United States District Court, D. Kansas
MEMORANDUM AND ORDER
Thomas Marten Chief United States District Judge
Jeffrey Delfrate seeks review of a final decision by the
Commissioner of Social Security denying his application for
disability insurance benefits under Title II of the Social
Security Act. Plaintiff contends an Administrative Law Judge
(ALJ) erred in determining plaintiff's residual
functional capacity (RFC) because the ALJ failed to include
certain limitations and failed to explain why they were
excluded. He also contends the ALJ erred in evaluating his
credibility. For the reasons set forth herein, the court
concludes that the matter should be remanded to the ALJ for
Factual and Procedural Background
September 30, 2014, plaintiff protectively filed an
application for disability insurance benefits, claiming a
disability beginning April 23, 2013. The Commissioner denied
his claim upon initial review and upon reconsideration.
Plaintiff then requested an evidentiary hearing, and on
December 1, 2015, he appeared by video and testified before
ALJ Alison K. Brookins. The ALJ issued a written decision on
February 2, 2016, denying plaintiff's application. The
ALJ found that although plaintiff suffered from severe
impairments including degenerative disc and joint disease,
depression, and post-traumatic stress disorder, he could
still perform light work, subject to certain limitations such
as avoiding concentration to extreme cold, vibration, and
hazardous machinery, and not working with the general public.
Relying on the testimony of a vocational expert, the ALJ
found that with these limitations, and taking into account
plaintiff's age (41 at the time of the application) and
experience, plaintiff was capable of performing jobs that
exist in significant numbers in the national economy,
including small product assembler, electronics assembler, and
plastic products assembler. The ALJ thus concluded plaintiff
was not disabled within the meaning of the Act. Plaintiff
timely filed this appeal pursuant to 42 U.S.C. § 405(g).
the Act, the court takes as conclusive the factual findings
of the Commissioner so long as they are supported by
substantial evidence. 42 U.S.C. § 405(g). The court
accordingly looks to whether the factual findings are
supported by substantial evidence and whether the ALJ applied
the correct legal standard. Lax v. Astrue, 489 F.3d
1080, 1084 (10th Cir. 2007). “Substantial
evidence” means “more than a scintilla, but less
than a preponderance; in short, it is such evidence as a
reasonable mind might accept to support the
conclusion.” Barkley v. Astrue, 2010 WL
3001753, *1 (D. Kan. July 28, 2010) (citing Castellano v.
Sec'y of Health & Human Servs., 26 F.3d 1027,
1028 (10th Cir. 1994)). In making this determination, the
court must “neither reweigh the evidence nor substitute
[its] judgment for that of the [Commissioner].”
Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir.
2008) (quoting Casias v. Sec'y of Health & Human
Servs., 933 F.3d 799, 800 (10th Cir. 1991)).
claimant is disabled if he suffers from a physical or mental
impairment which stops the claimant “from engaging in
substantial gainful activity and is expected to result in
death or to last for a continuous period of at least twelve
months.” Brennan v. Astrue, 501 F.Supp.2d
1303, 1306-07 (D. Kan. 2007) (citing 42 U.S.C. §
423(d)). This impairment “must be severe enough that
she is unable to perform her past relevant work, and further
cannot engage in other substantial gainful work existing in
the national economy, considering her age, education, and
work experience.” Barkley, 2010 WL 3001753, *2
(citing Barnhart v. Walton, 535 U.S. 212, 217-22
to the Act, the Social Security Administration has
established a five-step sequential evaluation process for
determining whether an individual is disabled. Wilson v.
Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010); see
also 20 C.F.R. § 404.1520(a). The steps are
designed to be followed in order. If it is determined at any
step of the evaluation process that the claimant is or is not
disabled, further evaluation is unnecessary.
Barkley, 2010 WL 3001753, at *2.
first three steps require the Commissioner to assess: (1)
whether the claimant has engaged in substantial gainful
activity since the onset of the alleged disability; (2)
whether the claimant has a severe, or combination of severe,
impairments; and (3) whether the severity of those
impairments meets or equals a designated list of impairments.
Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007);
see also Barkley, 2010 WL 3001753, *2 (citing
Williams v. Bowen, 844 F.2d 748, 751 (10th Cir.
1988)). If the impairment does not meet or equal a designated
impairment, the ALJ must then determine the claimant's
residual functional capacity, which is the claimant's
ability “to do physical and mental work activities on a
sustained basis despite limitations from her
impairments.” Barkley, 2010 WL 3001753, *2;
see also 20 C.F.R. §§ 404.1520(e),
assessing the claimant's residual functional capacity,
the Commissioner moves on to steps four and five, which
require the Commissioner to determine whether the claimant
can either perform his past relevant work or can generally
perform other work that exists in the national economy.
Barkley, 2010 WL 3001753, *2 (citing
Williams, 844 F.2d at 751). The claimant bears the
burden in steps one through four to prove a disability that
prevents performance of his past relevant work. Lax,
489 F.3d at 1084. The burden then shifts to the Commissioner
at step five to show that, despite the impairments, the
claimant can perform other work in the national economy.
Id. See also Boham v. Colvin, No. 15-1085-JTM, 2016
WL 1298094, at *2 (D. Kan. Mar. 31, 2016).
contends a remand is required because the ALJ gave
“some weight” to a May 2015 functional capacity
evaluation (FCE) prepared by Dr. Jay Kennedy but failed to
adopt certain limitations indicated in the report and failed
to explain why they were rejected. In particular, the
evaluation found that plaintiff could occasionally stand or
walk at work and recommended that he use frequent position
changes, job rotation, and stretch breaks when performing
tasks that required prolonged standing or walking.
Tr. at 1428. It additionally found that plaintiff had
decreased grip strength and below average coordination in his
left hand and recommended similar accommodations for this
impairment. Id. at 1429.
outset of the evidentiary hearing before the ALJ,
plaintiff's counsel made only one argument. He did not
dispute that plaintiff could perform a restricted range of
light work, but he noted that the May 2015 FCE said plaintiff
would need to frequently alternate positions and take rest
breaks, and that “in order to perform work with his
hands he would need frequent rest breaks, as well as he would
need to alternate which hand he's using on a regular
basis to perform the job. When you combine those, the need
for frequent rest breaks, frequent alternation, and the
changing in which hand he needs to use [sic] ...