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's (ALJ) decision is not supported by the record
evidence and is inadequately explained, 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 with
applied for DIB, alleging disability beginning April 1, 2012.
(R. 23, 196). Plaintiff exhausted proceedings before the
Commissioner, and now seeks judicial review of the final
decision denying benefits. She argues that the ALJ erred in
assessing Plaintiff's residual functional capacity (RFC),
posed hypothetical questions which did not precisely fit
Plaintiff's limitations and relied on erroneous responses
thereto from the vocational expert (VE), and erred in
determining the credibility of Plaintiff's allegations of
symptoms resulting from her impairments.
court's review is guided by the Act. Wall v.
Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). It
provides that “[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; 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
she has a severe impairment(s), and whether the severity of
her 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). 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 her 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 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 decision is
not adequately explained or supported by the record evidence.
determined in her step two analysis that Plaintiff has a
rather extensive severe combination of impairments including
left carpal tunnel syndrome, left shoulder rotator cuff
impingement, sciatica, and diabetes. (R. 25). In her list of
impairments that “are severe because they cause
significant limitations in the claimant's ability to do
basic work related activities, ” the ALJ listed both
diabetes and impairments which can be caused by diabetes and
which the medical records in this case suggest are caused by
diabetes here--polyneuropathy, glaucoma, cataracts, and
diabetic retinopathy. (R. 25). She determined at step three
that Plaintiff's impairments do not meet or medically
equal the severity of any Listed impairment, and continued on
to assess Plaintiff's RFC. Id. She found that
Plaintiff has the RFC to “lift and carry 10 pounds with
the left non-dominant arm;” that she must be allowed to
“alternate between sitting and standing for a brief
position change every 30 minutes;” cannot climb ropes,
ladders, or scaffolds; and can only occasionally finger or
feel and cannot reach overhead with the left hand and arm.
Id. at 25-26. With regard to Plaintiff's eyes,
the ALJ found that she cannot perform “work tasks
requiring good depth perception and good bilateral vision,
” or “continuous good mono vision, ” and
that she can perform jobs requiring “only frequent
adequate vision.” Id. at 26. Finally, the ALJ
found that Plaintiff should avoid concentrated exposure to
extreme cold, vibration, work hazards, and unprotected
assessment, the ALJ noted EMG “findings consistent with
bilateral median nerve entrapment at the wrist, and
suggestive of carpal tunnel syndrome.” Id. at
27. She noted that on a report dated July 18, 2013, Dr.
Danushkodl found “diabetic polyneuropathy,
diabetic retinopathy with left eye legal blindness, left
shoulder rotator cuff impingement, and bilateral carpal
tunnel syndrome.” (R. 27) (citing Ex. 5F (R. 496-504)).
She summarized another report dated November 9, 2013from
Central Medical Consultants, and noted “function in the
right hand was normal, ” and “there is no
evidence of end organ damage from diabetes or
hypertension.” (R. 28).
found that Plaintiff's allegations of limitations
resulting from her symptoms are not entirely credible for
several reasons. She found that the “objective evidence
does not support the degree of limitation alleged, ”
because “examinations reveal normal range of motion and
no pain on hip movement, ” she can still grip forty
pounds with the left hand and “[f]unction in the right
hand is normal.” Id. She acknowledged that
Plaintiff has “an excellent work history, ” but
found that she was laid off from work and did not quit
because of health complaints, she has been noncompliant with
her insulin, there is no evidence of end organ damage, and
she alleges taking an aerobics class but admits only a
five-pound weight loss. Id. at 29.
considered the opinion evidence in the record. She accorded
minimal weight to the opinion of Plaintiff's nurse
practitioner because she is not an acceptable medical source
and because objective evidence does “not impose such
strict postural limitations.” Id. She accorded
only partial weight to the opinions of the state agency
physicians because they found Plaintiff capable of medium
work with hand and vision limitations, but the medical
evidence suggests ...