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Odum v. Berryhill

United States District Court, D. Kansas

February 9, 2017

REGINALD L. ODUM, Plaintiff,
v.
NANCY A. BERRYHILL, [1]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) 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.

         I. Background

         Plaintiff 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.

         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 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. 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 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.

         The 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.

         The 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.

         II. Discussion

         Born on 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.

         The 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.

         Judicial 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 exertional limitations.

         A. The ...


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