United States District Court, D. Kansas
CARMIA S. JACKSON-FARNSWORTH, f.k.a. CARMIA S. WILEY, Plaintiff,
CAROLYN W. COLVIN,  Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
JOHN W. LUNGSTRUM, District Judge.
Plaintiff seeks review of a decision of the Commissioner of Social Security (hereinafter Commissioner) denying Social Security Disability (SSD) benefits and Supplemental Security Income (SSI) benefits under sections 216(i), 223, 1602, and 1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 416(i), 423, 1381a, and 1382c(a)(3)(A) (hereinafter the Act). Finding error in the Commissioner's evaluation of Plaintiff's mental impairments at step two of the sequential evaluation process, 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 and SSI alleging disability beginning April 30, 2005. (R. 18, 171-73, 985-92). After proceedings before an administrative law judge (ALJ), Plaintiff requested review by the Appeals Council of an unfavorable decision issued on August 19, 2008. (R. 35-46, 108). The Council granted Plaintiff's request, vacated the hearing decision, and remanded for further proceedings to obtain additional evidence concerning Plaintiff's impairments, to give further consideration to the medical opinions, to evaluate Plaintiff's subjective complaints and explain the weight accorded to them, to assess Plaintiff's residual functional capacity (RFC) and provide rationale for that assessment based upon record evidence, and to obtain evidence from a vocational expert regarding work available for an individual with the RFC assessed. (R. 47-50).
In due course, Plaintiff exhausted proceedings before the Commissioner after the Appeals Council remand, and now seeks judicial review of the final decision denying benefits. She alleges the ALJ failed "to address the requirements contained in the [Appeals Council] remand order and committed further errors" (Pl. Br. 15), including in weighing the severity of Plaintiff's impairments at step two of the sequential evaluation process, in weighing the medical opinions of record, in evaluating the credibility of Plaintiff's allegations of symptoms resulting from her impairments, and in relying upon a hypothetical question which was based upon an incomplete assessment of RFC when evaluating steps four and five of the sequential evaluation process.
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), 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 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 in this case because substantial record evidence does not support the ALJ's step two findings. Therefore, the court will not address the errors alleged by Plaintiff at later steps in the sequential evaluation process, and she may make her arguments regarding those issues to the Commissioner on remand. As a preliminary matter, however, the court addresses Plaintiff's suggestion that the ALJ's failure to fulfill the requirements of the Appeals Council remand order might be relevant to the courts judicial review of the Commissioner's final decision.
II. The Court's Jurisdiction in Judicial Review of Agency Decisions
The Act provides that:
"Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, ..., may obtain a review of such decision by a civil action commenced within sixty days...."
42 U.S.C. § 405(g). Thus, the jurisdiction conferred on the court to review decisions of the Commissioner is limited to "final decisions" made "after a hearing to which [the plaintiff] was a party." Califano v. Sanders, 430 U.S. 99, 108 (1977); Brandtner v. Dep't of Health and Human Servs., 150 F.3d 1306, 1307 ...