United States District Court, D. Kansas
ANTHONY J. RYBECK, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.
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 and supplemental security income payments. 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, when less than 30 years old, filed applications for disability insurance benefits and SSI alleging disability due to back pain. At step one, the administrative law judge (ALJ) found that plaintiff had not engaged in substantial gainful activity since March 7, 2010, the alleged onset date. The ALJ found at step two that the plaintiff has a severe impairment of degenerative disc disease with chronic low back pain, but found at step three that that impairment did not meet or equal the severity of a listed impairment.
Accordingly, the ALJ determined plaintiff's residual functional capacity (RFC) as follows:
After careful consideration of the entire record the undersigned finds that the claimant has the residual functional capacity to perform a range of sedentary work as defined in 20 CFR 404.1567(a) in that the claimant can frequently lift less 10 pounds, occasional lift 10 pounds and seldom, which means 1%-10% of a workday, lift 20 pounds, sit 4 hours in an 8 hour workday, stand or walk 4 hours in an 8 hour workday, with alternating sitting and standing or walking, every 30 minutes. He can seldom use the right leg for operating leg controls, including pushing and/or pulling, but can occasionally use the left leg or both legs. The claimant requires the need to occasionally elevate the right leg and seldom elevate the left leg. He is able to continually use his hands for simple grasping, handling (gross manipulation), feeling (fine manipulation) and feeling (skin receptors), except he can use his hands for no more than frequent pushing and/or pulling and reaching all directions (including overhead). The claimant is able to occasionally bend, balance, crouch, reach overhead and extend arms out, but seldom climb, kneel, crawl and squat. He must avoid concentrated exposure to temperature extremes and pulmonary irritants and must avoid all exposure to unprotected heights and moving machinery.
Tr. 29. The ALJ found Plaintiff unable to perform past relevant work, but able to perform other jobs existing in significant numbers in the national economy, such as arcade attendant, parking lot attendant, and video clerk. Accordingly, the ALJ determined Plaintiff is not disabled.
A. Step Three Analysis
Plaintiff first contends that the ALJ erred in not finding that his impairments medically equal the severity of a listed impairment. The ALJ found that Plaintiff had "a severe impairment of degenerative disc disease with chronic low back pain, " but failed to show the other necessary criteria to meet the relevant listing, § 1.04. Tr. 29.
To meet this listing, Plaintiff must show that his disc disease results in "compromise of a nerve root... or the spinal cord." 20 C.F.R pt. 404, subpt. P, app. 1, § 1.04. He must then show evidence of each of the following: nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine)." 20 C.F.R. Part 404, Subpart P, Appendix 1, § 1.04A (emphasis added).
Plaintiff has the burden of showing that his impairments meet all of the specified medical criteria contained in a particular listing. See Candelario v. Barnhart, 166 Fed.Appx. 379, 382-83 (10th Cir. 2006). The standards for listed impairments were intentionally set high because they operate to cut off further inquiry relatively early in the sequential evaluation process. Sullivan v. Zebley, 493 U.S. 521, 532 (1990).
To show compromise of a nerve root or of his spinal cord, Plaintiff cites an MRI which shows moderate narrowing of the spinal canal and the nerve foramina at one vertebral level. The MRI report does not, however, reflect that Plaintiff's spinal cord or nerve root was compromised. See Tr. 321, 348-49. Nonetheless, some doctors opined that Plaintiff's complaints could have been caused by herniation at L4-5, the site of a previous surgery. The Court therefore assumes, without deciding, that this foundational requirement is met.
To meet the remaining multiple requirements for this listing, Plaintiff cites medical records noting some loss of sensation and strength. But those records fail to meet Plaintiff's burden. See e.g., Tr. 334 (medical record from March 2010 showing Plaintiff had normal muscle strength, normal tone, normal gait, and normal reflexes); Tr. 375 (September 2010 examination by Frederick Smith, D.O., noting Plaintiff was in no distress, was relatively pain free with normal range of motion, and had normal straight leg raising test); Tr. 30, 353-54, 396 (treatment ...