United States District Court, D. Kansas
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 and Supplemental Security Income (SSI) benefits under sections 216(i), 223, 1602, and 1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 416(i), 423, 1381a, and 1382c(a)(3)(A) (hereinafter the Act). Finding error as a matter of law in the step four analysis, 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.
Plaintiff applied for SSD and SSI, alleging disability beginning June 14, 2010, the date she was terminated from her employment of fourteen years. (R. 14, 123-31). Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. She alleges that the Administrative Law Judge (ALJ) erred in according "little weight" to Dr. Metzger's opinion that Plaintiff misses three days of work each month due to her migraines; failed to include limitations in his residual functional capacity (RFC) assessment corresponding to the mild limitations he found that Plaintiff has in maintaining social functioning and in maintaining concentration, persistence, or pace; failed to provide sufficient bases to discount Plaintiff's allegations that her migraines cause her to miss three or more days of work each month on average; and failed to make an on-the-record finding at step four regarding the mental and physical demands of Plaintiff's past relevant work. Plaintiff also argues that substantial record evidence supports a finding that Plaintiff is unable to sustain work eight hours a day, five days a week, on a day-in, day-out basis, because of absences in excess of those permitted in the competitive world of work.
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 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).
The court finds that remand is necessary as a matter of law because the ALJ erroneously failed to make an on-the-record finding regarding the physical and mental demands of past relevant work at step four of the sequential evaluation process. Moreover, and perhaps more importantly, because the court has serious concerns regarding the ALJ's explanation how it is that he found that Plaintiff is able to sustain work eight hours a day, five days a week, on a day-in, day-out basis, in the competitive world of work, the court directs the Commissioner on remand to re-evaluate the RFC assessment, properly explaining her determination that Plaintiff is able to sustain work eight hours a day, five days a week, on a day-in, day-out basis, in the competitive world of work, and paying particular attention to the record evidence suggesting that Plaintiff will miss three or more days of work per month due to her migraine headaches-the fact that she was terminated from her job of fourteen years due to absences; the calendars from 2004 through June 14, 2010 provided by Plaintiff showing days missed from work due to migraine headaches; Plaintiff's testimony; third-party statements from her co-workers; the Work Activities Questionnaire completed by Plaintiff's manager at the job from which she was terminated, which shows that for most abilities and activities Plaintiff could generally perform without problems, and suggesting that the problem areas were related to her health or to her absenteeism; the opinion of Plaintiff's long-time treating physician that she would miss at least three days of work each month due to migraines; the treatment note from her treating physician that indicated that "most of her pain is gone, " since she started Cymbalta a month previously, and that she "only missed 3 days of work over the last month due to migraines" (R. 271); and the treatment notes from her surgeon suggesting that relief from her headaches after the decompression surgery were mixed and that even with a 50% reduction she was experiencing six migraine headaches a month.
II. The Step Four Consideration
Plaintiff claims that the ALJ improperly found at step four of the sequential evaluation process that she is able to return to her past relevant work as a receptionist and teacher's aide because he failed to "make specific findings regarding the physical and mental demands of Plaintiff's past relevant work." (Pl. Br. 26) (citing Social Security Ruling (SSR) 82-62; Winfrey v. Chater , 92 F.3d 1017, 1023 (10th Cir. 1996); Henrie v. Dep't of HHS , 13 F.3d 359, 361 (10th Cir. 1993)). The Commissioner admits that the ALJ "did not discuss the requirements of Plaintiff's past work at length in the decision, " but argues that Plaintiff has not shown prejudice from that error because she "does not claim that she is unable to perform the physical, mental, or environmental requirements of her past work; she merely argues that her absences due to migraines would prevent her from performing any work." (Comm'r Br. 14-15).
As Plaintiff suggests, at step four of the sequential evaluation process, the ALJ is required to make specific findings in three phases. Winfrey , 92 F.3d at 1023 (citing SSR 82-62, 1975-1982 West's Soc. Sec. Reporting Serv., Rulings 809 (1983)). In phase one, "the ALJ should first assess the nature and extent of [the claimant's] physical limitations." Winfrey , 92 F.3d at 1023. In phase two, the ALJ must "make findings regarding the physical and mental demands of the claimant's past relevant work." Winfrey , 92 F.3d at 1024. Finally, in phase three, the ALJ must determine "whether the claimant has the ability to meet the job demands found in phase two despite the mental and/or physical limitations found in phase one." Id., 92 F.3d at 1023. These findings are to be made on the record by the ALJ. Id . at 1025; see also, SSR 82-62, 1975-1982 West's Soc. Sec. Reporting Serv., Rulings, at 813 ("decision must contain... specific findings of fact" regarding each of the three phases).
The Tenth Circuit has explained that an ALJ may properly rely upon vocational expert (VE) testimony in making his findings at phase two and phase three of the step four determination. Doyal v. Barnhart , 331 F.3d 758, 761 (10th Cir. 2003). The ALJ may not delegate the step-four analysis to the VE, but he may properly rely on information supplied by the VE regarding the demands of plaintiff's past relevant work, and whether a person with plaintiff's RFC could meet those demands, and he may accept the VE's opinions. Doyal , 331 F.3d at 761. The critical distinction is whether the ALJ relied upon the VE testimony in making the findings or whether the ALJ delegated the phase two and phase three findings to the VE. Id . 331 F.3d ...