United States District Court, D. Kansas
JOYCE H., o.b.o. J.A.G. Plaintiff,
ANDREW M. SAUL, Commissioner of Social Security, Defendant.
W. Lungstrum United States District Judge
MEMORANDUM AND ORDER
seeks review of a decision of the Commissioner of Social
Security denying Supplemental Security Income (SSI) benefits
to her adult daughter (of whom she is co-guardian) pursuant
to sections 1602, and 1614(a) of the Social Security Act, 42
U.S.C. §§ 1381a, and 1382c(a) (hereinafter the
Act). Finding error in the Administrative Law Judge's
(ALJ) failure to discuss the Wyandotte County District
Court's finding that J.A.G. (hereinafter JAG) is an
“adult with an impairment in need of a guardian,
” the court ORDERS that the decision of the ALJ shall
be REVERSED and that judgment shall be entered pursuant to
the fourth sentence of 42 U.S.C. § 405(g) REMANDING this
case for further proceedings consistent with this decision.
application for SSI was filed for Plaintiff's daughter
(JAG) on July 16, 2015. (R. 12). After exhausting
administrative remedies before the Social Security
Administration (SSA), Plaintiff filed this case seeking
judicial review of the Commissioner's decision pursuant
to 42 U.S.C. § 405(g). Plaintiff argues that the ALJ
erred in failing to consider the finding of the District
Court of Wyandotte County, Kansas that JAG requires a
guardian, and that the residual functional capacity (RFC)
assessed is unsupported by substantial evidence both as it
relates to mental impairments and to physical impairments.
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.
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 the 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, the 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 previously assessed.
Id.; Haddock v. Apfel, 196 F.3d 1084, 1088
(10th Cir. 1999). The ALJ found that JAG does not have past
relevant work, but that she can perform jobs that are found
in significant numbers in the national economy. (R. 19).
court finds that the ALJ's failure to consider the
Wyandotte County District Court's finding that JAG is an
adult with an impairment in need of a guardian requires
remand, and it will not provide an advisory opinion on the
remaining issues which must also be addressed on remand.
Court Appointment of a Guardian
points to the regulatory requirement that, for claims filed
before March 27, 2017, the agency must consider evidence of a
disability decision by another governmental or
nongovernmental agency. (Pl. Br. 17-18) (citing Soc. Sec.
Ruling (SSR) 06-3p; 20 C.F.R. § 416.912(b)(5); and
Morrison v. Apfel, 146 F.3d 625, 628 (8th Cir. 1998)
(citing a 1992 memorandum from the SSA Office of Hearings and
Appeals)). She points out that the ALJ here did not discuss
the “LETTERS OF AUTHORITY AS
CO-GUARDIANS” contained in the record and signed
by Judge Lynch of the District Court of Wyandotte County,
Kansas. (Pl. Br. 17) (citing R. 158). She argues that,
consequently, the ALJ erred as a matter of law. The
Commissioner argues that there are two flaws in
Plaintiff's argument: that the letter of appointment
“is not ‘a decision by another governmental
agency or non-governmental entity' that Plaintiff was
disabled” (Comm'r Br. 6) (apparently quoting
without attribution-and very loosely 20 C.F.R. § 416.904
(effective March 27, 2017)); and that SSR 06-3p was rescinded
on March 27, 2017. Id. (citing 82 Fed. Reg. 16,
869-02, 2017 WL 1245548 (Apr. 6, 2017) and 28 Fed. Reg. 15,
263-01, 2017 WL 1105348 (Mar. 27, 2017)). In her Reply Brief,
Plaintiff argues that the Commissioner's argument that
the court's finding is not a decision by another
governmental or non-governmental agency is inconsistent with
the regulations, and that although SSR 06-3p was rescinded,
the regulations requiring consideration of other agency
decisions remained in effect for claims such as JAG's
which were filed before March 2017.
Plaintiff's argument suggests, through 2016 the
regulations included decisions regarding disability by any
governmental or non-governmental agency within the meaning of
“evidence” which must be considered in making a
disability determination. 20 C.F.R. § 416.912
(2013-2016); but see, 20 C.F.R. § 416.912
(2017) (no longer including such decisions). And, as the
Commissioner suggests, throughout the entire period relevant
here, the regulations have provided that “a
determination made by another agency that you are disabled
… is not binding on us.” 20 C.F.R. §
416.904 (2013-2017). Moreover, the regulations cited above
and SSR 06-3p required that such decisions, when contained in
the record, must be considered by the Commissioner.
the Letters of Authority from the Wyandotte County District
Court are not a determination that JAG is disabled, they are
that court's appointment of Plaintiff and another
individual as co-guardians for JAG, described as “an
adult with an impairment in need of a guardian.” (R.
158). In the letters, the court made no finding that JAG is
disabled, did not make a finding about JAG's impairment,
and did not explain how the impairment necessitated a
guardian. Nevertheless, there is no indication in the
decision at issue that the ALJ was even aware that the
letters were in the record, and he did not discuss the
significance of the fact that JAG, who is an adult, had a
guardian appointed. Moreover, the court takes judicial notice
that the Kansas statutes define an adult with an impairment
in need of a guardian as “a person 18 years of age or
older, … whose ability to receive and evaluate
relevant information, or to effectively communicate
decisions, or both, even with the use of assistive
technologies or other supports, is impaired such that the
person lacks the capacity to manage such person's estate,
or to meet essential needs for physical health, safety or
welfare, and who is in need of a guardian.” Kan. Stat.
Ann. § 59-3051. While it is not clear that every
individual who meets the definition of an adult with an
impairment in need of a guardian within the meaning of the
Kansas statutes meets the definition of disability within the
meaning of the Act and regulations, SSR 06-3p requires that,
for claims filed before March 2017, the ALJ consider such
significance of the Commissioner's argument that the
Letters of Authority are “not ‘a decision by
another governmental agency or non-governmental entity'
that Plaintiff was disabled under another state or national
benefit program” is not clear. Perhaps he is arguing
that the Letters of Authority are not the state court's
order finding that JAG is an adult with an impairment in need
of a guardian. While the Letters of Authority are not
specifically the finding of the Wyandotte County District
Court that JAG is an adult with an impairment in need of a
guardian, they are record evidence that such a finding has
been made pursuant to the Kansas statutes suggesting that the
ALJ should have considered that finding. On the other hand,
perhaps the Commissioner is arguing that the state court is
not a “governmental agency or non-governmental
entity” within the meaning of the Social Security
regulations. However, the Commissioner cites no ...