United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. BROOMES UNITED STATES DISTRICT JUDGE
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. 6, 9, 12.) The
decision is REVERSED and REMANDED for the reasons set forth
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 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).
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
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).
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.
History of Case
November 19, 2013, Plaintiff filed an application for
disability and disability insurance benefits. (R. at 12.) On
July 7, 2016, the ALJ entered an unfavorable decision on
Plaintiff's petition for disability benefits. (R. at
9-22.) The ALJ determined at step two that Plaintiff had the
following severe impairments: morbid obesity; degenerative
joint disease of cervical spine and lumbar spine;
osteoarthritis of the hip; and memory problems. (R. at 14.)
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 15.) Specifically, with respect to
Plaintiff's mental health, the ALJ determined that
“with regard to concentration, persistence or pace, the
claimant has marked difficulties. The claimant does have
significant problems with his memory, according to recent
testing. He has been limited to unskilled work as a result of
his impairment.” (R. at 16.) 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 RFC which sets out Plaintiff's physical
limitations (to which there is no objection) and then also
stated that Plaintiff is “limited to unskilled
work.” (R. at 17.)
evaluating Plaintiff's RFC, the ALJ considered the
evidence from the hearing, the medical records, the opinions
of the state agency consultants and the opinions of Drs.
Schemmel and Bopp. With respect to Plaintiff's testimony,
the ALJ determined his medically determinable impairments
could reasonably be expected to cause some of the alleged
symptoms. (R. at 18.) Plaintiff testified that his memory
problems were probably caused by a car accident in 2002. Dr.
Fantz, the state psychological consultant, found that
Plaintiff did not have any mental health impairments. The ALJ
afforded the opinion of the state psychological consultant
“no weight” due to the opinions of Dr. Bopp and
Dr. Schmmel. (R. at 20.) Dr. Bopp and Dr. Schemmel opined
that Plaintiff had severe memory problems. Dr. Schemmel
opined that Plaintiff “had very poor short-term
memory” and that Plaintiff was limited to
“following only simple instructions, but otherwise
would have the adaptability and persistence needed for
gainful employment.” (R. at 18.) Dr. Bopp performed a
mental examination which revealed “extremely low
functioning in the auditory memory, visual memory, visual
working memory, immediate memory, and delayed memory
indexes.” (Id.) Dr. Bopp diagnosed Plaintiff
with severe memory problems.
placed significant weight on the opinions of Drs. Schemmel
and Bopp. (R. at 19-20.) The RFC does not specifically refer
to any work limitation related to Plaintiff's mental
health impairments. The ALJ concluded at step four that
Plaintiff could not perform his past work. At step five, the
ALJ determined that there are jobs that exist in significant
numbers in the national economy that Plaintiff can perform
given his age, education, work experience and RFC. Plaintiff
has sufficiently exhausted his administrative remedies prior
to filing this action.
asserts that the ALJ failed to apply the correct legal
standard as the ALJ erred in failing to provide a detailed
RFC assessment as it does not account for Plaintiff's
mental limitations. The Commissioner responds that the
ALJ's RFC determination is supported by substantial
evidence and the limitation of unskilled work accounted for
Plaintiff's mental limitations.
three, the ALJ determined that Plaintiff was markedly limited
in concentration, persistence and pace and had significant
memory problems. Step three determinations are used to rate
the severity of Plaintiff's mental impairments. Wells
v. Colvin, 727 F.3d 1061, 1069 (10th Cir. 2013). The
mental RFC assessment, which is performed after step three,
“requires a more detailed assessment by itemizing
various functions contained in the broad categories found in
paragraphs B and C of the adult mental disorders listings in
12.00 of the Listing of Impairments, and summarized on the
[Psychiatric Review Technique Form].” Id.
While the ALJ did a detailed assessment regarding the medical
evidence, the ALJ failed to ...