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John D. v.Berryhill

United States District Court, D. Kansas

March 27, 2019

JOHN D., [1] Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          JOHN W. LUNGSTRUM, UNITED STATES DISTRICT JUDGE

         Plaintiff 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 this decision.

         I. Background

         Plaintiff 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.

         The 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. 1988).

         The 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. 1989).

         The 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.

         The 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).

         The court finds error as suggested in Plaintiff's Brief.

         II.Discussion

         Both 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).

         Because 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 properly.

         In his 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 ...

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