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Burroughs v. Colvin

United States District Court, D. Kansas

July 29, 2015

MARK ALAN BURROUGHS, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

JOHN W. LUNGSTRUM, 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. 42 U.S.C. §§ 416(i) and 423 (hereinafter the Act). Finding error in the Administrative Law Judge's (ALJ) determination at step two that the record evidence does not establish a medically determinable impairment (MDI), the court ORDERS that the Commissioner's decision shall be REVERSED and that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) REMANDING the case for further proceedings consistent with this opinion.

I. Background

Plaintiff applied for both DIB and Supplemental Security Income (SSI) benefits, alleging disability beginning May 15, 2004. (R. 14, 136, 140). Plaintiff's date last insured (DLI) for DIB was June 30, 2010. (R. 14). Plaintiff was determined to be disabled because of post traumatic stress disorder (PTSD) as of the date of his initial application, November 22, 2011, and was apparently awarded SSI benefits. (R. 63). With regard to Plaintiff's DIB application, at the initial review it was decided that there was insufficient evidence to determine the severity of his mental impairments as of his DLI, and he was found not disabled. (R. 48-50). On reconsideration, the finding of insufficient evidence was affirmed, and Plaintiff was again found not disabled. (R. 72, 74). Plaintiff exhausted proceedings with regard to his DIB application before the Commissioner, and now seeks judicial review of the final decision denying DIB.

Plaintiff argues that whether he is disabled is not an issue in this case because he was found disabled in proceedings on his SSI application. He argues that the issue is the onset date of his disability, and he claims that the ALJ should have called on the services of a medical expert to assist him in inferring an onset date from the available evidence. (Pl. Brief 9-11). Plaintiff also argues that the ALJ "erroneously concluded that [he] did not have a medical[ly] determinable impairment at step two of the sequential evaluation process." Id. at 11, 11-15. The court finds the second argument determinative here.

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 has engaged in substantial gainful activity since the alleged onset, whether he has a severe impairment(s), and whether the severity of his impairment(s) meets or equals 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 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 then evaluates steps four and five-determining at step four whether, in light of the RFC assessed, claimant can perform his 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 a disability that prevents 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. Id .; Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).

The court finds that remand is necessary because the ALJ erroneously determined at step two of the process that the record evidence does not establish a medically determinable impairment.

II. The ALJ's Step Two Finding is Not Supported by the Record Evidence.

Plaintiff argues that the ALJ determined at step two that Plaintiff did not have a medically determinable impairment, and he claims that determination is erroneous. He argues that Dr. Sharpnack reviewed the VA (Department of Veteran's Affairs) medical records and opined that Plaintiff was diagnosed with PTSD on September 14, 2010 which is within three months after his date last insured. He argues that Dr. Sharpnack opined that Plaintiff struggled with PTSD symptoms since his time in the military in 1991. He also points out that the state agency psychologists agreed that Plaintiff had a medically determinable mental impairment prior to his date last insured.

The Commissioner argues that the ALJ reasonably determined that Plaintiff did not establish the presence of medically determinable impairments prior to his date last insured. She points out that Plaintiff's date last insured was June 30, 2010, and quotes the regulations for the proposition that a "medically determinable impairment must be established by medical evidence and not only by the claimant's statement of symptoms.'" (Comm'r Br. 4, n.4) (quoting 20 C.F.R. § 404.1508) (brackets omitted). She notes the ALJ's finding that the record contained very little medical evidence regarding the period before Plaintiff's date last insured, and argues that it contains only two treatment notes from that period, one from February 2005, and one from July 2008. Id . She points out that Dr. Sharpnack's letter identified a diagnosis of PTSD three months after Plaintiff's date last insured, and that although Dr. Sharpnack stated Plaintiff had been struggling with PTSD symptoms since 1991, the ALJ had found that "there were simply no medical signs or laboratory findings to substantiate the existence of a medically determinable impairment through the date last insured.'" (Com'r Br. 5) (quoting R. 17). She recognized in a footnote that the ALJ gave no weight to Dr. Cohen's opinion that a medically determinable impairment was established before the date last insured, but argues that the ALJ relied on the state ...


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