United States District Court, D. Kansas
KRYSTAL L. COX, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
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) pursuant to sections 216(i) and 223
of the Social Security Act, 42 U.S.C. §§ 416(i) and
423 (hereinafter the Act). Finding that the ALJ inadequately
explained and evaluated Dr. Kresser's and Dr.
Sheehan's opinions that Plaintiff could work in a low
stress environment, the court ORDERS that the 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
argues that the Administrative Law Judge (ALJ) failed to
perform a function-by-function assessment of her capabilities
as required by Social Security Ruling (SSR) 96-8p, that both
the physical and mental limitations assessed by the ALJ are
not supported by substantial record evidence, and that the
ALJ erred in relying on the vocational expert's testimony
at step five of the sequential evaluation process. She seeks
remand “with directions to the Commissioner to grant
her claims for disability insurance benefits.” (Pl. Br.
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
he 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 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 seeks remand for an immediate award of benefits,
she provided no legal authority for that argument and did not
develop it in her Brief. Wall, 561 F.3d at 1066
(issue presented without developed argumentation is waived).
Plaintiff has waived consideration of this issue by failing
to develop any argument regarding it. Franklin Sav. Corp.
v. U.S., 180 F.3d 1124, 1128 n.6 (10th Cir. 1999)
(arguments presented superficially are waived) (citing
Sports Racing Servs., Inc. v. Sports Car Club of America,
Inc. 131 F.3d 874, 880 (10th Cir. 1997) (dismissing
claims never developed, with virtually no argument
presented)). The court understands that there are (rare)
circumstances in which it is appropriate to remand for an
immediate award of benefits, but it is up to Plaintiff to
cite the authority for such a result and to explain why this
case meets the criteria justifying that result. She has not
court addresses the remaining alleged errors in the order
addressed in Plaintiff's Brief, but because it finds that
the ALJ erred in evaluating Plaintiff's mental
impairments and it may not provide advisory opinions, it will
not discuss her arguments regarding physical impairments or
step five errors. She may make arguments regarding these
alleged errors on remand if she desires.
Plaintiff suggests, the Commissioner issued SSR 96-8p
“[t]o state the Social Security Administration's
policies and policy interpretations regarding the assessment
of residual functional capacity (RFC) in initial claims for
disability benefits.” West's Soc. Sec. Reporting
Serv., Rulings 143 (Supp. 2017). The ruling explains that
assessment of RFC involves a function-by-function
consideration of each work-related ability before
expressing the RFC in terms of the exertional categories of
“sedentary, ” “light, ” and so forth.
Id. at 143, 145-46. Failure to perform a
function-by-function assessment may result in an improper
finding at step four regarding plaintiff's ability to
perform her past relevant work as she actually performed it.
Id. Moreover, because certain occupations do not
require the capacity to meet all the strength demands of the
full range of work in a particular exertional category, a
failure to do a function-by-function assessment may result in
improper findings at step four regarding Plaintiff's
ability to perform her past relevant work as it is generally
performed in the national economy or at step five regarding
Plaintiff's ability to perform other work in the national
economy. Id. at 145-46 (also see examples 1-3, p.
Commissioner argues that the Tenth Circuit has already
answered this question, and has held that an ALJ is not
“required to separately discuss and make findings
regarding her abilities to sit, stand, walk, lift, carry,
push, or pull.” (Comm'r Br. 6) (quoting Hendron
v. Colvin, 767 F.3d 951, 956-57 (10th Cir. 2014)). She
argues that the ALJ appropriately limited Plaintiff to the
functions required by sedentary work as defined in the
regulations and expressed further functional limitations such
as postural, environmental, and mental limitations as
exceptions from the general limitations contained in the
regulatory definition. Id. at 6-7.
Reply Brief, Plaintiff argues that it is impossible to
identify from the ALJ's decision how much sitting,
standing, or walking Plaintiff can perform. (Reply 2). She
argues based on Hodgson v. Colvin, No. 14-1106, 2014
WL 5511077, *4 (D. Kan. Oct. 31, 2014) that Herndon
does not apply in a situation such as this where the ALJ ...