United States District Court, D. Kansas
DAVID K. BEATY, 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 that any error in the Administrative Law Judge's (ALJ's) failure to specifically evaluate Listing 8.04 is harmless, the court ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the decision below.
Plaintiff applied for SSD and SSI alleging disability beginning November 30, 2009. (R. 10, 157-67). In due course, Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. He alleges only that the ALJ erred at step three of the Commissioner's five-step sequential evaluation process by evaluating his diabetic foot ulcer pursuant to Listing 1.08 (soft tissue injury - e.g., burns) rather than Listing 8.04 (chronic infections of the skin or mucous membranes).
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 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 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 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 unnecessary, and affirms the ALJ's decision because his step-three error was harmless and because Plaintiff points to no other error in the decision.
II. Step Three Error
Plaintiff argues that the ALJ erred at step three because counsel argued at the hearing that Plaintiff's condition meets or equals Listing 8.04 due his recurrent right great toe diabetic ulcer, but that the ALJ evaluated his condition under Listings 1.04, 1.08, and 11.14, and failed to consider that condition under Listing 8.04. (Pl. Br. 10). The Commissioner admits that Plaintiff argued at the hearing that he met or equaled Listing 8.04 and that the ALJ evaluated the great toe ulcer under Listing 1.08 instead. (Comm'r Br. 9). She argues that this error is, nonetheless, harmless because the evidence does not satisfy the criteria of Listing 8.04, because Plaintiff worked for years despite the recurring toe ulcer, and because Plaintiff continued to look for work during the time for which he alleges disability from the toe ulcer. Id. at 10-13. Finally, the Commissioner summarizes her argument, asserting that "the claimant's impairments did not meet or equal the criteria of any Listing, and that no reasonable factfinder could conclude otherwise.'" Id. at 14 (quoting Fisher-Ross v. Barnhart , 431 F.3d 729, 735 (10th Cir. 2005)). In his reply, Plaintiff argues that the Commissioner's assertions of harmless error are merely post-hoc rationalizations which the court may not consider, and the ALJ did not cite to record evidence regarding Listing 8.04 upon which the court might properly rely.
A. Standard for Evaluating Step Three
The Commissioner has provided a "Listing of Impairments" which describes certain impairments that she considers disabling. 20 C.F.R. §§ 404.1525(a), 416.925(a) (2012); see also, Pt. 404, Subpt. P, App. 1 (Listing of Impairments). If plaintiff's condition meets or equals the severity of a listed impairment, that impairment is conclusively presumed disabling. Williams , 844 F.2d at 751; see Bowen v. Yuckert , 482 U.S. 137, 141 (1987) (if claimant's impairment "meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled"). However, plaintiff "has the burden at step three of demonstrating, through medical evidence, that his impairments meet all of the specified medical criteria' contained in a particular listing." Riddle v. Halter, No. 00-7043 , 2001 WL 282344 at *1 (10th Cir. Mar. 22, 2001) (quoting Sullivan v. Zebley , 493 U.S. 521, 530 (1990) (emphasis in Zebley)); see also, Thompson v. Sullivan , 987 F.2d 1482, 1487 (10th Cir. 1993) (burden shifts to Commissioner at step five). "An impairment that manifests only some of [the listing] criteria, no matter how severely, does not qualify" to meet or equal the listing. Zebley , 493 U.S. at 530.
"The [Commissioner] explicitly has set the medical criteria defining the listed impairments at a higher level of severity than the statutory standard. The listings define impairments that would prevent an adult, regardless of his age, education, or work experience, from performing any gainful activity, not just substantial gainful activity.'" Zebley , 493 U.S. at 532-33 (emphasis in original) (citing 20 C.F.R. § 416.925(a) (1989)). The listings "streamlin[e] the decision process by identifying those claimants whose medical impairments are so severe that it is likely they would be found disabled regardless of their vocational background." Yuckert , 482 U.S. at 153. ...