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Lou P. v. Saul

United States District Court, D. Kansas

December 11, 2019

MARY LOU P.,[1] Plaintiff,
ANDREW M. SAUL,[2] Commissioner of Social Security, Defendant.



         Plaintiff 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.

         I. Background

         Plaintiff 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.

         The 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).

         The 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).

         The 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. Id.

         The 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).

         Remand 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.

         II. RFC Assessment

         Plaintiff 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.

         Plaintiff 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).

         The 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.

         The 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 in ...

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