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Keller v. Colvin

United States District Court, D. Kansas

October 6, 2014

CYNTHIA A KELLER, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

JOHN W. LUNGSTRUM, District Judge.

Plaintiff seeks review of a decision of the Commissioner of Social Security (hereinafter Commissioner) denying Social Security Disability (SSD) benefits under sections 216(i) and 223 of the Social Security Act. 42 U.S.C. §§ 416(i) and 423 (hereinafter the Act). Finding that the Administrative Law Judge's (ALJ) hypothetical question to the vocational expert did not relate with precision all of Plaintiff's limitations and therefore cannot constitute substantial evidence to support the Commissioner's final decision, 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 with this opinion.

I. Background

Plaintiff applied for SSD, alleging disability beginning July 31, 2010. (R. 7, 135-38). In due course, Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. She alleges the ALJ erred in evaluating the severity of her impairments at step two of the Commissioner's five-step sequential evaluation process and that the vocational expert's hearing testimony was improperly relied upon by the ALJ because the hypothetical question did not relate with precision all of Plaintiff's impairments as assessed by the ALJ.

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 relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales , 402 U.S. 389, 401 (1971); see also, 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. §§ 404.1520, 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. § 404.1520(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).

Because the hypothetical question presented to the vocational expert at the hearing did not precisely match the RFC assessed by the ALJ in the decision, the expert's testimony in response to that hypothetical is not substantial evidence which would support the finding of the ALJ that Plaintiff is able to perform her past relevant work as a dining room cashier. Therefore, remand is necessary to determine properly whether Plaintiff may perform her past relevant work. Because this error clearly requires remand, the court will not address the issue whether the ALJ properly addressed the severity of Plaintiff's impairments at step two of the sequential evaluation process. Plaintiff may make her arguments in that regard to the Commissioner on remand.

II. Hypothetical Questioning

As Plaintiff suggests, the RFC assessed by the ALJ does not precisely match the impairments presented to the vocational expert in the hypothetical question. The ALJ found that Plaintiff is able to perform light work:

including lifting and carrying, and pushing and pulling, ten pounds frequently and twenty pounds occasionally, standing two hours, walking two hours, and sitting four hours. She cannot climb ropes, ladders, or scaffolds, perform frequent stooping, perform above shoulder work, or reach repetitively with her right arm. She cannot lift from ground level, crawl, kneel, crouch or squat, or push or pull carts or wagons.

(R. 9-10) (bolding omitted).

At the hearing, when questioning the vocational expert the ALJ noted that Plaintiff is right hand dominant, and is limited to lifting ten pounds with her right hand but may lift twenty pounds with her left had. (R. 54). He asked the vocational expert how such an impairment would be classified in accordance with the physical exertion requirements of work. Id . The expert responded, "I would classify it as a limited range of light ...


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