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Christie v. Berryhill

United States District Court, D. Kansas

May 31, 2018

LORI CHRISTIE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          JOHN W. BROOMES UNITED STATES DISTRICT JUDGE

         This is an action reviewing the final decision of the Commissioner of Social Security denying plaintiff disability insurance benefits. The matter has been fully briefed by the parties and the court is prepared to rule. (Docs. 17, 23, 26.) The decision is REVERSED and REMANDED for the reasons set forth herein.

         I. General Legal Standards

         The 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 Commissioner's decision will be reviewed 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. Richardson v. Perales, 402 U.S. 389, 401 (1971).

         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.

         The Commissioner has established a five-step sequential evaluation process to determine disability. 20 C.F.R. § 404.1520; Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010). 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.” Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988). At step two, the agency will find non-disability unless the claimant shows that he or she has a severe impairment. 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. Id. at 750-51. If the claimant's impairment does not meet or equal a listed impairment, the agency determines the claimant's residual functional capacity (“RFC”). 20 C.F.R. § 404.1520(e). The 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(f, g). At step four, the agency must determine whether the claimant can perform previous work. If a claimant shows that she cannot perform the previous work, 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).

         The claimant bears the burden of proof through step four of the analysis. Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006). At step five, the burden shifts to the Commissioner to show that the claimant can perform other work that exists in the national economy. Id.; 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.

         II. History of Case

On January 15, 2016, the ALJ entered an unfavorable decision on Plaintiff's petition for disability benefits. (R. at 13-27.) The ALJ determined at step two that Plaintiff had the following severe impairments: degenerative disc disease, degenerative joint disease, spondylosis of the cervical spine, fibromyalgia, anxiety and a thought disorder. (R. at 18.) At step three, the ALJ determined that Plaintiff's impairments did not meet or exceed the severity of one of the listed impairments. (R. at 19.) Specifically, with respect to Plaintiff's mental health, the ALJ determined that “with regard to concentration, persistence or pace, the claimant has moderate difficulties. The claimant can concentrate to perform simple household chores. She can concentrate to drive.” (R. at 20.) The ALJ specifically stated that the limitations identified in step three are not a residual functional capacity assessment. The ALJ went on to establish the Plaintiff's RFC. The RFC sets out Plaintiff's physical limitations (to which there is no objection) and then also states that Plaintiff is “limited to performing unskilled work only.” (R. at 20.)

         In evaluating Plaintiff's RFC, the ALJ considered the evidence from the hearing, the medical records, and the opinions of the state agency consultants. With respect to Plaintiff's testimony, the ALJ determined her testimony was not fully credible but that the impairments required a reduction of the RFC. (R. at 25.) However, the ALJ did lend some weight to Plaintiff's testimony. Notably, the state psychological consultant found that Plaintiff did not have any mental health impairments and determined that there were no limitations in any of the criteria of the listings, including difficulties in maintaining concentration, persistence or pace. The ALJ afforded the opinion of the psychological consultant “limited weight as evidence submitted at the hearing level indicates she is more limited than determined by the agency consultants.” (R. at 25.) Plaintiff's testimony, that was considered by the ALJ with respect to her mental health, included the following: “she has ‘fibro fog';” “her medications make her tired and she does not care about anything;” “she has memory problems and loses her train of thought;” and “at times, she is afraid to leave the house.” (R. at 21.) The RFC does not specifically refer to any work limitation related to Plaintiff's mental health impairments.

         At step five, the ALJ determined that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform given her age, education, work experience and RFC. Plaintiff has sufficiently exhausted her administrative remedies prior to filing this action.

         III. Analysis

         Plaintiff asserts two errors by the ALJ in this matter. First, Plaintiff contends that the ALJ erred in failing to provide a detailed RFC assessment as it does not account for Plaintiff's mental limitations. Second, Plaintiff argues that there is a conflict between the testimony of the vocational expert and the Dictionary of Occupational Titles (“DOT”) that was not resolved by the ALJ. The court will address the arguments in turn.

         A. RFC ...


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