Dalton v. Social Security Administration, Commissioner of
MEMORANDUM AND ORDER - It is ordered that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner's final decision. Signed by District Judge John W. Lungstrum on 08/14/2017. (ses)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JANET L. DALTON,
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
MEMORANDUM AND ORDER
Plaintiff, proceeding pro se,2 seeks review of a decision of the Acting
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 in the Administrative
Law Judge’s (ALJ) decision, the court ORDERS that judgment shall be entered pursuant
On Jan. 20, 2017, Nancy A. Berryhill became Acting Commissioner of Social
Security. In accordance with Rule 25(d)(1) of the Federal Rules of Civil Procedure, Ms.
Berryhill is substituted for Acting Commissioner Carolyn W. Colvin as the defendant. In
accordance with the last sentence of 42 U.S.C. § 405(g), no further action is necessary.
The court construes Plaintiff’s pleadings and briefs liberally. Haines v. Kerner,
404 U.S. 519, 520-21 (1972); Travis v. Park City Mun. Corp., 565 F.3d 1252, 1254 (10th
Cir. 2009). But, the court will not assume the role of advocate for her. Garrett v. Selby
Conner Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner’s final
Plaintiff applied for DIB, alleging disability beginning August 30, 2005. (R. 16,
144). She exhausted proceedings before the Commissioner, and now seeks judicial
review of the final decision denying benefits. Plaintiff asks the court to review and “to
modify the Commissioner of Social Security’s decision and to grant retroactive, monthly
maximum Social Security disability insurance benefits” to her. (Doc. 8, p.1) (entitled
“Response/Brief,” hereinafter, Pl. Br.). She argues that her impairments of lichen planus,
back and hip pain caused by spine disease, and asthma all cause her disability and that the
Administrative Law Judge (ALJ) erred in finding that her impairments are not “severe”
within the meaning of the Act at step two of his decision.
The court’s review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052
(10th Cir. 2009). Section 405(g) of the Act 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 ALJ’s factual
findings are supported by substantial evidence in the record and whether she applied the
correct legal standard. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); 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 relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.
389, 401 (1971); see also, Wall, 561 F.3d at 1052; Gossett v. Bowen, 862 F.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). Nonetheless, the
determination 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).
The Commissioner uses the familiar five-step sequential process to evaluate a
claim for disability. 20 C.F.R. § 404.1520; 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(s), and whether the severity of her impairment(s) meets or equals
the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt.
P, App. 1). Williams, 844 F.2d at 750-51. After evaluating step three, the Commissioner
assesses claimant’s residual functional capacity (RFC). 20 C.F.R. § 404.1520(e). This
assessment is used at both step four and step five of the sequential evaluation process. Id.
The Commissioner next evaluates steps four and five of the sequential process-determining at step four whether, in light of the RFC assessed, claimant can perform her
past relevant work; and at step five whether, when also considering the 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 Plaintiff 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 that there are jobs in the
economy which are within the RFC assessed. Id.; Haddock v. Apfel, 196 F.3d 1084,
1088 (10th Cir. 1999).
The ALJ decided this case at step two, finding that Plaintiff did not meet her
burden to show that her impairments in combination were “severe” within the meaning of
the Act before her date last insured for DIB--September 30, 2013. Therefore, she did not
apply steps three through five of the sequential evaluation process. The court must
determine whether the ALJ applied the correct legal standard to her evaluation, and
whether the record evidence supports her decision.
Plaintiff argues that the ALJ did not accord appropriate weight to the opinions of
Mr. Colwell who testified in her behalf at the disability hearing, of her sister, of her
friends Ms. Thornton or Ms. Ghilino, or of her neighbor Ms. Burns. (Pl. Br. 4-5).
Plaintiff points out that the Social Security Notice of Reconsideration (Ex. 3B (R.88-91)),
which was dated June 14, 2013 wrongly determined her date last insured was September
30, 2012 and stated that the evidence “shows you currently have a severe condition.” (Pl.
Br. 5). She argues this statement demonstrates the error in the ALJ’s determination that
her condition was not severe before her actual date last insured--September 30, 2013. Id.
The Commissioner argues that the ALJ properly found Plaintiff’s condition is not
“severe” within the meaning of the Act because it had no more than a minimal effect on
Plaintiff’s ability to perform basic work activities before her date last insured. She argues
that the record evidence supports the step two finding because there is no record evidence
of any treatment other than medications for Plaintiff’s condition before 2013. (Comm’r
Br. 4) (“prescriptions for topical medications”). She argues that other than a “handful of
treatment records, the record is simply devoid of any evidence related to Plaintiff’s skin
condition during the relevant period,” id. at 5, and that “treatment records dated after the
date [Plaintiff] was last insured did not support that [she] had a severe impairment during
the relevant time period.” Id. at 8-9. She argues that record medical evidence is
“similarly scarce” regarding treatment for Plaintiff’s hip and back problems before her
date last insured. Id. at 5-6. She points to Plaintiff’s reported daily activities as further
evidence that her impairments are not “severe,” and argues that the ALJ properly
discounted Dr. Davis’s unsupported opinion of disability. (Comm’r Br. 6-7). Finally, the
Commissioner argues that the ALJ properly considered the opinion statements and
testimony of Plaintiff’s family, friends, and neighbor--and discounted them. Id. at 7-8.
On January 26, 2017 Plaintiff filed a Reply Brief responding to the
Commissioner’s Brief. (Doc. 12) (entitled “Brief by Plaintiff,” hereinafter Reply).
Plaintiff takes issue with the Commissioner’s statement that her only treatment for her
condition before 2013 was prescriptions for topical medications, and cites numerous
instances where she was prescribed oral medications also. (Reply 1-2). She argues that
although Nurse-Practitioner Moran stated in December 2010 that Plaintiff’s skin was
intact with no rashes or bruises, it was in a “quick clinic,” and she was fully dressed and
did not reveal her skin lesions. Id. at 2-3.
Plaintiff argues that the prescriptions support Dr. Davis’s opinion, and she repeats
her argument that the reconsideration notice found her condition severe and debilitating in
June 2013, before her date last insured of September 30, 2013. Id. at 3-4. She points out
that after the reconsideration notice, she submitted additional medical records from Dr.
Bernhardt, Dr. Burton, and Dr. Brown as discussed in her complaint. Id. at 4.
Plaintiff objects to the Commissioner’s reliance on her daily activities, and
explains why, in her view, those activities should not be relied upon. (Reply 5). She also
objects to the Commissioner’s Brief’s alleged reliance on the fact that she was able to
care for children, arguing she does “not have children, nor did I ever have children and
am not caring for any children.” Id. (citing Comm’r Br. 6). On February 15, 2017,
Plaintiff filed an addendum to her Reply Brief. (Doc. 13) (hereinafter Reply Add.).
Plaintiff attached a treatment note from Dr. Wald dated January 26, 2017 to her
addendum and argues based on that note that she has decreased lung function caused by
asthma, and continues to have lesions of lichen planus, not lichen simplex chronicus as
found by the ALJ. (Reply Add. 1-2) (Doc. 13, Attach. 1).
As a preliminary matter, the court notes, and Plaintiff agrees, that her date last
insured was September 30, 2013. (R. 16); (Pl. Br. 5). Therefore, the relevant time period
for which Plaintiff might be found eligible for DIB is between her alleged disability onset
date, August 30, 2005, and her date last insured, September 30, 2013. Evidence from
outside that period is relevant only to the extent that it demonstrates disability within the
period. Moreover, the court’s review is limited to the transcript of the record before the
Social Security Administration. 42 U.S.C. § 405(g) (sentence four). If evidence not in
the transcript of the record comes to light, sentence six of the statute provides that the
court may order the Commissioner to take the additional evidence, “but only upon a
showing that” the evidence is new and material, and that there is good cause for the
failure to place the evidence in the record in the proceedings before the Commissioner.
Id. at sentence six. Dr. Wald’s 2017 treatment note is not a part of the administrative
record in this case, and may not be considered by the court to determine whether Plaintiff
was disabled during the relevant time period. Plaintiff does not ask the court to remand
for the Commissioner to consider that treatment note and adjust her decision accordingly.
Moreover, the treatment note does not qualify to justify such a remand, if sought.
Clearly, the treatment note is new evidence, and because it was not in existence at the
time of the relevant period there is good cause for the failure to include it in the record.
However, although the note reveals that Plaintiff is diagnosed with lichen planus, asthma,
and shortness of breath, there is nothing in the note to suggest that these conditions
existed during the time relevant here, and if so, that during that time they were “severe”
within the meaning of the Act. The court may not consider this treatment note in its
review of the Commissioner’s decision, nor may it remand for the Commissioner to
consider the treatment note.
Social Security Notice of Reconsideration
Plaintiff notes that the notice of reconsideration was dated June 14, 2013, before
her date last insured, and that it stated:
The medical evidence shows you currently have a severe condition that
causes pain and limitation, however, there is not sufficient evidence prior to
the date you were last insured for benefits that show the severity of your
condition, nor the frequency of flare-ups. Additionally, there is no evidence
available detailing a back or hip impairment. We have determined that your
overall medical condition did not limit your ability to work through
9/30/2012, the date you were last insured for disability benefits.
(R. 88). Plaintiff points out that the date last insured stated in the notice of
reconsideration was incorrect and was corrected by the ALJ. (Pl. Br. 5). She notes that
the notice of reconsideration stated she had a severe condition at that time--before
September 30, 2013. Id. 5-6. Based upon this notice, she argues either that the ALJ was
required by the agency’s prior finding to find that her condition was severe before her
date last insured, or that the notice demonstrates that her condition was severe before her
date last insured and the ALJ erred in finding otherwise. In either case, Plaintiff’s
First, the statements in the notice of reconsideration are not binding on the ALJ.
Plaintiff appealed from the reconsideration determination and requested a hearing. The
disability hearing before the ALJ constitutes a de novo consideration of all issues
presented, and the decision of the ALJ is the final decision of the Commissioner.
Therefore the question for the court’s review is whether the ALJ applied the correct legal
standard in her consideration, and whether the record evidence supports her decision, not
the notice of reconsideration.
Relatedly, although the notice of reconsideration states what appears to be an
opinion that Plaintiff’s condition is severe within the meaning of the Act, that notice is
unsigned and does not state whose opinion, if any, is being conveyed. Therefore that
opinion (if such it was) properly carried very little weight with the ALJ. Moreover, the
doctors who completed the Reconsideration Disability Determination Explanation opined
that there was “insufficient evidence to assess the severity of the cl[ai]m[an]t’s condition
or her function prior to DLI.” (R. 79); see also (R. 80) (“There is insufficient evidence to
evaluate the claim.”). The notice of reconsideration does not require remand.
Consideration of Lay Witness Statements or Testimony
The ALJ specifically considered and discussed the opinions of Ms. Ghilino, Ms.
Thornton, Mr. Colwell, Ms. Burns, and Plaintiff’s sister. (R. 22-23). She accorded those
opinions little weight because they were dependent on Plaintiff’s subjective complaints
which the ALJ found not fully credible, and because as lay observers they did not
determine if the behaviors they observed were medically compelled. (R. 23). Plaintiff
does not demonstrate error in the ALJ’s finding, but merely asserts that they were
credible witnesses who had opportunity to observe and converse with Plaintiff regularly.
The reasons given by the ALJ are supported by the record evidence, and more is not
Dr. Davis’s Opinion
The ALJ discussed the opinion letter provided by Dr. Davis in April 2013, noting
that he stated he had treated Plaintiff from 2006 to 2011, and he opined that Plaintiff had
a debilitating autoimmune complex and was completely disabled over seven years from
2006 till 2013. (R. 22) (citing Exs. 8F, 14F (R. 606, 622)). The ALJ accorded little
weight to Dr. Davis’s opinion because it was not supported by record evidence, the record
contained no evidence of a debilitating autoimmune complex, Dr. Davis provided no
treatment records regarding Plaintiff, Dr. Davis’s office indicated they had no records for
Plaintiff, and the issue of disability is an administrative determination reserved to the
Commissioner. (R. 22).
Each of these findings made by the ALJ are supported by the record evidence, and
Plaintiff does not argue otherwise. The fact that Dr. Davis supported Plaintiff’s
application for benefits with an opinion letter means little since there is no record
evidence upon which the opinion is based, or otherwise supporting the opinion during the
relevant time period.
Step Two Finding
The ALJ found in her step two analysis that Plaintiff has not shown that she had an
impairment or combination of impairments that was “severe” within the meaning of the
Act during the relevant period before her date last insured. (R. 19). The court finds that
the ALJ applied the correct legal standard at step two of her analysis and that the record
evidence supports her finding.
An impairment is not considered severe if it does not significantly limit a
claimant’s ability to do basic work activities such as walking, standing, sitting, carrying,
understanding simple instructions, responding appropriately to usual work situations, and
dealing with changes in a routine work setting. 20 C.F.R. § 404.1521. The Tenth Circuit
has interpreted the regulations and determined that to establish a “severe” impairment or
combination of impairments at step two of the sequential evaluation process, Plaintiff
must make only a “de minimis” showing. Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th
Cir. 1997). Plaintiff need only show that an impairment would have more than a minimal
effect on her ability to do basic work activities. Williams, 844 F.2d 748, 751 (10th Cir.
1988). However, she must show more than the mere presence of a condition or ailment.
Hinkle, 132 F.3d at 1352 (citing Bowen v. Yuckert, 482 U.S. 137, 153 (1987)). If an
impairment’s medical severity is so slight that it could not interfere with or have a serious
impact on plaintiff’s ability to do basic work activities, it could not prevent her from
engaging in substantial work activity and will not be considered severe. Hinkle, 132 F.3d
The determination at step two is based on medical factors alone, and not vocational
factors such as age, education, or work experience. Williamson v. Barnhart, 350 F.3d
1097, 1100 (10th Cir. 2003). A claimant must provide medical evidence that she had an
impairment and how severe it was during the time the she alleges she was disabled. 20
C.F.R. § 404.1512(c).
The ALJ applied this standard and determined that Plaintiff has not shown that
during the relevant period her impairments had more than a minimal effect on her ability
to perform basic work activities; walking, standing, sitting, lifting, pushing, pulling,
reaching, carrying, handling, seeing, hearing, speaking; understanding, carrying out, and
remembering simple instructions; use of judgment; responding appropriately to
supervision, co-workers, and usual work situations; and dealing with changes in a routine
work setting. (R. 19) (citing Soc. Sec. Ruling (SSR) 85-28). Plaintiff does not point to
evidence that during the relevant period she was more than minimally limited in any of
these basic work activities. Plaintiff points to the fact that she was taking various oral and
topical medications during the relevant period, but there is no record evidence that these
medications limited any of the basic work activities. She points to lesions, but again does
not show record evidence that these lesions had more than a minimal effect on her ability
to perform any specific basic work activity.
In her Reply Brief, Plaintiff acknowledged that she performed daily activities
tending to suggest greater abilities than suggested by her Brief, but argued that those
activities were more limited than recognized by the Commissioner. (Reply 5-6). The
limitations suggested in Plaintiff Reply Brief however, are an after-the-fact justification,
and are not present in the administrative record. The function report Plaintiff prepared in
January 2013 and provided to the Social Security Administration records each of the
activities relied upon in the Commissioner’s Brief, and does not present the limitations
Plaintiff now asserts on those activities. (R. 331-40). Plaintiff objects to the
Commissioner’s alleged suggestion that she was able to care for children (Reply 5), but
Plaintiff misunderstands the Commissioner’s Brief. (Comm’r Br. 6). In her Brief, the
Commissioner listed Plaintiff’s daily activities tending to suggest that her impairments are
not severe, and then cited Wilson, 602 F.3d at 1142, for the proposition that it is
appropriate for an ALJ to rely upon a claimant’s daily activities which do not indicate
significant limitations. Id. at 6. In her citation, the Commissioner noted that the claimant,
in Wilson, “could care for her home and her children, and also drive, shop, handle
finances, and visit friends.” Id.
Plaintiff also cites to record evidence in October, 2013 and later, including records
from Dr. Bernhardt, Dr. Burton, and Dr. Brown, which she argues shows that her
impairments in combination are “severe” within the meaning of the Act. However, that
evidence is outside the relevant period of this case, and the ALJ explained that it did not
show that Plaintiff’s impairments were severe within the relevant period. Plaintiff has
shown no error in the decision at issue. She has shown, at most, the mere presence of
conditions or ailments.
IT IS THEREFORE ORDERED that judgment shall be entered pursuant to the
fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner’s final decision.
Dated this 14th day of August 2017, at Kansas City, Kansas.
s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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