Lee v. Social Security Administration, Commissioner of

Filing 20

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 03/20/2014. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

WILLIAM LEE,

)
)
Plaintiff,
)
)
v.
)
)
)
CAROLYN W. COLVIN,1
Acting Commissioner of Social Security,
)
)
Defendant.
)
________________________________________ )

CIVIL ACTION
No. 12-1439-JWL

MEMORANDUM AND ORDER

Plaintiff seeks review of a decision of the Commissioner of Social Security
(hereinafter Commissioner) denying Supplemental Security Income (SSI) benefits under
sections 1602, and 1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 1381a, and
1382c(a)(3)(A) (hereinafter the Act). Finding error in the Commissioner’s step two
evaluation, 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 opinion.
I.

Background
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On February 14, 2013, Carolyn W. Colvin became Acting Commissioner of
Social Security. In accordance with Rule 25(d)(1) of the Federal Rules of Civil
Procedure, Ms. Colvin is substituted for Commissioner Michael J. Astrue as the
defendant. In accordance with the last sentence of 42 U.S.C. § 405(g), no further action
is necessary.

Plaintiff applied for SSI benefits, alleging disability beginning October 26, 2004.
(R. 14, 113-16). In due course, Plaintiff exhausted proceedings before the Commissioner,
and now seeks judicial review of the final decision denying benefits. He alleges the
Administrative Law Judge (ALJ) erred in evaluating his non-severe impairments and in
erroneously according controlling weight to the opinion of a state agency physician at
step two of the Commissioner’s five-step sequential evaluation process; found past
relevant work where none is suggested by record evidence; and erroneously determined
that Plaintiff’s allegations of symptoms resulting from his impairments are not credible.
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 she 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 evidence as a reasonable mind
might accept to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971);
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,
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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. § 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 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. § 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 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
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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 failed to determine
whether lumbar arthralgia is a medically determinable impairment in the circumstances of
this case, and if so whether it causes additional limitations in Plaintiff’s RFC. Since the
court finds that remand is necessary due to error in the ALJ’s step two determination, it
will not address the remaining errors Plaintiff alleges. He may make arguments in that
regard to the Commissioner on remand.
II.

The Step Two Evaluation
Plaintiff claims the ALJ erred in failing to make step two findings regarding

whether degenerative changes in Plaintiff’s acrimoclavicular joint, chronic peripheral
neuropathy, carpal tunnel syndrome, and lumbar arthralgia are severe impairments in the
circumstances of this case. He argues that the record contains medical evidence that
Plaintiff is affected by each of these impairments, that the ALJ did not consider whether
they are severe impairments within the meaning of the Act and the regulations, and that
the ALJ did not consider these impairments when assessing Plaintiff’s RFC.
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In response, the Commissioner argues that the ALJ properly evaluated the severity
of Plaintiff’s impairments at step two. She points out that the ALJ found severe
impairments of COPD (Chronic Obstructive Pulmonary Disease) and ventricular
tachycardia with defibrillator implant, that she found that Plaintiff’s medically
determinable impairments of diabetes, depression, and substance abuse are not severe
within the meaning of the Act and the regulations, and that she considered Plaintiff’s
testimony of back and knee problems and his treatment for lumbar arthralgia. She notes
that Plaintiff testified before the ALJ regarding carpal tunnel symptoms, argues that an
ALJ is not required to discuss every piece of evidence, and admits that the ALJ “did not
recite each of [Plaintiff’s] complaints and [the physicians’] findings, but concluded that
Plaintiff’s allegations were not fully supported.” (Comm’r Br. 6). She concludes that
“[g]iven the ALJ’s thorough analysis of Plaintiff’s subjective allegations and the factors
that undermined them, Plaintiff’s argument that there were limitations from nonsevere
impairments that could have reduced his RFC and that the ALJ failed to discuss these
unidentified limitations is without merit.” Id. at 7.
A.

The ALJ’s Findings

In her step two analysis, the ALJ found that Plaintiff has COPD and ventricular
tachycardia which are severe within the meaning of the Act. (R. 16). She also considered
the medically determinable impairments of diabetes, depression, and substance abuse, but
found that they are nonsevere in this case. Id. at 16-17. Later, in her RFC analysis the
ALJ discussed Plaintiff’s back and knee problems:
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The claimant testified that he has back and knee problems and although he
has been treated for lumbar arthralgias, the record shows that there is no
history of surgery. An x-ray of the lumbar spine showed only minimal disc
space narrowing (exhibit C21F [(R. 629-838)]).2 Physical examinations
show full range of motion, stable gait and station. No asymmetrical reflex
or sensory or motor deficits noted. The claimant was able to bend 6 inches
to the floor. There were no limitation of joint movement and all joints were
without tenderness, effusion or redness (exhibit C11F [(R. 452-58)]).
(R. 21).
B.

The Standard for Evaluating the Severity of a Claimant’s Impairments

At step two of the sequential evaluation process, the Commissioner must
determine whether the claimant has a medically determinable impairment or combination
of impairments which is severe. 20 C.F.R. § 416.920(a)(4)(ii). To establish a severe
impairment or combination of impairments at step two of the sequential evaluation
process, plaintiff 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)).
At steps three, four, or five of the process, when determining whether a claimant’s
impairment or impairments are of disabling severity, the Commissioner must “consider
the combined effect of all of [a claimant’s] impairments without regard to whether any

2

This citation is to an exhibit consisting of 210 pages, without a pinpoint citation.
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such impairment, if considered separately would be of sufficient severity.” 20 C.F.R.
§ 416.923; see also, Brescia v. Astrue, 287 F. App’x 626, 628-629 (10th Cir. 2008); Hill
v. Astrue, 289 F. App’x. 289, 291-292, (10th Cir. 2008).
C.

Analysis

Here, the ALJ determined at step two that Plaintiff has medically determinable
impairments of diabetes, depression, and substance abuse. (R. 16-17). Of these, he found
that COPD and ventricular tachycardia are severe within the meaning of the Act, and that
diabetes, depression, and substance abuse are not. Id. As Plaintiff points out, the step
two analysis does not mention or suggest any other medically determinable impairments,
either severe or not severe. But, as the Commissioner points out, and as quoted above,
the ALJ discussed Plaintiff’s lumbar arthralgia and significantly discounted it. Moreover,
the Commissioner also points to record evidence which tends to suggest that the
remaining impairments alleged by Plaintiff are insignificant. (Comm’r Br. 5-7).
That is the problem with the ALJ’s analysis in this regard. Her decision might be
read to suggest that several alleged impairments identified by Plaintiff are insignificant,
and it specifically discounted the significance of Plaintiff’s lumbar arthralgia, but it did
not state that any of those impairments are medically determinable impairments in the
facts and circumstances of this case, it did not make a finding whether those impairments
are severe within the meaning of the Act, and it did not specifically express whether it
considered those impairments when assessing RFC. Thus, the court is unable to
determine whether the correct legal standard was applied in evaluating these impairments.
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The failure to find that additional impairments are severe is not in itself cause for
reversal. Brescia, 287 F. App’x at 628-629. But this is true only so long as the ALJ
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.
Moreover, while limitations attributed to impairments which are medically determinable
but are not severe must be considered at later steps in the evaluation, alleged limitations
attributable to impairments which are not medically determinable must not be considered
at later steps. 20 C.F.R. §§ 416.908, 416.923; 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”); Gibbons v. Barnhart, 85 F. App’x 88, 91 (10th
Cir. 2003) (“the ALJ must consider only limitations and restrictions attributable to
medically determinable impairments.”) (quotation omitted).
It is simply impossible to determine whether the ALJ found that degenerative
changes in Plaintiff’s acrimoclavicular joint, chronic peripheral neuropathy, carpal tunnel
syndrome, and lumbar arthralgia are medically determinable impairments in this case,
even if one assumes that they are not severe impairments in the facts and circumstances.
If they are medically determinable impairments, the ALJ must consider their (admittedly
minimal) effect in assessing RFC. But, if they are not medically determinable
impairments, it would have been error for the ALJ to consider their (alleged) effect in
assessing RFC. As Plaintiff asserts, and as the Commissioner admits, the ALJ did not
even mention the alleged degenerative changes in Plaintiff’s acrimoclavicular joint,
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chronic peripheral neuropathy, or carpal tunnel syndrome. As quoted above, she
discussed testimony and evidence regarding lumbar arthralgia, but that discussion is so
negative and is written in such a fashion that one might understand it to at least imply that
lumbar arthralgia is not one of Plaintiff’s medically determinable impairments.
Additionally, the step two discussion identifies certain impairments which are
medically determinable in the facts and circumstances, and determines that some of them
are severe and some of them are not severe. Yet, the step two analysis does not mention
or suggest that the evidence reveals the other impairments identified by Plaintiff, and
makes no findings whether those impairments are medically determinable, and if so
whether they are severe or not severe. This is an ambiguity which must be resolved by
the Commissioner on remand.
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 20th day of March 2014, at Kansas City, Kansas.

s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge

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