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Dix v. Berryhill

United States District Court, D. Kansas

June 5, 2018

BENNETT IRVIN DIX, 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. 6, 9, 12.) 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 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.)

         In 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.

         The ALJ 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.

         III. Analysis

         Plaintiff 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.

         At step 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 ...


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