United States District Court, D. Kansas
MADELINE F. P.,  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 no error in the
Administrative Law Judge's (ALJ) decision, the court
ORDERS that judgment shall be entered pursuant to the fourth
sentence of 42 U.S.C. § 405(g) AFFIRMING the
Commissioner's final decision.
argues that the ALJ erred in failing to find that
Plaintiff's condition met the requirements of Listing
1.02 and Listing 3.02(A); in finding that Plaintiff's
mental impairments are not severe and not including mental
functional limitations in the residual functional capacity
(RFC) assessed; and in weighing the medical opinion evidence.
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
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,
she 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). The court considers the issues in the order
presented in Plaintiff's Brief.
argues that the ALJ erred in failing to find that
Plaintiff's condition meets the requirements of Listing
1.02 and Listing 3.02(A). (Pl. Br. 11, 13).
Step Three Standard
Commissioner has provided a “Listing of
Impairments” which describes certain impairments that
she considers disabling. 20 C.F.R. § 404.1525(a);
see also, Pt. 404, Subpt. P, App. 1 (Listing of
Impairments). If a claimant's condition meets or equals
the severity of a listed impairment, that impairment is
conclusively presumed disabling. Williams, 844 F.2d
at 751; see Bowen v. Yuckert, 482 U.S. 137, 141
(1987) (if a claimant's impairment “meets or equals
one of the listed impairments, the claimant is conclusively
presumed to be disabled”). However, Plaintiff
“has the burden at step three of demonstrating, through
medical evidence, that h[er] impairments ‘meet
all of the specified medical criteria' contained
in a particular listing.” Riddle v. Halter,
No. 00-7043, 2001 WL 282344 at *1 (10th Cir. Mar. 22, 2001)
(quoting Sullivan v. Zebley, 493 U.S. 521, 530
(1990) (emphasis in Zebley)). “An impairment
that manifests only some of [the listing] criteria, no matter
how severely, does not qualify” to meet or equal the
listing. Zebley, 493 U.S. at 530.
[Commissioner] explicitly has set the medical criteria
defining the listed impairments at a higher level of severity
than the statutory standard. The listings define impairments
that would prevent an adult, regardless of his age,
education, or work experience, from performing any
gainful activity, not just ‘substantial gainful
activity.'” Zebley, 493 U.S. at 532-33
(emphasis in original) (citing 20 C.F.R.' 416.925(a)
(1989)). The listings “streamlin[e] the decision
process by identifying those claimants whose medical
impairments are so severe that it is likely they would be
found disabled regardless of their vocational
background.” Yuckert, 482 U.S. at 153.
“Because the Listings, if met, operate to cut off
further detailed inquiry, they should not be read
expansively.” Caviness v. Apfel, 4 F.Supp.2d
813, 818 (S.D. Ind. 1998).
argues, “In the present case, the instability, chronic
pain, limited range of motion and joint space narrowing of
[Plaintiff's] right ankle meets [sic] the requirements of
listing § 1.02, ” id. at 11, and the
ALJ's rationale that “the evidence does not
demonstrate that [Plaintiff's] impairments demonstrated
in ability [sic] to ambulate effectively … is not
supported by the substantial evidence of record.”
Id. at 12. The Commissioner argues that even if one
assumes that Plaintiff's condition meets the other
requirements of Listing 1.02, the ALJ reasonably and
correctly found that “she did not have the required
‘inability to ambulate effectively.'”
(Comm'r Br. 8) (quoting, without direct citation, 20
C.F.R. Pt. 404, Subpt. P, App. 1 § 1.02). In her Reply
Brief, Plaintiff notes that the Commissioner spent two pages
of her Brief “explaining how [Plaintiff] failed to show
she was incapable of ambulating effectively, compared to the
ALJ's analysis that consisted of a single sentence,
” and argues, “ The Commissioner's line of
reasoning was never advanced by the ALJ; therefore, it is
improper for the Commissioner to attempt to now insert
reasoning and rationale where none existed.” (Reply
1-2) (citing SEC v. Chenery Corp., 318 U.S. 80,
parties agree that the Listing is met if Plaintiff's
impairment(s) result in the “inability to ambulate
effectively.” 20 C.F.R., Pt. 404, Subpt. P, App.
1,' 1.02. “Inability to ambulate effectively means
an extreme limitation of the ability to walk.”
20 C.F.R., Pt. 404, Subpt. P, App. 1,' 1.00(B)(2)(b)(1)
(emphasis added). “To ambulate effectively, individuals
must be capable of sustaining a reasonable walking pace over
a sufficient distance to be able to carry out activities of
daily living.” Id. at § 1.00(B)(2)(b)(2).
Plaintiff does not directly argue that her condition results
in the inability to ambulate effectively (although she does
imply it). Rather, she argues that since the ALJ did not cite
the specific evidence cited in the Commissioner's Brief,
the Commissioner is prohibited from using that argument.
argument, misunderstands the court's holding in
Chenery Corp. In Chenery, ...