United States District Court, D. Kansas
LYNESHA S. D., 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
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) evaluation of Plaintiff's mental impairments, 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.
argues that the ALJ erroneously assessed Plaintiff's
residual functional capacity (RFC) by failing to assess any
mental limitations resulting from the moderate functional
limitations he found in Plaintiff's daily activities,
social functioning, and concentration; and also failed to
consider the third-party opinion of the agency employee who
interviewed Plaintiff when filling out the Field Office
Disability Report (Ex. 1E, R. 201-03).
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 RFC. 20 C.F.R. § 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 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).
court finds reversible error in the ALJ's consideration
of Plaintiff's mental functioning, and it need not
consider whether the ALJ erred in considering the comments of
the agency's employee.
claims the ALJ erred in assessing Plaintiff's RFC because
he found Plaintiff “has moderate functional limitations
in daily activities, social functioning and concentration,
” but failed to include any of those allegedly moderate
limitations in the RFC assessed or in the hypothetical
questioning of the vocational expert (VE). (Pl. Br. 14-18
(quoting R. 23). Plaintiff acknowledges that the ALJ found
she “is limited to simple routine repetitive work with
occasional interaction with co-workers and occasional
interaction with the general-public” (R. 19) and stated
that a mental residual functional capacity assessment
requires a more detailed assessment than the step two and
three consideration of the severity of Plaintiff's mental
impairments in the four broad mental functional areas. (Pl.
Br. 15, 18). But, she argues the RFC limitations assessed--
without greater explanation--are insufficient to account for
the moderate functional limitations in daily activities,
social functioning and concentration the ALJ found.
Id. at 16-19.
Commissioner counters that “the ALJ's mental RFC
finding is supported by substantial evidence and adequately
accounts for Plaintiff's mental limitations to the extent
that they were supported by record.” (Comm'r Br.
6). She points out that the “paragraph B”
criteria used in evaluating the severity of the four broad
mental functional areas at step two and the criteria of the
Listing impairments at step three of the evaluation process
do not require associated functional limitations in the RFC
assessment. Id. at 7-8 (citing Bales v.
Colvin, 576 Fed.Appx. 792, 798 (10th Cir. 2014);
DeFalco-Miller v. Colvin, 520 Fed.Appx. 741, 747-48
(10th Cir. 2013); and Beasley v. Colvin, 520
Fed.Appx. 748, 754 n.3 (10th Cir. 2013)). She explains how,
in her view, the ALJ's assessment is supported by the
record evidence and “the ALJ in this case imposed even
more restrictive mental functional limitations than opined by
any medical source of record by limiting Plaintiff to no more
than occasional contact with coworkers and the public.”
Id. at 9.
Reply Brief, Plaintiff points out that the ALJ's finding
(that Plaintiff “has moderate functional limitations in
daily activities, social functioning and
concentration”) does not appear in the ALJ's step
two or step three analysis but in his discussion of his RFC
assessment at page 9 of the decision. (Reply 3) (citing R.
She argues this is error because these functional limitations
in daily activities, social functioning, and concentration
are not included within the RFC assessed and were not
included in the hypothetical questioning of the VE.
Commissioner is correct that the “paragraph B”
findings refer to the severity of a claimant's mental
impairments in the four broad mental functional areas used in
the Commissioner's psychiatric review technique at steps
two and three of the sequential evaluation process to
determine whether mental impairments are severe within the
meaning of the Act and regulations and whether the criteria
of a Listed impairment are met or medically equaled, and do
not directly relate to specific mental functional limitations
assessed in a claimant's RFC. Moreover, the ALJ discussed
the “paragraph B” criteria in his discussion of
whether Plaintiff's mental impairments meet or medically
equal the criteria of Listing 12.02. (R. 18). At the end of
that discussion, the ALJ noted that the degree of limitation
“identified in the ‘paragraph B' criteria are
not a residual functional capacity assessment, ”
id., but that the RFC assessment in his decision
“reflects the degree of limitation [he] found in the
‘paragraph B' mental functional analysis.”
Id. at 19. Were this the end of the ALJ's
discussion, this court would recognize the difference between