United States District Court, D. Kansas
CAROL J. MEYER, on behalf of AMBER L. MEYER-LACKAMP Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
John W. Lungstrum United States District Judge
Plaintiff seeks review of a decision of the Acting Commissioner of Social Security (hereinafter Commissioner) denying Disability Insurance benefits (DIB) under sections 216(i) and 223 of the Social Security Act, but finding disability, and granting Supplemental Security Income (SSI) payments under sections 1602 and 1614(a)(3)(A) of the Social Security Act beginning May 11, 2011, but not before that date. 42 U.S.C. §§ 416(i), 423, 1381a, and 1382c(a)(3)(A) (hereinafter the Act). Finding no error, the court ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner’s decision.
The claimant, Amber Meyer-Lackamp (Ms. Meyer-Lackamp), applied for DIB and SSI, alleging disability beginning June 30, 2006. (R. 20, 211-25). Ms. Meyer-Lackamp committed suicide before the final Administrative Law Judge (ALJ) hearing in this case, and her mother, Carol Meyer (hereinafter Plaintiff) was substituted as the claimant in this case. Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. Plaintiff presents two arguments in which she alleges the Administrative Law Judge (ALJ) erred in finding that the criteria of Listing 12.04 were not met or equaled before May 11, 2011, and also erred in failing to secure vocational expert (hereinafter VE) testimony.
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 engaged in substantial gainful activity since the alleged onset, whether she had a severe impairment(s), and whether the severity of her impairment(s) met or equaled 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 residual functional capacity (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 could 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 that the claimant had a disability that prevented 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 for the claimant. Id.; Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).
Plaintiff notes that the ALJ found Ms. Meyer-Lackamp’s condition met Listing 12.04 beginning May 11, 2011but not before then, and she argues that “the same evidence . . . supports a finding that Ms. Meyer-Lackamp met the requirements of listing § 12.04 between June 30, 2006, and May 10, 2011.” (Pl. Br. 20). Alternatively, she argues that even if the “B” criteria of the Listing were not met or equaled in the earlier period, the “C” criteria were. (Pl. Br. 22-24). Finally, Plaintiff claims the ALJ was required to have VE testimony in support of his finding that Ms. Meyer-Lackamp was able to perform other work in the economy before May 11, 2011, and that the absence of such testimony is error. (Pl. Br. 24-26). The court finds no error in the ALJ’s determination, and addresses the alleged errors in the order presented in Plaintiff’s Brief.
II. Listing 12.04
The ALJ determined that at all times relevant, Plaintiff has had the severe impairments of affective disorders, anxiety disorders, and alcohol and drug abuse disorders in partial remission. (R. 23). He determined that before May 11, 2011 these impairments, individually or in combination, did not meet or medically equal the severity of any Listed impairment, and that before May 11, 2011 Plaintiff had no exertional limitations, but had nonexertional limitations resulting in an RFC only for “simple, repetitive work that does not require frequent interactions with other people.” Id. 23-24. The ALJ determined that:
Prior to May 11, 2011, the claimant’s ability to perform work at all exertional levels was compromised by nonexertional limitations. However, these limitations had little or no effect on the occupational base of unskilled work at all exertional levels. A finding of ‘not disabled’ is therefore appropriate under the framework of section 204.00 in the Medical-Vocational Guidelines.
The ALJ then determined that beginning on May 11, 2011 Ms. Meyer-Lackamp’s impairments met the criteria of Listing 12.04. (R. 27-29). He determined that the medical evidence, beginning when Ms. Meyer-Lackamp requested medical assistance from the Division of Family Services on May 11, 2011, demonstrated that Ms. Meyer-Lackamp had “marked restrictions in activities of daily living, marked difficulties in maintaining social functioning, [and] marked difficulties in maintaining concentration, persistence or pace, ” thereby demonstrating that the “B” criteria of Listing 12.04 were met. (R. 28). The ALJ determined that Ms. Meyer-Lackamp was disabled within the meaning of the Act beginning on May 11, 2011, but not before then, denied her application for DIB benefits, and granted her application for SSI payments. (R. 29).
A. Standard for Evaluating Step Three
The Commissioner has provided a “Listing of Impairments” which describes certain impairments that she considers disabling per se. 20 C.F.R. §§ 404.1525(a), 416.925(a); see also, Pt. 404, Subpt. P, App. 1 (Listing of Impairments). If a claimant’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, the claimant “has the burden at step three of demonstrating, through medical evidence, that her 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 ...