Nau v. Astrue

Filing 30

MEMORANDUM DECISION and RULING. Signed by Magistrate Judge Dustin B. Pead on 12/11/2014. (tls)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

DESIREE NAU,
Plaintiff,
v.

MEMORANDUM DECISION & RULING
Case No. 2:12-cv-00985

CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,

Magistrate Judge Dustin Pead

Defendant.

On November 5, 2014, the parties consented to jurisdiction by United States Magistrate,
pursuant to 28 U.S.C. § 636(c)(doc. 26).
Oral argument on Plaintiff Desiree Nau’s (“Nau”) request for judicial review of the
Commissioner’s April 21, 2012, decision was heard on December 9, 2014 (doc. 29). At the
hearing, attorney David Parker appeared telephonically on behalf of Nau and attorney Allan
Berger appeared telephonically on behalf of Defendant Carolyn Colvin, Acting Commissioner of
the Social Security Administration (“Commissioner”). At the conclusion of the hearing, the
Court determined that the matter should be remanded for further consideration of the record
consistent with the Tenth Circuit Court’s ruling in Wells v. Colvin, 727 F.3d 1061 (10th Cir.
2013). On remand the Court directs as follows.
1. In his April 21, 2011, the Administrative Law Judge determined that Nau’s medically
determinable mental impairments of “anxiety, depression, and cognitive disorder” only cause
“minimal limitations in the claimant’s ability to perform basic mental work activities and are
therefore nonsevere” (Tr. 21). The Administrative Law Judge relied upon the medical evidence

of record to reach this conclusion. Id. These non-severe impairments, however, were not
considered at step four in conjunction with the Administrative Law Judge’s Residual Functional
Capacity (“RFC”) analysis.
2. At step four of the analysis, as mandated by Wells v. Colvin, the Administrative Law
Judge shall consider and discuss all severe and non-severe impairments as part of the Residual
Functional Capacity (“RFC”) analysis. 727 F.2d at 1069 (“ALJ must consider the combined
effect of all medically determinable impairments, whether severe or not.”) (citing 20 C.F.R. § §
404.1545(a)(2), 416.945(a)(2)). Although a non-severe impairment “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.”
Mushero v. Astrue, 384 F. App’s 693, 695-96 (10th Cir. 2010) (citing SSR 96-8p). Thus, the
Administrative Law Judge may not rely on a finding of non-severity as a substitute for failing to
include and assess non-severe impairments in the RFC analysis. See SSR 96-8p.
3. The Court recognizes there are exceptions to this general rule. Specifically, if at step
two the Administrative Law Judge determines that a medically determinable impairment poses
“no restriction on the claimant’s work activities” the need for further analysis at step four is
obviated. Wells v. Colvin, 727 F.3d at 1065. Here, however, the Administrative Law Judge
determined that Nau’s mental impairments resulted in a “minimal limitation” in her ability to
perform work related activities. Further, an adverse credibility finding may also support an
ALJ’s failure to fully assess an impairment at step four. Id. In Nau’s case, however, step four
did not include any adverse credibility finding related to her cognitive impairments.
3. Accordingly, on remand the ALJ is instructed at step four to consider and discuss all
severe and non-severe impairments supported by objective medical evidence.

IT IS SO ORDERED.

DATED this 11th day of December, 2014.
_______________________________
DUSTIN B. PEAD
United States Magistrate Judge

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