Bruce B. Whitney v. Social Security Administration Commissioner of
MEMORANDUM AND ORDER. The decision of the Commissioner is AFFIRMED. Please see order for details. Signed by District Judge Eric F. Melgren on 09/26/2017. (aa)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BRUCE B. WHITNEY,
Case No. 16-2240-EFM
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
MEMORANDUM AND ORDER
Plaintiff Bruce Whitney seeks review of a final decision by Defendant, the Acting
Commissioner of Social Security (“Commissioner”), denying his application for disability
insurance benefits under Title II of the Social Security Act.
Plaintiff alleges that the
administrative law judge (“ALJ”) erred (1) by improperly evaluating his claim at step two, (2) by
improperly evaluating his claim at step three, (3) in assessing Plaintiff’s residual functioning
capacity (“RFC”) because the evidence does not support the ALJ’s finding, and (4) by
improperly evaluating his claim at step 4.
Having reviewed the record, and as described below,
the Court affirms the order of the Commissioner.
Factual and Procedural Background
Plaintiff Bruce Whitney was born on September 28, 1951. On June 6, 2013, Plaintiff
protectively applied for disability insurance benefits. He alleged that his disability began on
March 5, 2013. Plaintiff’s application was denied initially and upon reconsideration. He then
asked for a hearing before an ALJ.
ALJ Timothy Stueve conducted an administrative hearing on September 29, 2014.
Plaintiff was represented by counsel, and he testified about his medical conditions. The ALJ also
heard from a vocational expert (“VE”).
On November 25, 2014, the ALJ issued his written decision, finding that Plaintiff had not
engaged in substantial gainful activity since the alleged onset date. The ALJ found that Plaintiff
suffered from degenerative disc disease and heart disease. The ALJ determined that Plaintiff’s
impairment or combination of impairments did not meet or medically equal one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.
The ALJ stated that Plaintiff had the RFC
to perform light work as defined in 20 CFR 404.1567(b), in that, he can
occasionally lift 20 pounds, frequently lift or carry 10 pounds, walk or stand for
approximately six hours in an eight-hour workday, and sit for approximately six
hours in an eight-hour workday with normal breaks. The claimant also has the
following nonexertional limitations that further limit his ability to perform light
work: can frequently climb ramps and stairs, but only occasionally climb ladders,
ropes, and scaffolds; can occasionally stoop, kneel, crouch, and crawl; can only
occasionally tolerate exposure to extreme cold and extreme heat; and should
avoid all exposure to vibration in the workplace.
The ALJ then determined that Plaintiff was capable of performing his past relevant work as a
surgical physician assistant. In the alternative, the ALJ determined that based on Plaintiff’s age,
education, work experience, and RFC, Plaintiff could also perform work in other jobs existing in
the national economy. Thus, the ALJ concluded that Plaintiff had not been under a disability
from March 5, 2013 through the date of his decision.
Given the unfavorable result, Plaintiff requested reconsideration of the ALJ’s decision
from the Appeals Council. The Appeals Council denied Plaintiff’s request on February 10,
Accordingly, the ALJ’s November 2014 decision became the final decision of the
Plaintiff filed a Complaint in the United States District Court for the District of Kansas.
He seeks reversal of the ALJ’s decision and the grant of benefits. In the alternative, he seeks
remand. Because Plaintiff has exhausted all administrative remedies available, this Court has
jurisdiction to review the decision.
Judicial review of the Commissioner’s decision is guided by the Social Security Act (the
“Act”) which provides, in part, that the “findings of the Commissioner of Social Security as to
any fact, if supported by substantial evidence, shall be conclusive.”1 The Court must therefore
determine whether the factual findings of the Commissioner are supported by substantial
evidence in the record and whether the ALJ applied the correct legal standard.2 “Substantial
evidence is more than a scintilla, but less than a preponderance; in short, it is such evidence as a
reasonable mind might accept to support the conclusion.”3 The Court may “neither reweigh the
evidence nor substitute [its] judgment for that of the [Commissioner].”4
42 U.S.C. § 405(g).
Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).
Barkley v. Astrue, 2010 WL 3001753, at *1 (D. Kan. Jul. 28, 2010) (citing Castellano v. Sec’y of Health
& Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994)).
Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting Casias v. Sec’y of Health & Human
Servs., 933 F.3d 799, 800 (10th Cir. 1991)).
An individual is under a disability only if he can “establish that [he] has a physical or
mental impairment which prevents [him] from engaging in substantial gainful activity and is
expected to result in death or to last for a continuous period of at least twelve months.”5 This
impairment “must be severe enough that [he] is unable to perform [his] past relevant work, and
further cannot engage in other substantial gainful work existing in the national economy,
considering [his] age, education, and work experience.”6
Pursuant to the Act, the Social Security Administration has established a five-step
sequential evaluation process for determining whether an individual is disabled.7 The steps are
designed to be followed in order. If it is determined, at any step of the evaluation process, that
the claimant is or is not disabled, further evaluation under a subsequent step is unnecessary.8
The first three steps of the sequential evaluation require the Commissioner to assess: (1)
whether the claimant has engaged in substantial gainful activity since the onset of the alleged
disability; (2) whether the claimant has a severe, or combination of severe, impairments; and (3)
whether the severity of those severe impairments meets or equals a designated list of
impairments.9 If the impairment does not meet or equal one of these designated impairments, the
Brennan v. Astrue, 501 F. Supp. 2d 1303, 1306-07 (D. Kan. 2007) (citing 42 U.S.C. § 423(d)).
Barkley, 2010 WL 3001753, at *2 (citing Barnhart v. Walton, 535 U.S. 212, 217-22 (2002); 20 C.F.R. §
Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010); see also 20 C.F.R. §§ 404.1520(a), 416.920(a).
Barkley, 2010 WL 3001753, at *2.
Lax, 489 F.3d at 1084; see also Barkley, 2010 WL 3001753, at *2 (citing Williams v. Bowen, 844 F.2d
748, 751 (10th Cir. 1988)).
ALJ must then determine the claimant’s RFC, which is the claimant’s ability “to do physical and
mental work activities on a sustained basis despite limitations from his impairments.”10
Upon assessing the claimant’s residual functional capacity, the Commissioner moves on
to steps four and five, which require the Commissioner to determine whether the claimant can
either perform his past relevant work or whether he can generally perform other work that exists
in the national economy, respectively.11 The claimant bears the burden in steps one through four
to prove a disability that prevents performance of his past relevant work.12 The burden then
shifts to the Commissioner at step five to show that, despite the claimant’s alleged impairments,
the claimant could perform other work in the national economy.13
Plaintiff alleges that the ALJ erred (1) in evaluating Plaintiff’s claim at step two, (2) in
evaluating Plaintiff’s claim at step three, (3) in assessing Plaintiff’s RFC because it is not
supported by the record, and (4) in evaluating his claim at step 4.
Step Two Analysis
With regard to Plaintiff’s step two argument, he states that although the ALJ found that
he had two severe impairments, the ALJ should have determined that he had additional severe
impairments. Plaintiff, however, does not develop this argument but instead simply lists the
other impairments that the ALJ should have found severe. Regardless, “the failure to find a
particular impairment severe at step two is not reversible error when the ALJ finds that at least
Barkley, 2010 WL 3001753, at *2 (citing 20 C.F.R. § 416.920(e)); see also 20 C.F.R. §§ 404.1520(e),
Barkley, 2010 WL 3001753, at *2 (citing Williams, 844 F.2d at 751).
Lax, 489 F.3d at 1084.
one other impairment is severe.”14 As noted above, the ALJ found two severe impairments at
step two. Accordingly, Plaintiff’s step two argument fails.
Step Three Analysis
Plaintiff next complains that the ALJ erred in his step three evaluation. Plaintiff’s
argument consists of one paragraph and he does not adequately explain the issue that he has with
the ALJ’s finding. Thus, the Court will not consider this argument.
Next, Plaintiff contends that the ALJ erred in assessing Plaintiff’s RFC. He asserts that
there was no evidence to support the RFC finding. Plaintiff specifically takes issue with six
specific physical findings related to his lower back impairment. After reviewing the record
evidence, the Court finds that all of these six physical findings have support in the record. It
appears that Plaintiff simply takes issue with the ALJ’s findings and reweighs the evidence in a
manner to propose an alternative finding. A reviewing court does not reweigh the evidence or
substitute its judgment for the agency.15
“The possibility of drawing two inconsistent
conclusions from the evidence does not prevent an administrative agency’s findings from being
supported by substantial evidence.”16 Thus, the ALJ did not err with regard to these findings.
In this case, the ALJ set forth the medical evidence in detail. The ALJ went through the
opinion evidence and set forth what weight he was giving those opinions. In giving significant
weight to the opinions of the state agency psychological and medical consultants, he noted that
they had access to the majority of the evidence at the time they formulated their opinions. Thus,
Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016).
Lax, 489 F.3d at 1084.
he found that their opinions were supported by the record evidence. In giving less weight to
Plaintiff’s treating physician assistant, the ALJ found that although she gave very limiting
opinions regarding Plaintiff’s physical abilities, she was not an acceptable medical source and
only treated Plaintiff two times in the course of two months. The ALJ considered Plaintiff’s
lower back impairment and noted specific evidence that supported his RFC. As noted above,
with regard to the six specific physical findings that Plaintiff takes issue with, evidence in the
record supports the ALJ’s finding. Finally, the ALJ noted Plaintiff’s daily activities and the
impact of those activities on his RFC. In sum, the ALJ set forth ample evidence from the record
to support his RFC finding.
Plaintiff also claims that the ALJ erred in evaluating his mental impairments in his RFC.
Plaintiff asserts that the ALJ addressed his mental impairments by simply stating that “[t]he
evidence of record fails to indicate that the claimant has ever required any specialized
psychological treatment as a result of his psychological symptoms.” Plaintiff’s statement is not
correct. Plaintiff isolates portions of the record to bolster his claims of error while wholly
ignoring other statements made by the ALJ. Although the ALJ made this statement, the ALJ also
noted that the evidence of record indicated that Plaintiff had experienced some anxiety and
depression due to situational stressors. The ALJ also noted (and cited to the record evidence)
that Plaintiff’s psychological symptoms were very responsive to a medication regimen when he
was prescribed one. Thus, the ALJ’s findings and RFC are supported by substantial evidence in
As noted above, this Court’s job is not to reweigh the evidence or substitute its judgment
for that of the Commissioner.17 Instead, the Court must review the record to determine if
substantial evidence supports the ALJ’s decision and whether the ALJ sufficiently articulated the
reasons to provide for meaningful review.18 In this case, the Court finds that the ALJ cited to
substantial evidence in the record and adequately explained and linked the RFC assessment to
Step Four Analysis
Finally, Plaintiff contends that the ALJ erred when he found that Plaintiff could perform
his past work. He asserts that the VE improperly classified his former work activity. He claims
that based on his testimony of the work he previously performed, the VE should have classified
Plaintiff as a Surgical Technician rather than a Surgical Physician Assistant and thus should have
determined that Plaintiff was incapable of performing his past work.
“The second phase of step four requires the ALJ to determine the physical and mental
demands of plaintiff’s past relevant work.”19
A vocational expert may supply information to the ALJ about the demands of the
claimant’s past relevant work. The ALJ may rely on the DOT description of a job
as “presumptively applicable” to the claimant’s past relevant work. A claimant
may overcome this presumption by demonstrating that the duties in his particular
line of work were not those envisioned by the drafters of the category.20
Here, the VE stated that Plaintiff’s past work was as a surgical physician assistant and gave the
DOT classification. The VE testified that based on the ALJ’s RFC formulation, Plaintiff could
Bowman, 511 F.3d at 1272 (citation omitted).
Lax, 489 F.3d at 1084.
Tacey v. Colvin, 2017 WL 951158, at *9 (D. Kan. 2017).
Id. (citations omitted).
perform his past work. Relying on this testimony, the ALJ found that Plaintiff could indeed
perform his previous work.
The ALJ properly relied upon the VE’s testimony that Plaintiff could perform his past
work based on the DOT classification. The DOT classification of physician assistant
encompasses the type of work that Plaintiff asserts he previously performed (closing surgeries
and utilizing surgical instruments).
Specifically, the classification states that a physician
assistant “[p]erforms therapeutic procedures, such as injections, immunizations, suturing and
wound care, and managing infection.”21 In addition, Plaintiff testified in his hearing before the
ALJ that he previously worked as a physician assistant. Thus, his testimony undermines his
current assertion that the ALJ erred in classifying his previous work. Accordingly, the Court
finds that the ALJ did not err in his Step four analysis by misclassifying Plaintiff’s former
IT IS THEREFORE ORDERED that the decision of the Commissioner is
IT IS SO ORDERED.
Dated this 26th day of September, 2017.
ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE
DOT No. 079.364-018 (emphasis added).
To the extent that Plaintiff complains that the ALJ’s hypothetical did not include all of his limitations
(such as vision and hearing), it appears that Plaintiff is simply reasserting his argument that the ALJ’s RFC was
improper. As noted above, substantial evidence supports the ALJ’s RFC finding and thus his hypothetical to the VE
adequately conveyed Plaintiff’s limitations.
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