United States District Court, D. Kansas
CLIFFORD J. ZALOUDEK, Plaintiff,
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. 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 applied for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. His claims were denied initially and on reconsideration. On July 10, 2012, following a hearing, the ALJ found Plaintiff was not under a "disability" as defined in the Act.
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since his alleged onset date, May 22, 2010. At step two, the ALJ found the claimant has the following severe impairments: diabetic neuropathy, depression, sleep apnea, mild degenerative disc disease lumbar spine, ulnar neuropathy, and seizure disorder. At step three, the ALJ determined that those impairments were not on the list of impairments presumed severe enough to render one disabled. The ALJ then determined that the Plaintiff has the residual functional capacity (RFC) to perform light work, with the following restrictions:
and he can frequently perform push/pull operations with upper extremities, and frequently perform foot control operations; frequently climb ramps or stairs, but never climb ladders, ropes or scaffolds. He can frequently balance, stoop, kneel, crouch, and occasionally crawl. He can frequently reach, handle, and finger bilaterally. He needs to avoid concentrated exposure to extreme cold and heat, avoid all exposure to workplace hazards such as unprotected machinery, unprotected heights, with no commercial driving. He is limited to work involving simple, routine and repetitive tasks, with only simple work-related decisions, with few if any work place changes. He can have no interaction with the public but can be around co-workers throughout the day but only with occasional interaction with co-workers.
Tr. p. 19. The ALJ found the Plaintiff unable to perform his past relevant work at step four, but found at step five that he was able to perform other jobs that exist in significant numbers in the national economy, such as routing clerk, folding machine operator, and sub-assembler.
Plaintiff's claims of error are addressed below.
A. Step Three
Plaintiff first challenges the ALJ's conclusion at step three that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of a listed impairment. Plaintiff argues that his depression either meets or, in combination with his other ...