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 Social Security Disability (SSD) benefits under sections 216(i) and 223 of the Social Security Act. 42 U.S.C. §§ 416(i) and 423 (hereinafter the Act). Finding error in the Commissioner's evaluation of Plaintiff's headaches, 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, alleging disability beginning August 28, 2008. (R. 11, 211-12). In due course, Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. She alleges the Administrative Law Judge (ALJ) erred in evaluating the severity of her headaches at step two of the Commissioner's five-step sequential evaluation process; erred in evaluating the non-examining source opinion of Dr. Goren, particularly with regard to Plaintiff's headaches; and erred in evaluating the credibility of Plaintiff's allegations of symptoms resulting from her impairments.
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. §§ 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).
Applying this standard, the court finds that remand is necessary because the ALJ erred in evaluating Plaintiff's headaches at step two of the sequential evaluation process. On remand, if the Commissioner determines Plaintiff's headaches do not meet the de minimis standard for a "severe" impairment, she must explain in terms of the record evidence how she determined that headaches have no more than a minimal effect on Plaintiff's ability to perform basic work activities. That explanation will necessarily involve evaluation of the medical opinions and the credibility of Plaintiff's allegations of symptoms in light of the specific record evidence regarding Plaintiff's headaches.
II. The Step Two Evaluation
Plaintiff argues that "the ALJ made no documentation of her analysis of the non-severe' impairments at step two." (Pl. Br. 23). Plaintiff notes that the ALJ recognized headaches as a medically determinable impairment in the facts and circumstances of this case, but that she found that they are not "severe" impairments within the meaning of the Act and regulations. Id. at 24. Plaintiff points to record evidence which in Plaintiff's view meets the de minimis standard to establish headaches as a "severe" impairment, and argues that in spite of this evidence the "ALJ failed to give an explanation for her finding at step two, " and that this failure requires remand. (Pl. Brief 25).
The Commissioner argues that Plaintiff has the burden of proof at step two of the sequential evaluation process to show that she has an impairment having more than a minimal affect on her ability to perform basic work activities, and that because Plaintiff did "not identify any impairment not discussed by the ALJ, " she cannot establish that such an impairment is severe. (Comm'r Br. 13). The Commissioner points out the medical expert's (Dr. Goren's) testimony that he excluded Plaintiff's headaches from his consideration because they are merely Plaintiff's allegation of symptoms which cannot be confirmed by the medical evidence, and that it is the ALJ's responsibility to make the credibility determination. Id. at 16. She argues that the ALJ reasonably relied upon Dr. Goren's testimony that the medical evidence cannot confirm the severity of Plaintiff's headaches, and that the ALJ "made an independent determination on the credibility of Plaintiff's allegations regarding her headaches that went beyond the factors considered by Dr. Goren, including inconsistencies in the record and Plaintiff's reported work activities." Id. at 18. Therefore, the Commissioner argues that because the ALJ reasonably relied upon Dr. Goren's opinion, and because the ALJ's credibility determination is supported by substantial record evidence, there is no need to remand for evaluation whether Plaintiff's headaches are severe. Id. at 14.
A. Standard for Evaluating Severity at Step Two
An impairment is not considered severe if it does not significantly limit plaintiff's ability to do basic work activities such as walking, standing, sitting, carrying, understanding simple instructions, responding appropriately to usual work situations, and dealing with changes in a routine work setting. 20 C.F.R. § 404.1521. The Tenth Circuit has interpreted the regulations and determined that to establish a "severe" impairment or combination of impairments at step two of the sequential evaluation process, plaintiff must make only a "de minimis" showing. Hinkle v. Apfel , 132 F.3d 1349, 1352 (10th Cir. 1997). Plaintiff need only show that an impairment would have more than a minimal effect on her ability to do basic work activities. Williams , 844 F.2d 748, 751 (10th Cir. 1988). However, she must show more than the mere presence of a condition or ailment. Hinkle , 132 F.3d at 1352 (citing Bowen v. Yuckert , 482 U.S. 137, 153 (1987)). If an impairment's medical severity is so ...