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Woods v. Berryhill

United States District Court, D. Kansas

September 27, 2017

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



         Under 42 U.S.C. § 405(g), plaintiff seeks judicial review of the final decision of the Commissioner of Social Security Administration (“Commissioner”) denying her application for disability insurance benefits under Title II of the Social Security Act, as amended. On September 30, 2016, plaintiff filed a brief (Doc. 9) seeking judicial review of the Commissioner's decision. The Commissioner has filed a brief in opposition (Doc. 12) and submitted the administrative record (Doc. 8-1 to -15) contemporaneously with her Answer (Doc. 8). When plaintiff filed her reply (Doc. 13), this matter became ripe for determination. Having reviewed the administrative record and the briefs of the parties, the court reverses the decision of the Commissioner, orders that judgment shall be entered according to the fourth sentence of 42 U.S.C. § 405(g), and remands the case to the agency for further proceedings consistent with this Order.

         I. Factual Background and Procedural History

         Plaintiff applied for Social Security Disability (“SSD”) benefits alleging disability beginning February 15, 2001. (R. 138) Plaintiff first filed her case on October 8, 2008. (Id.) Since then, her claim has gone through three rounds of review. The latest round produced a decision by an Administrative Law Judge (“ALJ”) denying her benefits on February 26, 2016 under sections 216(i) and 223(d) of the Social Security Act. (R. 1014); 42 U.S.C. §§ 416(i), 423(d). Plaintiff has exhausted the proceedings before the Commissioner and now seeks judicial review of the final decision denying her SSD benefits.

         II. Legal Standard

         A. Standard of Review

         Section 405(g) of Title 42 of the United States Code grants federal courts authority to conduct judicial review of final decisions by the Commissioner and “enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision . . . with or without remanding the cause for a rehearing.” Judicial review of the Commissioner's denial of benefits is limited; it asks only whether substantial record evidence supports the factual findings and whether the Commissioner applied the correct legal standards. Mays v. Colvin, 739 F.3d 569, 571 (10th Cir. 2014); Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); 42 U.S.C. § 405(g).

         “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Lax, 489 F.3d at 1084 (citations and internal quotation marks omitted). But, it must be “more than a scintilla, ” although it need not be a preponderance. Id. While the courts “consider whether the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases, ” they neither reweigh the evidence nor substitute their judgment for the Commissioner's. Id. (citation and internal quotation marks omitted). But courts also do not accept “the findings of the Commissioner” mechanically or affirm those findings “by isolating facts and labeling them substantial evidence, as the court[s] must scrutinize the entire record in determining whether the Commissioner's conclusions are rational.” Alfrey v. Astrue, 904 F.Supp.2d 1165, 1167 (D. Kan. 2012) (citation omitted). When determining whether substantial evidence supports the Commissioner's decision, the courts “examine the record as a whole, including whatever in the record fairly detracts from the weight of the Commissioner's decision.” Id. (citation omitted). “Evidence is not substantial if it is overwhelmed by other evidence, particularly certain types of evidence (e.g., that offered by treating physicians) or if it really constitutes not evidence but mere conclusion.” Lawton v. Barnhart, 121 F. App'x 364, 366 (10th Cir. 2005) (quoting Frey v. Bowen, 816 F.2d 508, 512 (10th Cir. 1987)).

         A “failure to apply the proper legal standard may be sufficient grounds for reversal independent of the substantial evidence analysis.” Brown ex rel. Brown v. Comm'r of Soc. Sec., 311 F.Supp.2d 1151, 1155 (D. Kan. 2004) (citing Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994)). But such failure justifies reversal only in “appropriate circumstances”-applying an improper legal standard does not require reversal in all cases. Glass, 43 F.3d at 1395; accord Lee v. Colvin, No. 12-2259-SAC, 2013 WL 4549211, at *5 (D. Kan. Aug. 28, 2013) (discussing the general rule set out in Glass). Some errors are harmless and require no remand or further consideration. See, e.g., Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161-63 (10th Cir. 2012); Howard v. Barnhart, 379 F.3d 945, 947 (10th Cir. 2004); Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004).

         B. Disability Determination

         Claimants seeking Social Security disability benefits carry the burden to show that they are disabled. Wall v. Astrue, 561 F.3d 1048, 1062 (10th Cir. 2009) (citation omitted). In general, the Social Security Act defines “disability” as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).

         The Commissioner follows “a five-step sequential evaluation process to determine disability.” Barnhart v. Thomas, 540 U.S. 20, 24 (2003) (discussing 20 C.F.R. § 404.1520 (governing claims for disability insurance benefits) and § 416.920 (governing claims for supplemental security income)). As summarized by the Tenth Circuit, this familiar five-step process is as follows:

Step one requires the agency to determine whether a claimant is presently engaged in substantial gainful activity. If not, the agency proceeds to consider, at step two, whether a claimant has a medically severe impairment or impairments. . . . At step three, the ALJ considers whether a claimant's medically severe impairments are equivalent to a condition listed in the appendix of the relevant disability regulation. If a claimant's impairments are not equivalent to a listed impairment, the ALJ must consider, at step four, whether a claimant's impairments prevent her from performing her past relevant work. Even if a claimant is so impaired, the agency considers, at step five, whether she possesses the sufficient residual functional capability [RFC] to perform other work in the national economy.

Wall, 561 F.3d at 1052 (citations and internal quotation marks omitted); accord 20 C.F.R. § 404.1520(b)-(g). The claimant bears the “burden of proof on the first four steps, ” but the burden shifts to the Commissioner “at step five to show that claimant retained the RFC to ‘perform an alternative work activity and that this specific type of job exists in the national economy.'” Smith v. Barnhart, 61 F. App'x 647, 648 (10th Cir. 2003) (quoting Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988)). This analysis terminates if the Commissioner determines at any point that the claimant is or is not disabled. Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 801 (10th Cir. 1991).

         III. Discussion

         Plaintiff here challenges the ALJ's findings in three ways. First, she argues the ALJ erred by finding that she does not meet the requirements of Section 12.05C of the Listing of Impairments. Second, she argues the ALJ assigned improper weight to the medical opinions in the record. Third, she argues the ALJ erred by finding that claimant's sleep apnea is not severe. Plaintiff also argues that the court should not remand the case, but instead award benefits. The court will address all these arguments in sections A through D, below.

         A. Section 12.05C Listing

         Plaintiff argues the ALJ erred by finding plaintiff did not meet the 12.05C listing. Specifically, plaintiff contends that the ALJ improperly found that plaintiff did not have deficiencies in her adaptive functioning.

As germane here, § 12.05C provides:
Intellectual disability refers to significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment before age 22.
The required level of severity for this disorder is met when the requirements in A, B. ...

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