United States District Court, D. Kansas
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 and supplemental security income payments. 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
On February 4, 2010, administrative law judge (ALJ) Michael A. Lehr issued the 1st ALJ decision, finding that plaintiff was not disabled (R. at 88-96). On February 8, 2011, the Appeals Council issued a decision remanding the case back to an ALJ for further hearing (R. at 103-105).
On June 29, 2012, ALJ Michael R. Dayton issued a 2nd ALJ decision (R. at 10-22). Plaintiff alleges that she has been disabled since July 18, 2009 (R. at 10). Plaintiff is insured for disability insurance benefits through September 30, 2012 (R. at 13). At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity since plaintiff's alleged onset date (R. at 13). At step two, the ALJ found that plaintiff has the following severe impairments: degenerative disc disease of the lumbar spine, status post fusion surgery; obesity; mild to moderate chronic obstructive pulmonary disease; history of goiter, status post thyroidectomy; tachycardia, status post ablation; and polysubstance abuse (R. at 13). At step three, the ALJ found that plaintiff's impairments, including substance use disorders, meet listed impairments 12.04, 12.06 and 12.09 (R. at 13).
In the absence of substance use, the remaining limitations would cause more than a minimal impact on plaintiff's ability to perform basic work activities; plaintiff would continue to have a severe impairment or combination of impairments. In the absence of substance abuse, plaintiff's mental impairments would not be severe, however, she would continue to experience significant functional limitations due to her physical impairments (R. at 14). At step three, the ALJ determined that, if plaintiff stopped the substance use, she would not have an impairment or combination of impairments that met or equaled a listed impairment (R. at 16). After determining plaintiff's RFC (R. at 17), at step four, the ALJ found that plaintiff had no past relevant work (R. at 20). At step five, the ALJ determined that plaintiff, if she stopped the substance use, could perform a significant number of jobs in the national economy (R. at 20-21). The ALJ found that substance use disorder is a contributing factor material to the determination of disability because the plaintiff would not be disabled if she stopped the substance use. Because the substance use disorder is a contributing factor material to the determination of disability, plaintiff has not been disabled at any time from the amended alleged onset date through the date of the decision (R. at 21).
III. Did substantial evidence support the finding of the ALJ that, in the absence of substance abuse, plaintiff's mental impairments are non-severe? In 1996, Congress passed Public Law 104-121. It added the following language to 42 U.S.C. § 423(d)(2):
(C) An individual shall not be considered to be disabled for purposes of this title if alcoholism or drug addiction would (but for this subparagraph) be a contributing factor material to the ...