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Steven M. B. v. Berryhill

United States District Court, D. Utah, Central Division

January 2, 2019

STEVEN M. B., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          Jill N. Parrish District Judge.


          Evelyn J. Furse United States Magistrate Judge.

         Plaintiff Steven B. (“Mr. B.”)[1] filed this action asking the Court[2] 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, [3] the undersigned RECOMMENDS the District Judge AFFIRM the Commissioner's decision.


         Born in 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.)

         Mr. B. 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).


         42 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. § 405(g).

         Adequate, 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).[4] 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)).

         Although 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 Cir. 2004)).

         In 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).


         The 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).

         In 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 activity;
(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. Id.

         IV. ANALYSIS

         The ALJ 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.) ...

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