United States District Court, D. Kansas
MEMORANDUM AND ORDER
SAM A. CROW, Senior District Judge.
This is an action reviewing the final decision of the Commissioner of Social Security which denied plaintiff disability insurance benefits. The matter has been fully briefed by the parties.
I. General legal standards
The court's standard of review is set forth in 42 U.S.C. § 405(g), which provides that "the findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." The court should review the Commissioner's decision to determine only whether the decision was supported by substantial evidence in the record as a whole, and whether the Commissioner applied the correct legal standards. Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994). When supported by substantial evidence, the Commissioner's findings are conclusive and must be affirmed. Richardson v. Perales, 402 U.S. 389, 401 (1971).
Substantial evidence requires more than a scintilla, but less than a preponderance, and is satisfied by such evidence that a reasonable mind might accept to support the conclusion. Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). The determination of 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 really constitutes mere conclusion. Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989). But the standard "does not allow a court to displace the agency's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo. " Trimmer v. Dep't of Labor, 174 F.3d 1098, 1102 (10th Cir. 1999).
The claimant shall be determined to be under a disability only if he can establish that he has a physical or mental impairment expected to result in death or last for a continuous period of twelve months which prevents him from engaging in substantial gainful activity (SGA). The claimant's physical or mental impairment or impairments must be of such severity that he is not only unable to perform his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. § 423(d).
II. Procedural History
Plaintiff, at age 44, filed an application for disability insurance benefits alleging disability due to elbow and neck impairments which produced pain when he lifted or grasped. At step one, the administrative law judge (ALJ) found that plaintiff had not engaged in substantial gainful activity since August 20, 2007, his alleged onset date. The ALJ found at step two that the plaintiff has severe impairments of degenerative disc disease of the cervical spine, left cubital tunnel syndrome, right lateral humeral epicondylitis, and thoracic spine pain, but found at step three that those impairments did not meet or equal the severity of a listed impairment.
Accordingly, the ALJ determined plaintiff's residual functional capacity (RFC) as follows:
lift/carry up to 25 pounds occasionally and 10 pounds frequently, but not above shoulder-level; avoid working above shoulder-level; sit 6 of 8 hours; stand/walk 6 of 8 hours; occasional kneel, crouch, and stoop (See Exh. 13E); occasional climb stairs and ramps; avoid climbing ladders, ropes, and scaffolds; avoid crawling, dangerous machinery, unprotected heights, vibration, and extreme cold; avoid forceful grasping, pinching, and gripping bilaterally, such as using a screwdriver, using a hammer, or opening a jar; able to grip and grasp to sort objects like screws and bolts and to file papers; avoid repetitive or constant gripping, grasping, and pinching with the dominant right hand (See Ex. 13E).
At step four, the ALJ found the plaintiff unable to perform his past relevant work, but found at step five that Plaintiff could perform other jobs that exist in significant numbers in the national economy such as a clerical assistant or a dispatcher. The ALJ thus determined Plaintiff is not disabled.
The sole issue Plaintiff raises on appeal is that the ALJ erred in failing to include in the RFC a limitation of occasional "standard" gripping and pinching with Plaintiff's right hand. The VE testified that if the claimant were limited to occasional pinching and gripping in the standard fashion with ...