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Anne D. v. Saul

United States District Court, D. Kansas

December 31, 2019

FRANCIS ANNE D.,[1] Plaintiff,
v.
ANDREW M. SAUL,[2] Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          John W. Lungstrum United States District Judge

         Plaintiff 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.

         I. Background

         Plaintiff 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.

         The 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).

         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, 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.

         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).

         Although 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.

         II. Step Two

         Plaintiff 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.

         The 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.

         The 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.

         In her 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).

         A. Step Two Standard

         An 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 at 1352.

         The 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”).

         The 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

         B. The ALJ's Findings Relevant to this Issue at Step Two

         The ALJ 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 ...

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