United States District Court, D. Kansas
MEMORANDUM AND ORDER
Crow, U.S. District Senior Judge.
an action reviewing the final decision of the Commissioner of
Social Security denying the plaintiff disability insurance
benefits and supplemental security income payments. The
matter has been fully briefed by the parties.
General legal standards
court's standard of review is set forth in 42 U.S.C.
§ 405(g), which provides that "the findings of the
Commissioner as to any fact, if supported by substantial
evidence, shall be conclusive." The court should review
the Commissioner's decision to determine only whether the
decision was supported by substantial evidence and whether
the Commissioner applied the correct legal standards.
Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994).
Substantial evidence requires more than a scintilla, but less
than a preponderance, and is satisfied by such evidence that
a reasonable mind might accept to support the conclusion. The
determination of 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 really constitutes
mere conclusion. Ray v. Bowen, 865 F.2d 222, 224
(10th Cir. 1989). Although the court is not to reweigh the
evidence, the findings of the Commissioner will not be
mechanically accepted. Nor will the findings be affirmed by
isolating facts and labeling them substantial evidence, as
the court must scrutinize the entire record in determining
whether the Commissioner's conclusions are rational.
Graham v. Sullivan, 794 F.Supp. 1045, 1047 (D. Kan.
1992). The court should examine the record as a whole,
including whatever in the record fairly detracts from the
weight of the Commissioner's decision and, on that basis,
determine if the substantiality of the evidence test has been
met. Glenn, 21 F.3d at 984.
Social Security Act provides that an individual shall be
determined to be under a disability only if the claimant can
establish that they have a physical or mental impairment
expected to result in death or last for a continuous period
of twelve months which prevents the claimant from engaging in
substantial gainful activity (SGA). The claimant's
physical or mental impairment or impairments must be of such
severity that they are not only unable to perform their
previous work but cannot, considering their age, education,
and work experience, engage in any other kind of substantial
gainful work which exists in the national economy. 42 U.S.C.
Commissioner has established a five-step sequential
evaluation process to determine disability. If at any step a
finding of disability or non-disability can be made, the
Commissioner will not review the claim further. At step one,
the agency will find non-disability unless the claimant can
show that he or she is not working at a “substantial
gainful activity.” At step two, the agency will find
non-disability unless the claimant shows that he or she has a
“severe impairment, ” which is defined as any
“impairment or combination of impairments which
significantly limits [the claimant's] physical or mental
ability to do basic work activities.” At step three,
the agency determines whether the impairment which enabled
the claimant to survive step two is on the list of
impairments presumed severe enough to render one disabled. If
the claimant's impairment does not meet or equal a listed
impairment, the inquiry proceeds to step four, at which the
agency assesses whether the claimant can do his or her
previous work; unless the claimant shows that he or she
cannot perform their previous work, they are determined not
to be disabled. If the claimant survives step four, the fifth
and final step requires the agency to consider vocational
factors (the claimant's age, education, and past work
experience) and to determine whether the claimant is capable
of performing other jobs existing in significant numbers in
the national economy. Barnhart v. Thomas, 124 S.Ct.
376, 379-380 (2003).
claimant bears the burden of proof through step four of the
analysis. Nielson v. Sullivan, 992 F.2d 1118, 1120
(10thCir. 1993). At step five, the burden shifts
to the Commissioner to show that the claimant can perform
other work that exists in the national economy.
Nielson, 992 F.2d at 1120; Thompson v.
Sullivan, 987 F.2d 1482, 1487 (10th Cir.
1993). The Commissioner meets this burden if the decision is
supported by substantial evidence. Thompson, 987
F.2d at 1487.
going from step three to step four, the agency will assess
the claimant's residual functional capacity (RFC). This
RFC assessment is used to evaluate the claim at both step
four and step five. 20 C.F.R. §§ 404.1520(a)(4),
404.1520(e, f, g); 416.920(a)(4), 416.920(e, f, g).
History of case
April 25, 2014, administrative law judge (ALJ) Christine A.
Cooke issued the 1st ALJ decision, finding that
plaintiff was not disabled (R. at 861-876). Following denial
of review by the Appeals Council, plaintiff sought judicial
review of the defendant's denial of benefits. On July 20,
2015, Judge Marten reversed the decision of the Commissioner
and remanded the case for further consideration (R. at
2, 2016, administrative law judge (ALJ) Michael Comisky
issued a 2nd ALJ decision (R. at 799-818).
Plaintiff alleges that she has been disabled since February
27, 2011 (R. at 800). Plaintiff is insured for disability
insurance benefits through December 31, 2015 (R. at 802). At
step one, the ALJ found that plaintiff has not engaged in
substantial gainful activity since the alleged onset date (R.
at 802). At step two, the ALJ found that plaintiff has severe
impairments (R. at 802). At step three, the ALJ determined
that plaintiff's impairments do not meet or equal a
listed impairment (R. at 803). After determining
plaintiff's RFC (R. at 806), the ALJ found at step four
that plaintiff is not able to perform past relevant work (R.
at 816). At step five, the ALJ found that plaintiff could
perform other work that exists in significant numbers in the
national economy (R. at 817). Therefore, the ALJ concluded
that plaintiff was not disabled (R. at 818).
Did the ALJ err by failing to elicit a reasonable explanation
from the vocational expert (VE) for discrepancies with the
testimony of the VE and the Dictionary of Occupational Titles
(DOT) in light of the hypothetical question posed by the ALJ?
1st ALJ decision, the ALJ included in her RFC
findings that plaintiff should never be expected to
understand, remember, or carry out detailed instructions. Job
duties must be simple, repetitive, and routine in nature (R.
at 866, 54). The district court reversed and remanded the
case because the hypothetical question propounded to the ALJ
excluded occupations requiring execution of detailed
instructions; yet all the jobs identified by the vocational
expert (VE) and adopted by the ALJ as jobs that plaintiff
could perform, require the ability to carry out detailed
instructions. The court cited to Hackett v.
Barnhart, 395 F.3d 1168, 1175-1176 (10th Cir.
(2005), which held that the ALJ must inquire about and
resolve any conflicts between the VE testimony and the
description of that job in the DOT (Dictionary of
Occupational Titles) (R. at 929-931).
medical opinion evidence includes an opinion from Dr. Cohen
indicating that plaintiff is moderately limited in carrying
out detailed instructions, but that she can complete simple
tasks (R. at 78). Dr. Schulman opined that plaintiff is
moderately limited in the ability to carry out detailed
instructions, and indicated that plaintiff can understand and
remember simple instructions (R. at 97). Dr. Neufeld opined
in 2012 that plaintiff's psychological difficulties would
not preclude her ability to adequately understand and
remember simple instructions (R. at 524). In 2014, Dr.
Neufeld opined that plaintiff's psychological
difficulties would not preclude her ability to adequately
understand, remember, and carry out at least simple
instructions (R. at 789). He noted on another form that
plaintiff had a mild limitation in her ability to understand
and remember complex ...