United States District Court, D. Kansas
THOMAS S. HAY, o/b/o VICKI J. HAY, deceased Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
W. Lungstrum United States District Judge.
seeks review of a partially favorable decision of the Acting
Commissioner of Social Security (hereinafter Commissioner)
denying Disability Insurance Benefits (DIB) for 2007 and 2008
but awarding benefits thereafter pursuant to sections 216(i)
and 223 of the Social Security Act, 42 U.S.C. §§
416(i) and 423 (hereinafter the Act) continuing until the
death of Plaintiff's decedent (hereinafter claimant) on
May 27, 2016. Because both parties acknowledge error in the
Commissioner's decision after remand, and finding no
justification to remand for an immediate award of benefits as
Plaintiff requests, the court ORDERS that the
Commissioner's final decision after remand shall be
REVERSED and that judgment shall be entered pursuant to the
fourth sentence of 42 U.S.C. § 405(g) REMANDING the case
for further proceedings consistent with this opinion.
seeks judicial review of a decision of the Commissioner made
after remand by another court of this district. (Doc. 1).
Plaintiff argues that the Administrative Law Judge (ALJ)
erred in failing to comply with the order of the district
court remanding the prior case. He argues that the ALJ failed
to “determine whether [the claimant] engaged in SGA
[(substantial gainful activity)] under Test
One” of the regulation regarding evaluation of the
work activity of a self-employed person, as required by the
court's remand order. (Doc. 11, p.12 (hereinafter Pl.
Br.) (emphasis in original) (citing 20 C.F.R. §
404.1575(a)(2)). Plaintiff seeks remand for an immediate
finding that the claimant was disabled beginning January 1,
2007, reinstatement of the overpayment claimed by the Social
Security Administration (SSA), an order to reimburse
Plaintiff with interest for the EAJA (Equal Access to Justice
Act) fees wrongfully seized, and an award of attorney fees in
this case pursuant to both the Social Security Act and the
EAJA. Id. at 12-13.
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
she 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 the 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,
considering 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).
Plaintiff filed his Social Security Brief, the Commissioner
filed a Motion to Remand for Further Proceedings (Doc. 15)
(hereinafter Comm'r Mot.), in which she conceded that
remand pursuant to sentence four of 42 U.S.C. § 405(g)
is appropriate and represented that upon remand “the
ALJ will further evaluate the claimant's work activity in
accordance with 20 CFR 404.1575 and Social Security Ruling
83-34 and make new findings regarding whether the claimant
engaged in substantial gainful activity during the period
from January 2007 through December 2008.” (Comm'r
Mot. 1). She informed the court that Plaintiff opposed remand
for further proceedings and wanted remand for an immediate
award of benefits, but she argued that “further
proceedings are necessary because there are unresolved
factual issues.” Id. at 2. She argues that an
immediate award is proper only where the record is clear that
the claimant was disabled during the relevant period, and
that further proceedings are necessary here because the
record must be developed regarding what an unimpaired
self-employed individual earned in a similar job in the
relevant community during the relevant time, in accordance
with test three of the regulation regarding evaluation of the
work activity of a self-employed person, as applied by the
ALJ on remand. Id. at 2-3.
responded that applying test three “was not the
ALJ's assigned task, ” but he was required to apply
test one in accordance with the remand order. (Pl. Resp.
1-2). He argues that because of the passage of time an ALJ
will be unable to develop evidence regarding what an
unimpaired self-employed individual earned in a similar job
in the relevant community during the relevant time in
accordance with test three of the regulation, and that the
Commissioner should not “be given a third bite
of the apple.” Id. at 3-4 (emphasis in
original). He argues that reversal and remand for an
immediate award of benefits is appropriate in this case
because it has been more than eleven years since the claimant
first applied for DIB in 2007, and she has died in the
interim. (Pl. Resp. 5-9) (citing cases supporting the
proposition). The Commissioner replies that on remand she was
not precluded from considering all the tests regarding SGA,
in accordance with the regulation, because the court in the
prior case determined that the ALJ had not correctly applied
test one, and the regulation requires that if test one is not
met, the SSA “will consider tests two and three.”
(Reply 2) (quoting 20 C.F.R. § 404.1575(a)(2)). She
reiterates her argument that remand for additional fact
finding is necessary, and distinguishes the cases cited by
Plaintiff in seeking an immediate award of benefits.
Id. at 4-6.
court accepts the parties' representation that the ALJ
erred in evaluating the claimant's work activity in 2007
and 2008 and that remand is necessary in this case. The
issues are whether the ALJ exceeded the scope of the remand
in this case and whether remand for an immediate award of
benefits is appropriate in the circumstances.
Scope of the Remand
decision in the earlier case, the district court found
“that the Commissioner's decision is not supported
by substantial evidence” and “reversed and
remanded for further proceedings.” (R. 372). The court
first found that the Commissioner's action constituted a
denial of benefits rather than a termination of benefits and
it was the claimant's burden to “establish that she
was not performing substantial gainful activity” in
2007 and ...