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Votaw v. Colvin

United States District Court, Tenth Circuit

May 30, 2013

MARY VOTAW, Plaintiff,
v.
CAROLYN W. COLVIN, [1] Acting Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

John W. Lungstrum United States District Judge.

Plaintiff seeks review of a decision of the Commissioner of Social Security (hereinafter Commissioner) denying Supplemental Security income (SSI) benefits 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 ALJ’s consideration of Plaintiff’s asthma and of the limitations resulting therefrom, the court ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) REVERSING the Commissioner’s decision, and REMANDING for further proceedings.

I. Background

Plaintiff applied for SSI benefits on October 28, 2008, alleging disability beginning January 1, 2000. (R. 13, 153-56). The application was denied initially and upon reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge (ALJ). (R. 13, 52-53, 70-72). Plaintiff’s request was granted, and Plaintiff appeared with counsel for a hearing before ALJ Robert J. Burbank on January 20, 2011. (R. 13, 27-28). At the hearing, testimony was taken from Plaintiff, and a vocational expert appeared but did not testify. (R. 13, 27-51). On February 18, 2011 ALJ Burbank issued a decision in which he found that although Plaintiff has severe impairments and has no past relevant work, when considering her age, education, work experience and residual functional capacity (RFC), jobs exist in significant numbers in the national economy that she can perform. (R. 13-20). Therefore, he concluded that she is not disabled within the meaning of the Act, and denied her application for SSI benefits. (R. 20). Plaintiff sought but was denied Appeals Council review of the ALJ’s decision (R. 1-9); that decision became the final decision of the Commissioner (R. 1); Blea v. Barnhart, 466 F.3d 903, 908 (10th Cir. 2006); and Plaintiff now seeks judicial review of the decision pursuant to 42 U.S.C. § 405(g). (Doc. 1).

II. Legal Standard

The court’s jurisdiction and review are guided by the Act. Weinberger v. Salfi, 422 U.S. 749, 763 (1975) (citing 42 U.S.C. § 405(g)); Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (same); Brandtner v. Dep’t of Health and Human Servs., 150 F.3d 1306, 1307 (10th Cir. 1998) (sole jurisdictional basis in social security cases is 42 U.S.C. § 405(g)). Section 405(g) of the Act provides for review of a final decision of the Commissioner made after a hearing in which the Plaintiff was a party. It also 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 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 it is less than a preponderance; it is such evidence as a reasonable mind might accept to support a conclusion. 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). 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 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 she has a physical or mental impairment which prevents her from engaging in any substantial gainful activity, and which is expected to result in death or to last for a continuous period of at least twelve months. Knipe v. Heckler, 755 F.2d 141, 145 (10th Cir. 1985) (quoting identical definitions of a disabled individual from both 42 U.S.C. §§ 423(d)(1) and 1382c(a)(3)(A)); accord, Lax, 489 F.3d at 1084 (citing 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A)). The claimant’s impairments must be of such severity that she is not only unable to perform her past relevant work, but cannot, considering her age, education, and work experience, engage in any other substantial gainful work existing in the national economy. 42 U.S.C. § 1382c(a)(3).

The Commissioner uses a five-step sequential process to evaluate disability. 20 C.F.R. § 416.920 (2010);[2] 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 whether claimant has engaged in substantial gainful activity since the alleged onset, whether she has a severe impairment(s), and whether the severity of her impairment(s) meets or equals the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt. P, App. 1). Williams, 844 F.2d at 750-51. After evaluating step three, the Commissioner assesses claimant’s residual functional capacity (RFC). 20 C.F.R. § 416.920(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 sequential process--determining whether claimant can perform past relevant work; and whether, considering vocational factors of age, education, and work experience, claimant 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 claimant to prove a disability that prevents performance of past relevant work. Blea, 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 there are jobs in the economy within Plaintiff’s RFC. Id.; Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).

Plaintiff claims the ALJ erred in finding certain of her impairments are not severe at step two of the evaluation process; erred in assessing an RFC which is neither based upon a function-by-function assessment of Plaintiff’s ability to do work-related activities nor supported by substantial record evidence; erred in evaluating the opinion of her primary care physician, Dr. Bohm; and erred in evaluating the credibility of Plaintiff’s allegations of symptoms resulting from her impairments. The Commissioner responds to each of Plaintiff’s allegations, arguing that substantial evidence supports the step two finding that Plaintiff has severe impairments, and that Plaintiff has not shown additional limitations resulting from her allegedly severe impairments; that substantial record evidence supports the RFC limitations assessed by the ALJ; that substantial record evidence supports the ALJ’s finding that Dr. Bohm’s “opinion was ‘based more on subjective complaints by the claimant than actual evidence in the file’ ” (Comm’r Br. 12) (quoting R. 18); and that the ALJ properly evaluated the credibility of Plaintiff’s allegations. The court finds that remand is necessary because the ALJ erred in assessing Plaintiff’s asthma and in considering the limitations resulting therefrom. Because a proper evaluation of Plaintiff’s asthma on remand will require reconsideration of Dr. Bohm’s opinion and of Dr. Siemsen’s opinion, because reassessment of Plaintiff’s RFC will be necessary after properly considering Plaintiff’s asthma, and because each of the other errors alleged by Plaintiff are included in a proper assessment of RFC, in this opinion the court will not address all of the errors asserted by Plaintiff. Plaintiff may make her arguments with regard to other alleged errors to the Commissioner on remand.

III. Error in the Step Two Evaluation

Plaintiff claims that the ALJ erred at step two of the sequential evaluation process by finding that her headaches and asthma are not “severe” impairments within the meaning of the Act and by failing to find that degenerative changes in her lumbar spine and right knee are “severe” impairments within the meaning of the Act. (Pl. Br. 14-17). Plaintiff points to medical records showing consistent treatment for her headaches, including an occipital nerve injection. (Pl. Br. 14). She points to medical records showing treatment and pulmonary function testing as a result of her breathing difficulties, and to Dr. Letourneau’s finding of “fairly moderate to severe COPD” (chronic obstructive pulmonary disease). (Pl. Br. 15-16) (citing R. 518). She points out that Dr. Siemsen, an agency physician, assessed her primary diagnosis as “asthma, ” and opined that she should avoid concentrated exposure to extreme heat and cold, and to fumes, odors, dusts, gases, poor ventilation, etc. due to her breathing problems. Id. at 15 (citing R. 468, 472). Finally, Plaintiff points to medical records documenting her complaints of back pain and knee pain, and to reports of x-rays showing degenerative changes in her right knee and in her lumbar spine. (Pl. Br. 16). She argues that this “medical evidence clearly shows [her] impairments are severe and cause more than a minimal effect on her ability to perform basic work activity.” Id. at 17.

In response, the Commissioner points out that the ALJ found at step two that Plaintiff has fibromyalgia which he found to be “severe” in the circumstances of this case. She notes that the ALJ “acknowledged that Plaintiff’s fibromyalgia led to complaints of pain in her ‘back, knees and shoulders, ’ difficulty sleeping, weakness in her leg, and that she had to lie down several times per day [due] to fibromyalgia symptoms.” (Comm’r Br. 5) (quoting R. 17). Citing Hill v. Astrue, 289 F. App’x 289, 292 (10th Cir. 2008), the Commissioner argues that once an ALJ has found any severe impairment at step two of the sequential evaluation process a failure to find that additional impairments are severe is not error requiring reversal if the ALJ has considered all of the claimant’s alleged limitations. (Comm’r Br. 5). She argues that the practical effect of this standard is that, rather than showing merely that she has additional severe impairments, “Plaintiff must show that the ALJ overlooked some specific additional limitation not already included” in the RFC assessed, and she argues that Plaintiff has not made that showing in this case. Id. The Commissioner then argues that although Plaintiff has shown treatment for headaches, breathing difficulties, and back and knee pain, she has not shown limitations resulting from those impairments which are not included in the RFC assessed by the ALJ. Id. at 5-7. Although much of the Commissioner’s argument may be correct as it relates to headaches ...


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