United States District Court, D. Utah, Central Division
STEVEN M. B., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
N. Parrish District Judge.
REPORT AND RECOMMENDATION
J. Furse United States Magistrate Judge.
Steven B. (“Mr. B.”) filed this action asking the
Court to reverse the Acting Commissioner of
Social Security's (“Commissioner”) decision
denying his claim for Disability Insurance Benefits
(“DIB”) payments under Title II of the Social
Security Act (“Act”). (Pl.'s Opening Br.
(“Pl.'s Br.”) 2-3, 26, ECF No. 19.) Having
carefully considered the parties' memoranda and the
complete record in the matter,  the undersigned RECOMMENDS the
District Judge AFFIRM the Commissioner's decision.
FACTUAL AND PROCEDURAL HISTORY
March 1960 (certified copy of the transcript of the entire
record of the administrative proceedings relating to Steven
M. B. (“Tr.___”), Tr. 70, ECF No. 13), Mr. B.
alleges disability based on a torn right arm bicep, torn ACL
in his left shoulder, osteoarthritis, anxiety, back problems,
neck problems, and gout. (Tr. 158, 309.) Mr. B. has a high
school education (Tr. 70, 381) and previously worked as a
self-employed handyman, forklift driver, warehouse
coordinator, ramp agent, and warehouse manager. (Tr. 310.)
Mr. B. earned $28, 977 in 2010, $7, 730 in 2011, $11, 117 in
2012, $15, 565 in 2013, and $200 in 2014. (Tr. 259.)
applied for disability benefits on September 25, 2014,
alleging a disability onset date of September 25, 2010. (Tr.
232.) The Social Security Administration denied Mr. B.'s
disability claim on April 23, 2015 (Tr. 154-57) and upon
reconsideration on November 12, 2015. (Tr. 158-60.) On
December 3, 2015, Mr. B. requested a hearing before an ALJ.
(Tr. 161.) The ALJ conducted an administrative hearing on
February 24, 2017. (Tr. 64-96.) On March 13, 2017, the ALJ
issued his decision finding Mr. B. not disabled. (Tr. 42-57.)
The ALJ followed the five-step sequential evaluation process
at 20 C.F.R. § 404.1520 and determined Mr. B. could
perform past relevant work as a shipping and receiving
supervisor as generally performed in the national economy but
not as actually performed. (Tr. 56-57.) On March 31, 2017,
Mr. B. appealed the ALJ's decision to the Social Security
Administration's Appeals Council. (Tr. 216-17.) On June
28, 2017, the Appeals Council denied Mr. B.'s request to
review the ALJ's decision (Tr. 1-5), thereby rendering
the ALJ's decision the Commissioner's final
administrative decision for purposes of judicial review.
See 20 C.F.R. § 404.981 (explaining the effect
of an Appeals Council denial).
STANDARD OF REVIEW
U.S.C. § 405(g) provides for judicial review of a final
decision of the Commissioner of the Social Security
Administration (“SSA”). The Court reviews the
Commissioner's decision to determine whether the record
as a whole contains substantial evidence in support of the
Commissioner's factual findings and whether the
Commissioner applied the correct legal standards. 42 U.S.C.
§ 405(g); Lax v. Astrue, 489 F.3d 1080, 1084
(10th Cir. 2007). The Commissioner's findings shall stand
if supported by substantial evidence. 42 U.S.C. §
relevant evidence that a reasonable mind might accept to
support a conclusion constitutes substantial evidence, and
“[e]vidence is insubstantial if it is overwhelmingly
contradicted by other evidence.” O'Dell v.
Shalala, 44 F.3d 855, 858 (10th Cir.
1994). The standard “requires more than a
scintilla, but less than a preponderance.”
Lax, 489 F.3d at 1084. “Evidence is not
substantial if it is overwhelmed by other
evidence-particularly certain types of evidence (e.g., that
offered by treating physicians)-or if it really constitutes
not evidence but mere conclusion.” Gossett v.
Bowen, 862 F.2d 802, 805 (10th Cir. 1988) (quoting
Fulton v. Heckler, 760 F.2d 1052, 1055 (10th Cir.
1985)). Moreover, “[a] finding of ‘no substantial
evidence' will be found only where there is a conspicuous
absence of credible choices or no contrary medical
evidence.” Trimiar v. Sullivan, 966 F.2d 1326,
1329 (10th Cir. 1992) (quoting Hames v. Heckler, 707
F.2d 162, 164 (5th Cir. 1983)).
the reviewing court considers “whether the ALJ followed
the specific rules of law that must be followed in weighing
particular types of evidence in disability cases, ” the
court “will not reweigh the evidence or substitute
[its] judgment for the Commissioner's, ”
Lax, 489 F.3d at 1084 (quoting Hackett v.
Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005)), but
will “review only the sufficiency of the
evidence, ” Oldham v. Astrue, 509 F.3d 1254,
1257 (10th Cir. 2007) (emphasis in original). The court does
not have to accept the Commissioner's findings
mechanically but will “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 sustainability of the evidence test
has been met.” Glenn v. Shalala, 21 F.3d 983,
984 (10th Cir. 1994) (quoting Casias v. Sec'y of
Health & Human Servs., 933 F.2d 799, 800-01 (10th
Cir. 1991)). “‘The possibility of drawing two
inconsistent conclusions from the evidence does not prevent
an administrative agency's findings from being supported
by substantial evidence, '” and the court may not
“‘displace the agenc[y's] choice between two
fairly conflicting views, even though the court would
justifiably have made a different choice had the matter been
before it de novo.'” Lax, 489 F.3d at 1084
(quoting Zoltanski v. FAA, 372 F.3d 1195, 1200 (10th
addition to a lack of substantial evidence, the Court may
reverse where the Commissioner uses the wrong legal standards
or where the Commissioner fails to demonstrate reliance on
the correct legal standards. See Glass v. Shalala,
43 F.3d 1392, 1395 (10th Cir. 1994); Thomson v.
Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993);
Andrade v. Sec'y of Health & Human Servs.,
985 F.2d 1045, 1047 (10th Cir. 1993).
APPLICABLE LAW AND SEQUENTIAL EVALUATION
Social Security Act (“Act”) defines
“disability” as the “inability to engage in
any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A). Moreover, the
Act considers an individual disabled “only if his
physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work
but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful
work which exists in the national economy.”
Id. § 423(d)(2)(A).
determining whether a claimant qualifies as disabled within
the meaning of the Act, the SSA employs a five-part
sequential evaluation. See 20 C.F.R. §
404.1520; Williams v. Bowen, 844 F.2d 748, 750-53
(10th Cir. 1988); Bowen v. Yuckert, 482 U.S. 137,
140-42 (1987). The analysis evaluates whether:
(1) The claimant presently engages in substantial gainful
(2) The claimant has a medically severe physical or mental
impairment or impairments;
(3) The impairment is equivalent to one of the impairments
listed in the appendix of the relevant disability regulation
which preclude substantial gainful activity;
(4) The impairment prevents the claimant from performing his
or her past work; and
(5) The claimant possesses a residual functional capacity to
perform other work in the national economy considering his or
her age, education, and work experience.
See 20 C.F.R. § 404.1520. The claimant has the
initial burden of establishing the disability in the first
four steps. Ray v. Bowen, 865 F.2d 222, 224 (10th
Cir. 1989). At step five, the burden shifts to the
Commissioner to show that the claimant retains the ability to
perform other work existing in the national economy.
in this case found Mr. B. had the following severe
impairments: degenerative disc disease of the lumbar and
cervical spine, bilateral shoulder osteoarthritis, rotator
cuff injury, torn left bicep, and right carpal tunnel
syndrome. (Tr. 48.) The ALJ determined, however, that Mr. B.
retained the residual functional capacity (“RFC”)
to perform light work. (Tr. 51.) The ALJ denied Mr. B.'s
application for benefits concluding at step four of the
five-step analysis, that Mr. B. did not qualify as disabled
because he could still perform his past relevant work as a
shipping and receiving supervisor as generally performed in
the national economy. (Tr. 56.) ...