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 failure to discuss Plaintiff's prescribed use of oxygen, 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 herewith.
Plaintiff applied for SSI benefits alleging disability beginning January 1, 2003. (R. 13, 105-10). In due course, Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. She claims that the Administrative Law Judge (ALJ) erred in evaluating her obesity; did not accord sufficient weight to her treating physician's opinion, and placed too much weight on the medical expert's opinion; and failed to discuss her use of oxygen as prescribed, both while at rest and with activity. The Commissioner argues that the ALJ properly considered Plaintiff's obesity, properly weighed the medical opinions and supported his evaluation with the record evidence, and properly considered Plaintiff's prescribed use of oxygen even though he did not mention that use in the decision.
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. § 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 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 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 because in his decision the ALJ did not discuss Plaintiff's prescribed use of oxygen. This error requires remand for the Commissioner to reassess Plaintiff's RFC. Because assessment of RFC requires consideration of all of the evidence, including the medical opinions and the effects of Plaintiff's obesity on her capabilities, the court will not evaluate the errors alleged by Plaintiff with regard to consideration of the medical opinions or with regard to consideration of obesity. Plaintiff may make those arguments to the Commissioner on remand.
On June 7, 2011, the ALJ held a hearing at which Plaintiff and a vocational expert testified. (R. 32-56). At the end of the hearing, the ALJ determined that he was going to send an interrogatory to a medical expert because the results of Plaintiff's breathing tests "are very close to meeting a listing." (R. 55). He expressed his hope that the process would be completed and that Plaintiff would receive the written decision "within the next four to six weeks." Id . While awaiting the decision, Plaintiff was admitted to the hospital due to hypoxia on July 20, 2011 and discharged on July 25, 2011. (R. 398-401). At discharge she was prescribed the use of oxygen at a rate of 3 liters per minute at rest and 6 liters per minute with activity. (R. 400). On August 31, Plaintiff's counsel forwarded the records regarding Plaintiff's hospitalization to the ALJ. (R. 397-412). Those records were admitted into the record by the ALJ, and he discussed a pulmonary examination made on July 21, 2011 (during Plaintiff's hospitalization) in his decision. (R. 21) (citing Ex. 23F.7 (R. 403)). The ALJ issued his decision on October 21, 2011. (R. 13-26).
In the decision, the ALJ found that one of Plaintiff's severe impairments is chronic obstructive pulmonary disease (COPD). (R. 15). During his step three evaluation, the ALJ considered whether Plaintiff's condition meets or equals the criteria of either of two respiratory system impairment listings-Listing 3.02, chronic pulmonary insufficiency, and Listing 3.09, cor pulmonale. Id. at 16. He determined that Plaintiff's condition does not meet Listing 3.02 because she "does not have FEV [(forced expiratory volume)] values equal to or less than 1.65; nor chronic impairment of gas exchange; nor significantly abnormal arterial blood gas values, " and that her "impairment does not meet [(Listing 3.09)] because she does no have a mean pulmonary artery pressure greater than 40 mm HG, or arterial hypoxia." Id.
In assessing RFC, the ALJ found that Plaintiff must avoid "more than moderate exposure to pulmonary irritants" (R. 18), and he noted:
While a pulmonary examination conducted July, 21, 2011 indicated lungs with decreased air entry bilaterally, there was no evidence of murmur, bruits, gallops or rubs, and the heart was regular in rate and rhythm (Exhibit 23F.7 [(R. 403)]). However, taking into account such symptoms, the claimant should not perform work that requires concentrated exposure to ...