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Alpaugh v. Berryhill

United States District Court, D. Kansas

September 12, 2017

NANCY A. BERRYHILL,[1] Acting Commissioner of Social Security, Defendant.


          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) 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.

         I. Background

         Mr. 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.

         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 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. 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); 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. 1989).

         The 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.

         The 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).

         The 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.

         II. Discussion

         In her 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.

         A The ALJ's Findings

         Based on SSR 02-1p, the record evidence, and Mr. Alpaugh's testimony that he is 76 inches tall[2] 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.

         The decedent's obesity would affect the function of his ankles and feet, and the ALJ discussed record ...

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