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 in the Commissioner's determination that Plaintiff "does not have a medically determinable impairment of cognitive disorder or impairment" (R. 21), 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 11, 2012. (R. 20, 93-94). Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. He claims the Administrative Law Judge (ALJ) erred in evaluating his cognitive impairment at step two of the Commissioner's five-step sequential evaluation process, and for that reason, substantial evidence does not support the ALJ's residual functional capacity (RFC) assessment.
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 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 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 he has a severe impairment(s), and whether the severity of his 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), 416.920(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 his 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 because the ALJ erroneously determined at step two that Plaintiff's cognitive impairment is not a medically determinable impairment. Because a proper evaluation of Plaintiff's cognitive impairment will necessarily require another RFC assessment, the court will not consider Plaintiff's further argument that substantial evidence does not support the ALJ's RFC assessment. He may make any argument he desires in that regard on remand.
II. Step Two Evaluation
Plaintiff argues that the ALJ did not evaluate Plaintiff's cognitive impairment properly at step two, and erred in failing to find that impairment is "severe" within the meaning of the Act. He recognizes in accordance with Brescia v. Astrue, 287 F.Appx. 626, 628-629 (10th Cir. 2008) and Hill v. Astrue, 289 F.Appx. 289, 291-292, (10th Cir. 2008) that where an ALJ finds at least one "severe" impairment, a failure to designate another impairment as "severe" at step two does not constitute reversible error because, under the regulations, the agency at later steps considers the combined effect of all of the claimant's impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity. (Pl. Br. 11) (citing Brescia, 287 F.Appx. at 628-29). The failure to find that additional impairments are also severe is not cause for reversal so long as the ALJ, in determining plaintiff's RFC, considers the effects "of all of the claimant's medically determinable impairments, both those he deems severe' and those not severe.'" Id., (quoting Hill 289 F.Appx. at 291-92).
Plaintiff argues that the medical evidence demonstrates that Plaintiff's cognitive impairment is "severe" (Pl. Br. 12-15), and that "[i]n essence, the ALJ found that [Mr.] Ireland's cognitive impairment was not even a medically determinable impairment." (Pl. Br. 10). He argues that the failure to find Plaintiff's cognitive impairment is "severe" was prejudicial to Plaintiff and was not harmless because it tainted the ALJ's evaluation of the medical opinions. Id. at 15. The Commissioner argues that the real issue "is whether the ALJ reasonably accounted for Plaintiff's limitations, including any cognitive impairment, in his residual functional capacity finding." (Comm'r Br. 3) (citing Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008)). She then explains how that, in her view, the ALJ sufficiently explained the mental limitations assessed, and how those limitations properly account for Plaintiff's cognitive impairment. (Comm'r Br. 3-6). In his Reply Brief, Plaintiff argues that the Commissioner's argument (that the mental limitations assessed by the ALJ account for Plaintiff's cognitive impairment) is without merit because "the ALJ unequivocally concluded that Ireland's cognitive impairment was not a medically determinable impairment, " and that he was, therefore, prohibited from including restrictions based upon that alleged impairment. (Reply 1-2) (emphasis in original). The court agrees with the plaintiff.
A. The ALJ's Findings
At step two, the ALJ found that Plaintiff has severe impairments including sarcoidosis, headaches, depression, anxiety, and substance abuse disorder. (R. 22). The ALJ found that Plaintiff also has a cognitive linguistic impairment and hypertension which are medically determinable impairments but which are not "severe" impairments within the meaning of the Act. (R. 23). The ALJ discussed the ...