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Delfrate v. Berryhill

United States District Court, D. Kansas

March 3, 2017

JEFFREY ALAN DELFRATE, Plaintiff,
v.
NANCY A. BERRYHILL[1], Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          J. Thomas Marten Chief United States District Judge

         Plaintiff 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 further consideration.

         I. Factual and Procedural Background

         On 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).

         II. Legal Standard

         Under 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)).

         A 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 (2002)).

         Pursuant 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.

         The 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), 404.1545.

         Upon 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).

         III. Analysis

         Plaintiff 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.

         Dkt. 8, 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.

         At the 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] ...


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