United States District Court, D. Kansas
PATRICIA A. FORD-CUTCHLOW, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
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 no error in the Administrative
Law Judge's (ALJ) decision, the court ORDERS that
judgment shall be entered pursuant to the fourth sentence of
42 U.S.C. § 405(g) AFFIRMING the Commissioner's
applied for DIB, alleging disability beginning October 6,
2013. (R. 22, 213). Plaintiff exhausted proceedings before
the Commissioner, and now seeks judicial review of the final
decision denying benefits. Plaintiff argues that the ALJ
erred in failing to find her borderline intellectual
functioning and her hydrocephalus are severe impairments at
step two of his consideration and in failing to consider the
combined effects of all of her impairments thereafter when
assessing her RFC, in failing to assess RFC limitations
attributable to borderline intellectual functioning, and in
the hypothetical questions presented to the vocational
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
he 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 residual functional capacity (RFC). 20 C.F.R.
§ 404.1520(e). This assessment is used at both step four
and step five of the sequential evaluation process.
Commissioner next evaluates steps four and five of the
sequential process--determining at step four whether, in
light of the RFC assessed, claimant can perform her past
relevant work; and at step five 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 addresses each alleged error in the order presented in
Plaintiff's Brief, and finds no reversible error.
Consideration of All of Plaintiff's Impairments
argues that her full scale IQ tested at 71 or 74 which
clearly places her within the range of borderline
intellectual functioning and that her reading, writing, and
calculation abilities are extremely limited. (Pl. Br. 22-23).
She argues that despite this “overwhelming evidence . .
. the ALJ found that [the] record failed to document or
support Ms. Ford-Cutchlow's allegation of an inability to
read, write, or have difficulty with her memory.” She
argues that it was reversible error not to find
Plaintiff's borderline intellectual functioning or
cognitive impairment is a severe impairment. Id. at
24. Plaintiff next argues that she has hydrocephalus
(excessive accumulation of cerebrospinal fluid on the brain)
which causes daily headaches, and that the ALJ erred in
finding this condition was not severe. Id. at 25-26.
Plaintiff's Brief suggests, an impairment is not
considered severe if it does not significantly limit a
claimant's ability to do basic work activities such as
walking, standing, sitting, carrying, understanding simple
instructions, responding appropriately to usual work
situations, and dealing with changes in a routine work
setting. 20 C.F.R. § 404.1521. The Tenth Circuit has
interpreted the regulations and determined that to establish
a “severe” impairment or combination of
impairments at step two of the sequential evaluation process,
a claimant must make only a “de minimis”
showing. Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th
Cir. 1997). A claimant need only show that an impairment
would have more than a minimal effect on her ability to do
basic work activities. Williams, 844 F.2d 748, 751
(10th Cir. 1988). However, she must show more than the mere
presence of a condition or ailment. Hinkle, 132 F.3d
at 1352 (citing Bowen v. Yuckert, 482 U.S. 137, 153
(1987)). If an impairment's medical severity is so slight
that it could not interfere with or have a serious impact on
a claimant's ability to do basic work activities, it
could not prevent her from engaging in substantial work
activity and will not be considered severe. Hinkle,
132 F.3d at 1352.
the ALJ specifically found that Plaintiff has been diagnosed
with certain impairments--headaches, carpal tunnel syndrome
with carpal tunnel release surgery, and depression/mood
disorder/adjustment disorder--which are severe within the
meaning of the Act. (R. 25). He found that hydrocephalus, in
this case, is not severe within the meaning of the Act, and
in his step two discussion he did not mention intellectual
functioning or any cognitive impairment. Id.
However, in this case the court need not determine whether
the ALJ erred in not specifically finding that hydrocaphalus
and borderline intellectual functioning are severe
impairments within the meaning of the Act. Although the court
has its doubts, it will assume that Plaintiff is correct,
that these impairments are severe in this case, and that the
ALJ erred in failing to so find.
Brescia v. Astrue, 287 F. App'x 626, 628-629
(10th Cir. 2008), the claimant argued that the ALJ improperly
determined that several of her impairments did not qualify as
severe impairments. The court held that once an ALJ has found
that plaintiff has at least one severe impairment, a failure
to designate another as “severe” at step two does
not constitute reversible error because, under the
regulations, the agency at later steps considers the combined
effect of all of the claimant's impairments without
regard to whether any such impairment, if considered
separately, would be of sufficient severity. Later, in
Hill v. Astrue, 289 F. App'x. 289, 291-292,
(10th Cir. 2008), the court held that the step two failure to
find that additional impairments are also severe is not in
itself cause for reversal so long as the ALJ, in determining
plaintiff's RFC, considers the effects “of
all of the claimant's medically determinable
impairments, both those he deems ‘severe' and those
‘not severe.'” Because the ...