Robert M. v. Saul, CIVIL ACTION No. 18-2444-JWL
| Decision Date | 15 July 2019 |
| Docket Number | CIVIL ACTION No. 18-2444-JWL |
| Parties | ROBERT LEE M., Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — District of Kansas |
Plaintiff seeks review of a decision of the Commissioner of Social Security denying Disability Insurance Benefits (DIB) pursuant to sections 216(i) and 223 of the Social Security Act. 42 U.S.C. §§ 416(i) and 423 (hereinafter the Act). Finding no error in the Administrative Law Judge's (ALJ) decision, the court ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner's final decision.
Plaintiff argues that the ALJ erroneously failed to address or consider limitations related to Plaintiff's impairments which the ALJ found not severe within the meaning of the Act and regulations at step two of the sequential evaluation process; failed properly to assess Plaintiff's residual functional capacity (RFC) in numerous ways, including failing his duty to develop the record and obtain a medical opinion regarding Plaintiff's physical RFC, failing adequately to account in the RFC assessed for the moderate mental limitations he found Plaintiff has both in the broad mental functional area of interacting with others and in the area of concentrating, persisting, or maintaining pace, erroneously evaluating Plaintiff's allegations of symptoms resulting from his impairments, and erroneously weighing the medical opinions of treating mental health professionals; and failed to sustain the Commissioner's burden at step five of the sequential evaluation process by failing to resolve the apparent conflict between the Dictionary of Occupational Titles (DOT) information regarding the representative jobs allegedly available to an individual such as Plaintiff and the vocational expert's testimony regarding those jobs.
The court's review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Section 405(g) of the Act provides that in judicial review "[t]he findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). The court must determine whether the ALJ's factual findings are supported by substantial evidence in the record and whether he 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" refers tothe weight of the evidence. Substantial evidence is more than a scintilla, but it is less than a preponderance; it is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971); see also, Wall, 561 F.3d at 1052; 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); see also, Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994) () (quoting Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988)). Nonetheless, the determination whether substantial evidence supports the Commissioner's decision is not 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).
The Commissioner uses the familiar five-step sequential process to evaluate a claim for disability. 20 C.F.R. § 404.1520; 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." Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In the first three steps, the Commissioner determines whetherclaimant has engaged in substantial gainful activity since the alleged onset, whether he has a severe impairment(s), 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. After evaluating step three, the Commissioner assesses claimant's RFC. 20 C.F.R. § 404.1520(e). This assessment is used at both step four and step five of the sequential evaluation process. Id.
The Commissioner next evaluates steps four and five of the process—determining at step four whether, considering the RFC assessed, claimant can perform his past relevant work; and at step five whether, when also considering the vocational factors of age, education, and work experience, he is able to perform other work in the economy. Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In steps one through four the burden is on Plaintiff to prove a disability that prevents performance of past relevant work. Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006); accord, Dikeman v. Halter, 245 F.3d 1182, 1184 (10th Cir. 2001); Williams, 844 F.2d at 751 n.2. At step five, the burden shifts to the Commissioner to show that there are jobs in the economy which are within the RFC previously assessed. Id.; Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).
The court considers the issues in the order they are reached when applying the sequential evaluation process.
Plaintiff argues, "The ALJ ... did not address or consider any limitations related to [Plaintiff's 'not severe'] impairments after finding them to be 'no[t]-severe.'" (Pl. Br.30). He quotes Soc. Sec. Ruling (SSR) 96-8p, (Pl. Br. 30-31).
The Commissioner argues two points. The ALJ stated he considered "Plaintiff's 'medically determinable impairments' and his 'medical impairments' in evaluating" his RFC, and the court, as is the usual practice, should take him at his word. (Comm'r Br. 7) (quoting R. 843). And, Plaintiff has not only failed to show that the ALJ did not consider all his impairments but does not point to any functional limitation resulting from his "not severe" impairments which were not assessed by the ALJ. Id.
In his Reply Brief, Plaintiff argues, (Reply 4) (citing R. 843-844).
An impairment is not considered severe if it does not significantly limit a claimant's ability to do basic work activities such as walking, standing, sitting, carrying, understanding simple instructions, responding appropriately to usual work situations, and dealing with changes in a routine work setting. 20 C.F.R. § 404.1522. The Tenth Circuit has interpreted the regulations and determined that to establish a "severe" impairment orcombination of impairments at step two of the sequential evaluation process, Plaintiff must make only a "de minimis" showing. Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997). Plaintiff need only show that an impairment would have more than a minimal effect on his ability to do basic work activities. Williams, 844 F.2d at 751. However, he must show more than the mere presence of a condition or ailment. Hinkle, 132 F.3d at 1352 (citing Bowen v. Yuckert, 482 U.S. 137, 153 (1987)). Under the regulations, the Social Security Administration (SSA) will consider the combined effect of a claimant's impairments "without regard to whether any such impairment, if considered separately, would be of sufficient severity" to establish disability. 20 C.F.R. § 404.1523(c); see also 20 C.F.R. § 404.1545(a)(2), SSR 96-8p, West's Soc. Sec. Reporting Serv., Rulings 147 (Supp. 2018).
Plaintiff's argument conflates the regulatory requirement that an ALJ consider all impairments when assessing RFC with a non-existent requirement to discuss "not severe" impairments when assessing RFC. The ALJ noted the requirement that in assessing RFC he must "consider all of the claimant's impairments, including impairments that are not severe." (R. 837, citing 20 C.F.R. §§ 404.1520(e) and 404.1545; SSR 96-8p). He stated that he made his RFC assessment "[a]fter careful consideration of the entire record," id. at 842, and as Plaintiff acknowledges, in summarizing his analysis of Plaintiff's allegations of symptoms he based that analysis on "claimant's medically determinable impairments," and found that the "facts in the record show that the claimant's medicalimpairments caused some difficulties, but suggest that the claimant's symptoms were not disabling prior to the date last insured." Id. at 843 see also (Reply 4).
While Plaintiff is correct that the ALJ did not discuss which RFC limitations relate to each of Plaintiff's "not severe" impairments, the ALJ recognized his duty to consider all of the "not severe" impairments and specifically stated that he had considered all the evidence and Plaintiff's medically determinable impairments. As the Commissioner...
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