RITA A. CANN, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security,  Defendant.
MEMORANDUM AND ORDER
SAM A. CROW, Senior District 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 (10th Cir. 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
Plaintiff filed a claim for disability benefits on July 12, 2005 (R. at 18). On September 13, 2007, administrative law judge (ALJ) Linda L. Sybrant issued her 1st decision, finding that plaintiff was not disabled because she could perform other work in the national economy (R. at 18-25). Plaintiff sought judicial review of the administrative decision, and on March 3, 2009, the U.S. District Court for the District of Kansas reversed the decision of the Commissioner and remanded the case for further hearing (R. at 859-885).
On March 4, 2010, ALJ Linda L. Sybrant issued her 2nd decision (R. at 836-855). Plaintiff alleges that she has been disabled since February 28, 1994 (R. at 836). Plaintiff is insured for disability insurance benefits through March 31, 2002 (R. at 837). At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity from her alleged onset date through her date last insured (R. at 837). At step two, the ALJ found that plaintiff has the following severe impairments: degenerative disc disease of the lumbar spine; mild COPD; and fibromyalgia (R. at 837). At step three, the ALJ determined that plaintiff's impairments do not meet or equal a listed impairment (R. at 837). After determining plaintiff's RFC (R. at 853), the ALJ determined at step four that plaintiff could perform past relevant work (R. at 853-854). Therefore, the ALJ concluded that plaintiff was not disabled (R. at 854). On April 3, 2012, the Appeals Council declined to assume jurisdiction, making the ALJ decision the final decision of the Commissioner of Social Security (R. at 825).
III. Did the ALJ err by failing to find a severe impairment at step two?
On July 28, 1997, Dr. Athey, a psychologist, prepared a neuropsychological test report on the plaintiff. In his report, he noted that plaintiff had some impairments (R. at 188-189). Plaintiff alleges that the ALJ erred by failing to find a severe mental impairment at step two, and then failing to impose any limitations from the impairment.
The burden of proof at step two is on the plaintiff. See Nielson v. Sullivan , 992 F.2d 1118, 1120 (10th Cir. 1993)(the claimant bears the burden of proof through step four of the analysis). A claimant's showing at step two that he or she has a severe impairment has been described as "de minimis." Hawkins v. Chater , 113 F.3d 1162, 1169 (10th Cir. 1997); see Williams v. Bowen , 844 F.2d 748, 751 (10th Cir. 1988)("de minimis showing of medical severity"). A claimant need only be able to show at this level that the impairment would have more than a minimal effect on his or her ability to do basic work activities. Williams , 844 F.2d at 751. However, the claimant must show more than the mere presence of a condition or ailment. If the medical severity of a claimant's impairments is so slight that the impairments could not interfere with or have a serious impact on the claimant's ability to do basic work activities, the impairments do not prevent the claimant from engaging in substantial work activity. Thus, at step two, the ALJ looks at the claimant's impairment or combination of impairments only and determines the impact the impairment would have on his or her ability to work. Hinkle v. Apfel , 132 F.3d 1349, 1352 (10th Cir. 1997). A claimant must provide medical evidence that he or she had an impairment and how severe it was during the time the claimant alleges they were disabled. 20 C.F.R. § 404.1512(c), § 416.912(c).
In his decision, the ALJ did note some of the treatment records from Menninger, although not the report from Dr. Athey. The ALJ found insufficient evidence to assess any mental health condition as a severe impairment. The ALJ relied on a state agency assessment which found that there was insufficient evidence to assess the severity of plaintiff's mental impairment (R. at 404-416, 848).
Plaintiff has failed to point to any medical evidence which states or indicates that this impairment would have more than a minimal effect on plaintiff's ability to perform basic work activities. Furthermore, the ALJ can reasonably rely on the state agency assessment to find that the evidence was insufficient to support a finding that plaintiff had a severe mental impairment. For these reasons, the court finds no clear error by the ALJ for failing to find at step two that plaintiff had a severe mental impairment.
Even assuming plaintiff met his burden of proving that plaintiff had a severe mental impairment, the issue before the court would be whether it is reversible error if the ALJ fails to list all the severe impairments at step two. 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 ...