United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. BROOMES, UNITED STATES DISTRICT JUDGE
filed this action for review of a final decision of the
Commissioner of Social Security terminating Plaintiff's
social security disability benefits under section 223 of the
Social Security Act, 42 U.S.C. § 423. The matter is
fully briefed by the parties and the court is prepared to
rule. (Docs. 9, 12.) The Commissioner's decision is
REVERSED AND REMANDED for the reasons set forth herein.
Standard of Review
court's standard of review is set forth in 42 U.S.C.
§ 405(g), which provides that “the findings of the
Commissioner as to any fact, if supported by substantial
evidence, shall be conclusive.” The Commissioner's
decision will be reviewed to determine only whether the
decision was supported by substantial evidence and whether
the Commissioner applied the correct legal standards.
Hayden v. Barnhart, 374 F.3d 986, 988 (10th Cir.
2004) (terminating benefits) (citing Glenn v.
Shalala, 21 F.3d 983, 984 (10th Cir. 1994)). Substantial
evidence requires more than a scintilla, but less than a
preponderance, and is satisfied by such evidence as a
reasonable mind might accept as adequate to support the
conclusion. Richardson v. Perales, 402 U.S. 389, 401
the court is not to reweigh the evidence, the findings of the
Commissioner will not be mechanically accepted. Nor will the
findings be affirmed by isolating facts and labeling them
substantial evidence, as the court must scrutinize the entire
record in determining whether the Commissioner's
conclusions are rational. Graham v. Sullivan, 794
F.Supp. 1045, 1047 (D. Kan. 1992). The court should examine
the record as a whole, including whatever fairly detracts
from the weight of the Commissioner's decision and, on
that basis, determine if the substantiality of the evidence
test has been met. Glenn, 21 F.3d at 984.
case involves a termination of benefits, an eight-step
sequential process is used by the Commissioner. Hayden v.
Barnhart, 374 F.3d 986, 988 (10th Cir. 2004); 20 C.F.R.
§ 404.1594(f)(1-8). If a determination is made that a
recipient is unable to engage in substantial gainful activity
at any step in the process, evaluation under a subsequent
step is not necessary. 20 C.F.R. § 404.1594(f). At step
one, the Commissioner determines whether the recipient is
engaged in substantial gainful activity. Id. §
404.1594(f)(1). If not, the Commissioner then considers at
step two whether the recipient has a medically severe
impairment or combination of impairments. Id. §
404.1594(f)(2). If any current impairment(s) meets or equals
a listed impairment, his disability is conclusively presumed
to continue. Id. At step three, the Commissioner
determines if the impairment(s) present at the most recent
favorable decision has undergone medical improvement.
Id. § 404.1594(f)(3) & (b)(1). In
evaluating medical improvement, the ALJ compares “the
current medical severity of that impairment(s) which was
present at the time of the most recent favorable medical
decision . . . to the medical severity of that impairment(s)
at that time.” Id. § 404.1594(b)(7). If
medical improvement is found in step three, step four
requires a determination regarding whether the
recipient's medical improvement is related to his ability
to work. Id. § 404.1594(f)(4). At step five, if
there is no medical improvement or if the medical improvement
is not related to the ability to work, the Commissioner
considers a number of exceptions. If none of the exceptions
apply, the disability is found to continue.
six, if medical improvement is found, the Commissioner will
determine whether the current impairments in combination are
severe. Id. § 404.1594(f)(6). If the current
impairments in combination are severe, the RFC will be
assessed at step seven based on all the current impairments,
and the Commissioner will consider whether the recipient can
still do work he has done in the past. Id. §
404.1594(f)(7). If so, the disability benefits will be
terminated. Id. If not, at step eight, the
Commissioner will determine whether he can perform other work
existing in the economy given Plaintiff's RFC.
Id. § 404.1594(f)(8). If he can, the disability
benefits will be terminated. Id. In a termination
case, the burden is on the Commissioner to show both (1)
medical improvement related to Plaintiff's ability to
work, and (2) that Plaintiff is currently able to engage in
substantial gainful activity. Patton v. Massanari,
20 Fed.Appx. 788, 789 (10th Cir. 2001) (citing
Glenn, 21 F.3d at 987; 20 C.F.R. 404.1594(a)).
Background and Procedural History
2001, Plaintiff was found disabled, as of June 28, 2000,
because of fractures of his arms requiring ongoing medical
management. A continuing disability review on August 30,
2003, found that Plaintiff's disability was continuing.
Another disability review occurred on May 19, 2008, and found
that Plaintiff's condition had medically improved
beginning May 15, 2008. Plaintiff's period of disability
was terminated effective July 31, 2008. Plaintiff sought
judicial review after exhausting his administrative remedies.
On October 24, 2013, Judge Lungstrum reversed and remanded
the decision of the Commissioner because of his failure to
evaluate the medical opinion of Dr. Majure-Lees. (R. at
490-500.) On June 2, 2015, administrative law judge (ALJ)
George M. Bock issued his decision finding that Plaintiff was
not disabled as of May 1, 2008. (R. at 469-476.) Plaintiff
again exhausted his administrative remedies and appealed to
the district court. On February 10, 2017, Judge Crow reversed
and remanded the decision of the Commissioner because of his
failure to evaluate the medical opinion of Dr. Brooks. (R. at
October 17, 2017, a hearing was held before ALJ Robert
Burbank. After reviewing the record, the AJL determined that
Plaintiff's disability ended as of May 15, 2008. (R. at
935-952.) The ALJ determined that Plaintiff had the following
severe impairments as of May 15, 2008: previous fracture with
malunion of the left upper extremity, alcohol abuse, major
depressive disorder, dysthymia, anxiety disorder, history of
traumatic brain injury, diabetes mellitus, epicondylitis and
tendinitis of the right wrist and elbow. (R. at 937.) The ALJ
determined that the impairments did not meet or equal a
listed impairment. (R. at 939.) The ALJ found that medical
improvement occurred as of May 15, 2008, and that the medical
improvement was related to the ability to work. The ALJ
determined that Plaintiff has had the RFC to perform light
work with the following limitations: lift and carry 20 pounds
occasionally and 10 pounds frequently; he could stand or walk
a total of 6 hours in an 8-hour workday and sit up to 6 hours
in an 8-hour workday; he could not climb ladders, ropes, or
scaffolds; he could not crawl and should avoid work in
hazardous conditions; he could use the non-dominant left arm
and hand for assist only; and he has been limited to jobs
that involve understanding, remembering, and carrying out
simple instructions and performing routine, repetitive tasks.
(R. at 941.)
further found that Plaintiff has not been able to perform
past relevant work as of May 15, 2008. However, the ALJ
ultimately found that Plaintiff was able to perform a
significant number of jobs in the national economy as of May
15, 2008, considering Plaintiff's RFC. (R. at 951-52.)
Plaintiff exhausted his administrative review of the
decision. Plaintiff appealed the decision to this court and
raises several arguments. They will be addressed in turn.
RFC Physical Determination
raises several arguments asserting that the ALJ's
physical RFC determination is not ...