Trank v. Social Security Administration Commissioner of
MEMORANDUM AND ORDER - It is ordered that the Commissioner's 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 consistent herewith. Signed by District Judge John W. Lungstrum on 08/17/2017. (ses)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DONALD ALBERT TRANK,
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
MEMORANDUM AND ORDER
Plaintiff seeks review of a decision of the Acting Commissioner of Social Security
(hereinafter Commissioner) denying Disability Insurance benefits (DIB) under sections
216(i) and 223 of the Social Security Act. 42 U.S.C. §§ 416(i) and 423 (hereinafter the
Act). Finding the Administrative Law Judge (ALJ) erroneously applied the MedicalVocational Guidelines (hereinafter, grids), 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 consistent with this
On Jan. 20, 2017, Nancy A. Berryhill became Acting Commissioner of Social
Security. In accordance with Rule 25(d)(1) of the Federal Rules of Civil Procedure, Ms.
Berryhill is substituted for Acting Commissioner Carolyn W. Colvin as the defendant. In
accordance with the last sentence of 42 U.S.C. § 405(g), no further action is necessary.
Plaintiff applied for DIB, alleging disability beginning July 1, 2012. (R. 57, 196).
Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review
of the final decision denying benefits. He argues that the ALJ erred in failing to develop
a full and fair record in the proceedings below, erred in evaluating Plaintiff’s mental
impairments at step two which resulted in his using the grids erroneously to direct a
finding at step five of the sequential evaluation process, and erred in weighing the
medical opinion of Dr. Williams.
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 is more than
a scintilla, but it is 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). 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 he
has a severe impairment(s), and whether the severity of his 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 sequential process-determining at step four whether, in light of the RFC assessed, claimant can perform his
past relevant work; and at step five whether, when also considering the vocational factors
of age, education, and work experience, claimant 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 assessed. Id.; Haddock v. Apfel, 196 F.3d 1084,
1088 (10th Cir. 1999).
The court finds that remand is necessary because the ALJ erroneously applied the
grids to direct a finding at step five of the sequential evaluation process. Although the
court entertains serious doubt regarding Plaintiff’s argument that an ALJ must obtain a
medical opinion regarding RFC whenever the state agency medical and psychological
consultants all opine that there is insufficient evidence to make a disability determination,
it need not decide that issue because remand is necessary in any case. If desired, Plaintiff
may make his argument regarding developing the record to the Commissioner in the first
instance. Plaintiff may also argue to the Commissioner on remand that Dr. Williams’s
opinion is worthy of greater weight.
Plaintiff argues that the ALJ erred at step two in finding that Plaintiff’s mental
impairments are not severe within the meaning of the Act, that those impairments are in
fact severe, and that Plaintiff was harmed by the error because the ALJ failed to consult a
vocational expert (hereinafter VE) and assess the impact of non-exertional limitations
resulting from Plaintiff’s mental impairments on the range of work available to Plaintiff at
step five of the sequential evaluation process. (Pl. Br. 5-15). The Commissioner argues
that the ALJ properly found at step two that Plaintiff’s mental impairments are not severe,
and the ALJ findings are supported by the record evidence. (Comm’r Br. 5-8). The court
reviews the ALJ’s decision, and finds error in the ALJ’s application of the grids based on
a somewhat different rationale than applied by Plaintiff.
An impairment is not considered severe if it does not significantly limit a
claimant’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. § 404.1521. 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). He need only show that an impairment would have more than a minimal
effect on his ability to do basic work activities. Williams, 844 F.2d 748, 751 (10th Cir.
1988). However, he 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 plaintiff’s ability to do basic work activities, it could not prevent plaintiff from
engaging in substantial work activity and will not be considered severe. Hinkle, 132 F.3d
However, once an ALJ has found that a claimant has at least one severe
impairment, a failure to designate another impairment “severe” at step two does not
constitute reversible error because, under the regulations, the agency at later steps
considers the combined effect of all of the claimant’s impairments without regard to
whether any impairment, if considered separately, would be of sufficient severity. Hill v.
Astrue, 289 F. App’x. 289, 291-292, (10th Cir. 2008); Brescia v. Astrue, 287 F. App’x
626, 628-629 (10th Cir. 2008). The failure to find additional impairments are also severe
is not itself cause for reversal so long as the ALJ, in determining Plaintiff’s RFC,
considers the effects “of all of the claimant’s medically determinable impairments, both
those he deems ‘severe’ and those ‘not severe.’” Hill, 289 F. App’x at 291-92; see also,
Rutherford v. Barnhart, 399 F.3d 546, 554, n.7 (3d Cir. 2005) (to be considered, an
impairment . . . need not be “severe”); 20 C.F.R. § 404.1523 (“the combined impact of the
impairments will be considered throughout”). Thus, whether or not the ALJ properly
determined Plaintiff’s mental impairments are severe within the meaning of the Act, he
was required to consider the limitations resulting from those impairments in his step four
and step five analyses because he found that Plaintiff has “medically determinable mental
impairments of obesity, substance addiction disorder, anxiety, and depression.” (R. 59).
Here, the ALJ made divergent findings at step two. He found that Plaintiff’s
medically determinable mental impairments “do not cause more than minimal limitations
in the claimant’s ability to perform basic mental work activities” (R. 59-60), that Plaintiff
has “no more than mild mental limitations on his ability to perform basic work activities
for any period of 12 months or longer,” and that his drug addiction and alcoholism “is
found to cause no more than minimal limitations because he never had more than mild
limitations arising from symptoms relating to marijuana use for 12 months or longer.” (R.
61). But, mild limitations are not the same as no limitations resulting from mental
impairments, including substance abuse. Moreover, the ALJ also found that Plaintiff has
no limitation in activities of daily living, social functioning, or in concentration,
persistence, or pace, and no episodes of decompensation. (R. 61). This is, at the least,
The ALJ determined Plaintiff has the RFC “to perform a full range of medium
work.” (R. 62). And, in his step five determination, the ALJ stated, “Based on a residual
functional capacity for the full range of medium work, considering the claimant’s age,
education, and work experience, a finding of ‘not disabled’ is directed by MedicalVocational Rule 203.19 and Rule 203.12.” (R. 66) (emphasis added). Yet, nowhere in
his RFC assessment did the ALJ discuss Plaintiff’s mental impairments or find that
Plaintiff’s mental impairments produce no limitations. (R. 62-65).
In the grids, the Commissioner has provided a tool to aid in making uniform,
efficient decisions in determining the types and numbers of jobs existing in the national
economy for certain classes of claimants. Heckler v. Campbell, 461 U.S. 458, 468
(1983). However, the grids are applicable “only when they describe a claimant’s abilities
and limitations accurately.” Id. 461 U.S. at 462 n.5; see also Channel v. Heckler, 747
F.2d 577, 579 (10th Cir. 1984). Because the grids are based upon the physical exertion
requirements for work in the national economy, they may not be fully applicable for
claimants who have nonexertional limitations. Channel, 747 F.2d at 580. Realizing this
limitation on the use of the grids, the Commissioner has promulgated a procedure for
evaluating claims where both exertional and nonexertional limitations are present:
[W]here an individual has an impairment or combination of impairments
resulting in both strength limitations and nonexertional limitations, the rules
in this subpart are considered in determining first whether a finding of
disabled may be possible based on the strength limitations alone and, if not,
the rule(s) reflecting the individual’s maximum residual strength
capabilities, age, education, and work experience provide a framework for
consideration of how much the individual’s work capability is further
diminished in terms of any types of jobs that would be contraindicated by
the nonexertional limitations.
20 C.F.R., Pt. 404, Subpt. P, App. 2, § 200.00(e)(2); see also Channel, 747 F.2d at 58081.
The grids direct a finding in a particular case only when there is an “exact fit”
between the criteria of the grid and the situation before the ALJ. Campbell, 461 U.S. at
468; Channel, 747 F.2d at 579. Where the grid rules do not direct a finding, “full
consideration must be given to all of the relevant facts in the case in accordance with the
definitions and discussions of each factor in the appropriate sections of the regulations
which will provide insight into the adjudicative weight to be accorded each factor.” 20
C.F.R., Pt. 404, Subpt. P, App. 2 § 200.00(e)(2); see also Channel, 747 F.2d at 579-82
(application of the grids where nonexertional limitations are present).
Where plaintiff is unable to do a full range of work in an exertional category, the
ALJ may not conclusively apply the grids. Channel, 747 F.2d at 582 (error to apply the
grids absent a finding that plaintiff could perform the full range of sedentary work).
Instead, he “must give ‘full consideration’ to ‘all the relevant facts,’ App. 2,
§ 200.00(e)(2), including expert vocational testimony if necessary, in determining
whether [Plaintiff] is or is not disabled.” Channel, 747 F.2d at 583. Where nonexertional
limitations affect the range of work of which Plaintiff is capable, the grids may serve only
as a framework to assist in determining whether sufficient jobs exist in the national
economy given Plaintiff’s limitations and characteristics. Gossett v. Bowen, 862 F.2d
802, 806 (10th Cir. 1988).
But, “the mere presence of a nonexertional impairment does not automatically
preclude reliance on the grids. Use of the grids is foreclosed only ‘[t]o the extent that
nonexertional impairments further limit the range of jobs available to the [Plaintiff].’”
Channel, 747 F.2d at 583, n.6 (quoting Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir.
1983)). Thus, use of a vocational expert is required only where Plaintiff’s nonexertional
impairments cause a limitation on the range of work available in a particular occupational
base and where no other evidence (either in the record or in occupational resources upon
which the Commissioner may rely, see 20 C.F.R. § 404.1566(d)) establishes that a
significant number of jobs of which plaintiff is capable are available. Where the grids
establish that a significant number of jobs exist in the economy, the Commissioner need
not introduce evidence of specific available jobs. Campbell, 461 U.S. at 468-70.
To be sure, the ALJ in this case found that Plaintiff is able to perform the full
range of medium work. But, as noted above, he made inconsistent findings at step two
regarding limitations resulting from Plaintiff’s mental impairments, and during his RFC
assessment he did not discuss whether Plaintiff’s mental impairments produce any
limitations on his ability to perform the full range of medium work. While it will be
possible in certain circumstances to determine that a claimant’s mental impairments do
not reduce the occupational base for medium work, it will be necessary for the ALJ to
determine the functional limitations caused by the mental impairments and to explain
their impact on that base. If he finds that the mental impairments cause no limitations, it
will be necessary to state and to explain that finding based upon the record evidence.
Here, the ALJ did neither. Remand is necessary for a proper evaluation of Plaintiff’s
mental impairments even if they are not severe within the meaning of the Act.
The court notes three other factors relevant to its consideration. The ALJ stated
that Plaintiff was able to perform activities of daily living “with no reported lack of
motivation” (R. 61), but the record reveals that on April 2, 2014 Plaintiff complained of
“not wanting to do anything” (R. 336), and his psychiatrist assessed “poor motivation.”
(R. 338). Absent some sort of explanation, the record will not support the ALJ’s finding.
The same is true of the ALJ’s finding that Plaintiff “is able to live in an institutional
setting with other prisoners, with no reports of behavioral problems.” (R. 61). The
record reveals an incident on January 22-23 where Plaintiff was moved to segregated
housing in prison and had several problems relating at least to the staff. (R. 488-92).
Plaintiff continued to have problems and he remained in segregation more than a month
later. (R. 495, 509). Finally, the court notes that in his step four analysis, the ALJ stated,
“The vocational expert testified that an individual of the claimant’s vocational profile,
who is limited to the performance of the residual functional capacity outlined above,
would be unable to perform any of the claimant’s past relevant work.” (R. 65). The
record reveals that a VE was present at the ALJ’s hearing, but the transcript reveals that
she did not testify. (R. 72, 83). The ALJ’s statement only further erodes the court’s
confidence in his consideration of the vocational evidence and the grids.
The decision in this case is inadequately and somewhat confusingly explained and
the evidence does not support the decision. Remand is necessary to correct these errors.
IT IS THEREFORE ORDERED that the Commissioner’s 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 consistent herewith.
Dated this 17th day of August 2017, at Kansas City, Kansas.
s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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