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Kesinger v. Colvin

United States District Court, D. Kansas

February 4, 2015

SUSAN KESINGER, 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 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 step three evaluation of Listing 8.04, 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 and SSI, alleging disability beginning April 4, 2011. (R. 12, 177-92). She exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. She alleges the Administrative Law Judge (ALJ) erred in evaluating her skin impairments at step three of the Commissioner's five-step sequential evaluation process; that the residual functional capacity (RFC) assessment is not supported by substantial evidence; and that the credibility determination was improper and is unsupported by the evidence.

The Act guides the court's review. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). 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 determines 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).

For reasons explained below, the court finds that remand is necessary because the ALJ failed to properly explain his consideration of Listing 8.04 at step three of the evaluation process. Because the credibility determination and RFC assessment must take place after step three of the process, proper consideration and explanation of Listing 8.04 will potentially affect the credibility determination and the RFC assessment. Therefore, it would be merely an impermissible advisory opinion for the court to consider those issues at this time. Plaintiff may make her arguments in that regard on remand.

II. Consideration of Listing 8.04

Plaintiff claims that the ALJ "failed to consider [Ms.] Kesinger's condition under the criteria for listing 8.04 or even indicate what listing and/or impairments he considered at step three." (Pl. Br. 7). Citing this court's decisions in Whitmer v. Astrue, No. 11-1390-JWL, 2012 WL 5471256 (D. Kan. Nov. 9, 2012); Love v. Astrue, No. 10-1278-JWL, 2011 WL 2670095, *6-7 (D. Kan. July 7, 2011); Fisher v. Astrue, No. 11-2068-JWL, 2012 WL 33200 (D. Kan. Jan. 6, 2012); and Weber v. Astrue, 2010 WL 5137543 (D. Kan. Dec. 9, 2010); she argues that the ALJ did not meaningfully address Listing 8.04 sufficiently to allow the court to determine whether substantial evidence supports the ALJs' step three finding. (Pl. Br. 7-8). Plaintiff then argues that the "evidence supports a finding that [Ms.] Kesinger meets or equals listing 8.04." Id. at 10. The Commissioner argues that the ALJ's step three determination was proper because the medical expert, Dr. Houser, testified that he had considered the skin Listings at 8.00, and that in his opinion Plaintiff's condition does not meet or equal a listed impairment. (Comm'r. Br. 3-4). Moreover, she argues that the ALJ's step four and step five determinations that Plaintiff is not disabled render any lack of specificity at step three harmless. Id. at 4.

A. Standard for the Step Three Evaluation

The Commissioner has provided a "Listing of Impairments" which describes certain impairments that she considers disabling. 20 C.F.R. §§ 404.1525(a), 416.925(a); see also, Pt. 404, Subpt. P, App. 1 (Listing of Impairments). If plaintiff's condition meets or equals the severity of a listed impairment, that impairment is conclusively presumed disabling. Williams, 844 F.2d at 751; see Bowen v. Yuckert, 482 U.S. 137, 141 (1987) (if claimant's impairment "meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled"). However, plaintiff "has the burden at step three of demonstrating, through medical evidence, that h[er] impairments meet all of the specified medical criteria' contained in a particular listing." Riddle v. Halter, No. 00-7043, 2001 WL 282344 at *1 (10th Cir. Mar. 22, 2001) (quoting Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (emphasis in Zebley)). "An impairment that manifests only some of [the listing] criteria, no matter how severely, does not qualify" to meet or equal the listing. Zebley, 493 U.S. at 530.

"The [Commissioner] explicitly has set the medical criteria defining the listed impairments at a higher level of severity than the statutory standard. The listings define impairments that would prevent an adult, regardless of his age, education, or work experience, from performing any gainful activity, not just substantial gainful activity.'" Zebley, 493 U.S. at 532-33 (emphasis in original) (citing 20 C.F.R. § 416.925(a) (1989)). The listings "streamlin[e] the decision process by identifying those claimants whose medical impairments are so severe that it is likely they would be found disabled regardless of their vocational background." Yuckert, 482 U.S. at 153. ...


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