CAROL J. PRICE, Plaintiff,
CAROLYN W. COLVIN,  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 error in the Commissioner’s step four evaluation, the court ORDERS that the decision 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.
Plaintiff applied for SSD, alleging disability beginning December 20, 2003. (R. 22, 125-27). At a disability hearing before an Administrative Law Judge (ALJ) Plaintiff amended her alleged onset date to August 15, 2003. (R. 22, 32-33). In due course, Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. She alleges the ALJ erred in evaluating steps two and three of the Commissioner’s five-step sequential evaluation process; erred in several respects in assessing her residual functional capacity (RFC); erred in evaluating the demands of her past relevant work; and denied her the benefit of a full and fair hearing.
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 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. § 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 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 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 that remand is necessary because the ALJ erred in his step four evaluation. The court will not address Plaintiff’s allegations of error at steps two and three of the evaluation process or in the RFC assessment, and she may make these arguments to the Commissioner on remand. Because Plaintiff’s allegation regarding the denial of a full and fair hearing suggests a constitutional deprivation, the court addresses that issue but finds no deprivation.
II. Denial of a Full and Fair Hearing
Plaintiff asserts that at one point in the hearing before the ALJ, the “ALJ stated that he would not allow counsel to question plaintiff about her headaches and was only going to allow five more minutes of testimony, to include the full testimony of plaintiff’s husband, as [the ALJ] had another case and he ‘had all the information he needed from’ plaintiff.” (Pl. Br. 22) (apparently quoting without citation the ALJ’s statement). She claims that the transcript of the hearing inexplicably “SKIPPED” a substantial portion of the hearing which included this exchange, that the ALJ’s denial of the opportunity to continue questioning Plaintiff constitutes a denial of the right to a full and fair hearing, and that although she made this argument to the ALJ at the conclusion of the hearing, he merely “responded that the record was closed.” Id. (citing (R. 65)).
Along with her response brief, the Commissioner filed a “Supplemental Court Transcript” which contains a transcript of the hearing before the ALJ and includes a transcription of most if not all of the portions of the hearing which were “SKIPPED” in the original transcript. (Comm’r Br.) (Doc. 19 & Attach. 1). The Commissioner argues that although the ALJ stopped Plaintiff’s testimony, he allowed Plaintiff’s husband to testify thereafter and allowed ample time for Plaintiff to present her case. (Comm’r Br. 18-19). Consequently, she argues, Plaintiff received a full and fair hearing. Id.
The Supreme Court has recognized the intent of Congress that the Commissioner establish hearing procedures which are “fundamentally fair, ” and that regulations furthering that intent have been promulgated which allow liberal admission of pertinent evidence and place the conduct of the hearing within the ALJ’s discretion. Perales, 402 U.S. at 400-01. Here, the ALJ began by questioning Plaintiff regarding her condition, and he provided a thorough inquiry spanning twenty-five pages of the record in which he frequently received clarification and assistance from Plaintiff’s counsel. (R. 444-68). He then turned the questioning over to Plaintiff’s counsel. (R. 469). After additional inquiry spanning the greater part of four pages, the ALJ asked counsel how much more she had, counsel responded, “Not much, ” and the ALJ instructed her to “Be brief.” (R. 473). The record however, does not reveal any particular change in the brevity of counsel’s inquiry thereafter. She completed her inquiry regarding ...