United States District Court, D. Kansas
DENISE J. STREETER, 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 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 the final decision of the Commissioner unreviewable, 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 Social Security Disability (SSD) benefits and SSI benefits, alleging disability beginning July 1, 2005. (R. 16, 128-71). In due course, Plaintiff appeared at an Administrative Law Judge (ALJ) hearing in which she withdrew her SSD application and acknowledged that the current application rests on an SSI-only claim with a filing date of November 23, 2009. (R. 35-36). After receiving an unfavorable ALJ decision dated September 15, 2011 (R. 16-27), Plaintiff requested and was granted review of that decision by the Appeals Council. (R. 8-12). The Appeals Council issued a decision on September 22, 2012 which is the final decision of the Commissioner of Social Security, and which is the subject of Plaintiff's complaint seeking judicial review in this court. (R. 1-7); (Doc. 1).
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).
Plaintiff claims the Appeals Council erred in relying on the Medical-Vocational Guidelines (the grids) at step five of the sequential evaluation process; and that the ALJ committed errors which were adopted by the Appeals Council when she erroneously weighed the opinions of Plaintiff's social worker and of the physicians, when she failed to include social limitations in the RFC assessed, when she failed to obtain a consultative examination, and when she failed to perform a function-by-function assessment before expressing Plaintiff's RFC in terms of medium work. The Commissioner argues that the Appeals Council did not rely on the grids to direct a finding but used them as a framework to make the alternative finding that a significant number of other jobs in the economy are available to an individual with the limitations assessed for Plaintiff. She also argues that the ALJ properly weighed the opinions of Plaintiff's social worker and of the physicians, that there was no need to obtain another consultative examination, and that the ALJ's RFC assessment provided the proper evaluation of Plaintiff's functional abilities in finding that she is capable of medium level work. The court finds merit in the arguments presented by both parties, and finds that ambiguities in the final decision of the Commissioner make the decision unreviewable and require remand for clarification and proper explanation of the bases for the decision. Because the case must be remanded, the court sees no reason to address every issue presented in Plaintiff's briefs, and she may reassert her arguments before the Commissioner on remand.
As Plaintiff asserts, it is error for the Commissioner to rely upon the grids to direct a finding where the claimant has non-exertional limitations. Channel v. Heckler , 747 F.2d 577, 582 (10th Cir. 1984). Where nonexertional limitations affect the range of work of which a claimant is capable, the grids may serve only as a framework to assist in determining whether sufficient jobs exist in the economy, given plaintiff's limitations and characteristics. Gossett v. Bowen , 862 F.2d 802, 806 (10th Cir. 1988). The Commissioner does not deny Plaintiff's assertion of law, but she argues that in context the Appeals Council did not rely upon the grids to direct a finding but used grid Rule 203.29 as a framework to apply the findings of the ALJ and the testimony of the vocational expert to determine that there are a significant number of jobs available in the economy of which Plaintiff is capable.
Both parties' arguments find support in the Appeals Council's decision. As the Commissioner points out, the Appeals Council explained in its decision that an individual with Plaintiff's vocational factors and RFC "is found to be not disabled' within the framework of Rule 203.29, Table No. 3 of 20 CFR Part 404, Subpart P, Appendix 2, inasmuch as there are a significant number of jobs in the national economy." (R. 6) (emphasis added). However, as Plaintiff points out, the "Findings of the Appeals Council" provide only that the regulations and grid Rule 203.29 "direct finding the claimant is not disabled." (R. 7) (emphasis added).
As the Commissioner argues, the context might be read to suggest that the Appeals Council actually used the grid rule as a framework rather than to direct a finding because it discussed the ALJ's alternative findings based upon the vocational expert's testimony regarding jobs available to an individual such as Plaintiff, and proposed to adopt that alternative finding. (R. 5, 6). However, the context might also be read to suggest that the Appeals Council did not use the grid rule as a framework. The "Findings of the Appeals Council" do not reveal that the alternative finding of the ALJ was ever actually adopted. As quoted above, the Appeals Council stated that the grid rule directs a finding of "not disabled." Moreover, the "Findings of the Appeals Council" do not contain a finding that any representative jobs are available to an individual with the vocational factors and RFC attributable to Plaintiff, as one would expect if the grid rule were used only as a framework for decisionmaking.
This ambiguity is rendered all the more confusing by other factors in the context of the Appeals Council's decision. When discussing the ALJ's alternative findings based upon the vocational expert's testimony upon which the ...