United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. CRABTREE, UNITED STATES DISTRICT JUDGE.
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
Factual Background and Procedural History
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.
Standard of Review
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).
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)).
“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).
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).
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).
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
Section 12.05C Listing
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. ...