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). Finding
error in the Administrative Law Judge's (ALJ)
determination to afford substantial weight to the state
agency psychological consultant's opinion but failure to
include all limitations from that opinion in the residual
functional capacity (RFC) assessed or to explain his reasons
for not doing so, the court ORDERS that judgment shall be
entered pursuant to the fourth sentence of 42 U.S.C. §
405(g) REVERSING the Commissioner's final decision and
REMANDING this case for further proceedings consistent with
argues that the ALJ failed to properly evaluate his mental
impairments. He points out that the ALJ accorded substantial
weight to the opinion of the state agency psychological
consultant, Dr. Cohen, and that Dr. Cohen opined that
Plaintiff “[m]ay require extra training to master
changes in work procedures. Needs help setting appropriate
workplace goals.” (Pl. Br. 8) (quoting R. 103-04). He
claims this is error because the ALJ failed to include these
limitations in the RFC assessed or to explain why he did not
do so. Id. at 9. The court agrees.
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, 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
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, he
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 finds error as suggested in Plaintiff's Brief.
parties agree that the ALJ erred in evaluating Dr.
Cohen's opinion, and the Commissioner admits that
“Plaintiff is correct that the ALJ gave substantial
weight to Dr. Cohen's conclusions about Plaintiff's
mental limitations, yet did not explicitly incorporate two of
those limitations into the RFC finding (or the hypothetical
question posed to the vocational expert).” (Comm'r
Br. 5). She argues, however that the error had no meaningful
impact on the outcome of the agency's decision and is not
grounds for reversal. This is so, in the Commissioner's
view, for four reasons. First, because Dr. Cohen's
opinion regarding the need for additional training on changes
in work procedures is speculative and is “not a
definite requirement for such assistance across all work
settings, but rather an indefinite statement about a possible
need.” (Comm'r Br. 7). Second, even if Dr. Cohen
believed the limitations were essential, the representative
jobs relied upon by the ALJ are unskilled and by definition
unskilled jobs such as these are “the type of simple
work in which one would expect employees to receive specific
instruction about both work procedures and work goals.”
Id. at 8. Third, in the past Plaintiff performed
semi-skilled work which is more mentally demanding, he lost
that job because of physical, not mental health issues, and
“it follows that the lesser demands from unskilled jobs
would not be mentally problematic in the manner Plaintiff
suggests.” Id. Finally, the Commissioner
argues that Plaintiff had the opportunity at the disability
hearing to question the vocational expert (VE) regarding the
import of Dr. Cohen's opinion and he opted not to do so.
Id. at 9. Plaintiff argues that the
Commissioner's arguments constitute merely post hoc
rationalization of the ALJ's decision which is not
permitted. (Reply 3).
the parties agree the ALJ erred, the question the court must
answer is whether the error was harmless. The court cannot
find with any degree of confidence that the error was
harmless, and for that reason remand is necessary for the
Commissioner to consider Dr. Cohen's limitations
opening statement at the disability hearing, Plaintiff's
attorney argued that there is a question whether
Plaintiff's condition meets Listing 12.05C for
intellectual disability. (R. 40). He argued:
the reason I say that is because he was actually approved for
disability when he was in his 20s under 12.05C, which allowed
him to get the work he had with Futures Unlimited, which was
in a sheltered workshop environment. After working there in a
sheltered workshop environment for a while, they transitioned
him to a more formal position, which is the one that he had
that ended here recently. So that's why he was
transitioned off of disability. There is a CE [(consultative
examination)] in the file. Dr. Mintz [PHONETIC] noted that he
functions in the intellectual disability range. I mean,
he's in his 50s now, so I assume we can't find the
prior application and see what IQ testing was in there. So I
would ask that we at least get some IQ testing ...