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
September 11, 2015, administrative law judge (ALJ) Alison K.
Brookins issued her decision (R. at 14-27). Plaintiff alleges
that she has been disabled since March 22, 2013 (R. at 14).
Plaintiff is insured for disability insurance benefits
through June 30, 2018 (R. at 16). At step one, the ALJ found
that plaintiff has not engaged in substantial gainful
activity since the alleged onset date (R. at 16). At step
two, the ALJ found that plaintiff has severe impairments (R.
at 17). At step three, the ALJ determined that
plaintiff's impairments do not meet or equal a listed
impairment (R. at 17). After determining plaintiff's RFC
(R. at 19-20), the ALJ found at step four that plaintiff is
unable to perform past relevant work (R. at 25). At step
five, the ALJ found that plaintiff could perform other work
that exists in significant numbers in the national economy
(R. at 26). Therefore, the ALJ concluded that plaintiff was
not disabled (R. at 27).
Did the ALJ's limitation of plaintiff to simple work
adequately account for a moderate limitation in
concentration, persistence, and pace?
three, the ALJ found that plaintiff had moderate difficulties
in concentration, persistence, or pace,  and moderate
difficulties in social functioning (R. at 19). In her RFC
findings, the ALJ stated that plaintiff is able to
understand, remember, use judgment, and make decisions for
simple and intermediate instructions and tasks that do not
require more than occasional public interaction (R. at 20).
March 6, 2014, Dr. Schulman, a non-examining state agency
medical source, reviewed the record and found that plaintiff
had moderate difficulties in maintaining concentration,
persistence, or pace (R. at 70). Dr. Schulman indicated in
his RFC that plaintiff is moderately limited in her ability
to understand, remember, and carry out detailed instructions,
and is moderately limited in her ability to maintain
attention and concentration for extended periods (R. at
72-73). Dr. Schulman then concluded that plaintiff is able to
understand, remember, use judgement, and make decisions for
intermediate instructions and tasks (R. at 72), and can
attend, concentrate, and maintain pace and persistence for
this level of activity (R. at 73). On July 2, 2014, Dr. Blum,
a non-examining medical source, reviewed the record. He also
found that plaintiff had moderate difficulties in
maintaining, concentration, persistence, or pace (R. at 96).
He made the same RFC findings as those noted above for Dr.
Schulman; he also found a moderate limitation in
plaintiff's ability to interact appropriately with the
general public (R. at 99, 100). The ALJ accorded considerable
weight to their opinions (R. at 25), and the ALJ's RFC
and step three findings adopted their opinions as noted
above. At step five, the ALJ found that plaintiff could
perform three “unskilled” jobs that exist in
significant numbers in the national economy (R. at 26, 59).
All three unskilled jobs have a SVP (specific vocational
preparation) of level 2. 1991 WL 679524, 679616, 679631.
argues that limiting plaintiff to simple and intermediate
work fails to account for plaintiff's moderate
limitations in concentration, persistence, or pace. However,
in the case of Smith v. Colvin, 821 F.3d 1264, 1269
(10th Cir. 2016), the court held that an ALJ can
account for moderate mental limitations by limiting plaintiff
to particular kinds of work activity, including a limitation
to simple tasks. See also Lee v. Colvin, 631
Fed.Appx. 538, 540-542 (10th Cir. Nov. 12,
2015)(same; Smith opinion indicated that
Lee finding was persuasive, Smith, 821 F.3d
case of Nelson v. Colvin, 655 Fed.Appx. 626, 628-629
(10th Cir. July 12, 2016), Dr. Taber (in his
Section I findings) found that claimant's limitations
included a moderate limitation in her ability to maintain
attention and concentration for extended periods, and marked
limitations in her ability to understand, remember and carry
out detailed instructions. Dr. Taber's Section III
narrative then limited plaintiff to carrying out simple
instructions. The ALJ's RFC findings included a
limitation to simple instructions. The court held that Dr.
Taber's Section III narrative adequately incorporated the
limitations she found in Section I. ...