United States District Court, D. Kansas
REGINALD L. ODUM, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
W. Lungstrum United States District Judge.
seeks review of a decision of the Acting Commissioner of
Social Security (hereinafter Commissioner) denying Disability
Insurance benefits (DIB) and Supplemental Security Income
(SSI) benefits under sections 216(i), 223, 1602, and
1614(a)(3)(A) of the Social Security Act. 42 U.S.C.
§§ 416(i), 423, 1381a, and 1382c(a)(3)(A)
(hereinafter the Act). Finding the Administrative Law
Judge's (ALJ) decision is not supported by the record
evidence and is inadequately explained, the court ORDERS that
the 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 decision.
applied for DIB and SSI benefits, ultimately alleging
disability beginning December 22, 2007. (R. 772). The
decision at issue is a decision after a prior sentence four
remand by a court of this district. (R. 889-905). Plaintiff
has exhausted proceedings before the Commissioner, and now
seeks judicial review of the final decision denying benefits.
He argues that the ALJ's residual functional capacity
(RFC) assessment is unsupported by the record evidence
because the ALJ erroneously weighed the medical opinions and
erroneously omitted any limitations resulting from swelling
in his legs, and that the ALJ's step four finding that
Plaintiff can perform his past relevant work as a reception
clerk is legally flawed.
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
determines whether the ALJ's findings are supported by
substantial evidence 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.
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.
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 evaluating step three, the Commissioner assesses
claimant's 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.
Commissioner next evaluates steps four and five of the
sequential process--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 ALJ in this case found
at step four that Plaintiff is able to perform his past
relevant work as a reception clerk as he actually performed
it. (R. 785-86). Therefore he found that Plaintiff is not
disabled within the meaning of the Act, and did not make any
findings at step five. Id.
court finds remand is necessary because the ALJ did not
adequately explain his assessment of Plaintiff's exertion
level, his evaluation of Plaintiff's reading disorder or
illiteracy in light of his age, and Plaintiff's ability
to perform past relevant work.
May 24, 1961 (R. 303), Plaintiff turned fifty in May of 2011.
Plaintiff claims he is illiterate and that he cannot perform
medium level exertion. These facts provide the crux of the
issues in this case. Plaintiff quotes the Social Security
regulations for the proposition that when a claimant is over
fifty and his vocational scope is limited by illiteracy,
“a finding of disabled is warranted.” (Pl. Br.
28) (quoting 20 C.F.R., Pt. 404, Subpt. P, App. 2 §
202.00(d)). On that basis he argues that he should have been
found disabled. Id.
question before the court is whether the Commissioner
properly determined that Plaintiff is not illiterate or is
able to perform medium level work. The issue of illiteracy
was skirted rather than addressed head-on in the decision at
issue and while the ALJ found Plaintiff is able to perform
medium exertion level work, his decision is inconsistent in
that regard, and he did not resolve those ambiguities.
review must begin with what the Commissioner actually
decided, so the court begins with a review of the ALJ's
findings regarding literacy and regarding Plaintiff's