United States District Court, D. Kansas
MEMORANDUM AND ORDER
Crow, U.S. District Senior Judge.
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.
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.
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).
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).
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
of Severe Impairments at Step Two
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
Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir.
2016). Consequently, the court finds no reversible error with
the step two findings.
Given to Treating ...