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Trank v. Berryhill

United States District Court, D. Kansas

August 17, 2017

DONALD ALBERT TRANK, 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) under sections 216(i) and 223 of the Social Security Act. 42 U.S.C. §§ 416(i) and 423 (hereinafter the Act). Finding the Administrative Law Judge (ALJ) erroneously applied the Medical-Vocational Guidelines (hereinafter, grids), 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, alleging disability beginning July 1, 2012. (R. 57, 196). Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. He argues that the ALJ erred in failing to develop a full and fair record in the proceedings below, erred in evaluating Plaintiff's mental impairments at step two which resulted in his using the grids erroneously to direct a finding at step five of the sequential evaluation process, and erred in weighing the medical opinion of Dr. Williams.

         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 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. 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; 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. 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 court finds that remand is necessary because the ALJ erroneously applied the grids to direct a finding at step five of the sequential evaluation process. Although the court entertains serious doubt regarding Plaintiff's argument that an ALJ must obtain a medical opinion regarding RFC whenever the state agency medical and psychological consultants all opine that there is insufficient evidence to make a disability determination, it need not decide that issue because remand is necessary in any case. If desired, Plaintiff may make his argument regarding developing the record to the Commissioner in the first instance. Plaintiff may also argue to the Commissioner on remand that Dr. Williams's opinion is worthy of greater weight.

         II. Discussion

         Plaintiff argues that the ALJ erred at step two in finding that Plaintiff's mental impairments are not severe within the meaning of the Act, that those impairments are in fact severe, and that Plaintiff was harmed by the error because the ALJ failed to consult a vocational expert (hereinafter VE) and assess the impact of non-exertional limitations resulting from Plaintiff's mental impairments on the range of work available to Plaintiff at step five of the sequential evaluation process. (Pl. Br. 5-15). The Commissioner argues that the ALJ properly found at step two that Plaintiff's mental impairments are not severe, and the ALJ findings are supported by the record evidence. (Comm'r Br. 5-8). The court reviews the ALJ's decision, and finds error in the ALJ's application of the grids based on a somewhat different rationale than applied by Plaintiff.

         An impairment is not considered severe if it does not significantly limit a claimant's ability to do basic work activities such as walking, standing, sitting, carrying, understanding simple instructions, responding appropriately to usual work situations, and dealing with changes in a routine work setting. 20 C.F.R. § 404.1521. The Tenth Circuit has interpreted the regulations and determined that to establish a “severe” impairment or combination of impairments at step two of the sequential evaluation process, a claimant must make only a “de minimis” showing. Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997). He need only show that an impairment would have more than a minimal effect on his ability to do basic work activities. Williams, 844 F.2d 748, 751 (10th Cir. 1988). However, he must show more than the mere presence of a condition or ailment. Hinkle, 132 F.3d at 1352 (citing Bowen v. Yuckert, 482 U.S. 137, 153 (1987)). If an impairment's medical severity is so slight that it could not interfere with or have a serious impact on plaintiff's ability to do basic work activities, it could not prevent plaintiff from engaging in substantial work activity and will not be considered severe. Hinkle, 132 F.3d at 1352.

         However, once an ALJ has found that a claimant has at least one severe impairment, a failure to designate another impairment “severe” at step two does not constitute reversible error because, under the regulations, the agency at later steps considers the combined effect of all of the claimant's impairments without regard to whether any impairment, if considered separately, would be of sufficient severity. Hill v. Astrue, 289 F. App'x. 289, 291-292, (10th Cir. 2008); Brescia v. Astrue, 287 F. App'x 626, 628-629 (10th Cir. 2008). The failure to find additional impairments are also severe is not itself cause for reversal so long as the ALJ, in determining Plaintiff's RFC, considers the effects “of all of the claimant's medically determinable impairments, both those he deems ‘severe' and those ‘not severe.'” Hill, 289 F. App'x at 291-92; see also, Rutherford v. Barnhart, 399 F.3d 546, 554, n.7 (3d Cir. 2005) (to be considered, an impairment . . . need not be “severe”); 20 C.F.R. § 404.1523 (“the combined impact of the impairments will be considered throughout”). Thus, whether or not the ALJ properly determined Plaintiff's mental impairments are severe within the meaning of the Act, he was required to consider the limitations resulting from those impairments in his step four and step five analyses because he found that Plaintiff has “medically determinable mental impairments of obesity, substance addiction disorder, anxiety, and depression.” (R. 59).

         Here, the ALJ made divergent findings at step two. He found that Plaintiff's medically determinable mental impairments “do not cause more than minimal limitations in the claimant's ability to perform basic mental work activities” (R. 59-60), that Plaintiff has “no more than mild mental limitations on his ability to perform basic work activities for any period of 12 months or longer, ” and that his drug addiction and alcoholism “is found to cause no more than minimal limitations because he never had more than mild limitations arising from symptoms relating to marijuana use for 12 months or longer.” (R. 61). But, mild limitations are not the same as no limitations resulting from mental impairments, including substance abuse. Moreover, the ALJ also ...


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