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Murphy v. Colvin

United States District Court, D. Kansas

June 23, 2015

MARK MURPHY, Plaintiff,
v.
CAROLYN W. COLVIN, Acting 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 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. 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 (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.

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 December 6, 2012, administrative law judge (ALJ) Robert J. Burbank issued his decision (R. at 11-25). Plaintiff alleges that he had been disabled since June 25, 2010 (R. at 11). Plaintiff meets the insured status requirements for social security disability benefits through December 31, 2010 (R. at 13). At step one, the ALJ found that plaintiff did not engage in substantial gainful activity from the alleged onset date through the date last insured (R. at 13). At step two, the ALJ found that plaintiff had severe physical and mental impairments (R. at 13). At step three, the ALJ determined that plaintiff's impairments do not meet or equal a listed impairment (R. at 14). After determining plaintiff's RFC (R. at 16), the ALJ determined at step four that plaintiff was unable to perform past relevant work (R. at 23). At step five, the ALJ found that plaintiff can perform other jobs that exist in significant numbers in the national economy (R. at 24). Therefore, the ALJ concluded that plaintiff was not disabled (R. at 24-25).

III. Did the ALJ err by failing to incorporate limitations in plaintiff's mental RFC?

In his RFC findings, the ALJ limited plaintiff to sedentary work and "unskilled" work (R. at 16). Dr. Jessop opined on April 27, 2011 that that plaintiff was moderately limited in interacting appropriately with the general public and stated that it was likely that plaintiff would feel best in a setting not requiring much interaction with the public (R. at 109-110). On December 28, 2010, Dr. Biscardi opined that plaintiff retained the capacity to perform less than 4 step tasks, and to interact briefly/superficially with coworkers/supervisors (R. at 543). The ALJ accorded "great weight" to their opinions (R. at 20). However, the specific limitations noted by Dr. Jessop and Dr. Biscardi regarding interacting with others were not included in the ALJ's RFC findings. At step five, the ALJ found that plaintiff's additional nonexertional limitation of unskilled work had no effect on the occupational base of unskilled sedentary work; therefore, a finding of "not disabled" was made under the framework of the Medical-Vocational Guidelines or the "grids" (R. at 24). The question before the court is whether the ALJ erred by not including in his RFC findings the more specific limitations of Dr. Jessop and Dr. Biscardi to which the ALJ accorded great weight.

As a general rule, an ALJ should include in his RFC findings physical or mental limitations which are included in a report from a medical source accorded great or significant weight by the ALJ, unless the ALJ provides a legitimate explanation for not including that limitation in his/her RFC findings. The ALJ offered no explanation for not including in his RFC findings the opinions of medical sources that plaintiff was moderately limited in his ability to interact appropriately with the general public, and was limited to brief or superficial interaction with coworkers and supervisors. As noted above, the ALJ gave "great" weight to their opinions.

In the case of Mitchell v. Astrue, 498 Fed.Appx. 757, 759 (10th Cir. Oct. 1, 2012), the ALJ limited plaintiff to light work. The ALJ further found that plaintiff can perform simple tasks with routine supervision, can relate to supervisors and peers on a superficial work basis, and cannot relate to the general public. The ALJ cited to SSR 85-15, which defines unskilled work as the ability on a sustained basis to understand, carry out, and remember simple instructions, to respond appropriately to supervision, co-workers and usual work situations, and to deal with changes in a routine work setting. 498 Fed.Appx. at 759-760; SSR 85-15, 1985 WL 56867 at *4. The ALJ, relying on the grids, found that the claimant could ...


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