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) 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
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.
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; 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 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.
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
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.
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).
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 ...