United States District Court, D. Kansas
MEMORANDUM AND ORDER
RICHARD D. ROGGERS, District Judge.
On August 26, 2009, plaintiff filed an application for social security disability insurance benefits. This application alleged a disability onset date of November 25, 2008. Plaintiff's application was partially granted initially, but later denied in full. Plaintiff requested a hearing and one was conducted on April 19, 2012. The administrative law judge (ALJ) considered the evidence and decided on August 8, 2012 that plaintiff was not qualified to receive benefits. This decision has been adopted by defendant.
This case is now before the court upon plaintiff's motion to reverse and remand the decision to deny plaintiff's application for benefits. The court shall reverse and remand the decision to deny benefits because: first, contrary to SSR 96-8p, the ALJ's assessment that plaintiff could perform simple and low complexity tasks does not sufficiently describe plaintiff's capacity to concentrate; and second, contrary to SSR 96-8p, the ALJ's reference to plaintiff's activities of daily living does not support the ALJ's conclusion that plaintiff's mental functioning is sufficient to sustain substantial gainful employment.
I. STANDARD OF REVIEW
To qualify for disability benefits, a claimant must establish that he or she was "disabled" under the Social Security Act, 42 U.S.C. § 423(a)(1)(E), during the time when the claimant had "insured status" under the Social Security program. See Potter v. Secretary of Health & Human Services , 905 F.2d 1346, 1347 (10th Cir. 1990); 20 C.F.R. §§ 404.130, 404.131. To be "disabled" means that the claimant is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which... has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A).
The court must affirm the ALJ's decision if it is supported by substantial evidence and if the ALJ applied the proper legal standards. Newbold v. Colvin , 718 F.3d 1257, 1262 (10th Cir. 2013). "Substantial evidence" is "more than a mere scintilla;" it is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. at 1260, quoting Lax v. Astrue , 489 F.3d 1080, 1084 (10th Cir. 2007). The court must examine the record as a whole, including whatever in the record fairly detracts from the weight of the defendant's decision, and on that basis decide if substantial evidence supports the defendant's decision. Glenn v. Shalala , 21 F.3d 983, 984 (10th Cir. 1994) (quoting Casias v. Secretary of Health & Human Services , 933 F.2d 799, 800-01 (10th Cir. 1991)). The court may not reverse the defendant's choice between two reasonable but conflicting views, even if the court would have made a different choice if the matter were referred to the court de novo. Lax , 489 F.3d at 1084, quoting Zoltanski v. F.A.A. , 372 F.3d 1195, 1200 (10th Cir. 2004)). "We neither reweigh the evidence nor substitute our judgment for that of [defendant]." Branum v. Barnhart , 385 F.3d 1268, 1270 (10th Cir. 2004)(interior quotation omitted).
II. THE ALJ'S DECISION (Tr. 14-26).
There is a five-step evaluation process followed in these cases which is described in the ALJ's decision. (Tr. 15-16). First, it is determined whether the claimant is engaging in substantial gainful activity. Second, the ALJ decides whether the claimant has a medically determinable impairment that is "severe" or a combination of impairments which are "severe." At step three, the ALJ decides whether the claimant's impairments or combination of impairments meet or medically equal the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Next, the ALJ determines the claimant's residual functional capacity and then decides whether the claimant has the residual functional capacity to perform the requirements of his or her past relevant work. Finally, at the last step of the sequential evaluation process, the ALJ determines whether the claimant is able to do any other work considering his or her residual functional capacity, age, education and work experience.
In this case, the ALJ decided plaintiff's application should be denied on the basis of the fifth step of the evaluation process. The ALJ determined that plaintiff maintained the residual functional capacity to perform work which exists in significant numbers in the national economy.
The ALJ made the following specific findings in his decision. First, plaintiff meets the insured status requirements for Social Security benefits through December 31, 2013. Second, plaintiff did not engage in substantial gainful activity after November 25, 2008, the alleged onset date of disability. Third, plaintiff has the following severe impairments: depression and anxiety. Fourth, plaintiff does not have an impairment or combination of impairments that meet or medically equal the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Related to this finding, the ALJ determined that plaintiff has a mild restriction in activities of daily living and moderate difficulties in concentration, persistence or pace and in social functioning. (Tr. 19). Fifth, plaintiff has the residual functional capacity to perform light work as defined in 20 C.F.R. 404.1567(b) or work requiring lifting and/or carrying 20 pounds occasionally and 10 pounds frequently, standing and/or walking 6 hours in an 8-hour workday, and sitting 6 hours in an 8-hour workday. The ALJ found that plaintiff can occasionally stoop or crouch; she can perform simple and low complexity tasks at a competitive level, but not at a greater pace; and she is able to relate frequently (from one-third to two-thirds of the time) to co-workers and supervisors; and only occasionally (up to one-third of the time) with the public.
Finally, the ALJ found that plaintiff can perform such employment as: clerk, general office; file clerk; and date entry clerk. These are semi-skilled occupations which the ALJ determined plaintiff could perform because she has acquired work skills from past relevant work that are transferable to other occupations. ALJ concluded that these jobs exist in substantial numbers in the national economy. The ALJ relied in part upon the testimony of a vocational expert for these findings.
III. THE COURT SHALL REVERSE AND REMAND THE DECISION TO DENY BENEFITS FOR FAILURE TO COMPLY WITH SSR 96-8p.
Plaintiff contends that the ALJ erred by failing to provide a proper RFC as required by SSR 96-8p in that the ALJ dismissed the only opinions regarding plaintiff's mental functioning and failed to cite to sufficient evidence to support his RFC findings. Plaintiff also contends that the ALJ improperly assessed plaintiff's credibility. The court shall focus upon the first argument in this opinion; specifically, the contention that the ALJ failed to set out a proper RFC assessment as required ...