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
Supplemental Security Income (SSI) benefits pursuant to
sections 1602 and 1614(a)(3)(A) of the Social Security Act,
42 U.S.C. §§ 1381a, and 1382c(a)(3)(A) (hereinafter
the Act). Finding error in the Administrative Law Judge's
(ALJ) failure to apply the correct legal standard at step two
of the sequential evaluation process, 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 decision.
argues that the ALJ “failed to properly evaluate and
account for [Plaintiff's] conversion disorder.”
(Pl. Br. 10) (underline 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
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. § 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 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.
§ 416.920(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).
argues that the ALJ failed to evaluate properly
Plaintiff's conversion disorder. (Pl. Br. 10). She argues
that he never discussed her conversion disorder at step two
of the sequential evaluation process even though the medical
evidence establishes the presence of a medically determinable
impairment of conversion disorder in this case. Id.
at 10-11. Plaintiff discusses the record evidence suggesting
conversion disorder and argues that the ALJ should have
discussed it at step two and found it is medically
determinable in this case. Id. at 11-14. She further
argues the evidence also establishes that her conversion
disorder is severe within the meaning of the Act, and that
its effects should have been considered at the later steps of
the evaluation process. Id. at 14-16. Plaintiff
acknowledges the ALJ recognized Dr. Athey's opinion that
Plaintiff's progressive decline is the result of
conversion disorder, but accorded more weight to the
Cooperative Disability Investigations (CDI) Unit report which
revealed Plaintiff's abilities. Id. at 17.
Plaintiff argues this also is erroneous. Id. at
Commissioner argues that the ALJ “Reasonably Accounted
for Plaintiff's Mental Impairments by Limiting Her to a
Range of Unskilled Work.” (Comm'r Br. 7) (bolding
omitted). She argues that the RFC limitations assessed
“reflected a reasonable assessment of the treatment
records, medical opinions, and other evidence, and were
consistent with the opinions of two state agency
psychologists.” (Comm'r Br. 7). She argues that
“Plaintiff overstates the evidence” when she
attempts to show conversion disorder as a medically
determinable impairment, although she acknowledges that Dr.
Athley “did conclude that Plaintiff's functioning
was consistent with a conversion disorder.”
Id. at 8. She argues that “at most, only one
psychologist … diagnosed [Plaintiff] with a conversion
disorder, ” and that the state agency psychologist, Dr.
Fantz, had the benefit of almost the entire record
including the CDI report, and concluded “that
Plaintiff's history and symptoms were not consistent with
a conversion disorder.” Id. at 8-9 (quoting R.
105). She argues that the ALJ summarized all of the evidence
relevant to the issue of conversion disorder, accorded little
weight to Dr. Athey's opinion and significant weight to
Dr. Fantz's opinion, gave good reasons for doing so, and
accordingly “had a reasonable basis for his step two
finding.” Id. at 9. She argues, “Because
the ALJ found that Plaintiff had severe impairments at step
two and thus continued with the sequential evaluation
process, any such step two error was harmless so long as the
functional limitations supported by the record were properly
accounted for in the RFC finding.” Id. (citing
20 C.F.R. § 416.945(a)(2), and Ray v. Colvin,
657 Fed.Appx. 733, 734 (10th Cir. 2016)). The Commissioner
argues, “Because the ALJ considered the relevant
evidence, weighed the medical opinions, and reached a
reasoned decision supported by the evidence, his conclusions
should not be disturbed on appeal.” Id. at 11.
Reply Brief, Plaintiff reiterates her argument that the ALJ
failed to find a medically determinable impairment of
conversion disorder, and argues that the Commissioner's
argument regarding harmless error at step two “would be
appropriate had the ALJ found [Plaintiff]'s conversion
disorder to be medically determinable, but not severe,
” but because he found it not medically determinable he
was prohibited from considering any limitations resulting
from it in assessing Plaintiff's RFC. (Reply 4) (citing
Ireland v. Colvin, 14-1012-JWL, 2014 WL 7185008, at
*6 (D. Kan. Dec. 16, 2014) (“Limitations attributed to
impairments which are medically determinable but are not
severe must be considered at later steps in the
evaluation, but limitations attributable to impairments which
are not medically determinable must not be
considered.”) (emphases in original)).
The ALJ's Findings Regarding Conversion
Plaintiff points out, the ALJ did not mention conversion
disorder in his step two discussion. He found that Plaintiff
has severe impairments consisting of a “history of head
trauma; headaches; diabetes mellitus type 2; asthma by
history; history of cervicalgia; post-concussion syndrome;
affective disorder[, ] and anxiety disorder.” (R. 15)
(bolding omitted). He also noted the record referred to a
past diagnosis of fibromyalgia and to degenerative changes to
Plaintiff's cervical and lumbar spine, id., but
found “that the impairments of fibromyalgia, [and]
degenerative changes of cervical and lumbar spine do not meet