United States District Court, D. Utah, Central Division
RUSSEL K. IPSON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
STEWART DISTRICT JUDGE
REPORT AND RECOMMENDATION
M. WARNER CHIEF UNITED STATES MAGISTRATE JUDGE
Judge Ted Stewart referred this case to Chief Magistrate
Judge Paul M. Warner pursuant to 28 U.S.C. §
636(b)(1)(B). Before the court is Russel K. Ipson's
(“Plaintiff”) appeal of the Commissioner's
final decision determining that Plaintiff was not entitled to
Disability Insurance Benefits (“DIB”) under Title
II of the Social Security Act. See 42 U.S.C.
§§ 401-434. After careful consideration of the
written briefs and the complete record, the court has
determined that oral argument is not necessary in this case.
outset, the court recognizes that Plaintiff is proceeding pro
se in this case. Accordingly, the court will construe his
pleadings liberally. See, e.g., Ledbetter v.
City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003).
alleges disability due to various physical and mental
impairments. In September 2011, Plaintiff applied for DIB,
alleging disability beginning on February 1,
2010. Plaintiff's application was denied
initially and upon reconsideration. On March 28, 2012, Plaintiff
requested a hearing before an Administrative Law Judge
(“ALJ”),  and that hearing was held on March 11,
2013. On March 27, 2013, the ALJ issued a
written decision denying Plaintiff's claim for
On September 15, 2014, the Appeals Council denied
Plaintiff's request for review,  making the ALJ's
decision the Commissioner's final decision for purposes
of judicial review. See 42 U.S.C. § 405(g); 20
C.F.R. § 404.981.
November 20, 2014, Plaintiff filed his complaint in this
case,  which was assigned to Judge
Stewart. After some proceedings irrelevant to
this report and recommendation, this case was referred to
Chief Magistrate Judge Warner under 28 U.S.C. §
636(b)(1)(B) on June 10, 2016. The Commissioner filed her
answer and the administrative record on September 27,
filed his opening brief on March 13, 2017. The
Commissioner filed her answer brief on May 9,
2017. Plaintiff did not file a reply brief by
the required deadline of May 30, 2017.
court “review[s] the Commissioner's decision to
determine whether the factual findings are supported by
substantial evidence in the record and whether the correct
legal standards were applied.” Lax v. Astrue,
489 F.3d 1080, 1084 (10th Cir. 2007) (quotations and citation
omitted). The Commissioner's findings, “if
supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g).
“Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion. It requires more than a scintilla, but less than
a preponderance.” Lax, 489 F.3d at 1084
(quotations and citation omitted). “In reviewing the
ALJ's decision, [this court may] neither reweigh the
evidence nor substitute [its] judgment for that of the
[ALJ].” Madrid v. Barnhart, 447 F.3d 788, 790
(10th Cir. 2006) (quotations and citation omitted).
“The failure to apply the correct legal standard or to
provide this court with a sufficient basis to determine that
appropriate legal principles have been followed [are] grounds
for reversal.” Jensen v. Barnhart, 436 F.3d
1163, 1165 (10th Cir. 2005) (quotations and citation
five-step evaluation process has been established for
determining whether a claimant is disabled. See 20
C.F.R. § 404.1520(a)(4)(i)-(v); see also Williams v.
Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988) (discussing
the five-step process). If a determination can be made at any
one of the steps that a claimant is or is not disabled, the
subsequent steps need not be analyzed. See 20 C.F.R.
Step one determines whether the claimant is presently engaged
in substantial gainful activity. If [the claimant] is,
disability benefits are denied. If [the claimant] is not, the
decision maker must proceed to step two: determining whether
the claimant has a medically severe impairment or combination
of impairments. . . . If the claimant is unable to show that
his impairments would have more than a minimal effect on his
ability to do basic work activities, he is not eligible for
disability benefits. If, on the other hand, the claimant
presents medical evidence and makes the de minimis showing of
medical severity, the decision maker proceeds to step three.
Williams, 844 F.2d at 750-51 (quotations and
citations omitted); see 20 C.F.R. §
Step three determines whether the impairment is equivalent to
one of a number of listed impairments that . . . are so
severe as to preclude substantial gainful activity . . . . If
the impairment is listed and thus conclusively presumed to be
disabling, the claimant is entitled to benefits. If not, the
evaluation proceeds to the fourth step . . . .
Williams, 844 F.2d at 751 (quotations and citations
omitted); see 20 C.F.R. § 404.1520(a)(4)(iii).
fourth step, the claimant must show that the impairment
prevents performance of his “past relevant work.”
20 C.F.R. § 404.1520(a)(4)(iv). “If the claimant
is able to perform his previous work, he is not
disabled.” Williams, 844 F.2d at 751. If,
however, the claimant is not able to perform his previous
work, he “has met his burden of proof, establishing a
prima facie case of disability.” Id.
point, “[t]he evaluation process . . . proceeds to the
fifth and final step.” Id. At this step, the
burden of proof shifts to the Commissioner, and the decision
maker must determine “whether the claimant has the
residual functional capacity [(”RFC”)] . . . to
perform other work in the national economy in view of his
age, education, and work experience.” Id.;
see 20 C.F.R. § 404.1520(a)(4)(v). If it is
determined that the claimant “can make an adjustment to
other work, ” 20 C.F.R. § 404.1520(a)(4)(v), he is
not disabled. If, on the other hand, it is determined that
the claimant “cannot make an adjustment to other work,
” id., he is disabled and entitled to
Commissioner has noted, it is difficult to discern from
Plaintiff's opening brief the precise errors he believes
the ALJ committed. However, it appears that Plaintiff is
arguing that the ALJ (1) violated Plaintiff's due process
rights by not allowing Plaintiff to fully present his case at
the administrative hearing, (2) erred at step two by failing
to sufficiently address the limitations arising from several
of Plaintiff's alleged impairments, and (3) erred in the
assessment of Plaintiff's RFC. The court will address
those arguments in turn.
due process applies to Social Security hearings. See
Richardson v. Perales, 402 U.S. 389, 401 (1971);
Yount v. Barnhart, 416 F.3d 1233, 1235 (10th Cir.
2005). However, in order to establish a due process
violation, Plaintiff must demonstrate that he was prejudiced.
See Mays v. Colvin, 739 F.3d 569, 572-74
(10th Cir. 2014). Contrary to Plaintiff's assertion that
he “was not given the opportunity to defend [his] case
at the hearing, ” “was not heard at all, ”
and “was not able to say anything,
” both his attorney and the ALJ questioned
him extensively about his medical conditions. When
Plaintiff's attorney asked him if there was anything he
missed or anything additional that Plaintiff believed the ALJ
should know about, Plaintiff said, “I can't think
of anything.” Furthermore, when the ALJ asked
Plaintiff if they had covered everything that Plaintiff could
think of that would affect his ability to work full time,
Plaintiff responded, “I think so,
process requires notice and a meaningful opportunity to be
heard.” In re C.W. Mining Co., 625 F.3d 1240,
1244 (10th Cir. 2010). Plaintiff appeared and had an
opportunity to be heard before the ALJ. There was no denial
of due process.
brief may be read to argue a due process violation related to
the fact that the ALJ who presided over his hearing and
issued the decision was not the same ALJ who was originally
scheduled to hear his case. However, as with his other due
process argument, he has not pointed to any prejudice
resulting from the substitution. See Mays, 739 F.3d
at 572-74 (requiring prejudice for a due process violation).
Accordingly, this argument fails.