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Schmidt v. Colvin

United States District Court, Tenth Circuit

December 10, 2013

KENNETH DUANE SCHMIDT, 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 Social Security Disability (SSD) benefits under sections 216(i) and 223 of the Social Security Act. 42 U.S.C. §§ 416(i) and 423 (hereinafter the Act). Finding no error, the court ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the final decision of the Commissioner.

I. Background

Plaintiff applied for SSD, alleging disability beginning December 10, 2007. (R. 20, 144-55).[2] In due course, Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. He alleges the Administrative Law Judge (ALJ) erred as a matter of law in failing to consider a third-party statement completed by an employee of the Social Security Administration; erred in finding Plaintiff’s mental impairments not severe at step two of the Commissioner’s five-step sequential evaluation process; and mechanically applied the age categories when considering whether the Medical-Vocational Guidelines direct a finding of “disabled.” The court’s review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Section 405(g) of the Act 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 he 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). Nonetheless, 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).

The Commissioner uses the familiar five-step sequential process to evaluate a claim for disability. 20 C.F.R. §§ 404.1520, 416.920; 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 he has a severe impairment(s), and whether the severity of his 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. § 404.1520(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 his 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 v. Barnhart, 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).

The court finds no error in the decision at issue. Because the court prefers to order its review in accordance with the five-step sequential evaluation process, it addresses the issues in a different order than presented in Plaintiff’s brief, and begins with consideration of Plaintiff’s allegation that it was error at step two of the process to find his mental impairments are not severe.

II. Evaluation of Plaintiff’s Mental Impairments

Plaintiff claims that the ALJ based his determination that Plaintiff’s mental impairment is not severe on Plaintiff’s statement that he is able to follow instructions and maintain attention for thirty minutes, but he argues that the Program Operations Manual System (POMS) “provides that mental abilities critical for performing unskilled work include the ability to maintain attention for extended periods of 2-hour segments (concentration is not critical).” (Pl. Br. 14). He then argues that because the ability to maintain attention for 2 hours at a time is a critical requirement for unskilled work, Plaintiff is unable to perform unskilled jobs and must therefore be found to have a “severe” mental impairment, and the ALJ’s step two finding of non-severity is not supported by substantial evidence. In a follow-on argument, Plaintiff asserts that because the POMS requires the ability to maintain attention for 2-hour segments, the ALJ’s determination that the record did not show Plaintiff was limited in the ability to perform basic mental work-related activities was not a good reason to discount Dr. Witt’s opinion.

The Commissioner argues that the ALJ properly considered Plaintiff’s mental impairments at step two, and properly applied the Commissioner’s psychiatric review technique. She points out that in his determination that Plaintiff has no limitations in concentration, persistence, and pace the ALJ relied both upon Plaintiff’s report that he is able to follow instructions and maintain attention for thirty minutes and upon a consultative examination revealing no cognitive or memory impairments that would interfere with working. She points out Plaintiff’s acknowledgment that the POMS does not have the force of law, and argues that it is Plaintiff’s burden to prove a severe impairment, that he has not done so, that he has admitted an ability to maintain attention, and that his testimony at the hearing included no mental limitations. With regard to Dr. Witt’s opinion, the Commissioner argues that the ALJ properly discounted that opinion because it was inconsistent with the examining psychologist’s opinion and with Plaintiff’s report and testimony at the hearing.

A. Standard for Evaluating Mental Impairments at Step Two

A mental impairment is not considered severe if it does not significantly limit plaintiff’s ability to do basic mental work-related activities: understanding, carrying out, and remembering simple instructions; use of judgment; responding appropriately to supervision, co-workers, and usual work situations; and dealing with changes in a routine work setting. 20 C.F.R. § 404.1521. The Tenth Circuit has interpreted the regulations and determined that to establish a “severe” impairment or combination of impairments at step two of the sequential evaluation process, plaintiff must make only a “de minimis” showing. Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997). Plaintiff need only show that an impairment would have more than a minimal effect on his ability to do basic work activities. Williams, 844 F.2d 748, 751 (10th Cir. 1988). However, he must show more than the mere presence of a condition or ailment. Hinkle, 132 F.3d at 1352 (citing Bowen v. Yuckert, 482 U.S. 137, 153 (1987)). If an impairment’s medical severity is so slight that it could not interfere with or have a serious impact on plaintiff’s ability to do basic work activities, it could not prevent plaintiff from engaging in substantial work activity and will not be considered severe. Hinkle, 132 F.3d at 1352. The determination of severity at step two is based on medical factors alone, and not vocational factors such as age, education, or work experience. Williamson v. Barnhart, 350 F.3d 1097, 1100 (10th Cir. 2003). A claimant must provide medical evidence that he had an impairment and how severe it was during the time the claimant alleges he was disabled. 20 C.F.R. § 404.1512(c).

The Commissioner has promulgated a Psychiatric Review Technique for evaluating mental impairments. 20 C.F.R. § 404.1520a. In evaluating the severity of mental impairments at steps two, the technique provides for rating the degree of functional limitation in each of four broad mental functional areas: activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation. Id. § 404.1520a(c). After rating the degree of limitation in each functional area, the Commissioner determines the severity of plaintiff’s mental impairments. Id. § 404.1520a(d). When the first three functional areas are rated as “none” or “mild, ” and the fourth area is rated as “none, ” the agency will conclude at step two of the sequential evaluation process that plaintiff’s ...


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