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Flanery v. Saul

United States District Court, D. Kansas

December 3, 2019

ROBERT FLANERY, Plaintiff,
v.
ANDREW M. SAUL,[1] Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE

         Robert Flanery appeals the final decision of the Commissioner of Social Security to deny disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act (“SSA”), 42 U.S.C. §§ 401-434. For reasons stated below, the Court reverses the Commissioner's decision and remands for further proceedings.

         Factual and Procedural Background

         On July 20, 2015, plaintiff applied for disability insurance benefits and supplemental security income, alleging disability beginning June 10, 2013. Transcript of Admin. Rec. (“Tr.”) (Doc. #10) filed July 15, 2019 at 24. According to plaintiff, he experienced significant pain in his neck and back, which caused a number of other symptoms, including migraine headaches and weakness in other areas of the body. Id. at 30-31. The Commissioner denied plaintiff's claims on January 14, 2016, and again on March 11, 2016 upon reconsideration. Id. at 24.

         On May 4, 2016, plaintiff filed a written request for hearing. Id. On September 13, 2017, plaintiff appeared with his attorney and a vocational expert at a hearing before Administrative Law Judge Michael D. Shilling. Id. Plaintiff testified that, among other symptoms, he suffered from severe neck pain. Id. at 273. This neck pain caused migraines two times a week and a pain that radiated down his right shoulder, through his arm and elbow and down into his fingertips. Id. at 275. Plaintiff reported that this affected his ability to grip, and that sitting at a desk or table and reading worsened the pain. Id. at 276-277. In addition to his testimony, plaintiff provided medical evidence of neck abnormalities that were causing the pain. This evidence included a cervical spine MRI from July 7, 2017 that showed severe facet osteoarthritis and stenosis between C3 and C5, and a CT scan from August 8, 2017 that revealed severe hypertrophic changes and narrowing at ¶ 3-4 and moderate facet degeneration and foramina compromise at ¶ 4-5. Id. at 849, 991.

         On February 27, 2018, the ALJ decided that plaintiff was not disabled within the meaning of the SSA. Id. at 24-36. Specifically, the ALJ found that plaintiff's residual functional capacity (“RFC”) included (1) performing sedentary work as defined in 20 CFR § 404.1567(a) and § 416.967(a), (2) lifting and carrying 20 pounds occasionally and 10 pounds frequently, (3) walking or standing two hours out of an eight hour work day (plaintiff must sit six hours out of an eight hour work day), (4) occasionally climbing stairs, but never climbing ropes, scaffolds or ladders, (5) occasionally stooping, crouching, kneeling or crawling, (6) occasionally reaching overhead with his right upper extremity, (7) avoiding unprotected heights and hazardous moving machinery and (8) “[s]econdary to reported chronic pain, and potential side effects of medications, [plaintiff] is limited to simple work.” Id. at 36. Using this RFC, the ALJ found that plaintiff could not perform his prior work, but could perform other work in the economy, and therefore was not disabled under the SSA. Id.

         The Appeals Council denied plaintiff's request for review. Id. at 1-6. Therefore, the ALJ decision stands as the final decision of the Commissioner. Plaintiff appealed the decision to this Court.

         Standard of Review

         Under 42 U.S.C. § 405(g), the Court determines whether substantial evidence supports the Commissioner's decision. See Biestek v. Berryhill, 139 S.Ct. 1148, 1153 (2019). Under the substantial evidence standard, the Court looks to an existing administrative record and asks whether it contains sufficient evidence to support the agency's factual determinations. Id. at 1154. As the Supreme Court recently explained, this “threshold for such evidentiary sufficiency is not high.” Id. Substantial evidence is “more than a mere scintilla, ” which means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

         Analysis

         Plaintiff asserts that substantial evidence does not support the ALJ decision that he is not disabled. Under the SSA, plaintiff is disabled if he has a severe physical or mental impairment which prevents him from engaging in any substantial gainful activity, and which is expected to result in death or to last for a continuous period of at least 12 months. See 42 U.S.C. § 423(d)(1)(A). To determine whether plaintiff satisfies this standard, the Commissioner uses a five-step sequential process. 20 C.F.R § 404.1520; Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010). In the first three steps, the Commissioner determines whether (1) plaintiff has engaged in substantial gainful activity since the alleged onset, (2) plaintiff has a severe impairment or combination of impairments and (3) the severity of any impairment is equivalent to one of the listed impairments that are so severe as to preclude substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i)-(iii); see Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988). If plaintiff satisfies all three steps, he is disabled under the SSA.

         If plaintiff satisfies steps one and two but not three, the analysis proceeds to step four. At step four, the Commissioner determines whether plaintiff's impairments prevent him from doing work that he performed in the past. 20 C.F.R. § 404.1520(f). To make this determination, the Commissioner must make specific factual findings regarding plaintiff's abilities, including his RFC.[2] See Winfrey v. Chater, 92 F.3d 1017, 1023-25 (10th Cir. 1996). An RFC consists of those activities that plaintiff can still perform on a regular and continuing basis despite physical limitations. Stewart v. Colvin, No. 14-1027-EFM, 2014 WL 5410240, at *6 (D. Kan. Oct. 22, 2014). If plaintiff satisfies step four by showing that he is incapable of performing past relevant work, the Commissioner proceeds to step five. Under this final step, the Commissioner again uses plaintiff's RFC, along with other factors such as age, education and work experience, to determine whether plaintiff can perform other work in the economy. Williams, 844 F.2d at 751. If plaintiff is able to do so, he is not disabled under the SSA.

         Here, the ALJ determined under step five that plaintiff was not disabled under the SSA because he could perform other work in the economy. To make this determination, the ALJ considered, among other factors, plaintiff's RFC. As explained above, the ALJ found that plaintiff's RFC included (1) performing sedentary work as defined in 20 § CFR 404.1567(a) and § 416.967(a), (2) lifting and carrying 20 pounds occasionally and 10 pounds frequently, (3)

         walking or standing two hours out of an eight hour work day (plaintiff must sit six hours out of an eight hour work day), (4) occasionally climbing stairs, but never climbing ropes, scaffolds or ladders, (5) occasionally stooping, crouching, kneeling or crawling, (6) occasionally reaching overhead with his right upper extremity, (7) avoiding unprotected heights and hazardous moving machinery and (8) “[s]econdary to ...


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