MEMORANDUM AND ORDER
SAM A. CROW, Senior, District Judge.
This is an action to review the final decision of the defendant Commissioner of Social Security ("Commissioner") that denied the claimant Mark Baska's application for disability insurance benefits ("DIB") under Title II of the Social Security Act ("Act"). With the administrative record (Dk. 7) and the parties' briefs on file pursuant to D. Kan. Rule 83.7.1 (Dks. 8, 13, and 14), the case is ripe for review and decision.
STANDARD OF REVIEW
The court's standard of review is set forth in 42 U.S.C. § 405(g), which provides that the commissioner's finding "as to any fact, if supported by substantial evidence, shall be conclusive." The court also reviews "whether the correct legal standards were applied." Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). Substantial evidence is that which "a reasonable mind might accept as adequate to support a conclusion." Richardson v. Persales, 402 U.S. 389, 401 (1971) (quotation and citation omitted). "It requires more than a scintilla, but less than a preponderance." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citation omitted). The review for substantial evidence "must be based upon the record taken as a whole" while keeping in mind "evidence is not substantial if it is overwhelmed by other evidence in the record." Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (internal quotation marks and citations omitted). In its review of "whether the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases, ... [the court] will not reweigh the evidence or substitute... [its] judgment for the Commissioner's." Lax, 489 F.3d at 1084 (internal quotation marks and citation omitted).
The court's duty to assess whether substantial evidence exists: "is not merely a quantitative exercise. Evidence is not substantial if it is overwhelmed by other evidence-particularly certain types of evidence (e.g., that offered by treating physicians)-or if it really constitutes not evidence but mere conclusion.'" Gossett v. Bowen, 862 F.2d 802, 805 (10th Cir. 1988) (quoting Fulton v. Heckler, 760 F.2d 1052, 1055 (10th Cir. 1985)). At the same time, 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 v. Astrue, 489 F.3d at 1084 (internal quotation marks and citation omitted). The court will "meticulously examine the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been made." Wall v. Astrue, 561 F.3d at 1052 (internal quotation marks and citation omitted).
By statute, a disability is the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to... last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). An individual "shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his 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)(2)(A).
A five-step sequential process is used in evaluating a claim of disability. Bowen v. Yuckert, 482 U.S. 137, 140 (1987). The first step entails determining whether the "claimant is presently engaged in substantial gainful activity." Wall v. Astrue, 561 F.3d at 1052 (internal quotation marks and citation omitted). The second step requires the claimant to show he suffers from a "severe impairment, " that is, any "impairment or combination of impairments which limits [the claimant's] physical or mental ability to do basic work activities." Barnhart v. Thomas, 540 U.S. 20, 24 (2003) (internal quotation marks and regulatory citations omitted). At step three, the claimant is to show his impairment is equivalent in severity to a listed impairment. Lax, 489 F.3d at 1084. "If a claimant cannot meet a listing at step three, he continues to step four, which requires the claimant to show that the impairment or combination of impairments prevents him from performing his past work." Id. Should the claimant meet his burden at step four, the Commissioner then assumes the burden at step five of showing "that the claimant retains sufficient RFC [residual functional capacity] to perform work in the national economy" considering the claimant's age, education, and work experience. Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010) (internal quotation marks and citation omitted). Substantial evidence must support the Commissioner's showing at step five. Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993). The evaluation at steps four and five makes use of the agency's RFC assessment. See 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4).
Following a hearing at which Mark Baska was represented by counsel, the administrative law judge ("ALJ") issued her decision on October 19, 2010. (R. 9-18). Baska alleged a disability that began September 8, 2008, and the ALJ determined that Baska's insured status continued through December 31, 2014. (R. 9).
At step one, the ALJ found that Baska had not engaged in substantial gainful activity since September 8, 2008. (R. 11). She observed specifically that Baska had worked periodically from October of 2008 through March of 2009 in order to maintain insurance, but because this work did not last longer than six months, it is regarded as an unsuccessful work attempt. Id. The ALJ further offered that the record showed Baska to suffer also from "stress-induced anxiety due to his illness and finances, " "difficulty [with] sleeping, " and stress-induced breakdowns. Id. The ALJ, however, pointed out that Baska testified he was not taking any anxiety medication and had not received any referral for mental health therapy. From her "review of the entire record, " the ALJ found "that the claimant's medically determinable mental impairment of anxiety does not cause more than minimal limitation in his ability to perform basic mental work activities and is, therefore, non-severe." Id.
The ALJ found at step three that Baska's impairments did not meet or equal a listed impairment. (R. 13). At step four, the ALJ determined that Baska had the RFC to perform light work with an allowance for alternating "between sitting and standing at the work station approximately every thirty minutes" and with a restriction to "avoid work in hazardous environments." (R. 13). The ALJ found that Baska was unable to do his past work. At step five, the ALJ considered Baska's age, education, work experience and RFC to determine that Baska could do other work in the national economy. The ALJ concluded Baska was not disabled from September 8, 2008, through the date of October 19, 2010, and denied his claim for DIB. (R. 17-18).
Baska argues first, that the ALJ improperly discounted his credibility by relying on factors that do not provide substantial evidence and second, that the ALJ erred in not ...