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Blair v. Colvin

United States District Court, D. Kansas

March 23, 2015

KIMBERLY KAY BLAIR, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

SAM A. CROW, Senior District Judge.

This is an action reviewing the final decision of the Commissioner of Social Security which denied plaintiff disability insurance benefits and supplemental security income. The matter has been fully briefed by the parties.

I. General legal standards

The court's standard of review is set forth in 42 U.S.C. § 405(g), which provides that "the findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." The court should review the Commissioner's decision to determine only whether the decision was supported by substantial evidence in the record as a whole, and whether the Commissioner applied the correct legal standards. Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994). When supported by substantial evidence, the Commissioner's findings are conclusive and must be affirmed. Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence requires more than a scintilla, but less than a preponderance, and is satisfied by such evidence that a reasonable mind might accept to support the conclusion. Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005).

The Social Security Act provides that an individual shall be determined to be under a disability only if the claimant can establish that he has a physical or mental impairment expected to result in death or last for a continuous period of twelve months which prevents him from engaging in substantial gainful activity (SGA). The claimant's physical or mental impairment or impairments must be of such severity that he is not only unable to perform his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. § 423(d).

The Commissioner has established a five-step sequential evaluation process to determine disability. If at any step a finding of disability or non-disability can be made, the Commissioner will not review the claim further. At step one, the agency will find non-disability unless the claimant can show that he is not working at a "substantial gainful activity." At step two, the agency will find non-disability unless the claimant shows that he has a "severe impairment, " which is defined as any "impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities." At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled. If the claimant's impairment does not meet or equal a listed impairment, the inquiry proceeds to step four, at which the agency assesses whether the claimant can do his previous work. The claimant is determined not to be disabled unless he shows he cannot perform his previous work. The fifth step requires the agency to consider vocational factors (the claimant's age, education, and past work experience) and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy. Barnhart v. Thomas, 540 U.S. 20 (2003).

The claimant bears the burden of proof through step four of the analysis. Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993). At step five, the burden shifts to the Commissioner to show that the claimant can perform other work that exists in the national economy. Nielson, 992 F.2d at 1120; Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993). The Commissioner meets this burden if the decision is supported by substantial evidence. Thompson, 987 F.2d at 1487.

II. Procedural History

Plaintiff, born in 1969, claimed disability beginning in August of 2010 as a result of peripheral diabetic neuropathy, meralgia paresthetica, diabetes, bi-polar disorder, kidney disease, and high blood pressure. The ALJ found that although Plaintiff had some severe impairments, she could still perform a limited range of light work, so was not disabled. Plaintiff does not challenge the ALJ's findings at steps one and two, but contends that the ALJ erred in finding that Plaintiff failed to meet a listing at step three, in assessing her credibility, in stating an RFC that failed to account for all of her limitations, and in relying on the vocational expert's response to a hypothetical question.

III. Analysis

Step Three

The ALJ determined that Plaintiff had the following severe impairments: diabetic neuropathy, degenerative joint disease knees, obesity, hypertension, and chronic kidney disease stage III-IV. But he found that these impairments did not meet or medically equal a listing found at 20 C.F.R. part 404, subpart P, appendix 1. Tr. 15-16. Those listings describe physical and mental impairments that are so severe that they are per se disabling. 20 C.F.R. § 404.1525(a). Plaintiff has the burden to prove that she met or medically equaled a listing. Bowen v. Yuckert, 482 U.S. 137, 146 n.5. (1987); see also Fischer-Ross v. Barnhart, 431 F.3d 729, 733 (10th Cir. 2005).

Plaintiff first contends that the ALJ erred because he did not consider listing 11.14, concerning peripheral neuropathies. To meet this listing, a claimant must have peripheral neuropathies with "disorganization of motor function... in spite of prescribed treatment." 20 CFR part 404, subpart P, appendix 1, § 11.14. Disorganization of motor function must result in "sustained disturbance of gross and dexterous movements, or gait and station." Id. at § 11.04(B).

The ALJ did not specifically address listing 11.14, yet his subsequent findings make clear that he would not have found Plaintiff to have met that listing. "[A]n ALJ's findings at other steps of the sequential [evaluation] process may provide a proper basis for upholding a step three conclusion that a claimant's impairments do not meet or equal any listed impairment." Fisher-Ross v. Barnhart, 431 F.3d 729, 733 (10th Cir. 2005). The ALJ found that Plaintiff retained the ability to walk for three hours in an eight-hour workday. Tr. 16. He also found that Plaintiff had normal gait and stance, could heel-to-toe walk with slight difficultly, had normal gross and fine motor ability, and did not ...


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