Henry v. Social Security Administration, Commissioner of
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 7/26/17. (msb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Case No. 16-2707-SAC
NANCY A. BERRYHILL,
Acting Commissioner of
MEMORANDUM AND ORDER
This is an action reviewing the final decision of the
Commissioner of Social Security denying the plaintiff disability
The matter has been fully briefed by the
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
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.
Glenn v. Shalala, 21 F.3d 983, 984
On January 20, 2017, Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of Social Security.
(10th Cir. 1994).
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
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
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.
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
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.
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 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
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.”
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.
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
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
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).
Commissioner meets this burden if the decision is supported by
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).
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);
History of case
On March 26, 2015, administrative law judge (ALJ) Ben
Willner issued his decision (R. at 12-26).
that he has been disabled since February 1, 2009 (R. at 12).
The ALJ denied plaintiff’s implied request for reopening a prior
denial, and evaluated plaintiff’s current application from the
earliest potential onset date, October 13, 2011 (R. at 12).
Plaintiff is insured for disability insurance benefits through
December 31, 2014 (R. at 14).
At step one, the ALJ found that
plaintiff has not engaged in substantial gainful activity since
the alleged onset date (R. at 15).
At step two, the ALJ found
that plaintiff has severe impairments (R. at 15).
three, the ALJ determined that plaintiff’s impairments do not
meet or equal a listed impairment (R. at 16).
plaintiff’s RFC (R. at 18-19), the ALJ found at step four that
plaintiff is unable to perform any past relevant work (R. at
At step five, the ALJ found that plaintiff could perform
other jobs that exist in significant numbers in the national
economy (R. at 24-25).
Therefore, the ALJ concluded that
plaintiff was not disabled (R. at 25-26).
Does substantial evidence supports the ALJ’s determination
that plaintiff is not disabled?
The court would note that plaintiff is proceeding pro se.
A pro se litigant’s materials are entitled to a liberal reading,
and consequently, the court will make some allowances for the
pro se litigant’s failure to cite proper legal authority, their
confusion of various legal theories, their poor syntax and
sentence construction, or their unfamiliarity with pleading
requirements, but the court cannot take on the responsibility of
serving as the litigant’s attorney in constructing arguments and
searching the record.
Weaver v. Astrue, 353 Fed. Appx. 151, 154
(10th Cir. Nov. 18, 2009).
Plaintiff’s initial brief simply states that she does not
agree with the decision of the Commissioner of Social Security.
She does not raise any specific issues in this brief (Doc. 14).
In her reply brief, the only issue she raises is that she cannot
work because of her migraines (Doc. 16).
In making his RFC findings, the ALJ noted that plaintiff
was released to work without restrictions by Dr. O’Boynick on
October 24, 2008, following a procedure to alleviate her
headaches (R. at 20, 315).
The ALJ gave controlling weight to
the opinion of Dr. Appelbaum, a treating physician, who stated
on February 20, 2013 that plaintiff had no physical limitation
on her activities (R. at 20, 399).
The treatment note from
February 20, 2013 indicates that she was treated for chronic
intractable migraine headaches on that date (R. at 399).
ALJ also gave great weight to the opinions of Dr. Timmerman, a
non-examining physician who reviewed the record and opined on
September 18, 2013 that plaintiff’s only physical limitations
were not to climb ladders, ropes, or scaffolds, and that
plaintiff should avoid hazards (R. at 20-21, 108-110).
limitations were incorporated into the ALJ’s RFC findings (R. at
In regards to plaintiff’s mental RFC, the ALJ gave great
weight to the opinions of Dr. Neufeld, a psychologist who
performed a psychological evaluation with testing on the
plaintiff on August 5, 2013 (R. at 22, 415-419).
The ALJ also
gave great weight to the opinions of Dr. Cohen, a non-examining
medical source who reviewed the record and provided her opinions
regarding plaintiff’s mental RFC on September 9, 2013 (R. at 23,
The ALJ’s RFC findings are consistent with
the report from Dr. Cohen (R. at 18-19, 23, 110-112).
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.
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
adequate to support a conclusion).
The court finds that the ALJ
carefully reviewed the evidence in the record, including
plaintiff’s complaints and allegations, and the medical
evidence, and made findings supported by substantial evidence in
the record, including medical opinion evidence.
not cited to any medical evidence that contradicts the ALJ’s RFC
The court finds no clear error by the ALJ in his
decision that plaintiff can perform other work that exists in
the national economy.
IT IS THEREFORE ORDERED that the judgment of the
Commissioner is affirmed pursuant to sentence four of 42 U.S.C.
Dated this 26th day of July 2017, Topeka, Kansas.
s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge
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