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 defendant Commissioner of Social Security ("Commissioner") that denied the claimant John Marvin Smith, Jr.'s ("Smith") Title II application for disability insurance benefits under the Social Security Act ("Act"). Born in 1959, Smith alleges a disability onset set date of November 27, 2008, based on physical impairments. The administrative law judge ("ALJ") filed his six-page decision on November 10, 2012, finding that Smith was not under a disability through the date of his decision. (Tr. 29-35). With the Appeals Council's denial of Smith's request for review, the ALJ's decision stands as the Commissioner's final decision. The administrative record (Dk. 8) and the parties' briefs are on file pursuant to D. Kan. Rule 83.7.1 (Dks. 9, 14 and 15), the case is ripe for review and decision.
STANDARD OF REVIEW
The court's standard of review is set forth in 42 U.S.C. § 405(g), which provides that the Commissioner's finding "as to any fact, if supported by substantial evidence, shall be conclusive." The court also reviews "whether the correct legal standards were applied." Hackett v. Barnhart , 395 F.3d 1168, 1172 (10th Cir. 2005). Substantial evidence is that which "a reasonable mind might accept as adequate to support a conclusion." Richardson v. Persales , 402 U.S. 389, 401 (1971) (quotation and citation omitted). "It requires more than a scintilla, but less than a preponderance." Lax v. Astrue , 489 F.3d 1080, 1084 (10th Cir. 2007) (citation omitted). The review for substantial evidence "must be based upon the record taken as a whole" while keeping in mind "evidence is not substantial if it is overwhelmed by other evidence in the record." Wall v. Astrue , 561 F.3d 1048, 1052 (10th Cir. 2009) (internal quotation marks and citations omitted). In its review of "whether the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases, ... [the court] will not reweigh the evidence or substitute... [its] judgment for the Commissioner's." Lax , 489 F.3d at 1084 (internal quotation marks and citation omitted).
The court's duty to assess whether substantial evidence exists: "is not merely a quantitative exercise. Evidence is not substantial if it is overwhelmed by other evidence-Cparticularly certain types of evidence (e.g., that offered by treating physicians)-or if it really constitutes not evidence but mere conclusion.'" Gossett v. Bowen , 862 F.2d 802, 805 (10th Cir. 1988) (quoting Fulton v. Heckler , 760 F.2d 1052, 1055 (10th Cir. 1985)). At the same time, the court "may not 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." Lax v. Astrue , 489 F.3d at 1084 (internal quotation marks and citation omitted). The court will "meticulously examine the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been made." Wall v. Astrue , 561 F.3d at 1052 (internal quotation marks and citation omitted).
By statute, a disability is the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to... last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). An individual "shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do 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)(2)(A).
A five-step sequential process is used in evaluating a claim of disability. Bowen v. Yuckert , 482 U.S. 137, 140 (1987). The first step entails determining whether the "claimant is presently engaged in substantial gainful activity." Wall v. Astrue , 561 F.3d at 1052 (internal quotation marks and citation omitted). The second step requires the claimant to show he suffers from a "severe impairment, " that is, any "impairment or combination of impairments which limits [the claimant's] physical or mental ability to do basic work activities." Barnhart v. Thomas , 540 U.S. 20, 24 (2003) (internal quotation marks and regulatory citations omitted). At step three, the claimant is to show his impairment is equivalent in severity to a listed impairment. Lax , 489 F.3d at 1084. "If a claimant cannot meet a listing at step three, he continues to step four, which requires the claimant to show that the impairment or combination of impairments prevents him from performing his past work." Id . Should the claimant meet his burden at step four, the Commissioner then assumes the burden at step five of showing "that the claimant retains sufficient RFC [residual functional capacity] to perform work in the national economy" considering the claimant's age, education, and work experience. Wilson v. Astrue , 602 F.3d 1136, 1139 (10th Cir. 2010) (internal quotation marks and citation omitted). Substantial evidence must support the Commissioner's showing at step five. Thompson v. Sullivan , 987 F.2d 1482, 1487 (10th Cir. 1993).
At step one, the ALJ found Smith had not engaged in substantial gainful activity since November 27, 2008. At step two, the ALJ found the following severe impairments: "mild degenerative joint disease of the right ankle and obesity." (Tr. 31). At this step, the ALJ noted that the consultative examination of February 6, 2010, by Dr. Jaclyn Jones, D.O., found "no limitations as to the use of hands to grasp or handle" and "dexterity was preserved and Tinel's and Phalen's signs were negative." (Tr. 32). The ALJ also rejected a consultative examination of August 2011, by Dr. Lynn Curtis, M.D., which included findings of "bilateral epicondylitis, recurrent carpal tunnel and cubital syndrome." (Tr. 32).
At step three, the ALJ found that the impairments, individually or in combination, did not equal the severity of the Listing of Impairments. (Tr. 32). Before moving to steps four and five, the ALJ determined that Smith had the residual functional capacity ("RFC") to perform:
light work as defined in 20 CFR 404.1567(b). He is able to lift and carry up to 20 pounds occasionally and 10 pounds frequently. He has no limitations on his ability to sit; can stand and walk 4 of 8 hours, but not over 30 minutes at a time; needs to avoid concentrated exposure to extreme cold and vibration; and needs to avoid climbing ladders, ropes, and scaffolds except for short stepladders.
(Tr. 33). At step four, the ALJ found that the claimant was unable to perform his past relevant work as a forklift operator or wringer. (Tr. 34). Because of the claimant's additional limitations, the ALJ did not rely on the guidelines but on the vocational expert's testimony in concluding that, "[c]onsidering the claimant's age, education, work experience, and residual functional capacity, the claimant is capable of making a successful adjustment to other work that exists in significant numbers in the national economy." (Tr. 35).
TESTIMONY AND EVIDENCE RELEVANT TO ISSUES
Smith testified about chronic pain and swelling in his right ankle that was fractured in 1991 and more recently reinjured stepping off a ladder. (Tr. 54). Smith said his pain and swelling has worsened over the years, and after the recent injury, the pain is not going away despite following the doctors' orders. (Tr. 54). Smith said his ankle pain increases after standing five or ten minutes or walking 300 to 400 steps. (Tr. 50-51). Smith said the increased swelling and pain would keep him from being on his feet six hours out of an eight-hour day. (Tr. 53). He also testified to carpel tunnel surgeries in the 1990's which ...