United States District Court, D. Kansas
REVELYN ALPAUGH, o.b.o. LANCE D. ALPAUGH, 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 to her son, Mr. Lance Alpaugh, who passed away
after the decision, made pursuant to 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). Herein, the court refers to the
plaintiff as Ms. Alpaugh or Plaintiff, and to her son as Mr.
Alpaugh or the decedent. Finding error in the Administrative
Law Judge's (ALJ) evaluation of the decedent's
obesity, 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
proceedings consistent herewith.
Alpaugh applied for DIB and SSI benefits, alleging disability
beginning January 15, 2011. (R. 17, 151, 154, 161). Mr.
Alpaugh and the plaintiff exhausted proceedings before the
Commissioner, and now Plaintiff seeks judicial review of the
final decision denying benefits. Plaintiff argues that the
ALJ failed to properly consider conflicts between the
vocational expert (VE) testimony and the information provided
in the Dictionary of Occupational Titles (DOT),
erred in considering the opinions of a state agency
psychological consultant, Dr. Adams, and two consultant
examiners, Dr. Rupp and Dr. VanLeeuwen, and insufficiently
explained her conclusions regarding the limitations resulting
from the decedent's obesity.
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
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); see also, Bowling v. Shalala, 36
F.3d 431, 434 (5th Cir. 1994) (The court “may not
reweigh the evidence in the record, nor try the issues de
novo, nor substitute [the Court's] judgment for the
[Commissioner's], even if the evidence preponderates
against the [Commissioner's] decision.”) (quoting
Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir.
1988)). 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 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. Id.
Commissioner next evaluates steps four and five of the
sequential process--determining whether, in light of the RFC
assessed, claimant can perform his past relevant work, and
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 the claimant 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 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 erred in
evaluating Mr. Alpaugh's obesity as required by
Social Security Ruling 02-1p. Because remand is
necessary to apply the correct legal standard, the court need
not decide Plaintiff's allegations of error in evaluating
the medical opinions or failure to consider inconsistency
between the VE testimony and the DOT. Plaintiff should make
those arguments to the Commissioner on remand.
Brief, Plaintiff argues that an ALJ is required to assess the
ability of an obese claimant to move and function within a
work environment and is required to explain how she reached
her conclusion whether obesity caused mental or physical
limitations. (Pl. Br. 14) (citing SSR 02-1p, question no. 8).
She acknowledges that the ALJ stated that she had considered
the effects of obesity on the decedent's RFC, but argues
that this is insufficient. Id. at 14-15 and n.3
(containing numerous citations to district court opinions,
several of which do not identify the district court whose
opinion is cited). The Commissioner argues that the ALJ
“specifically referenced” Mr. Alpaugh's
weight and no medical professional opined that he was more
limited than did the ALJ, and that lacking evidence of
additional limitations the ALJ's consideration is
“legally sound.” (Comm'r Br. 5) (citing
Howard v. Barnhart, 379 F.3d 945, 948 (10th Cir.
2004)). In her Reply Brief, Plaintiff argues that Dr. Rupp
opined regarding limitations attributable to the
decedent's obesity and the ALJ did not include them or
any other limitation related to obesity in the RFC assessed.
(Reply 8-9). She also argues that Mr. Alpaugh's obesity
resulted in his death. Id. at 9.
The ALJ's Findings
on SSR 02-1p, the record evidence, and Mr. Alpaugh's
testimony that he is 76 inches tall and weighs 400 pounds or
more, the ALJ found that he was obese and stated that she
“considered the effects of obesity on claimant's
functional capacity.” (R. 23). The ALJ found that the
decedent had a combination of impairments that was severe
within the meaning of the Act, including past reconstructive
surgery after a left ankle fracture and degenerative joint
disease of the right foot, that he had type II diabetes and
hypertension which are non-severe, and that his condition
does not meet or equal Listing 1.02 for major dysfunction of
a joint or joints. Id. at 19-20.
decedent's obesity would affect the function of his
ankles and feet, and the ALJ discussed record ...