Riley v. Social Security Administration, Commissioner of

Filing 22

MEMORANDUM AND ORDER: The judgment of the Commissioner is affirmed pursuant to sentence four of 42 U.S.C. § 405(g). Signed by U.S. District Senior Judge Sam A. Crow on 9/23/14. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

RICHARD W. RILEY,
Plaintiff,
vs.

Case No. 13-2389-SAC

CAROLYN W. COLVIN,
Acting 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
supplemental security income payments.

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

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such evidence that a reasonable mind might accept to support the
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.

Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).

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.
1992).

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

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
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they are not only unable to perform their previous work but
cannot, considering their 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).

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.
the claimant survives step four, the fifth and final step
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If

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

the analysis.
Cir. 1993).

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 January 17, 2012, administrative law judge (ALJ) Evelyn

M. Gunn issued her decision (R. at 20-27).

Plaintiff alleges

that he had been disabled since February 1, 2006 (R. at 20).
step one, the ALJ found that plaintiff did not engage in
substantial gainful activity since December 21, 2009, the
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At

application date (R. at 22).

At step two, the ALJ found that

plaintiff had the following severe impairments:
anxiety, and substance abuse (R. at 22).

depression,

At step three, the ALJ

determined that plaintiff’s impairments do not meet or equal a
listed impairment (R. at 22).

After determining plaintiff’s RFC

(R. at 23), the ALJ determined at step four that plaintiff could
perform past relevant work as a tractor trailer truck driver and
a garbage truck driver (R. at 26).

In the alternative, at step

five, the ALJ found that plaintiff can perform jobs that exist
in significant numbers in the national economy (R. at 26-27).
Therefore, the ALJ concluded that plaintiff was not disabled (R.
at 27).
III.

Did the ALJ err in her RFC findings regarding plaintiff’s

mental limitations?
The ALJ found that plaintiff had severe impairments of
depression, anxiety, and substance abuse (R. at 22).

In her

mental RFC findings, the ALJ stated that plaintiff can
understand and remember simple to some detailed instructions to
complete work-related tasks, and he can interact appropriately
with the public, co-workers and supervisors (R. at 23).
Dr. Adams prepared a state agency RFC assessment (R. at
448-450).

She opined that plaintiff had a moderate limitation

in the ability to interact appropriately with the public (R. at
449).

She stated that plaintiff is limited in working with the
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public due to depression and anxiety, but can interact
appropriately with co-workers and supervisors (R. at 450).
Plaintiff alleges that the ALJ erred by failing to include this
limitation in plaintiff’s RFC findings (Doc. 16 at 18-19).
As stated in SSR 96-8p, “the RFC assessment must include a
narrative discussion describing how the evidence supports each
conclusion, citing specific medical facts (e.g., laboratory
findings) and nonmedical evidence (e.g., daily activities,
observations).”
2013).

Wells v. Colvin, 727 F.3d 1061, 1069 (10th Cir.

An exact correspondence between a medical opinion and

the RFC is not required.

In reaching his RFC determination, an

ALJ is permitted, and indeed required, to rely on all of the
record evidence, including but not limited to medical opinions
in the file.

Wells, 727 F.3d at 1071-1072.

The ALJ acknowledged the opinions by Dr. Adams, and states
that her mental RFC findings are different from those of Dr.
Adams.

The ALJ stated that in making her RFC findings, the ALJ

considered the evidence as a whole, including all medical
evidence and the testimony at the hearing, and is thus based on
evidence not available to Dr. Adams (R. at 25).
The ALJ discussed a statement from a former employer
regarding plaintiff’s employment from April to August 2005 (R.
at 25).

Plaintiff’s former supervisor stated that plaintiff had

no limitations or impairments in the ability to perform the job
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of driving a dump truck.

The former supervisor specifically

stated that the employee had no trouble getting along with coworkers, supervisors, and the public (R. at 128).

The ALJ noted

that the supervisor stated that plaintiff had no limitations,
and was terminated because he stopped coming to work (R. at 25,
128-129).
The ALJ also noted plaintiff’s testimony that he had
difficulty with people, but was able to interact with others at
the store and socialized with friends (R. at 24).

Plaintiff

testified that he had difficulty with people “whenever I feel
like I’m being threatened by them or something” (R. at 38-39).
Plaintiff could not recall the last time he felt threatened by
someone (R. at 39).

Plaintiff testified that he socializes

“whenever he gets the chance” or about 3-4 times a week (R. at
39).
The court will not reweigh the evidence or substitute its
judgment for that of the Commissioner.

Hackett v. Barnhart, 395

F.3d 1168, 1173 (10th Cir. 2005); White v. Barnhart, 287 F.3d
903, 905, 908, 909 (10th Cir. 2002).

Although the court will

not reweigh the evidence, the conclusions reached by the ALJ
must be reasonable and consistent with the evidence.

See Glenn

v. Shalala, 21 F.3d 983, 988 (10th Cir. 1994)(the court must
affirm if, considering the evidence as a whole, there is
sufficient evidence which a reasonable mind might accept as
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adequate to support a conclusion).
the sufficiency of the evidence.

The court can only review

Although the evidence may

support a contrary finding, the court cannot displace the
agency’s choice between two fairly conflicting views, even
though the court may have justifiably made a different choice
had the matter been before it de novo.

Oldham v. Astrue, 509

F.3d 1254, 1257-1258 (10th Cir. 2007).
Although Dr. Adams opined that plaintiff had a limitation
in working with the public, the ALJ noted that a former employer
stated that plaintiff had no limitations or impairments in his
ability to perform the job, including no trouble getting along
with the public.

Plaintiff’s testimony, also discussed by the

ALJ, indicated that plaintiff had trouble dealing with other
people whenever he felt threatened by them, but he could not
recall the last time that occurred.

He socializes whenever he

gets the chance, probably 3-4 times a week.
The court will not reweigh the evidence.

The statement of

the former employer and plaintiff’s own testimony provided a
specific and legitimate basis for not including in plaintiff’s
RFC a limitation in dealing with the public.
Finally, plaintiff argues that the ALJ failed to consider
plaintiff’s mental impairments in his RFC assessment, and failed
to factor in the functional restrictions that these mental
impairments posed on his ability to work (Doc. 16 at 20).
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However, plaintiff fails to articulate what limitations, other
than contact with the public, should have been included in the
RFC findings.

Plaintiff bears the burden of proof through step

four of the analysis.

Nielson v. Sullivan, 992 F.2d 1118, 1120

(10th Cir. 1993). Plaintiff has produced no evidence regarding
any other limitations that should have been included in the
ALJ’s RFC findings.

The court finds that plaintiff’s argument

is therefore without merit.
IT IS THEREFORE ORDERED that the judgment of the
Commissioner is affirmed pursuant to sentence four of 42 U.S.C.
§ 405(g).
Dated this 23rd day of September 2014, Topeka, Kansas.

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

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