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). Finding error in the ALJ's
consideration of the report and medical opinion of Dr. Berg,
Ph.D., 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
argues that the Administrative Law Judge (ALJ) erred in her
residual functional capacity (RFC) assessment because she
“did not include all credible limitations in the
RFC.” (Pl. Br. 7) (bolding omitted).
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
he has a severe impairment(s), and whether the severity of
his 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 his 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 considers the issue as presented in Plaintiff's
claims error “because the ALJ failed to assess an RFC
that was consistent with the portions of Dr. Berg's
opinion she found credible, … did not provide an
explanation for choosing some limitations to include while
discarding others, ” and consequently,
“substantial evidence does not support the RFC”
assessed. (Pl. Br. 7). He argues that although the ALJ
accorded partial weight to Dr. Berg's opinion, she
“did not provide an explanation for accepting some of
the limitations while rejecting others.” Id.
at 10. He argues that the step four finding that Plaintiff
can do his past work as a housekeeper is not supported
because “the ability to respond appropriately to
supervision and coworkers is a basic demand of all unskilled
work, ” id. at 12 (citing SSR (Soc. Sec.
Ruling) 85-15), Dr. Berg opined that Plaintiff had a limited
capacity to accommodate to the demands of superficial
interpersonal interactions because of his psychotic symptoms
and irritability, and the ALJ did not explain how that
limitation was met or discounted. Id. at 11-12.
Commissioner argues, “Judicial review of the
Commissioner's final decision under 42 U.S.C. §
405(g) is limited to whether the decision is supported by
substantial evidence in the record as a whole.”
(Comm'r Br. 5) (citing Cowan v. Astrue, 552 F.3d
1182, 1184-85 (10th Cir. 2008)). She argues that when the
Commissioner's findings are supported by substantial
evidence, they “are conclusive and must be
affirmed.” (Comm'r Br. 5) (citing Perales,
402 U.S. at 401). The Commissioner argues that it is a
claimant's burden to establish disability and Plaintiff
did not sustain his burden. Id. She acknowledges
that Plaintiff has “severe” schizophrenia, but
argues that he did not establish that his mental limitations
prevent him from engaging in substantial gainful activity.
Id. at 6. She cites record evidence which in her
view “provided substantial evidence supporting the
Commissioner's decision.” Id. at 6-7. She
argues that “the ALJ expressly acknowledged Dr.
Berg's opinion, ” afforded it only partial weight,
and “gave good reasons for the weight afforded Dr.
Berg's opinion.” Id. at 8. She cites
record evidence which, in her view justifies discounting
portions of Dr. Berg's opinion. Id. at 8-9. She
argues that although the record contains evidence contrary to
the ALJ's RFC assessment, “the issue is not whether
Plaintiff's position was supported by substantial
evidence, but whether the ALJ's decision was so
supported.” Id. at 9-10 (citing
Perales, 402 U.S. at 401, and 42 U.S.C. §
405(g)) (emphasis in Pl. Br.). The Commissioner concludes
that although the ALJ recognized Plaintiff has a severe
mental impairment, she “reasonably concluded that such
did not prevent a range of unskilled work based on favorable
evidence of his functioning.” Id. at 10. She
argues that the ALJ's RFC assessment was reasonable based
upon evidence in the record, Social Security Rulings, and the
Social Security Administration's interpretation of
“a substantial loss of mental ability.”
Id. at 10-11 (citing Program Operations Manual
System (POMS) § DI 25020.010).
Commissioner argues that the ALJ “reasonably considered
Plaintiff's subjective complaints in assessing his
RFC.” (Comm'r Br. 12). She argues that the
ALJ's finding that Plaintiff's allegations of
symptoms are not entirely consistent with record evidence is
supported by the record evidence. Id. at 12-13. She
ends her argument, asserting “[t]he ALJ's decision
was supported by substantial evidence, is a correct
application of the law and regulations, and should be
affirmed.” Id. at 13.
Reply Brief, Plaintiff argues that the Commissioner's
Brief “failed to address the central tenant [sic] of
[Mr.] Booker's objection to the ALJ's
decision.” (Reply 1). He points out that his argument
was that the ALJ accorded partial weight to Dr. Berg's
opinion but failed to accept all the limitations opined or to
explain why they were discounted, and that the Commissioner
did not address this error in her Brief. Id. at 1-2.
He ends his brief by reminding the court that it “may