United States District Court, D. Kansas
MEMORANDUM AND ORDER
JOHN W. LUNGSTRUM, District Judge.
Plaintiff seeks review of a decision of the Commissioner of Social Security (hereinafter Commissioner) denying Supplemental Security Income (SSI) benefits under sections 1602, and 1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 1381a, and 1382c(a)(3)(A) (hereinafter the Act). Finding error in the Commissioner's step two 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 SSI benefits, alleging disability beginning October 26, 2004. (R. 14, 113-16). 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 in evaluating his non-severe impairments and in erroneously according controlling weight to the opinion of a state agency physician at step two of the Commissioner's five-step sequential evaluation process; found past relevant work where none is suggested by record evidence; and erroneously determined that Plaintiff's allegations of symptoms resulting from his impairments are not credible.
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 she 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. § 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 residual functional capacity (RFC). 20 C.F.R. § 416.920(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 that remand is necessary because the ALJ failed to determine whether lumbar arthralgia is a medically determinable impairment in the circumstances of this case, and if so whether it causes additional limitations in Plaintiff's RFC. Since the court finds that remand is necessary due to error in the ALJ's step two determination, it will not address the remaining errors Plaintiff alleges. He may make arguments in that regard to the Commissioner on remand.
II. The Step Two Evaluation
Plaintiff claims the ALJ erred in failing to make step two findings regarding whether degenerative changes in Plaintiff's acrimoclavicular joint, chronic peripheral neuropathy, carpal tunnel syndrome, and lumbar arthralgia are severe impairments in the circumstances of this case. He argues that the record contains medical evidence that Plaintiff is affected by each of these impairments, that the ALJ did not consider whether they are severe impairments within the meaning of the Act and the regulations, and that the ALJ did not consider these impairments when assessing Plaintiff's RFC.
In response, the Commissioner argues that the ALJ properly evaluated the severity of Plaintiff's impairments at step two. She points out that the ALJ found severe impairments of COPD (Chronic Obstructive Pulmonary Disease) and ventricular tachycardia with defibrillator implant, that she found that Plaintiff's medically determinable impairments of diabetes, depression, and substance abuse are not severe within the meaning of the Act and the regulations, and that she considered Plaintiff's testimony of back and knee problems and his treatment for lumbar arthralgia. She notes that Plaintiff testified before the ALJ regarding carpal tunnel symptoms, argues that an ALJ is not required to discuss every piece of evidence, and admits that the ALJ "did not recite each of [Plaintiff's] complaints and [the physicians'] findings, but concluded that Plaintiff's allegations were not fully supported." (Comm'r Br. 6). She concludes that "[g]iven the ALJ's thorough analysis of Plaintiff's subjective allegations and the factors that undermined them, Plaintiff's argument that there were limitations from nonsevere impairments that could have reduced his RFC and that the ALJ failed to discuss these unidentified limitations is without merit." Id. at 7.
A. The ALJ's Findings
In her step two analysis, the ALJ found that Plaintiff has COPD and ventricular tachycardia which are severe within the meaning of the Act. (R. 16). She also considered the medically determinable impairments of diabetes, depression, and substance abuse, but found that they are nonsevere in this case. Id. at ...