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Thompson v. Colvin

United States District Court, D. Kansas

February 24, 2015

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


JOHN W. LUNGSTRUM, District Judge.

Plaintiff seeks review of a decision of the Commissioner of Social Security (hereinafter Commissioner) denying Disability Insurance benefits (DIB) under sections 216(i) and 223 of the Social Security Act. 42 U.S.C. §§ 416(i) and 423 (hereinafter the Act). Finding error in the Administrative Law Judge's (ALJ) step four finding and in his alternative step five finding regarding the period before July 31, 2012, the court ORDERS that the Commissioner's 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 DIB, alleging disability beginning December 9, 2008. (R. 15, 193-99). At the hearing, through counsel Plaintiff amended his onset date to September 21, 2009, the date he was terminated from his job due to the inability to perform all of the functional requirements of that job. (R. 42-43). In due course, the Commissioner issued a decision finding Plaintiff was disabled beginning on July 31, 2012 but not before that date. (R. 11-27). Plaintiff appealed the decision to the Appeals Council, who denied his request for review (R. 1-5, 9-10, 310), and he now seeks judicial review of the final decision. Plaintiff claims the ALJ erred in failing to utilize his amended onset date and in failing to adequately distinguish his residual functional capacity (RFC) before July 31, 2012 from his RFC thereafter; that the RFC assessed is unsupported by the record evidence; that the step four finding (that before July 31, 2012 Plaintiff was able to perform his past relevant work as a warehouse order filler) is erroneous as a matter of law; and that the ALJ's determination that Plaintiff's allegations of symptoms were not credible before July 31, 2012 but credible thereafter is unsupported by record evidence.

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 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). 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 even assuming, without deciding, that the ALJ's RFC assessment is supported by substantial evidence, remand is necessary because of error in the step four and alternative step five findings. Plaintiff may make his arguments regarding use of the amended onset date, credibility determination, and RFC assessment to the Commissioner on remand. Herein, the court considers and decides only the alleged errors regarding the step four and step five determinations.

II. Step Four and Five

Plaintiff claims the ALJ erred at step four by failing to make specific on-the-record findings regarding the physical and mental demands of his past relevant work as an order filler as required by Soc. Sec. Ruling (SSR) 82-62. (Pl. Br. 17-18) (citing Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996)). The Commissioner responds that the alleged step four error "was cured by the ALJ's alternative step-five finding that Plaintiff could perform other work in the national economy" (Comm'r Br. 11), and that the ALJ applied the Medical-Vocational Guidelines (the grids) found in the regulations at 20 C.F.R. Pt. 404, Subpt. P, App. 2 as a framework to determine that there is work in the national economy available for a person with the RFC assessed for Plaintiff. (Comm'r Br. 11-13). In his Reply Brief, Plaintiff complains that this argument is merely post-hoc rationalization and that the ALJ improperly applied the grids to direct a finding of "not disabled, " despite also finding that Plaintiff has non-exertional limitations which do not precisely match the criteria of the grids. (Reply 7-8).

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).

In his step four evaluation, the ALJ determined that, "[p]rior to July 31, 2012 the claimant was capable of performing past relevant work as an order filler, warehouse, " because such "work did not require the performance of work-related activities precluded by" Plaintiff's RFC. (R. 21). Moreover, the ALJ determined that before July 31, 2012 Plaintiff had the RFC "to perform a wide or essentially full range of light' work, as defined in" the regulations. (R. 21). Implicit in these two findings is the ALJ's determination that Plaintiff had past relevant work as an order filler, and that work was performed at the light exertional level.

Earlier in his decision, the ALJ found that from December 9, 2008 through September 21, 2009 Plaintiff performed substantial gainful activity "in the form of performing modified light' work, on an 8-hours, 5 days a week basis." (R. 17) (citing Ex. 2E, p.2 (R. 211)). The ALJ found that after his work injury on December 9, 2008 Plaintiff "was approved for modified' light work" which he performed "with his former employer until September 21, 2009." Id. at 18. The ALJ noted that Dr. Shriwise treated Plaintiff on July 20, 2009, and found that Dr. Shriwise "approved of the claimant's new job, order filler, which filled his modified light' duty status." (R. 18) (citing Ex. 5F, p.2 (R. 404)). The ALJ stated both that ...

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