations from the report which were provided by

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the ALJ would not prevent plaintiff from performing any of the
jobs identified (R. at 431-432).

However, the ALJ made RFC

findings which rejected the opinions of this medical provider (R.
at 442-443, 444).
Plaintiff has not contested the validity of the ALJ’s RFC
findings, and has not contested the ALJ’s reliance on the VE’s
testimony at the 1st hearing, in which the VE identified six jobs
that plaintiff could perform given the RFC limitations provided
by the ALJ.2

In light of the fact that the RFC findings in the

2nd decision were identical to the RFC findings in the 1st
decision, there was no need for the ALJ at the 2nd hearing to ask
the VE if plaintiff could perform other work in the national
economy after taking into consideration the ALJ’s RFC findings
for the plaintiff.

Because the RFC findings in both decisions

were identical, the ALJ could reasonably rely on the VE’s
testimony at the 1st hearing that plaintiff, given the ALJ’s RFC
findings, could perform the six jobs identified by the VE.3

IT IS THEREFORE ORDERED that the judgment of the
Commissioner is affirmed pursuant to the fourth sentence of 42
U.S.C. § 405(g).

2

In fact, at the 1st hearing, plaintiff’s counsel stated that the VE was “one of the most
esteemed vocational experts in the country” (R. at 243).
3

The decision of the court essentially adopts the analysis set forth by defendant in their
response brief (Doc. 17). Significantly, plaintiff filed no reply brief contesting or disputing
defendant’s analysis.
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Dated this 30th day of May, 2012, Topeka, Kansas.

s/ Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

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