United States District Court, D. Kansas
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 error in the Administrative Law Judge's (ALJ)
apparent failure to consider or to discuss evidence of
ulcerative colitis, the court ORDERS that the decision shall
be REVERSED and that judgment shall be entered pursuant to
the fourth sentence of 42 U.S.C. § 405(g) REMANDING the
case for further proceedings.
filed an application for DIB on April 28, 2014. (R. 189-95).
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 erroneously evaluated her degenerative disc disease
pursuant to Listing 1.04, erroneously evaluated her symptoms
and functional limitations, failed to consider all her
medically determinable impairments and the combined effects
of her impairments, and erred legally and factually in making
his vocational findings. Finally, she argues in the
alternative that remand is necessary in this case because the
ALJ was not constitutionally appointed and was without
jurisdiction to make the decision at issue.
court's review of a final decision of the Commissioner 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. §
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
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 residual functional capacity (RFC). 20 C.F.R.
§ 404.1520(e). This assessment is used at both step four
and step five of the sequential evaluation process.
Commissioner next evaluates steps four and five of the
process-determining at step four whether, considering the RFC
assessed, 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).
is necessary here because the ALJ apparently failed to
consider or to discuss Plaintiff's colitis. Therefore,
the court need not decide the other issues in this case. On
remand the case will be decided by a
constitutionally-appointed ALJ or Appeals Judge(s), and
Plaintiff may address the remaining issues to the judge who
handles her case.
claims several errors in assessing her RFC. She claims the
ALJ erred in evaluating her alleged symptoms. She argues that
he did not focus on the factors relevant to evaluate her
symptoms, but merely summarized the evidence supporting his
conclusion of non-disability and failed to closely and
affirmatively link the evidence with his findings. (Pl. Br.
16). She argues the ALJ's explanation is insufficient to
permit a meaningful review and he did not provide an
even-handed summary. Id. 16-17 (citing Brownrigg
v. Berryhill, 688 Fed.Appx. 542, 545-46 (10th Cir.
2017)). She argues that the Statement of Facts in her Brief
supplements the ALJ's summary because although “the
ALJ's summary is fairly accurate … [it]
inexplicably omits a great deal of evidence that tends to
show [Plaintiff] cannot do the things the ALJ found she is
capable of doing eight hours per day, five days per week on a
sustained basis.” Id. at 17. She argues the
ALJ merely assessed her character for truthfulness contrary
to Soc. Sec. Ruling (SSR) 16-3p. Id. She
argues that “the ALJ did not explain how he determined
[Plaintiff] failed to prove by a preponderance of the
evidence, i.e. that it was more likely than not, that she
could not sustain substantial gainful activity without
mentioning evidence tending to support her claim.
Id. at 18. In general, she argues that the ALJ did
not explain the significance of the evidence he relied upon
in his evaluation of Plaintiff's allegations of symptoms
and this failure makes meaningful review impossible.
Id. at 18-21.
also claims the ALJ failed to consider all her medically
determinable impairments and failed to consider the combined
effects of all her impairments. Id. at 22-23.
Plaintiff concludes the RFC section of her Brief by arguing
that “the ALJ committed reversible error by
mischaracterizing and downplaying the severity of some
evidence while failing to consider other probative evidence
tending to support [Plaintiff's] allegations of pain and
limited functioning.” (Pl. Br. 23).
Commissioner argues that the RFC assessed is supported by
substantial evidence. He argues that even if the court were
to find that the evidence could be interpreted differently,
the court may not substitute its judgment for that of the
ALJ. (Comm'r Br. 10) (citing Tillery v.
Schweiker, 713 F.3d 601, 603 (10th Cir. 1983)). He
argues that the court should decline to consider
Plaintiff's preponderance argument because “as the
Supreme Court recently reiterated, on judicial review, an
ALJ's factual findings shall be conclusive if supported
by substantial evidence-and the threshold for evidentiary
sufficiency under the substantial evidence standard is
‘not high.' Biestek [v, Berryhill], 139
S.Ct. [1148, ] 1153-54 [(2019)]. The Court [sic] should also
reject Plaintiff's apparent attempt to shift her burden
to the Commissioner.” Id. He argues that
Plaintiff does not challenge the ALJ's weighing of the
medical opinions and those opinions support the ALJ's RFC
assessment. Id. at 11.
Commissioner argues that the ALJ's evaluation of
limitations from Plaintiff's symptoms was sufficiently
specific to permit meaningful judicial review. Id.
at 13. He argues that although the evidence is conflicting,
it is the ALJ's duty as the trier of fact to resolve the
conflict. Id. He also argues that the ALJ
appropriately addressed and considered Plaintiff's
medically determinable impairments. Id. at 14-15. He
concludes his argument, “while Plaintiff points to
evidence she believes the ALJ should have weighed differently