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Mann v. Colvin

United States District Court, Tenth Circuit

August 28, 2013

AMY JO MANN, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security[1], Defendant

MEMORANDUM AND ORDER

Sam A. Crow, U.S. District Senior Judge

This is an action reviewing the final decision of the Commissioner of Social Security denying the plaintiff disability insurance benefits. The matter has been fully briefed by the parties.

I. General legal standards

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." The court should review the Commissioner's decision to determine only whether the decision was supported by substantial evidence and whether the Commissioner applied the correct legal standards. Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994). 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 they have 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 they are not only unable to perform their previous work but cannot, considering their 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. If at any step a finding of disability or non-disability can be made, the Commissioner will not review the claim further. 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, they are 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 (10thCir. 1993). At step five, the burden shifts to the Commissioner to show 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). The Commissioner meets this burden if the decision is supported by substantial evidence. Thompson, 987 F.2d at 1487.

Before going from step three 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).

II. History of case

On December 10, 2010, administrative law judge (ALJ) Michael D. Shilling issued his decision (R. at 14-25). Plaintiff alleges that she has been disabled since July 14, 2008 (R. at 14). Plaintiff is insured for disability insurance benefits through June 30, 2012 (R. at 16). At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity since plaintiff’s alleged onset date (R. at 16). At step two, the ALJ found that plaintiff has the following severe impairments: fibromyalgia, obesity, recurrent ventral hernia, chronic bronchitis, mild degenerative disc disease, affective mood disorder (situational to her medical problems), anxiety-related disorder and dysthymic disorder (R. at 16). At step three, the ALJ determined that plaintiff’s impairments do not meet or equal a listed impairment (R. at 17). After determining plaintiff’s RFC (R. at 18), the ALJ determined at step four that plaintiff is unable to perform her past relevant work (R. at 23). At step five, the ALJ found that plaintiff could perform jobs that exist in significant numbers in the national economy (R. at 24-25). Therefore, the ALJ concluded that plaintiff was not disabled (R. at 25).

III. Did the ALJ err at step two?

At step two, the ALJ noted that plaintiff suffered from irritable bowel disease and interstitial cystitis. The ALJ concluded that nothing in the record established that these impairments caused any significant limitation in plaintiff’s ability to perform basic work activities. Therefore, the ALJ concluded that they were not severe impairments (R. at 16).

In Brescia v. Astrue, 287 Fed.Appx. 626, 628-629 (10th Cir. July 8, 2008), the claimant argued that the ALJ improperly determined that several of her impairments did not qualify as severe impairments. The court held that once an ALJ has found that plaintiff has at least one severe impairment, a failure to designate another as “severe” at step two does not constitute reversible error because, under the regulations, the agency at later steps considers the combined effect of all of the claimant’s impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity. In Hill v. Astrue, 289 Fed.Appx. 289, 291-292 (10th Cir. Aug. 12, 2008), the court held that once the ALJ finds that the claimant has any severe impairment, he has satisfied the analysis for purposes of step two. The ALJ’s failure to find that additional alleged impairments are also severe is not in itself cause for reversal. However, the ALJ, in determining plaintiff’s RFC, must consider the effects of all of the claimant’s medically determinable impairments, both those he deems “severe” and those “not severe.”

In making his RFC findings, the ALJ stated that he considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence; the ALJ also stated that he considered the opinion evidence (R. at 18). Furthermore, the ALJ indicated that in making his RFC findings, he “must consider all of the claimant’s impairments, including impairments that are not severe” (R. at 15). In addition, plaintiff failed to cite to any medical evidence indicating that plaintiff’s irritable bowel disease or interstitial cystitis would have more than a minimal impact on plaintiff’s ability to work or would result in limitations in her ability to work. Dr. Silverman, plaintiff’s treating physician, prepared a physical RFC assessment, and it does not mention either impairment. In light of the fact that the ALJ found other severe impairments at step two, considered all symptoms and evidence when making RFC findings for the plaintiff, considered all of plaintiff’s impairments, including non-severe impairments when making his RFC findings, and the failure of plaintiff to cite to any medical evidence that plaintiff had limitations from these impairments that were not included in the ALJ’s RFC findings, the court finds that the ALJ did not err in his consideration of plaintiff’s irritable bowel disease and interstitial cystitis.

IV. Did the ALJ err in his consideration of the medical opinion evidence?

Dr. Silverman is plaintiff’s treating physician, who has treated plaintiff since March 2007 (R. at 463). On August 29, 2010, Dr. Silverman completed a physical RFC assessment on the plaintiff. He opined that she can lift less than 10 pounds occasionally and frequently. She can only stand/walk for 2 hours in an 8 hour day, and can only sit for 2 hours in an 8 hour day. She needs to be able to shift at will from sitting to standing/walking, and needs to lie down at unpredictable times during a ...


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