JONI S. CARNEY, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
Sam A. Crow, U.S. District Senior Judge.
This is an action reviewing the final decision of the Commissioner of Social Security denying the 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 and whether the Commissioner applied the correct legal standards. Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994). 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. The determination of 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 really constitutes mere conclusion. Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989). Although the court is not to reweigh the evidence, the findings of the Commissioner will not be mechanically accepted. Nor will the findings be affirmed by isolating facts and labeling them substantial evidence, as the court must scrutinize the entire record in determining whether the Commissioner's conclusions are rational. Graham v. Sullivan, 794 F.Supp. 1045, 1047 (D. Kan. 1992). The court should examine the record as a whole, including whatever in the record fairly detracts from the weight of the Commissioner's decision and, on that basis, determine if the substantiality of the evidence test has been met. Glenn, 21 F.3d at 984.
The Social Security Act provides that an individual shall be determined to be under a disability only if the claimant can establish that they have a physical or mental impairment expected to result in death or last for a continuous period of twelve months which prevents the claimant from engaging in substantial gainful activity (SGA). The claimant's physical or mental impairment or impairments must be of such severity that they are not only unable to perform their previous work but cannot, considering their 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 or she is not working at a “substantial gainful activity.” At step two, the agency will find non-disability unless the claimant shows that he or she 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 or her previous work; unless the claimant shows that he or she cannot perform their previous work, they are determined not to be disabled. If the claimant survives step four, the fifth and final 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, 124 S.Ct. 376, 379-380 (2003).
The claimant bears the burden of proof through step four of the analysis. Nielson v. Sullivan, 992 F.2d 1118, 1120 (10thCir. 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.
Before going from step three to step four, the agency will assess the claimant’s residual functional capacity (RFC). This RFC assessment is used to evaluate the claim at both step four and step five. 20 C.F.R. §§ 404.1520(a)(4), 404.1520(e, f, g); 416.920(a)(4), 416.920(e, f, g).
II. History of case
On May 3, 2013, ALJ Susan W. Conyers issued her decision (R. at 21-31). Plaintiff alleges that she had been disabled since May 24, 2011 (R. at 21). Plaintiff meets the insured status requirements for social security disability benefits through December 31, 2016 (R. at 23). At step one, the ALJ found that plaintiff did not engage in substantial gainful activity after the alleged onset date (R. at 23). At step two, the ALJ found that plaintiff had severe impairments of a history ischemic heart disease and other disorders of the gastrointestinal system (R. at 23). At step three, the ALJ determined that plaintiff’s impairments do not meet or equal a listed impairment (R. at 25). After determining plaintiff’s RFC (R. at 25), the ALJ determined at step four that plaintiff could perform past relevant work (R. at 31). Therefore, the ALJ concluded that plaintiff was not disabled (R. at 31).
III. Are the ALJ’s mental RFC findings supported by substantial evidence?
At step two, the ALJ found that plaintiff’s mental impairments of affective disorder and anxiety disorder are not severe impairments (R. at 23-24). In making her RFC findings, the ALJ did not include any mental limitations (R. at 25). The ALJ stated that it considered the opinions of a non-examining state agency psychological consultant, Dr. Schulman, and found that “His opinion concerning the claimant’s limitations is well-founded in the longitudinal record and is given substantial weight” (R. at 30). Plaintiff argues that the ALJ erred in finding that plaintiff did not have any severe mental impairments and in failing to provide any mental limitations in the RFC (Doc. 8 at 19-23). Defendant argues that the issue is whether a reasonable mind could agree with the ALJ that plaintiff’s alleged mental impairments did not cause any significant limitations that needed to be included in the RFC findings (Doc. 9 at 6). Defendant’s brief goes on to state that the ALJ rejected the claims of Dr. DeGrandis and relied instead on the opinions of Dr. Schulman. Defendant argues that the evidence mentioned in Dr. Schulman’s report persuaded him, and also the ALJ, “that plaintiff did not have any significant mental limitations” (Doc. 9 at 7-8).
The court has therefore reviewed the report of Dr. Schulman, dated May 21, 2012. Contrary to the ALJ’s findings at step two, Dr. Schulman found that plaintiff’s affective disorder and anxiety disorder were severe impairments (R. at 125). Also, contrary to the ALJ’s determination that plaintiff had only a mild limitation in the third functional area of concentration, persistence, or pace (R. at 25), Dr. Schulman opined that plaintiff had moderate difficulties in this area (R. at 125). Furthermore, Dr. Schulman, in a mental RFC assessment, found that plaintiff was moderately limited in the ability to understand and remember detailed instructions, and indicated that plaintiff had the ability to focus and persist at simple routine and intermediate level tasks for an 8 hour day. Dr. Schulman also found that plaintiff was moderately limited in the ability to carry out detailed instructions and in the ability to maintain attention and concentration for extended periods (R. at 130). Dr. Schulman opined that plaintiff has the ability to focus and persist at simple routine and intermediate level tasks for an 8 hour day (R. at 131).
Plaintiff argues that the ALJ erred by finding no severe impairments at step two, and by failing to provide any mental limitations in the RFC. The ALJ gave “substantial” weight to the opinions of Dr. Schulman that plaintiff did not have any significant mental limitations (R. at 30; Doc. 9 at 8). However, Dr. Schulman found ...