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Shelly W. v. Berryhill

United States District Court, D. Utah, Northern Division

August 28, 2018

SHELLY W., Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          Dee Benson District Judge.

          REPORT AND RECOMMENDATION

          PAUL M. WARNER CHIEF UNITED STATES MAGISTRATE JUDGE.

         District Judge Dee Benson referred this case to Chief Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. § 636(b)(1)(B).[1] Before the court is Plaintiff Shelly W.'s (“Plaintiff”) appeal of the Acting Commissioner of Social Security's (“Commissioner” or “Defendant”) final decision denying her claim for disability insurance benefits (“DIB”) under Title II of the Social Security Act (the “Act”). The court has carefully reviewed the written memoranda submitted by the parties and concludes that oral argument is not necessary in this case. After careful review of the administrative record, the parties' briefs, and the relevant law, the court finds no reversible legal error and concludes that the Commissioner's decision is supported by substantial evidence. The court therefore recommends that the decision be affirmed.

         BACKGROUND

         In November 2012, Plaintiff filed an application for DIB under Title II of the Act. Plaintiff alleged a disability onset date of June 2012.[2] She was thirty-five (35) years old when she alleges she became disabled due to back pain, nerve damage, bipolar dis, depression, attention deficit-hyperactivity disorder (“ADHD”), arthritis, and a dislocated left hip.[3] Plaintiff has a GED, and past relevant work experience as a mail clerk, tax clerk, and secretary.[4] After Plaintiff's claim was initially denied, she requested a hearing before an Administrative Law Judge (“ALJ”).[5] Following a hearing on July 22, 2015, the ALJ found Plaintiff was not disabled in a decision dated October 20, 2015.[6] The Appeals Council denied Plaintiff's request for a review of the ALJ's decision, [7] making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. See 42 U.S.C. § 405(g); 20 C.F.R. § 404.981. This appeal followed.

         STANDARD OF REVIEW

         The court “‘review[s] the Commissioner's decision to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied.” Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). The Commissioner's findings, “if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance.” Lax, 489 F.3d at 1084 (quotations and citation omitted). In reviewing the ALJ's decision, the court cannot “reweigh the evidence” or “substitute” its judgment for that of the ALJ. Madrid v. Barnhart, 447 F.3d 788, 790 (10th Cir. 2006) (quotations and citations omitted). “[F]ailure to apply the correct legal standard or to provide this court with a sufficient basis to determine that appropriate legal principles have been followed [are] grounds for reversal.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (quotations and citation omitted).

         A five-step evaluation process has been established for determining whether a claimant is disabled. See 20 C.F.R. § 404.1520(a)(4)(i)-(iv); see also Williams v. Bowen, 844 F.2d 748, 750- 51 (10th Cir. 1988) (discussing the five-step process). If a determination can be made at any one of the steps that a claimant is or is not disabled, the subsequent steps need not be analyzed. See 20 C.F.R. § 404.1520(a)(4). The five-step sequential disability determination is as follows:

1. If the claimant is performing substantial gainful work she is not disabled.
2. If the claimant is not performing substantial gainful work, her impairment(s) must be severe before she can be found to be disabled.
3. If claimant is not performing substantial gainful work and has a severe impairment(s) that has lasted or is expected to last for a continuous period of at least twelve months, and her impairment(s) meets or medically equals a listed impairment contained in [20 C.F.R. § 404, Part P, Appendix 1], the claimant is presumed disabled without further inquiry.
4. If the claimant's impairment(s) does not prevent her from doing her past relevant work, she is not disabled.
5. Even if the claimant's impairment(s) prevent her from performing her past relevant work, if other work exists in significant numbers in the national economy that accommodates her residual functional capacity [(“RFC”)] and vocational factors, she is not disabled.

Martin v. Barnhart, 470 F.Supp.2d 1324, 1326-27 (D. Utah 2006); see 20 C.F.R. § 404.1520(a)(4)(i)-(v); Williams, 844 F.2d at 750-51.

         The claimant bears the burden of proof beginning with step one and ending with step four. See Henrie v. U.S. Dep't of Health & Human Servs., 13 F.3d 359, 360 (10th Cir. 1993); Williams, 844 F.2d at 750-51. At step five, the burden of proof shifts to the Commissioner to establish “whether the claimant has the [RFC] . . . to perform other work in the national economy in view of his [or her] age, education, and work experience.” Williams, 844 F.2d at 751 (quotations and citations omitted); see 20 C.F.R. § 404.1520(a)(4)(v). If it is determined that the claimant “can make an adjustment to other work, ” 20 C.F.R. § 404.1520(a)(4)(v), she is not disabled. If, on the other hand, it is determined that the claimant “cannot make an adjustment to other work, ” id., she is disabled and entitled to benefits.

         DISCUSSION

         Plaintiff's opening brief alleges three flaws in the ALJ's decision which Plaintiff argues warrant reversal. First, Plaintiff alleges that the ALJ failed to properly weigh the medical opinion evidence.[8] Second, Plaintiff alleges that the ALJ failed to properly weigh Plaintiff's credibility.[9] Finally, Plaintiff alleges that the Appeals Council failed to properly consider new evidence.[10]The court will address each of these arguments in turn.

         I. The ALJ's Evaluation of the Medical Opinion Evidence.

         Plaintiff alleges that the ALJ improperly weighed the medical opinion evidence. Plaintiff argues that the ALJ should have assigned greater weight to the opinions of Plaintiff's treating physician, Roark Neville, M.D. (“Dr. Neville”), [11] and treating psychiatrist Dennis Smith, M.D. (“Dr. Smith”).[12] Plaintiff also argues that the ALJ erred by assigning more weight to the opinions of non-examining sources than to those of Drs. Smith and Neville.[13] The court agrees with the Commissioner that Plaintiff's arguments are an invitation to reweigh the evidence, which this court cannot do. See Madrid, 447 F.3d at 790. For the following reasons, the court finds that the ALJ applied the correct legal standard in weighing the medical opinion evidence and committed no reversible error.

         a. Treating Source Opinions

         “The opinion of a treating physician is properly denied controlling weight ‘if it is not well-supported by medically acceptable clinical and laboratory diagnostic techniques or if it is inconsistent with the other substantial evidence in the case record.'” Simmons v. Colvin, 635 Fed.Appx. 512, 515 (10th Cir. 2015) (unpublished) (quoting Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003)). “And the opinion may be rejected outright if the ALJ gives specific, legitimate reasons for doing so, relating to such matters as the degree to which the physician's opinion is supported by relevant evidence, the consistency between the opinion and the record as a whole, and any other factors . . . which tend to support or contradict the opinion.” Id. (internal quotations and citation omitted). In addition, the regulations provide that certain issues, including “[o]pinions that [the claimant] [is] disabled” or “unable to work, ” are “reserved to the Commissioner.” 20 C.F.R. § 404.1527(d)(1)-(3); See also Social Security Ruling (“SSR”) 96-5p (“treating source opinions on issues reserved to the Commissioner are never entitled to controlling weight or special significance”).

         Here, the ALJ reasonably gave “little weight to the statement of [Dr. Neville] . . . that the claimant is ‘unable to work.'”[14] As properly noted by the ALJ, “[t]his legal conclusion has been specifically reserved to the Commissioner in accordance with [SSR] 96-5p.”[15]

         In addition, the ALJ gave no weight Dr. Neville's opinion set forth in a medical questionnaire.[16] In the questionnaire, Dr. Neville opined that Plaintiff could sit, stand, and walk for less than one hour; was incapable of tolerating even low work stress; and would miss more than three days of work per month.[17] The ALJ explained that he gave this opinion “no weight” because “[a]lthough [Dr. Neville] has a treating relationship with the claimant, the extreme limitations opined by [Dr. Neville] appear to be ...


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