Cochran v. Social Security Administration

Filing 16

OPINION AND ORDER by Magistrate Judge Jodi F Jayne reversing and, remanding case (terminates case) (Re: 2 Social Security Complaint ) (kah, Chambers)

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
JANET K. C.,

)
)
Plaintiff,
)
)
vs.
)
)
KILOLO KIJAKAZI,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

Case No. 22-CV-111-JFJ

OPINION AND ORDER
Plaintiff Janet K. C. seeks judicial review of the decision of the Commissioner of the Social
Security Administration (“SSA”) denying her claim for disability benefits under Titles II and XVI
of the Social Security Act (“Act”), 42 U.S.C. §§ 416(i) and 1382c(a)(3). In accordance with 28
U.S.C. § 636(c)(1) & (3), the parties have consented to proceed before a United States Magistrate
Judge. For the reasons explained below, the Court REVERSES and REMANDS the
Commissioner’s decision denying benefits. Any appeal of this decision will be directly to the
Tenth Circuit Court of Appeals.
I.

General Legal Standards and Standard of Review
“Disabled” is defined under the Social Security Act as an “inability to engage in any

substantial gainful activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). A physical or mental
impairment is an impairment “that results from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic
techniques.” 42 U.S.C. § 423(d)(3). A medically determinable impairment must be established
by “objective medical evidence,” such as medical signs and laboratory findings, from an

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“acceptable medical source,” such as a licensed and certified psychologist or licensed physician;
the plaintiff’s own “statement of symptoms, a diagnosis, or a medical opinion is not sufficient to
establish the existence of an impairment(s).” 20 C.F.R. §§ 404.1521, 416.921. See 20 C.F.R.
§§ 404.1502(a), 404.1513(a), 416.902(a), 416.913(a). A plaintiff is disabled under the Act “only
if h[er] physical or mental impairment or impairments are of such severity that [s]he is not only
unable to do h[er] previous work but cannot, considering h[er] age, education, and work
experience, engage in any other kind of substantial gainful work which exists in the national
economy . . . .” 42 U.S.C. § 423(d)(2)(A).
Social Security regulations implement a five-step sequential process to evaluate a disability
claim. 20 C.F.R. §§ 404.1520, 416.920; Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988)
(explaining five steps and burden shifting process). To determine whether a claimant is disabled,
the Commissioner inquires: (1) whether the claimant is currently working; (2) whether the claimant
suffers from a severe impairment or combination of impairments; (3) whether the impairment
meets an impairment listed in Appendix 1 of the relevant regulation; (4) considering the
Commissioner’s assessment of the claimant’s residual functioning capacity (“RFC”), whether the
impairment prevents the claimant from continuing her past relevant work; and (5) considering
assessment of the RFC and other factors, whether the claimant can perform other types of work
existing in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(i)-(v),
416.920(a)(4)(i)-(v). If a claimant satisfies her burden of proof as to the first four steps, the burden
shifts to the Commissioner at step five to establish the claimant can perform other work in the
national economy. Williams, 844 F.2d at 751. “If a determination can be made at any of the steps
that a plaintiff is or is not disabled, evaluation under a subsequent step is not necessary.” Id. at
750.

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In reviewing a decision of the Commissioner, a United States District Court is limited to
determining whether the Commissioner has applied the correct legal standards and whether the
decision is supported by substantial evidence. See Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th
Cir. 2005). Substantial evidence is more than a scintilla but less than a preponderance and is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See id.
A court’s review is based on the administrative record, and a court must “meticulously examine
the record as a whole, including anything that may undercut or detract from the ALJ’s findings in
order to determine if the substantiality test has been met.” Id. A court may neither re-weigh the
evidence nor substitute its judgment for that of the Commissioner. See Hackett v. Barnhart, 395
F.3d 1168, 1172 (10th Cir. 2005). Even if a court might have reached a different conclusion, the
Commissioner’s decision stands if it is supported by substantial evidence. See White v. Barnhart,
287 F.3d 903, 908 (10th Cir. 2002).
II.

Procedural History and the ALJ’s Decision
On November 5, 2019, Plaintiff, then a 46-year-old female, applied for Title II disability

insurance benefits and Title XVI supplemental security income benefits. R. 12, 344. Plaintiff
alleges that she has been unable to work since an amended onset date of June 16, 2018, due to
anxiety, cervical disc pain, chronic obstructive pulmonary disorder, back problems, arthritis,
posttraumatic stress disorder, panic attacks, depression, asthma, and bipolar disorder. R. 68, 91,
103. Plaintiff’s claims for benefits were denied initially and on reconsideration. R. 90-149. The
ALJ conducted an administrative hearing and a supplemental hearing, and issued a decision on
July 14, 2021, denying benefits and finding Plaintiff not disabled. R. 12-29, 34-89. The Appeals
Council denied review on January 5, 2022 (R. 1-6), rendering the Commissioner’s decision final.
20 C.F.R. §§ 404.981, 416.1481. Plaintiff filed this appeal on March 9, 2022. ECF No. 2.

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At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity
since the amended alleged onset date of June 16, 2018. R. 15. At step two, the ALJ found that
Plaintiff’s PTSD, major depressive disorder, and bipolar disorder were severe impairments, but
that her peripheral neuropathy, COPD, lumbar and cervical spine disorders, and borderline
intellectual functioning were non-severe. R. 15-18. At step three, the ALJ found Plaintiff did not
have an impairment or combination of impairments that met or medically equaled a listed
impairment. R. 18-20.
After considering Plaintiff’s subjective allegations, the medical source opinion evidence,
and some of the objective medical evidence in the record, the ALJ concluded that Plaintiff had the
RFC to perform a full range of work at all exertional levels, but with the following non-exertional
limitations:
understand, remember, and carry out simple one to three step repetitive tasks.
Public interaction should not be a part of the job duties. The claimant could tolerate
occasional contact with coworkers, but contact with coworkers should not involve
tandem tasks or teamwork. Job tasks should not include an assembly line or forced
pace tasks. The clamant should avoid work environments that require frequent
changes in tasks or instructions (defined as coming into the same environment
doing the same thing over and over again).
R. 20.
At step four, the ALJ concluded that Plaintiff could not return to her past relevant work.
R. 27. Based on the testimony of a vocational expert (“VE”), however, the ALJ concluded at step
five that Plaintiff could perform other occupations existing in significant numbers in the national
economy, including optical goods assembler, table worker, and medical product assembler. R. 2728. The ALJ determined the VE’s testimony was consistent with the information contained in the
Dictionary of Occupational Titles (“DOT”). R. 28. Accordingly, the ALJ concluded Plaintiff was
not disabled. R. 28-29.

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III.

Issues
Plaintiff raises two points of error in her challenge to the Commissioner’s denial of

benefits: (1) the ALJ failed to consider all of Plaintiff’s impairments at step two of the sequential
analysis; and (2) the ALJ failed to consider and account for all her impairments and limitations in
the RFC assessment. ECF No. 14. The Court finds any error the ALJ may have made at step two
is harmless but agrees the ALJ failed to properly account for Plaintiff’s non-severe impairments
in the RFC assessment.
IV.

Analysis
A.

Any Failure to Consider the Severity of all of Plaintiff’s Impairments was
Harmless Error at Step Two

Plaintiff contends the ALJ failed to consider her diagnosed anxiety disorder, headaches,
chronic pain, chronic back pain, and somatic dysfunction of the head, cervical spine, thoracic
spine, lumbar spine, and sacrum at step two of the sequential evaluation. ECF No. 11 at 2-5.
The ALJ considers the “medical severity” of a claimant’s impairments at step two of the
sequential evaluation. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment is
“severe” if it significantly limits a claimant’s ability to perform basic work activities. 20 C.F.R.
§§ 404.1520(c), 416.920(c). A claimant who does not have a severe medically determinable
impairment, or a combination of impairments that is severe, is not disabled.

20 C.F.R.

§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). Plaintiff’s burden at step two is a de minimis showing of
impairment, but the Plaintiff must demonstrate “more than the mere presence of a condition or
ailment.” Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997).
In his written decision at step two, the ALJ identified several non-severe impairments
including peripheral neuropathy, COPD, borderline intellectual functioning, and Plaintiff’s various
spine-related disorders. R. 15-18. Although the ALJ did not mention or make any findings
regarding the severity of Plaintiff’s anxiety disorder, headaches, or somatic dysfunction at step
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two, Plaintiff has not demonstrated a reversible error at this step. Since the ALJ found Plaintiff
had at least one severe impairment and proceeded to the subsequent steps of his analysis, any
failure in identifying additional medically determinable impairments at step two does not
constitute reversible error. See Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016) (“[T]he
failure to find a particular impairment severe at step two is not reversible error when the ALJ finds
that at least one other impairment is severe.”); Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir.
2008) (“[A]ny error here became harmless when the ALJ reached the proper conclusion that Mrs.
Carpenter could not be denied benefits conclusively at step two and proceeded to the next step of
the evaluation sequence.”).
B.

ALJ Failed to Account for Plaintiff’s Non-severe Impairments in Assessing the
RFC

The rationale for applying harmless error at step two is that the ALJ is required to consider
the functional impact of all a claimant’s medically determinable impairments, including nonsevere impairments, when assessing the RFC later in the sequential analysis. In other words, if
the RFC subsequently accounts for the functional limitations resulting from the previously omitted
impairment, then the step two omission would not affect the outcome of the ALJ’s decision
because the RFC would not change. See Grotendorst v. Astrue, 370 F. App’x 879, 883 (10th Cir.
2010) (explaining that a step two error is “usually harmless” if the ALJ “finds another impairment
is severe and proceeds to the remaining steps of the evaluation . . . because all medically
determinable impairments, severe or not, must be taken into account at those later steps”).
Therefore, Plaintiff further contends the ALJ’s failure to consider her anxiety disorder, headaches,
chronic pain, chronic back pain, and somatic dysfunction at step two impaired his analysis at
subsequent steps of the sequential evaluation. Specifically, Plaintiff argues the ALJ failed to
consider all her impairments in combination when assessing the RFC and failed to present a
hypothetical question to the VE that included all her limitations.
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A claimant’s RFC is her “maximum remaining ability to do sustained work activities in an
ordinary work setting” for 8 hours a day, 5 days per week despite her impairments. Social Security
Ruling (“SSR”) 96-8p, 1996 WL 374184, at *2 (July 2, 1996). In assessing the RFC, “the ALJ
must consider the combined effect of all of the claimant’s medically determinable impairments,
whether severe or not severe.” Wells v. Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013); see also 20
C.F.R. §§ 404.1545(a)(2), 416.945(a)(2) (“We will consider all of [a claimant’s] medically
determinable impairments of which we are aware, including . . . impairments that are not ‘severe’
. . . when we assess [a claimant’s] residual functional capacity.”). Additionally, the ALJ must
“include a narrative discussion describing how the evidence supports each conclusion” as to the
claimant’s work-related limitations. SSR 96-8p at *7. The ALJ must explain the basis for the
limitations included in the RFC assessment with citations to “specific medical facts (e.g.,
laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” Id.
Apart from finding the severity of Plaintiff’s subjectively reported back pain not supported
by the imaging of record, the ALJ did not mention or consider the effects of any of Plaintiff’s nonsevere physical impairments in his RFC analysis. R. 21. Rather, the ALJ’s RFC discussion
focused exclusively on the impact of Plaintiff’s severe mental impairments on her ability to work.
Thus, the Court agrees the ALJ inadequately considered Plaintiff’s non-severe impairments in the
RFC assessment. A clear and specific analysis of what, if any, impact Plaintiff’s non-severe
physical impairments had on the RFC was particularly important in this case, because there is no
physical consultative examination in the record and the medical expert testified that some
exertional limitations were “likely” present. R. 43.
Moreover, the omission of a discussion regarding Plaintiff’s non-severe impairments
demonstrates that the ALJ failed to provide a narrative discussion explaining the evidentiary basis
and rationale for the RFC assessment as required by SSR 96-8p. For instance, the ALJ did not
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explain what, if any, work-related limitations resulted from Plaintiff’s non-severe borderline
intellectual functioning. Additionally, the ALJ omitted exertional, postural, manipulative, and
environmental limitations from the RFC determination without explaining why Plaintiff’s nonsevere peripheral neuropathy, COPD, and spine disorders did not impose any limitations. Absent
a discussion of how Plaintiff’s non-severe impairments were accounted for in the RFC assessment,
or an explanation why such impairments did not impose any functional limitations, the Court is
unable to “credit [the ALJ’s] conclusion with substantial evidence.” Wells, 727 F.3d at 1071.
Nonetheless, the ALJ’s failure to consider a claimant’s non-severe impairments when
assessing the RFC does not necessarily warrant remand if “the evidence in [the] case does not
support assessing any functional limitations from [the disregarded] impairments.” Alvey v. Colvin,
536 F. App’x 792, 794 (10th Cir. 2013); see also Allen v. Barnhart, 357 F.3d 1140, 1145 (10th
Cir. 2004) (explaining that a finding of harmless error is appropriate where the court can
“confidently say that no reasonable fact finder, following the correct analysis, could have resolved
the factual matter in any other way”). In Alvey, there was no evidence the claimant had been
treated by a mental health practitioner and no substantial evidence supporting any functional
limitations. Alvey, 536 F. App’x at 794-95. Noting the court could “employ a harmless-error
analysis sua sponte on appeal when . . . the record is not overly long or complex, harmlessness is
not fairly debatable, and reversal would result in futile and costly proceedings[,]” the Tenth Circuit
found the ALJ’s failure to analyze the impact of the claimant’s non-severe mental impairments on
the RFC was harmless error. Id. Unlike Alvey, there is evidence of treatment for Plaintiff’s nonsevere physical impairments in this case, including medication management and manipulative
therapy, as well as abnormal imaging and findings on physical examination. See, e.g., R. 426-28,
433-35, 441-43, 455-57, 463-64. Plaintiff was consistently treated for back pain, neck pain, and
COPD throughout the relevant period, the record does not contain evidence of a physical
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consultative examination, and the medical expert testified that some exertional limitations were
“likely” present. Under these circumstances, the Court cannot consider the ALJ’s failure to
evaluate the impact of Plaintiff’s non-severe impairments on the RFC harmless error. “While a
‘not severe’ impairment(s) standing alone may not significantly limit an individual’s ability to do
basic work activities, it may – when considered with limitations or restrictions due to other
impairments – be critical to the outcome of a claim.” SSR 96-8p at *5.
In sum, the ALJ erred by relying on his non-severity finding at step two “as a substitute for
a proper RFC analysis.” Wells, 727 F.3d at 1065. Accordingly, the matter will be remanded for
further proceedings consistent with this Order. See id. at 1071 (remanding for further proceedings
“concerning the effect of [claimant's] medically determinable mental impairments on her RFC,
and for further analysis at steps four and five, including any further hearing the ALJ deems
necessary”).
V.

Conclusion
For the foregoing reasons, the Commissioner’s decision finding Plaintiff not disabled is

REVERSED and REMANDED for proceedings consistent with this Opinion and Order.
SO ORDERED this 22nd day of May, 2023.

J
ODIF.
J
AYNE,
MAGI
STRATEJ
UDGE
UNI
TEDSTATESDI
STRI
CTCOURT

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