United States District Court, D. Kansas
DENNIS R. M., Plaintiff,
ANDREW M. SAUL, Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
W. Lungstrum United States District Judge.
seeks review of a decision of the Commissioner of Social
Security denying Disability Insurance Benefits (DIB) pursuant
to sections 216(i) and 223 of the Social Security Act, 42
U.S.C. §§ 416(i) and 423 (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 decision.
exhausting administrative remedies before the Social Security
Administration (SSA), Plaintiff filed this case pursuant to
42 U.S.C. § 405(g) seeking judicial review of the
Commissioner’s decision denying his application for
DIB. Plaintiff argues that the ALJ erred at step two in
finding that the pain in his neck and the pain and limited
range of motion in his right shoulder are not severe
impairments, and in failing to include in the residual
functional capacity (RFC) the ALJ assessed limitations
relating to Plaintiff’s “cervical pain or
symptoms caused by degeneration, radiculopathy, lack of sleep
and resulting fatigue, or how each of these symptoms affect
his ability to sustain full-time, competitive
employment.” (Pl. Br. 13).
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”
refers to the weight of the evidence. It requires more than a
scintilla, but 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. 1988).
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. 1989).
Commissioner uses the familiar five-step sequential process
to evaluate a claim for disability. 20 C.F.R. §
404.1520; 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
he has a severe impairment(s), and whether the severity of
his 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. § 404.1520(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 his past relevant work; and at
step five whether, when also considering the vocational
factors of age, education, and work experience, he 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 previously assessed. Id.; Haddock v.
Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999). This case
was decided at step four of the process, and the burden
remained always on the Plaintiff.
claims the ALJ erred in failing to find his right shoulder
problems and his cervical spine problems were severe
impairments. He argues this is so because in the Veterans
Affairs (VA) medical records Dr. Malis noted that Plaintiff
had a “supraspinatus tendon tear in [his] right
shoulder upon review of MRI, and  multilevel spondylosis
and degenerative joint disease based on imaging taken of
[Plaintiff]’s cervical spine in 2012.” (Pl. Br.
10). He also argues that the records show he was treated for
“ongoing shoulder pain, ” the “pain was not
being effectively managed, ” and the “pain
moderately interfered with his enjoyment of life or general
level of activity, and that his pain is exacerbated by
lifting, bending, sitting and standing for prolonged periods,
standing from a sitting position, walking and turning and
twisting ‘wrong.’” Id. (citing R.
331-33, 336). Finally, Plaintiff argues the ALJ erred in
failing to consider the combined effect of all of
Commissioner argues that the ALJ properly found
Plaintiff’s neck and shoulder pain were not medically
determinable impairments because they were not diagnosed or
treated by Plaintiff’s doctors. (Comm’r Br. 4).
In the Commissioner’s view, this is correct because the
VA medical records merely included these alleged impairments
at each of the office visits, Plaintiff actually complained
of shoulder pain to his doctors only once and never
specifically sought treatment for his alleged neck pain.
Id. Finally, he argues that “the underlying
imaging noted in these treatment notes is not contained in
the record, and the treatment notes do not otherwise indicate
that Plaintiff was actually complaining of pain in his neck
and right shoulder at those visits.” Id. at 5.
Reply Brief Plaintiff argues that “the ALJ found that
[Plaintiff]’s neck pain and right shoulder pain were
not severe impairments because ‘neither of these
conditions were diagnosed and therefore are not medically
determinable impairments.’” (Reply 2) (quoting R.
13). He argues that “because the ALJ found the
conditions were non-severe, they were not considered.”
Id. He argues that the medical records show his
shoulder pain results from a tear documented by an MRI and
his cervical spine pain results from multilevel spondylosis,
findings which are sufficient to demonstrate severe
impairments, “and are clearly ‘medically
determinable impairments.’” (Reply 2).
Step Two Standard
two of the sequential evaluation process, the Commissioner
considers the medical severity of a claimant’s
impairment or combination of impairments. 20 C.F.R. §
404.1520(a)(4)(ii). However, the Commissioner only determines
whether a claimant’s impairment(s) is severe
after he establishes that the claimant has one or
more medically determinable impairments “established by
objective medical evidence from an acceptable medical source,
” and the Commissioner “will not use [the
claimant’s] statement of symptoms, a diagnosis, or a
medical opinion to establish the existence of an
impairment(s).” Id. § 401.1521. When
assessing RFC the agency “will consider all of [a
claimant’s] medically ...