United States District Court, D. Kansas
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 at most harmless 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 the
Commissioner's final decision.
applied for DIB and SSI benefits, alleging disability
beginning June 24, 2012. (R. 12, 164, 168). Plaintiff
exhausted proceedings before the Commissioner, and now seeks
judicial review of the final decision denying benefits. She
argues that the ALJ erred in applying the three phases for
evaluating step four of the sequential evaluation process and
that the vocational expert (VE) testimony impermissibly
conflicts with the Dictionary of Occupational Titles (DOT).
court's review is guided by the Act. Wall v.
Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). 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 and
whether she 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
she has a severe impairment(s), and whether the severity of
her 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.
Next, the Commissioner assesses claimant's residual
functional capacity (RFC). 20 C.F.R. §§
404.1520(e), 416.920(e). This assessment is used at both step
four and step five of the sequential evaluation process.
Commissioner then evaluates steps four and five of the
sequential process--determining whether, in light of the RFC
assessed, claimant can perform her 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 addresses Plaintiff's allegations in the order
presented in her Brief, and finds no reversible error.
four of the sequential evaluation process, the ALJ is
required to make specific findings in three phases.
Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir.
1996) (citing Soc. Sec. Ruling (SSR) 82-62,
1975-1982 West's Soc. Sec. Reporting Serv., Rulings 809
(1983)). In phase one, “the ALJ should first assess the
nature and extent of [the claimant's] physical
limitations.” Winfrey, 92 F.3d at 1023. In
phase two, the ALJ must “make findings regarding the
physical and mental demands of the claimant's past
relevant work.” Winfrey, 92 F.3d at 1024.
Finally, in phase three, the ALJ must determine
“whether the claimant has the ability to meet the job
demands found in phase two despite the mental and/or physical
limitations found in phase one.” Id., 92 F.3d
at 1023. These findings are to be made on the record by the
ALJ. Id. at 1025; see also, SSR 82-62,
1975-1982 West's Soc. Sec. Reporting Serv., Rulings, at
813 (“decision must contain . . . specific findings of
fact” regarding each of the three phases).
Tenth Circuit has explained that an ALJ may rely upon VE
testimony in making her findings at phase two and phase three
of step four. Doyal v. Barnhart, 331 F.3d 758, 761
(10th Cir. 2003). The ALJ may not delegate the step-four
analysis to the VE. She may rely on VE information regarding
the demands of Plaintiff's past relevant work and whether
a person with Plaintiff's RFC could meet those demands,
and she may accept the VE's opinions. Doyal, 331
F.3d at 761. The critical distinction is whether the ALJ
relied upon the VE testimony in making the findings or
whether the ALJ delegated the phase two and phase three
findings to the VE. Id. 331 F.3d at 761. Where the
ALJ makes the phase two and phase three findings and quotes
the VE testimony approvingly in support of those findings,
she has properly relied upon the VE testimony. Id.
acknowledges that the ALJ performed phase one of the step
four process when she assessed RFC. She argues, however, that
the ALJ erred at both phase two and phase three of the step
four process. She argues that the ALJ failed to make
adequate, specific, on the record findings regarding the
demands of her past relevant work as a security guard in her
position at First Response in 2005 to 2007. This is so, she
argues, because although she provided evidence regarding her
work as a security guard in 1993-95, she did not provide
information regarding how she performed the position at First
Response, and the 1993 position occurred too long ago to
constitute past relevant work. (Pl. Br. 11-12). She argues,
based upon this court's decision in Nagengast v.
Astrue, 10-1287-JWL, 2011 WL 3794283, *3 (D. Kan. Aug.
25, 2011), that simply relying upon the DOT description of an
occupation will not satisfy the phase two requirements. (Pl.
Br. 12). And, she argues that even the VE testimony regarding
the demands of the job at First Response may not be relied
upon because there is no record evidence regarding the
demands of that job upon which the VE could have properly
relied. Id. Plaintiff then argues that because there
is no record evidence regarding how she performed her past
relevant work as a security guard, it is impossible at phase
three of step four to determine whether Plaintiff is able to
meet those unknown job demands. (Pl. Br. 13).
Commissioner argues that Plaintiff bears the burden at step
four, so her argument that the record does not contain
sufficient evidence to demonstrate the demands of
Plaintiff's past relevant work is misplaced. (Comm'r
Br. 4-5). She argues that an ALJ may rely upon the DOT
description unless the claimant provides evidence showing
otherwise. Id. at 5. She argues that, in any case
the record evidence supports the finding that Plaintiff can
perform the ...