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Lindberg v. Colvin

United States District Court, Tenth Circuit

July 1, 2013

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

MEMORANDUM AND ORDER

JOHN W. LUNGSTRUM, 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 Commissioner's failure either to include residual functional capacity (RFC) limitations related to Plaintiff's severe headaches or to explain why that severe impairment does not impose additional limitations, the court ORDERS that the decision below shall be REVERSED and that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) REMANDING the case for further proceedings consistent with this opinion.

I. Background

Plaintiff applied for SSI on November 4, 2009, alleging disability beginning December 31, 2002.[2] (R. 11, 142-46, 154-58). The application was denied initially and upon reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge (ALJ). (R. 11, 73-74, 95-7). Plaintiff's request was granted, and Plaintiff appeared with counsel for a hearing before ALJ Janice E. Barnes-Williams on April 5, 2011. (R. 11, 28-29). At the hearing, testimony was taken from Plaintiff and from a vocational expert. (R. 11, 30-73). On June 6, 2011 ALJ Barnes-Williams issued her decision finding that Plaintiff has impairments which are severe within the meaning of the Act, and that although she has no past relevant work, there are a significant number of jobs in the national economy that she can perform. (R. 11-21). Therefore, the ALJ found that Plaintiff is not disabled within the meaning of the Act, and denied her application for benefits. (R. 20-21). Plaintiff requested Appeals Council review of the ALJ's decision and provided a Representative Brief to the Council. (R. 7, 320-21). The Council made the Representative Brief a part of the administrative record and considered it, but decided that the Brief did not provide a basis to change the ALJ's decision, and denied Plaintiff's request for review. (R. 1-5). Therefore, the ALJ's 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. (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 ALJ's factual findings are supported by substantial evidence in the record and whether she 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. Richardson v. Perales , 402 U.S. 389, 401 (1971); 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).

When deciding if substantial evidence supports the ALJ's decision, the mere fact that there is evidence in the record which might support a contrary finding will not establish error in the ALJ's determination. "The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence. [The court] may not displace the agency'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 (citations, quotations, and bracket omitted); see also, Consolo v. Fed. Maritime Comm'n , 383 U.S. 607, 620 (1966) (defining substantial evidence as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, " and noting that "the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence."). Moreover, the determination 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 disabled only if she 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. 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. § 423(d)(2)(A).

The Commissioner uses a five-step sequential process to evaluate disability. 20 C.F.R. § 416.920 (2011);[3] 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 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 at step four whether, in light of the RFC assessed, claimant can perform her past relevant work; and at step five whether, when also considering the 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 Plaintiff 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 that there are jobs in the economy which are within the RFC assessed. Id .; Haddock v. Apfel , 196 F.3d 1084, 1088 (10th Cir. 1999).

Plaintiff claims the ALJ erred in finding that there is work in the economy that Plaintiff is able to perform, because she failed to include in her hypothetical question to the vocational expert the requirement that Plaintiff be able to alternate positions between sitting and standing at will. She claims it was error to find that Plaintiff's headaches are a severe impairment at step two of the evaluation process but thereafter to fail either to include limitations in her RFC assessment or to explain why such limitations are not required. Finally, she claims the ALJ erred in weighing the opinion of Plaintiff's treating nurse-practitioner. The Commissioner argues that the ALJ properly evaluated the opinion of Plaintiff's treating nurse-practitioner. She argues that the ALJ properly assessed RFC because although she found that Plaintiff's headaches are a severe impairment, she implicitly found that Plaintiff's testimony regarding the disabling effect of her headaches is not credible, and explicitly "noted that no treatment provider recommended any limitations relating to Plaintiff's headaches" (Comm'r Br. 25), and therefore did not need to assess limitations relating to the headaches. Finally, she argues that in the circumstances of this case, there is no need for the ALJ to include the need to alternate positions "at will" in his hypothetical question to the vocational expert. The court finds that the ALJ erred in her consideration of Plaintiff's headaches, and that remand is necessary for the ALJ either to explain what RFC limitations result from this admittedly severe impairment or to explain why such a severe impairment does not produce RFC limitations in the facts of this case. Because the court finds remand is necessary for consideration of Plaintiff's headaches, it need not consider whether the ALJ erred in evaluating the nurse-practitioner's opinion or in the hypothetical question presented to the vocational expert. Plaintiff may make her arguments in that regard to the ALJ on remand.

III. Consideration of Plaintiff's Headaches

Plaintiff points out that the ALJ found her headaches are a "severe" impairment at step two. She notes that an impairment "is severe' if it significantly limits an individual's physical or mental abilities to do basic work activities." (Pl. Br. 12) (citing Soc. Sec. Ruling (SSR) 96-3p). She then argues that the ALJ's RFC assessment does not include any limitations in work activities related to Plaintiff's headaches. Id . Plaintiff claims that if, as here, the ALJ finds an impairment severe at step two, but later determines that the impairment is insignificant, she is required to provide an explanation in the decision. Id . (citing Walker v. Astrue, No. CIV-10-001-SPS , 2011 WL 1135109 (E. D. Okla. March 25, 2011). Plaintiff points to her testimony that she experiences two to three headaches a week that keep her from working and argues that the ALJ found her allegations of symptoms resulting from her impairments "partially credible." Id . She then argues that the ALJ explained the portions of Plaintiff's testimony which were not credible but did not explain "whether Lindberg's testimony regarding her headaches was credible, " and completely ignored that issue. Id. at 12-13.

The Commissioner argues that the ALJ properly assessed Plaintiff's RFC. She asserts that "the ALJ's RFC assessment properly included limitations based on those symptoms the ALJ found credible, " and points out that Plaintiff "does not dispute the ALJ's finding that not all of her allegations were credible." (Comm'r Br. 23-24). She then argues that the only evidence Plaintiff points to in support of her assertion that headaches will cause her to miss one to two days of work a week is her testimony at the administrative hearing which the ALJ found was not entirely credible. Id. at 24. The Commissioner asserts that no medical evidence supports Plaintiff's allegation that headaches would cause her to miss work, and that "the ALJ properly noted ...


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