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Harriet S. v. Berryhill

United States District Court, D. Utah, Central Division

August 30, 2018

HARRIET S., Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          District Judge Ted Stewart

          REPORT AND RECOMMENDATION

          PAUL M. WARNER, CHIEF UNITED STATES MAGISTRATE JUDGE.

         District Judge Ted Stewart referred this case to Chief Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. § 636(b)(1)(B).[2] Before the court is Harriet S.'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.

         PROCEDURAL BACKGROUND

         Plaintiff alleges disability due to various physical and mental impairments. In August 2013, Plaintiff applied for DIB, alleging disability beginning on November 1, 2012.[3] Plaintiff's application was denied initially and upon reconsideration.[4] On April 11, 2014, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”).[5] After administrative hearings, [6] the ALJ issued a written decision on March 30, 2016, denying Plaintiff's claim for DIB.[7] On February 3, 2017, the Appeals Council denied Plaintiff's request for review, [8] making t h e A L J '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. On March 13, 2017, Plaintiff filed her complaint in this case seeking review of the Commissioner's final decision.[9]

         STANDARD OF REVIEW

         This 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 omitted).

         A 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. § 404.1520(a)(4).

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. § 404.1520(a)(4)(i)-(ii).

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).

         At the 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.

         At this 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 benefits.

         ANALYSIS

         In support of her claim that the ALJ's decision should be reversed, Plaintiff argues that the ALJ erred (1) at step two of the sequential evaluation process by failing to determine that certain of Plaintiff's alleged impairments were severe and (2) in evaluating certain medical opinions. The court will address those arguments in turn.

         I. Step Two

         As noted above, step two of the sequential evaluation process determines whether the claimant has medical impairments, either individually or in combination, that are severe. See 20 C.F.R. § 404.1520(a)(4)(ii). To establish severity, the claimant must “show that his impairments would have more than a minimal effect on his ability to do basic work activities.” Williams, 844 F.2d at 751; see 20 C.F.R. § 404.1520(a)(4)(ii). While step two requires only “a de minimus showing, ” Grogan v. Barnhart, 399 F.3d 1257, 1263 (10th Cir. 2005) (quotations and citations omitted), the claimant still bears the burden of demonstrating severity at step two. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (“The claimant first must bear the burden . . . at step two that he has a medically severe impairment or combination of impairments.”); see also Kirby v. Astrue, 500 F.3d 705, 708 (8th Cir. 2007) (“Severity is not an onerous requirement for the claimant to meet, but it is also not a toothless standard.”) (citation omitted). If the claimant fails to carry this burden, and “the process ends at step two, the burden of proof never shifts to the [Commissioner].” Bowen, 482 U.S. at 146 n.5.

         In this case, the ALJ concluded at step two that Plaintiff did not have a medical impairment or combination of impairments that were severe. Accordingly, the ALJ concluded that Plaintiff was not disabled and, therefore, not entitled to DIB.

         Plaintiff contends that the ALJ erred at step two by failing to determine that the following alleged impairments were not severe: (A) neuropathy, visual impairments, and diarrhea; and (B) cognitive ...


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