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) pursuant to sections 216(i) and 223
of the Social Security Act, 42 U.S.C. §§ 416(i) and
423 (hereinafter the Act). Finding error in the
Administrative Law Judge's (ALJ) evaluation of the state
agency psychologist's and psychiatrist's opinions,
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 this
argues that the ALJ erred when he afforded
“considerable weight” to the opinions of the
state agency consultants, Dr. Smith, PsyD., and Dr. Martin,
M.D., but did not include their prohibition of frequent
changes in routine in the residual functional capacity (RFC)
assessed and did not explain why he did not include that
limitation. (Pl. Br. 12).
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 RFC. 20 C.F.R. § 404.1520(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 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).
court considers the issue of the state agency
consultants' opinions as presented in Plaintiff's
Brief. The court notes that Plaintiff also claimed
“[t]he ALJ did not adequately evaluate [Ms.]
Schlein's symptoms in this case” (Pl. Br. 21), but
the Commissioner argues this discussion was “entirely
to support her argument that the ALJ erred by not
incorporating an adaptation limitation from the State agency
psychologists' [sic] opinions.” (Comm'r Br. 4,
n.5). Because the decision must be remanded, the court need
not consider this additional issue. Plaintiff may make any
argument she desires in this regard to the Commissioner on
argues the ALJ erred by affording considerable weight to Dr.
Smith's and Dr. Martin's opinions but failing to
resolve the conflict between those opinions and the mental
RFC assessed. She argues, “the ALJ's mental RFC
differed from the opinions in the ability to adapt, and the
ALJ failed to explain why he omitted” that limitation.
(Pl. Br. 13). Plaintiff argues that although the ALJ failed
to explain three differences between the doctor's
opinions and the RFC assessed, the failure was harmless as to
two of the differences but not as to the ability to adapt
because the ability to deal with changes in a routine work
setting is a basic work activity necessary even in unskilled
work. Id. at 15- 17. Plaintiff also points out that
her treating physician, Dr. Davis, opined that she is
markedly limited in the ability to respond appropriately to
changes in the work setting, and her treating psychologist,
Dr. Rosenak, opined that she is extremely limited in this
ability. (Pl. Br. 19).
Commissioner argues that even if an explicit adaptation
limitation is necessary in this case, the error would be
harmless because the representative jobs of which the ALJ
found Plaintiff is capable are unskilled jobs, involving only
repetitive or short-cycle work, and would not require
frequent changes in routine. (Comm'r Br. 4-6). She
asserts that “Plaintiff acknowledges that the jobs
identified at step five can ‘accommodate' alleged
problems with the RFC.” Id. at 4 (citing Pl.
Br. at 15). She argues that the ALJ's narrative
discussion was sufficient in the circumstances. Id.
Reply Brief, Plaintiff argues that she conceded harmless
error as to certain of the differences between the state
agency consultants' opinions and the RFC assessed, but
not as to the inability to adapt to frequent changes in
routine. (Reply 2). She argues that the Commissioner's
Brief relies only on her unsupported interpretation of the
job descriptions at issue and provides no support for her
assertions that unskilled, repetitive, or short-cycle work
never involves frequent changes in routine.