United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE.
Anthony Cianciolo applied for disability insurance benefits
and supplemental security income under the Social Security
Act. His applications were initially denied by the agency and
by an Administrative Law Judge (ALJ), but the Appeals Council
remanded for consideration of certain items and additional
findings. On remand, a different ALJ (Hon. James Harty)
presided over an evidentiary hearing from Wichita, Kansas,
with plaintiff appearing by video from Salina, and vocational
expert Michael Wiseman testifying at the hearing. After the
hearing, the ALJ entered a written order finding plaintiff
was not disabled within the meaning of the Act because he
retained the ability to perform certain sedentary jobs. In
this appeal, plaintiff argues the ALJ erred by failing to
adequately explain the absence of any requirement that
plaintiff elevate his legs during the day. The court agrees
the ALJ failed to properly explain the omission, and
accordingly remands the matter for further proceedings.
the Act, the court must accept the factual findings of the
Commissioner if they are supported by substantial evidence.
42 U.S.C. § 405(g). The court accordingly looks to
whether the factual findings are supported by substantial
evidence and whether the ALJ applied the correct legal
standard. Lax v. Astrue, 489 F.3d 1080, 1084 (10th
Cir. 2007). “Substantial evidence” means
“more than a scintilla, but less than a preponderance;
in short, it is such evidence as a reasonable mind might
accept to support the conclusion.” Barkley v.
Astrue, No. 09-1163-JTM, 2010 WL 3001753, *1 (D. Kan.
July 28, 2010) (citing Castellano v. Sec'y of Health
& Human Servs., 26 F.3d 1027, 1028 (10th Cir.
1994)). In making this determination, the court must
“neither reweigh the evidence nor substitute [its]
judgment for that of the [Commissioner].” Bowman v.
Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting
Casias v. Sec'y of Health & Human Servs.,
933 F.3d 799, 800 (10th Cir. 1991)).
claimant is disabled if he suffers from a physical or mental
impairment which stops him “from engaging in
substantial gainful activity and is expected to result in
death or to last for a continuous period of at least twelve
months.” Brennan v. Astrue, 501 F.Supp.2d
1303, 1306-07 (D. Kan. 2007) (citing 42 U.S.C. §
423(d)). This impairment “must be severe enough that
[he] is unable to perform [his] past relevant work, and
further cannot engage in other substantial gainful work
existing in the national economy, considering [his] age,
education, and work experience.” Barkley, 2010
WL 3001753, *2 (citing Barnhart v. Walton, 535 U.S.
212, 217-22 (2002)).
to the Act, the Social Security Administration has
established a five-step sequential evaluation process for
determining whether an individual is disabled. Wilson v.
Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010); see
also 20 C.F.R. § 404.1520(a). The steps are
designed to be followed in order. If it is determined at any
step of the evaluation process that the claimant is or is not
disabled, further evaluation is unnecessary.
Barkley, 2010 WL 3001753, at *2. The first three
steps require the Commissioner to assess: (1) whether the
claimant has engaged in substantial gainful activity since
the onset of the alleged disability; (2) whether the claimant
has a severe, or combination of severe, impairments; and (3)
whether the severity of those impairments meets or equals a
designated list of impairments. Lax v. Astrue, 489
F.3d 1080, 1084 (10th Cir. 2007); see also Barkley,
2010 WL 3001753, *2 (citing Williams v. Bowen, 844
F.2d 748, 751 (10th Cir. 1988)). If the impairment does not
meet or equal a designated impairment, the ALJ must then
determine the claimant's residual functional capacity,
which is the claimant's ability “to do physical and
mental work activities on a sustained basis despite
limitations from her impairments.” Barkley,
2010 WL 3001753, *2; see also 20 C.F.R. §§
404.1520(e), 404.1545. Upon determining the claimant's
residual functional capacity, the Commissioner moves on to
steps four and five, which require a determination of whether
the claimant can either perform his past relevant work or can
perform other work that exists in the national economy.
Barkley, 2010 WL 3001753, *2 (citing
Williams, 844 F.2d at 751).
claimant bears the burden at steps one through four to prove
a disability that prevents performance of his past relevant
work. Lax, 489 F.3d at 1084. The burden then shifts
to the Commissioner at step five to show that, despite the
impairments, the claimant can perform other work in the
national economy. Id. See Weir v. Colvin, No.
15-1300-JTM, 2016 WL 6164313, at *1-2 (D. Kan. Oct. 24,
2016). See Johnston v. Berryhill, No. 16-2342-JTM,
2017 WL 1738037, at *1-2 (D. Kan. May 4, 2017).
Summary of ALJ Ruling.
alleges a disability onset date of February 12, 2010, when he
was 36 years old. He was a high school graduate who had
worked fulltime at McDonald's for approximately twenty
years, until 2010 when he cut back to about 25 hours a week.
Plaintiff testified he did so because of pain in his legs due
to swelling. Plaintiff was about 5'9” tall and
weighed approximately 380 pounds.
found that, although plaintiff worked after the alleged onset
date, his income did not rise to the level of substantial
gainful activity. He found plaintiff had severe impairments
of cellulitis, lymphedema, osteoarthritis bilaterally of the
knees, right-sided heart failure, obesity, hypothyroidism,
and hypertension. The ALJ found that none of the impairments,
alone or in combination, met or medically equaled a listed
found plaintiff's RFC to be as follows: can perform
sedentary work except he can lift 20 pounds continuously, 50
pounds frequently, and up to 100 pounds occasionally; can
carry 20 pounds continuously and up to 50 pounds
occasionally; can sit continuously for 3 hours and sit 5 out
of 8 hours; can walk continuously 1 hour and walk 1 hour out
of 8 hours; can occasionally push-pull with lower extremities
bilaterally; occasionally balance, stoop, kneel, crouch, and
crawl; must avoid climbing stairs, ramps, ladders, and
scaffolds; can occasionally operate a motor vehicle; can
occasionally be exposed to hot and cold temperature extremes
and vibration; must avoid exposure to unprotected heights,
moving mechanical parts, humidity, wetness, dust, odors,
fumes, and pulmonary irritants; can be exposed to a moderate
level of noise; cannot walk one block at a reasonable pace on
rough or uneven surfaces.
above hearing and findings took place after an earlier ALJ
opinion and a remand by the Appeals Council. Among other
things, the Council noted that plaintiff had previously
testified he had to elevate his legs because of swelling and
pain, and that there was medical evidence indicating he was
advised to keep his legs elevated as much as possible. The
Council directed the ALJ to “consider the
claimant's subjective complaints and the related medical
opinions and reassess the claimant's maximum residual
functional capacity.” (Dkt. 10 at 305).
remand, the ALJ acknowledged a statement by Molly Biggs,
PA-C, that plaintiff should elevate his legs to help prevent
swelling. The ALJ asserted, however, that Biggs “does
not state how frequently, how long or to what height, which
is consistent with the rest of the objective record, which
shows recommendations of elevation with no specific
prescription of time or height.” (Dkt. 10 at 122). The
ALJ also stated that plaintiff “regularly stands for
over 4 hours at one time at work, with some pain, which does
not stop him from working. Also, there is no recommendation
that prescribes when the claimant needs to elevate, at what