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R.B. v. Saul

United States District Court, D. Kansas

June 24, 2019

R.B., [1] Plaintiff,
v.
ANDREW M. SAUL, Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          Sam A. Crow, U.S. District Senior Judge.

         This is an action reviewing the final decision of the defendant Commissioner of Social Security ("Commissioner") that denied the claimant R.B.'s Title II application for disability and disability insurance benefits protectively filed on February 10, 2016. The application alleged an onset date of May 23, 2015. The application was denied, initially and on reconsideration, and a hearing before an administrative law judge (“ALJ”) ended with a denial of benefits. The Appeals Council denied a request for review, so the ALJ's decision stands as the Commissioner's final decision. The claimant seeks to reverse and remand the decision for an award of benefits.

         STANDARD OF REVIEW

         To qualify for disability benefits, a claimant must establish that he or she was “disabled” under the Social Security Act, 42 U.S.C. § 423(a)(1)(E), during the time when the claimant had “insured status” under the Social Security program. See Potter v. Secretary of Health & Human Services, 905 F.2d 1346, 1347 (10th Cir. 1990); 20 C.F.R. §§ 404.130, 404.131. A claimant is disabled only if determined that his or her “physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. . . ." 42 U.S.C. § 423(d)(2)(A). The Commissioner is to make this severity determination by considering “the combined effect of all of the individual's impairments without regard to whether any such impairment, if considered separately, would be of such severity.” 42 U.S.C. § 423(d)(2)(B).

         The court's standard of review is set forth in 42 U.S.C. § 405(g), which provides that the Commissioner's finding "as to any fact, if supported by substantial evidence, shall be conclusive." The court also reviews ''whether the correct legal standards were applied.'' Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010) (internal quotation marks and citation omitted). ''It requires more than a scintilla, but less than a preponderance.'' Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citation omitted). “The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence.” Id. (internal quotation marks and citation omitted). The review for substantial evidence ''must be based upon the record taken as a whole'' while keeping in mind ''evidence is not substantial if it is overwhelmed by other evidence in the record.'' Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (internal quotation marks and citations omitted). In its review of ''whether the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases, . . . [the court] will not reweigh the evidence or substitute . . . [its] judgment for the Commissioner's.'' Lax, 489 F.3d at 1084 (internal quotation marks and citation omitted). Findings will not be affirmed by isolating facts and labeling them as substantial evidence, for the court must scrutinize the entire record to assess the rationality of the Commissioner's decision. Graham v. Sullivan, 794 F.Supp. 1045, 1047 (D. Kan. 1992).

         ALJ's DECISION

         The ALJ employed the following five-step sequential evaluation process (20 C.F.R. § 404.1520) for determining a disability application. (Tr. 14-16). First, it is determined whether the claimant is engaging in substantial gainful activity. Second, the ALJ decides whether the claimant has a medically determinable impairment that is “severe” or a combination of impairments which are “severe.” At step three, the ALJ decides whether the claimant's impairments or combination of impairments meet or medically equal the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ at step four determines the claimant's residual functional capacity (“RFC”) and then decides whether the claimant has the RFC to perform the requirements of his or her past relevant work. Step five of the process has the ALJ determine whether the claimant is able to do any other work considering his or her RFC, age, education and work experience. For steps one through four, the burden rests with the claimant to prove a disability that prevents performance of past relevant work, but the burden shifts to the Commissioner at step five. Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006).

         In his decision, the ALJ found for step one that the “claimant has not engaged in substantial gainful activity since the alleged onset date of May 23, 2015.” (Tr. 17). For step two, the ALJ found that the claimant has the severe impairment of Lyme disease but that her hypertension was controlled with medication and her mental impairments of depression and anxiety caused only “minimal limitations.” Id. At step three, the ALJ found that the “claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments.” (Tr. 18). The ALJ determined a step four that the claimant had the RFC “to perform light work . . . except the claimant could not climb laddres, ropes, or scaffolds, ” and to balance occasionally, but was to “avoid all hazards including use of moving machinery and exposure to unprotected heights.” (Tr. 18). The ALJ's step four conclusion was that the “claimant is capable of performing past relevant work as an elementary teacher.” (Tr. 23). Consequently, the ALJ found that the plaintiff was not disabled.

         ARGUMENTS

         Finding of Severe Impairments at Step Two

         The claimant's first argues the ALJ erred at step two in failing to find her vertigo, nausea, fatigue, hypertension, depression and anxiety were severe impairments. The ALJ found the claimant's only severe impairment to be Lyme disease and found the alleged impairments of hypertension, depression and anxiety to be non-severe. The ALJ did not discuss vertigo, nausea, and fatigue as separate impairments but addressed them as symptoms of the Lyme disease. The ALJ noted claimant's testimony over the symptoms of “dizziness, difficulty focusing and concentrating” as well as “fatigue” as a side effect from medication. (Tr. 19). The court fails to see any error in the ALJ's handling of the vertigo, nausea and fatigue as symptoms of the Lyme disease or side effects of the medication. The ALJ made findings about the same considering not only the claimant's testimony but also the medical evidence. There is nothing in the ALJ's decision to indicate he subsumed these symptoms within the disease and overlooked considering them. More importantly, the ALJ did find a severe impairment in the Lyme disease which moves the disability determination past step two:

Mr. Allman's step-two argument fails as a matter of law. An impairment is “severe” if it “significantly limits [a claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). A claimant must make only a de minimis showing to advance beyond step two. Langley v. Barnhart, 373 F.3d 1116, 1123 (10th Cir.2004). To that end, a claimant need only establish, and an ALJ need only find, one severe impairment. See Oldham v. Astrue, 509 F.3d 1254, 1256- 57 (10th Cir.2007) (noting that, for step two, the ALJ explicitly found that the claimant “suffered from severe impairments, ” which “was all the ALJ was required to do”). The reason is grounded in the Commissioner's regulation describing step two, which states: “If you do not have a severe medically determinable physical or mental impairment ... or a combination of impairments that is severe ..., we will find that you are not disabled.” 20 C.F.R. § 404.1520(a)(4)(ii) (emphasis added). By its plain terms, the regulation requires a claimant to show only “a severe” impairment-that is, one severe impairment-to avoid a denial of benefits at step two. Id. (emphasis added). As long as the ALJ finds one severe impairment, the ALJ may not deny benefits at step two but must proceed to the next step. Thus, the failure to find a particular impairment severe at step two is not reversible error when the ALJ finds that at least one other impairment is severe.

Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016). Consequently, the court finds no reversible error with the step two findings.

         Weight Given to Treating ...


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