United States District Court, D. Kansas
KURT J. SCHMIDT, 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 no error in the Administrative
Law Judge's (ALJ) decision, the court ORDERS that
judgment shall be entered pursuant to the fourth sentence of
42 U.S.C. § 405(g) AFFIRMING that decision.
applied for DIB and SSI benefits, alleging disability
beginning November 8, 2012. (R. 14, 204, 211). Plaintiff
exhausted proceedings before the Commissioner, and now seeks
judicial review of the final decision denying benefits. He
argues that the ALJ erred in evaluating Plaintiff's
mental impairments at step two of the evaluation.
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.
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 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.
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).
court finds no error in the Commissioner's final
decision. The ALJ applied the correct legal standard in
making his step two evaluation, and substantial record
evidence supports his evaluation. Plaintiff does not point to
record evidence that any basic mental work activity has been
affected more than minimally by his mental impairments. And,
he has not shown that the ALJ relied on the opinions of the
state agency psychologists, Dr. Stern and Dr. Maxfield, to
find Plaintiff's mental impairments are not severe, so
even if the court found those opinions to be stale, that
would not impact the ALJ's finding that Plaintiff's
mental impairments are not severe. Finally, the evidence
cited by Plaintiff to show limitations resulting from mental
impairments does not compel finding more-than-minimal
limitations, and is no more than an invitation to the court
to reweigh the evidence and substitute its judgment for that
of the ALJ.
acknowledges that the first question raised here is whether
Plaintiff's mental impairments are severe. (Pl. Br. 13).
He notes that the ALJ found Plaintiff's mental
impairments are not severe within the meaning of the Act, and
argues that the ALJ must have accorded great weight to the
medical opinions of Dr. Stern and Dr. Maxfield in this regard
“due to the similarity between [Dr. Stern's and Dr.
Maxfield's] assessment and the ALJ's step two
finding.” Id. He argues that the ALJ's
reliance on these opinions was error because the opinions
were stale in light of the complete record. Id.
argues that the record evidence, including Dr. Schwartz's
opinion that Plaintiff had a severe cognitive impairment; Dr.
Moore's examination finding pressured speech, tangential
thinking, restless motor activity, and verbose streams of
thought; and Ms. Husling's finding of circumstantial
association, “suggest[s] at least moderate limitations
in concentration, persistence, and pace.” Id.
at 16. He argues that limitations in social functioning are
supported by plaintiff's anger and report of homicidal
tendencies, and by Ms. Hernandez's recommendation of
inpatient care. Id.
response, the Commissioner argues that the step two finding
that Plaintiff's mental impairments are not severe is
supported by the record evidence. She points out that the ALJ
applied the Commissioner's psychiatric review technique
for evaluating mental impairments and concluded that
Plaintiff's mental impairments are not severe.
(Comm'r Br. 6). She explains the ALJ's evaluation and
argues that the evidence upon which he relied supports his
evaluation. Id. at 6-8.