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) and
Supplemental Security Income (SSI) benefits pursuant to
sections 216(i), 223, 1602, and 1614(a) of the Social
Security Act, 42 U.S.C. §§ 416(i), 423, 1381a, and
1382c(a) (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.
filed applications for DIB and SSI in April 2015. (R. 131,
664-75). 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 his mental residual functional
capacity (RFC) assessment by failing to include all of
Plaintiff's mental limitations in the mental RFC assessed
and by failing to evaluate the medical opinions properly.
(Pl. Br. 22-27). She argues the ALJ erred in his physical RFC
assessment in finding her alleged back pain is not a
medically determinable impairment (MDI) and by assessing
exertional level first and failing to assess RFC on a
function-by-function basis. Id. 27-29.
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. §§
404.1520, 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 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. §§ 404.1520(e),
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, 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).
Plaintiff relates each of her allegations of error to the RFC
assessment, her claim of error in finding that back pain is
not an MDI is an allegation of error at step two of the
sequential evaluation process. Therefore, the court begins
with that issue.
argues that her “back pain was, most certainly, a
medically determinable impairment, ” and points out
that Dr. Lieberman observed that she “exhibited
slowness of gait.” (Pl. Br. 27). She also asserts that
she obtained an MRI of her spine two months after the
ALJ's decision which “confirms” that she has
multilevel degenerati[ve] disc and joint disease in the lower
thoracic and lumbar spine, multilevel mild spinal canal
stenosis from T12-L1 to L4-L5 secondary to disc disease,
facet, arthrosis, and ligamentum flavum thickening. Also
noted was lumbar spine facet arthrosis resulting in minimal
to mild bilateral neural foraminal stenosis at L2-L3.
(Pl. Br. 27). She argues that the MRI was “submitted to
the Appeals Council.” Id.
Commissioner points out that the regulations require that
disability may result only from an MDI which “must
result from anatomical, physiological, or psychological
abnormalities that can be shown by medically acceptable
clinical and laboratory diagnostic techniques, ” and
“must be established by objective medical evidence from
an acceptable medical source.” 20 C.F.R. §
404.1521. The agency “will not use [a claimant's]
statement of symptoms, a diagnosis, or a medical opinion to
establish the existence of an impairment.” Id.
He argues that the ALJ found no medical evidence of a back
impairment and no acceptable medical source diagnosed a back
impairment. (Comm'r. Br. 13-14). He points out that Dr.
Lieberman diagnosed only fibromyalgia and leg pain which are
consistent with the ALJ's finding of neuropathy and
fibromyalgia and that in any case Dr. Lieberman is a
psychologist, not qualified to diagnose a physical
impairment. Id. at 14. He argues that the ALJ cannot
be faulted for not considering an MRI submitted to the
Appeals Council. Id.
Commissioner notes that when the ALJ decided this case on
November 22, 2017, the regulations required that all evidence
be provided to the ALJ (or that he be informed of the
evidence) at least five business days before the hearing,
with three exceptions. Id. (citing 20 C.F.R. §
404.935). He argues that the regulations required that if
additional evidence is submitted to the Appeals Council, the
claimant must establish that “(1) the evidence is new,
material, and relates to the period on or before the date of
the hearing decision; (2) there is a reasonable probability
that the additional evidence would change the outcome of the
decision; and (3) there is good cause for not submitting the
evidence earlier.” (Comm'r Br. 15) (citing C.F.R.
§ 404.970). He points out that the Appeals Council did
not exhibit the evidence provided to it and denied review of
the ALJ's decision and argues that the MRI constituted a
“minimally abnormal objective study” which is not
likely to change the outcome and the court should not reverse
and remand on the basis of the MRI. Id. at 16.
Reply, Plaintiff reiterates her earlier argument and argues
for the first time that the evidence is new, material, and
relates to the period on or before the date of the hearing;
that there is a reasonable probability it would change the
outcome of the decision; and there is good cause for not
submitting it earlier. (Reply 8-9). She also argues that the
Appeals Council “invited” her to submit the
additional evidence. Id. at 9 (citing R. 125-27).
Step Two Standard
impairment is not considered severe at step two if it does
not significantly limit plaintiff's ability to do basic
work activities such as walking, standing, sitting, carrying,
understanding simple instructions, responding appropriately
to usual work situations, and dealing with changes in a
routine work setting. 20 C.F.R. §§ 404.1522,
416.922. The Tenth Circuit has interpreted the regulations
and determined that to establish a “severe”
impairment or combination of impairments at step two of the
sequential evaluation process, a claimant must make only a
“de minimis” showing. Hinkle v.
Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997). She need
only show that an impairment would have more than a minimal
effect on her ability to do basic work activities.
Williams, 844 F.2d at 751. However, she must show
more than the mere presence of a condition or ailment.
Hinkle, 132 F.3d at 1352 (citing Bowen v.
Yuckert, 482 U.S. 137, 153 (1987)). If an
impairment's medical severity is so slight that it could
not interfere with or have a serious impact on a
claimant's ability to do basic work activities, it could
not prevent her from engaging in substantial work activity
and will not be considered severe. Hinkle, 132 F.3d
determination at step two is based on medical factors alone,
and not vocational factors such as age, education, or work
experience. Williamson v. Barnhart, 350 F.3d 1097,
1100 (10th Cir. 2003). A claimant must provide medical
evidence that she had an impairment and how severe it was
during the time she alleges she was disabled. 20 C.F.R.
§§ 404.1512, 416.912. Limitations attributable to
impairments which are not medically determinable
must not be considered at later steps. Gibbons
v. Barnhart, 85 Fed.Appx. 88, 91 (10th Cir. 2003)
(“the ALJ must consider only limitations and
restrictions attributable to medically determinable
impairments.”) (quotation omitted); see also,
Rutherford v. Barnhart, 399 F.3d 546, 554, n.7 (3d
Cir. 2005) (to be considered, an impairment must be medically
determinable, but need not be “severe”).
regulation explains how to establish the presence of an MDI:
Your impairment(s) must result from anatomical,
physiological, or psychological abnormalities that can be
shown by medically acceptable clinical and laboratory
diagnostic techniques. Therefore, a physical or mental
impairment must be established by objective medical evidence
from an acceptable medical source. We will not use your
statement of symptoms, a diagnosis, or a medical opinion to
establish the existence of an impairment(s).
20 C.F.R. §§ 404.1521, 416.921
The ALJ's Findings Relevant to this Issue at Step
noted that Plaintiff:
submitted or informed the Administrative Law Judge about
additional written evidence less than five business days
before the scheduled hearing date. The undersigned
Administrative Law Judge declines to admit this evidence
because the requirements of 20 CFR 404.935(b) and 416.1435(b)
are not met. Specifically, there is no evidence that the
claimant or her counsel were misled; that there was any
physical, mental, education or linguistic limitation that
prevented the claimant from submitting this evidence; that
there was a ...