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) and Supplemental Security Income
(SSI) benefits pursuant to sections 216(i), 223, 1602, and
1614(a)(3)(A) of the Social Security Act. 42 U.S.C.
§§ 416(i), 423, 1381a, and 1382c(a)(3)(A)
(hereinafter the Act). The court ORDERS that the
Commissioner's final decision 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.
has exhausted administrative remedies before the
Commissioner, and seeks judicial review of the decision
denying her applications. (Doc. 1). She argues that the
Administrative Law Judge (ALJ) erred in failing to assess all
limitations resulting from her visual impairments when
assessing residual functional capacity (RFC).
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, 416.920; 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 RFC. 20 C.F.R. §§ 404.1520(e),
416.920(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,
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).
court finds error here in that the ALJ found limitations
resulting from Plaintiff's visual impairments but did not
include those limitations in the hypothetical question
presented to the vocational expert (VE) nor in the RFC
assessed between steps three and four of his sequential
evaluation. Consequently, the court cannot determine whether
the jobs of which the ALJ found Plaintiff capable can be
performed by an individual with Plaintiff's visual
limitations. Remand is necessary for the Commissioner to
assess properly the limitations attributable to
Plaintiff's visual impairments and to determine whether
there are a significant number of jobs available in the
economy of which an individual with such limitations is
assessed Plaintiff with the RFC:
to perform a full range of work at all exertional levels. The
claimant must avoid climbing ladders, ropes, and scaffolds.
She must avoid exposure to dangerous moving machinery and
unprotected heights. She can tolerate occasional exposure to
hot or cold temperature extremes. The claimant can perform
simple and intermediate tasks consistent with unskilled and
semiskilled work of an SVP 1, 2, 3, or 4.
(R. 26) (finding no. 5) (bolding omitted).
Commissioner suggests in her brief, the limitation in
climbing and from exposure to hazards is because of
Plaintiff's vision impairments. (Comm'r Br. 5).
However, the decision reveals that the ALJ found further
limitations due to Plaintiff's vision impairments which,
for some unexplained reason he did not include in
Plaintiff's RFC. The ALJ accorded only limited weight to
Dr. Long's opinion, but he clearly accepted her opinions
that Plaintiff has limited depth perception and needs to wear
an eye patch when she is seeing double. (R. 30) (“Dr.
Long is correct in noting that the claimant's depth
perception is limited, ” and her “loss of depth
perception [is] secondary to a need to wear an eye
patch.”). Moreover, he explained that the medical
expert's, Dr. Alpar's, opinion regarding climbing
limitations and exposure to hazards “are reasonably
related to the claimants limited depth perception and
underlying impairments, [and] these restrictions are given