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 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
claims the ALJ erroneously failed to consider her medically
determinable impairments of carpal tunnel syndrome,
peripheral neuropathy, and back pain; erred in weighing the
medical opinions; erred in assessing Plaintiff's residual
functional capacity (RFC); and erred in finding that
Plaintiff can perform other work.
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 considers the issues as presented in Plaintiff's
Medically Determinable Impairments
claims the ALJ did not consider her medically determinable
impairments; of carpal tunnel syndrome which was diagnosed by
an EMG (electromyogram) study (Pl. Brief 14),  of peripheral
neuropathy which was diagnosed on November 3, 2015 by an
Advanced Practice Registered Nurse (APRN) performing a
monofilament test, and of back pain medically determined by
an imaging study performed on November 3, 2016. Id.
at 15. The Commissioner argues that the ALJ's failure to
find these impairments severe was a reasonable interpretation
of the record evidence. (Comm'r Br. 8). She argues that
none of Plaintiff's treating providers assessed Plaintiff
with carpal tunnel syndrome during the adjudicated period,
id. at 9, that during the relevant period Plaintiff
did not complain to her treating providers of neuropathy
symptoms and that an APRN is not an acceptable medical source
qualified to diagnose a medically determinable impairment.
Id. at 10. Finally, she points out that back pain is
a symptom, not an impairment, that the ALJ found that
Plaintiff has the severe impairment of inflammatory arthritis
and she suggests that such an impairment is capable of
producing back pain. (Comm'r Br. 11).
Reply Brief, Plaintiff responds that she consistently
reported symptoms of carpal tunnel syndrome and neuropathy
and reported these diagnoses to her new providers when she
changed providers. (Reply 1). She reiterates her arguments
regarding diagnosis with each of these impairments and argues
that she is not required to expend her limited resources on
confirmatory diagnoses, but that it is the ALJ's duty to
further develop an inadequate or insufficient record, and if
additional testing was necessary he should have ordered it.
Id. at 2-6.
Step Two Standard
impairment is not considered severe if it does not
significantly limit Plaintiff's ability to do basic work
activities such as walking, standing, sitting, carrying,
understanding simple instructions, responding appropriately
to usual work situations, and dealing with changes in a
routine work setting. 20 C.F.R. § 416.921. The Tenth
Circuit has interpreted the regulations and determined that
to establish a “severe” impairment or combination
of impairments at step two of the sequential evaluation
process, Plaintiff must make only a “de
minimis” showing. Hinkle v. Apfel, 132
F.3d 1349, 1352 (10th Cir. 1997). Plaintiff need only show
that an impairment would have more than a minimal effect on
her ability to do basic work activities. Williams,
844 F.2d at 751. However, she must show more than the mere
presence of a condition or ailment. Hinkle, 132 F.3d
at 1352 (citing Bowen v. Yuckert, 482 U.S. 137, 153
(1987)). If an impairment's medical severity is so slight
that it could not interfere with or have a serious impact on
plaintiff's ability to do basic work activities, it could
not prevent Plaintiff from engaging in substantial work
activity and will not be considered severe. Hinkle,
132 F.3d at 1352.
found that Plaintiff has “severe” impairments of
inflammatory arthritis, obesity, asthma, and depression. (R.
19). He found Plaintiff also has the medically determinable
impairments of Raynaud's syndrome and diabetes mellitus
which are not “severe” within the meaning of the
Act and regulations. Id. The ALJ specifically found
“no indications ...