Lee v. Colvin, Case No. 12-2259-SAC
| Decision Date | 28 August 2013 |
| Docket Number | Case No. 12-2259-SAC |
| Parties | TERASA ILENE LEE, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — District of Kansas |
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 conclusive." Because the Appeals Council denied the Plaintiff's request for review, the ALJ's decision is the Commissioner's final decision. The Court reviews 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." Wells v. Colvin, _ F.3d _ (Aug. 19, 2013) (quoting Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010)).
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 conclusion. 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 conclusion. 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. Nor will 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 rational. Graham v. Sullivan, 794 F.Supp. 1045, 1047 (D.Kan. 1992). 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. Glenn, 21 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 he has 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 the claimant is not only unable to perform their 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. 42 U .S.C. § 423(d).
The Commissioner has established a five-step sequential evaluation process to determine disability. 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 activity." 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." At 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. If 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, he is determined not to be disabled. If 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 the analysis. Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993). At step five, the burden shifts to the Commissioner to show substantial evidence 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).
Before moving to step four, the agency will assess the claimant's residual functional capacity (RFC). This 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); 416. 920(a)(4), 416. 920 (e, f, g).
Plaintiff's medical history is well established in the record and shall not be repeated here. Plaintiff, when approximately 45 years old, filed applications for disability insurance benefits and supplemental security income payments. The ALJ found at step one that Plaintiff had not engaged in substantial gainful activity since her onset date of disability. Plaintiff had obtained her GED and worked as a cleaner, restaurant hostess, and driver. At step two, the ALJ found Plaintiff has severe impairments of diabetes mellitus, supraventricular tachycardia (SVT), and affective disorder. At step three, the ALJ determined that those impairments do not meet or equal a listed impairment.
The ALJ found Plaintiff had mild restriction of activities of daily living, moderate difficulties maintaining social functioning, moderate difficulties maintaining concentration, persistence, or pace, and no episodes of decompensation. Tr.15. He determined plaintiff's residual functional capacity (RFC) as:
... sedentary work as defined in 20 CFR 404.1567(b) and 416.967(b) except she is limited to simple, repetitive, routine work that is as stress free as possible; limited contact with the general public and supervisors; occasional bending and no crawling, kneeling, crouching or squatting, no lifting from floor level; must work in a clean environment relatively free of smoke, dust, and other pollutants; must be able to alternate between sitting and standing every 30 minutes; and must work on a smooth level surface and no use of foot controls.
Tr. 16. The ALJ determined at step four that plaintiff is not able to perform her past relevant work. At step five, the ALJ found, after questioning a vocational expert (VE), that plaintiff could perform the following jobs: order clerk (DOT 209.567-014), stuffer (DOT 731.685-014), and eye glass polisher (DOT 713.684-038). Accordingly, the ALJ concluded Plaintiff is not disabled.
Plaintiff raises multiple challenges to the ALJ's RFC determination, contending: 1) the ALJ failed to apply the correct legal test in determining Plaintiff's RFC; 2) the ALJ erred in relying on the medical opinions of record; 3) the ALJ failed to state the weight he gave the medical opinions; 4) the ALJ did not link his RFC determination to specific evidence of record; and 5) the ALJ ignored substantial evidence of Plaintiff's obesity. The Court addresses these in turn.
Plaintiff claims that the ALJ found her exertional level to be "sedentary" without first doing a function-by-function assessment. This is alleged to contradict the requirements of SSR 96-8p, which states in pertinent part:
The RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis ... Only after that may RFC be expressed in terms of the exertional levels of work, sedentary, light medium, heavy, and very heavy.
But even assuming that the SSR was not followed, the Court sees no harm, and Plaintiff does not allege any, resulting from the ALJ's reversal of this ordering. As SSR 96-8p notes, the function-by-function analysis is most relevant when an ALJ determines whether a claimant is able to perform past work at step four. See SSR 96-8p, 1996 WL 374184, at * 5. The function-by-function analysis requirement of SSR 96-8p is "less critical" where, as here, the ALJ finds the Plaintiff unable to do past relevant work. Ren v. Astrue, 2009 WL 3497785 (D .Colo. 2009).
The ALJ identified Plaintiff's functional limitations and assessed Plaintiff's work-related abilities on a function-by-function basis, and expressed the RFC in terms of her exertional level. Harmless error may be found even when an ALJ fails to include a function-by-function analysis in the RFC analysis at step four. See Guana v. Astrue, 2013 WL 316022 (D.Colo. 2013) (). See Howard v. Barnhart, 379 F.3d 945, 949 (10th Cir. 2004) (); Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004); Murrell v. Shalala, 43 F.3d 1388, 1389-90 (10th Cir. 1994). The Court is not persuaded that the ALJ applied an incorrect legal test, despite the challenged wording above.
Plaintiff contends that the ALJ had "no medical support" for his RFC. No treating source opinion was offered, and the ALJ rejected Plaintiff's testimony. Plaintiff does not challenge that credibility call.
This leaves Plaintiff with the three medical opinions discussed below. Plaintiff argues that the ALJ could not rely upon those medical opinions because they had been issued over a year before his decision. But for this proposition of staleness, Plaintiff cites only an 8th Circuit case not binding in this jurisdiction.
In Frankl v. Shalala, 47 F.3d 935, 938, the Eighth Circuit found that...
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