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 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 September 1,
2012. (R. 13, 202). Plaintiff exhausted proceedings before
the Commissioner, and now seeks judicial review of the final
decision denying benefits. Plaintiff argues that the
Administrative Law Judge (ALJ) failed to assess residual
functional capacity (RFC) on a functional basis, erred in
weighing the third-party opinion of his wife and the
credibility of his allegations of symptoms resulting from his
impairments, and failed to sustain the Commissioner’s
burden at step five of the sequential evaluation process
because the ALJ accepted vocational expert (VE) testimony in
conflict with the Dictionary of Occupational Titles
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. 1989).
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
he has a severe impairment(s), and whether the severity of
his 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 at step four whether, in
light of the RFC assessed, claimant can perform his 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 considers Plaintiff’s arguments in the order
presented in his Brief and finds no error in the
Commissioner’s final decision.
Function-By-Function RFC Assessment
first claim is that the ALJ erred because he first
“expressed the RFC in terms of exertional levels of
work” rather than first performing “the requisite
function-by-function assessment” required by Social
Security Ruling (SSR) 96-8p. (Pl. Br. 11). He claims the
“ALJ failed to perform the function-by-function
assessment and address the specific work-related abilities of
pushing and pulling,” and “failed to discuss
Plaintiff’s ability to perform sustained work
activities on a regular and containing basis.” (Pl. Br.
12). The Commissioner argues that the ALJ did assess
Plaintiff’s abilities and limitations on a
function-by-function basis and assessed limitations
consistent with the medical opinion of Dr. Kaur, a state
agency physician, and with the other medical evidence of
record. (Comm’r Br. 6-7).
Standard for Assessing RFC
Commissioner has promulgated regulations regarding assessment
of RFC. 20 C.F.R. §§ 404.1545-1546. In assessing
RFC, the Commissioner is to consider a claimant’s
abilities to meet the demands of work despite his
impairment(s). Id. at § 404.1545. The
assessment is to be based upon all relevant medical and other
evidence in the record and is to include consideration of the
limitations caused by all of the claimant’s
impairments, including impairments which are not
“severe” as defined in the regulations.
Id. at § 404.1545(a & e). The assessment is
to consider physical abilities such as sitting, standing,
walking, lifting, carrying, pushing, pulling, reaching,
handling, stooping, and crouching; mental abilities such as
understanding, remembering, and carrying out instructions;
responding appropriately to supervision, co-workers, and work
pressures; other abilities such as hearing and seeing; and
the ability to tolerate various work environments.
Id. § 404.1545(b,c,d); see also
§§ 404.1521, 416.921 (listing examples of basic
work activities which may be affected by impairments). At the
hearing level, it is the ALJ’s responsibility to assess
RFC. Id. § 404.1546(c).
Commissioner issued SSR 96-8p “[t]o state the Social
Security Administration’s policies and policy
interpretations regarding the assessment of residual
functional capacity (RFC) in initial claims for disability
benefits.” West’s Soc. Sec. Reporting Serv.,
Rulings 143 (Supp. 2017). The ruling explains that assessment
of RFC involves a function-by-function consideration of each
work-related ability before expressing the RFC in
terms of the exertional categories of
“sedentary,” “light,” and so forth.
Id. at 143, 145-46. Failure to perform a
function-by-function assessment may result in an improper
finding at step four regarding plaintiff’s ability to
perform his past relevant work as he actually performed it.
Id. Moreover, because certain occupations do not
require the capacity to meet all the strength demands of the
full range of work in a particular exertional category, a
failure to do a function-by-function assessment may result in
improper findings at step four ...