Noble v. Astrue

• Decision Date: 17 November 2010
• Docket Number: CIVIL ACTION No. 09-1386-JWL
• Citation: Noble v. Astrue, CIVIL ACTION No. 09-1386-JWL (D. Kan. Nov 17, 2010)
• Parties: RAYMOND G. NOBLE, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — District of Kansas

RAYMOND G. NOBLE, Plaintiff,

v.MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.

CIVIL ACTION No. 09-1386-JWL

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

Dated: November 17, 2010

MEMORANDUM AND ORDER

Plaintiff seeks review of a decision of the Commissioner of Social Security (hereinafter Commissioner) denying supplemental security income (SSI) under sections 1602, and 1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 1381a, and 1382c(a)(3)(A) (hereinafter the Act). Finding error in the administrative law judge's (ALJ's) use of the Medical-Vocational Guidelines (the grids) the court ORDERS that the Commissioner's decision is REVERSED, and that judgment shall be entered in accordance with the fourth sentence of 42 U.S.C. § 405(g) REMANDING the case.

I. Background

Plaintiff applied for disability insurance benefits (DIB) and SSI on May 4, 2006 alleging disability since January 1, 1974. (R. 9, 112-23). The applications were denied initially and upon reconsideration, and Plaintiff requested a hearing before an ALJ. (R. 9, 63-66, 88). Plaintiffs request was granted, and Plaintiff appeared with counsel and testified at a hearing before ALJ Ronald J. Feibus on November 14, 2008. (R. 9, 39-62, 89-101). At the hearing, Plaintiff amended his alleged onset date to May 6, 2006, and acknowledged that his DIB application would be dismissed because the amended onset date was after his date last insured for DIB. (R. 9, 43-44); (Pl. Br. 3). The ALJ subsequently dismissed Plaintiffs DIB application, and Plaintiff does not contest that portion of the decision. (R. 18).

On January 27, 2009, ALJ Feibus issued his decision dismissing Plaintiffs DIB application, finding that Plaintiff is not disabled as defined in the Act, and denying Plaintiffs SSI application. (R. 9-18). The ALJ found that Plaintiff has not engaged in substantial gainful activity since his amended onset date and that he has a severe combination of impairments including degenerative disc disease, left shoulder impairment status post surgery, and affective, anxiety-related, and learning disorders; but that no impairment or combination of impairments meets or medically equals the severity of an impairment listed in the Listing of Impairments (20 C.F.R. Pt. 404, Subpt. P, App. 1). (R. 11). The ALJ next considered Plaintiffs allegations of symptoms resulting from his impairments and found them to be not credible; summarized the record evidence, particularly the medical evidence; and evaluated the medical opinions, giving little weight to the opinion of Plaintiffs primary care physician, and "considerable weight" to the opinions of the state agency physicians and psychologists who examined Plaintiff or reviewed the record evidence. (R. 13-16). Based upon his consideration of the evidence, the ALJ assessed Plaintiff with the residual functional capacity (RFC) for light unskilled and semiskilled work, limited by an inability to climb ladders, ropes, and scaffolds or to perform overhead reaching or lifting with his left upper extremity; and the ability to crouch and crawl only occasionally. (R. 13). The ALJ determined that Plaintiff has no past relevant work, but that if Plaintiff were able to perform the full range of light work, grid rule 202.20 would direct a finding of "not disabled." (R. 17). The ALJ found Plaintiff's additional limitations "have little or no effect on the occupational base of unskilled light work," concluded that Plaintiff was "not disabled" within the meaning of the Act, and denied his application for SSI. Id.

Plaintiff sought Appeals Council review of the ALJ's decision, but his request was denied. (R. 1-3, 109-11). Therefore, the ALJ's decision is the final decision of the Commissioner. (R. 1); Cowan v. Astrue, 552 F.3d 1182, 1184 (10th Cir. 2008). Plaintiff filed a complaint seeking judicial review pursuant to 42 U.S.C. § 405(g). (Doc. 1).

II. Legal Standard

The court's jurisdiction and review are guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1051-52 (10th Cir. 2009) (citing 42 U.S.C. § 405(g)); see also, 42 U.S.C. § 1383(c)(3) (final decision in an SSI case "shall be subject to judicial review as provided in section 405(g) of this title"); accord, Blea v. Barnhart, 466 F.3d 903, 905 (10th Cir. 2006) (asserting jurisdiction pursuant to 42 U.S.C. § 405(g) in a case involving both Title II and Title XVI denials). Section 405(g) of the Act provides, "The findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." The court must determine whether the factual findings are supported by substantial evidence in the record and whether the ALJ applied the correct legal standard. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); accord, White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001). Substantial evidence is more than a scintilla, but less than a preponderance, and it is such evidence as a reasonable mind might accept to support a conclusion. Wall, 561 F.3d at 1052; accord, Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir. 1988). The court may "neither reweigh the evidence nor substitute [its] judgment for that of the agency." Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)); accord, Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). The determination of whether substantial evidence supports the Commissioner's decision, however, is not simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by other evidence or if it constitutes mere conclusion. Gossett, 862 F.2d at 804-05; Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).

An individual is under a disability only if that individual can establish that he has a physical or mental impairment which prevents him from engaging in substantial gainful activity and is expected to result in death or to last for a continuous period of at least twelve months. Thompson v. Sullivan, 987 F.2d 1482, 1486 (10th Cir. 1993) (citing 42 U.S.C. § 423(d)). The claimant's impairments must be of such severity that he is not only unable to perform his past relevant work, but cannot, considering his age, education, and work experience, engage in any other substantial gainful work existing in the national economy. 42 U.S.C. § 423(d)(2)(A).

The Commissioner uses a five-step, sequential process to evaluate disability. 20 C.F.R. § 416.920 (2008); Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010) (citing Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)). "If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary." Id. (quoting Lax, 489 F.3d at 1084.)

In the first three steps, the Commissioner determines whether claimant has engaged in substantial gainful activity since the alleged onset, whether he has a severe impairment or combination of impairments, and whether the severity of his impairment(s) meets or equals the severity of any impairment in the Listing of Impairments. Williams, 844 F.2d at 750-51. If the claimant's impairments do not meet or equal a listed impairment, the Commissioner assesses his RFC. 20 C.F.R. § 416.920(e). This assessment is used at both step four and step five of the sequential process. Id.

After assessing claimant's RFC, the Commissioner evaluates steps four and five--whether claimant can perform his past relevant work, and whether, when considering vocational factors of age, education, and work experience, he is able to perform other work in the economy. Wilson, 602 F.3d at 1139 (citing Lax, 489 F.3d at 1084). In steps one through four the burden is on claimant to prove a disability that prevents performance of past relevant work. Blea, 466 F.3d at 907; accord, Dikeman v. Halter, 245 F.3d 1182, 1184 (10th Cir. 2001); and Williams, 844 F.2d at 751 n.2. At step five, the burden shifts to the Commissioner to show jobs in the economy within Plaintiffs capacity. Id.; Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).

Plaintiff claims the ALJ erred in assessing RFC, in weighing the medical opinion of his primary care physician, and in applying the grids at step five of the evaluation process. (Pl. Br. 15-22). The Commissioner counters each assertion, arguing that the ALJ properly considered the medical opinion of Plaintiffs primary care physician, that he made a proper RFC assessment, and that the his use of the grids at step five was proper. (Comm'r Br. 4-13). The court finds error requiring remand in the ALJ's use of the grids at step five. It does not address Plaintiffs remaining allegations of error.

III. Discussion

Plaintiff asserts that the grids may be used only when the record reveals solely exertional limitations. (Pl. Br. 22) (citing Doughty v. Heckler, 596 F. Supp. 1293, 1294 (D. Kan. 1984)). He argues (without citation to any authority) that where the claimant has nonexertional limitations the ALJ must secure vocational expert (VE) testimony. Id. He asserts that the ALJ did not seek VE testimony at the hearing, that Plaintiffs limitations from overhead reaching and lifting are nonexertional limitations, and therefore, the decision must be remanded to obtain VE testimony. Id. The Commissioner argues that the mere presence of nonexertional limitations does not require use of a VE: that VE testimony is not required where the limitations do not further limit Plaintiff's abilities, where the limitations are minimal or insignificant, or where the ALJ discredits Plaintiffs allegations of nonexertional limitations. (Comm'r Br. 12-13) (citing Eggleston v. Bowen, 851 F.2d 1244, 1247 (10th Cir. 1988); and Castellano v. Sec'y of Health & Human Servs., 26 F.3d 1027, 1030 (10th Cir. 1994)).

In the grids, the Commissioner has provided a tool to aid in making uniform, efficient decisions in determining the types and numbers of jobs existing in the national economy for certain classes of claimants. Heckler v....