Steinle v. Social Security Administration, Commissioner of

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

KELLY A.S.,

Plaintiff,

v. Case No. 21-CV-1006-JAR

KILOLO KIJAKAZI, Commissioner of Social

Security

Defendant.

MEMORANDUM AND ORDER

This matter is before the Court for review of the final decision of Defendant

Commissioner of Social Security denying Plaintiff’s application for disability and disability

insurance benefits under Title II and supplemental security income benefits under Title XVI of

the Social Security Act. Plaintiff asserts that substantial evidence does not support the

administrative law judge’s (“ALJ”) determination, at step two of the five-step sequential

evaluation for determining whether a claimant is disabled, that Plaintiff did not have a medically

determinable mental impairment. Plaintiff also contends that the ALJ’s error at step two was not

harmless error. Because the Court concludes that the Commissioner’s findings are supported by

substantial evidence, the Court affirms the Commissioner’s decision.

I. Procedural History

On April 13, 2018, Plaintiff protectively applied for a period of disability, disability

insurance benefits, and supplemental social security income benefits. In both applications, she

alleged a disability onset date of May 15, 2014. Plaintiff’s applications were denied initially and

upon reconsideration. She then asked for a hearing before an ALJ.

After a hearing on October 10, 2019, the ALJ issued a written decision on February 25,

2020, finding that Plaintiff was not disabled. Given the unfavorable result, Plaintiff requested

reconsideration of the ALJ’s decision from the Appeals Council. Plaintiff’s request for review

was denied on November 13, 2020. Accordingly, the ALJ’s February 2020 decision became the

final decision of the Commissioner.

Plaintiff filed a Complaint in the United States District Court for the District of Kansas.

She seeks reversal of the ALJ’s decision and remand. Because Plaintiff has exhausted all

administrative remedies available, this Court has jurisdiction to review the decision.

II. Standard for Judicial Review

Judicial review under 42 U.S.C. § 405(g) is limited to whether the Commissioner’s

decision is supported by substantial evidence in the record as a whole and whether the

Commissioner applied the correct legal standards.1 The Tenth Circuit has defined “substantial

evidence” as “such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.”2 In the course of its review, the court may not re-weigh the evidence or substitute

its judgment for that of the Commissioner.3

III. Legal Standards and Analytical Framework

Under the Social Security Act, “disability” means the “inability to engage in any

substantial gainful activity by reason of any medically determinable physical or mental

impairment.”4

An individual shall be determined to be under a disability only if his

physical or mental impairment or impairments are of such severity that he

1 See Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015).

2 White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001) (quoting Castellano v. Sec’y of Health & Human

Servs., 26 F.3d 1027, 1028 (10th Cir. 1994)).

3 Id.

4 42 U.S.C. §§ 423(d)(2)(A), 416(i)(1)(a).

is not only unable to do his previous work but cannot, considering his age,

education, and work experience, engage in any other kind of substantial

gainful work which exists in the national economy . . . .5

Pursuant to the Act, the Social Security Administration has established a five-step

sequential evaluation process for determining whether an individual is disabled.6 The steps are

designed to be followed in order. If it is determined, at any step of the evaluation process, that

the claimant is or is not disabled, further evaluation under a subsequent step is unnecessary.7

The first three steps of the sequential evaluation require the Commissioner to assess: (1)

whether the claimant has engaged in substantial gainful activity since the onset of the alleged

disability, (2) whether the claimant has a severe impairment, or combination of severe

impairments, and (3) whether the severity of those impairments meets or equals a designated list

of impairments.8 “If the impairment does not meet or equal a listed impairment, the ALJ must

determine the claimant’s [residual functioning capacity (“RFC”)], which is [the claimant’s]

ability to do physical and mental work activities on a sustained basis despite limitations from

[his] impairments.”9

Upon assessing the claimant’s RFC, the Commissioner moves on to steps four and five,

which require the Commissioner to determine whether the claimant can either perform her past

relevant work or whether she can generally perform other work that exists in the national

5 Id. § 423(d)(2)(A).

6 Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010); see also 20 C.F.R. §§ 404.1520(a), 416.920(a).

7 Barkley v. Astrue, No. 09-1163-JTM, 2010 WL 3001753, at *2 (D. Kan. Jul. 28, 2010).

8 Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (first quoting Grogan v. Barnhart, 399 F.3d 1257,

1261 (10th Cir. 2005); and then quoting Williams v. Brown, 844 F.2d 748, 751 (10th Cir. 1988)); see also Barkley,

2010 WL 3001753, at *2 (citing Williams, 844 F.2d at 751).

9 Barkley, 2010 WL 3001753, at *2 (citing 20 C.F.R. § 416.920(e)); see also 20 C.F.R. §§ 404.1520(e),

404.1545.

economy, respectively.10 The claimant bears the burden in steps one through four to prove a

disability that prevents performance of his past relevant work.11 The burden then shifts to the

Commissioner at step five to show that, despite the claimant’s alleged impairments, the claimant

could perform other work in the national economy.12

The ALJ determined at step one that Plaintiff had not engaged in substantial gainful

activity since the alleged disability onset date. He determined at step two that Plaintiff had the

following severe impairments: supraventricular tachycardia, neuropathy, atrial fibrillation, and

obesity. At step three, the ALJ found that Plaintiff’s impairments did not meet or equal the

severity of one of the listed impairments in 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526,

416.920(d), 416.925, and 416.926. Continuing, he determined that Plaintiff had the RFC to

perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the

claimant may only occasionally climb ramps and stairs; may not climb ladders,

ropes, or scaffolds; may not be exposed to hazards such as dangerous machinery or

unprotected heights; and should avoid concentrated exposure to humidity,

temperature, and weather extremes, and pulmonary irritants (for example fumes,

dusts, gases, poor ventilation).13

The ALJ determined at step four that Plaintiff did not have any past relevant work. After

considering Plaintiff’s age, education, work experience, and RFC, he determined at step five that

Plaintiff was “capable of making a successful adjustment to other work that exists in significant

numbers in the national economy.”14 Thus, the ALJ concluded that Plaintiff had not been under

a disability from May 15, 2014, through the date of his decision.

10 Barkley, 2010 WL 3001753, at *2 (citing Williams, 844 F.2d at 751).

11 Lax, 489 F.3d at 1084 (quoting Hackett v. Barnhart, 395 F.3d 1168, 1171 (10th Cir. 2005)).

12 Id. (quoting Hackett, 395 F.3d at 1171).

13 Doc. 14-3 at 21.

14Id. at 27.

IV. Discussion

Plaintiff contends that substantial evidence does not support the ALJ’s determination at

step two that she did not have a medically determinable mental impairment. Plaintiff also asserts

that the ALJ’s error was not harmless because this determination impacted Plaintiff’s RFC. The

Commissioner argues that the ALJ reasonably concluded that Plaintiff did not have a medically

determinable health impairment because the psychologist’s findings were not valid due to

Plaintiff’s behavior. In addition, the Commissioner contends that the ALJ nevertheless

considered Plaintiff’s mental health functioning in the context of evaluating Plaintiff’s substance

abuse disorder and when formulating Plaintiff’s RFC. Finally, the Commissioner asserts that

even if the ALJ erred in concluding that Plaintiff did not have a medically determinable mental

health impairment other than substance abuse disorder, there is no evidence that this finding

caused harm.

At step two, the ALJ determines whether the plaintiff demonstrates a severe medically

determinable physical or mental impairment that has lasted or is expected to last twelve

continuous months.15 “A physical or mental impairment must be established by medical

evidence and must result from anatomical, physiological or psychological abnormalities that can

be shown by medically acceptable clinical and laboratory diagnostic techniques.”16 A plaintiff

“cannot establish a medically determinable physical or mental impairment without objective

15 Robinson v. Berryhill, No. 17-1254-KHV, 2018 WL 2198645, at *4 (D. Kan. May 14, 2018) (citing 20

C.F.R. §§ 404.1420(a)(4)(ii), 404.1509)).

16 Id. (citing 20 C.F.R. §§ 404.1420(a)(4)(ii), 404.1421).

evidence, e.g. medical signs and laboratory findings.”17 An impairment is considered severe if it

significantly limits the plaintiff’s physical or mental ability to do basic work activities.18

Here, at step two, the ALJ found that Plaintiff had four severe impairments:

supraventricular tachycardia, neuropathy, atrial fibrillation, and obesity. He also noted that she

had a non-severe medically determinable mental impairment of substance abuse disorder that did

not cause more than minimal limitations in Plaintiff’s ability to perform basic mental work

activities. The ALJ did not find any other medically determinable mental severe impairments.

In the ALJ’s step-two discussion, he noted the four broad functional areas of mental

functioning and found that Plaintiff either had no limitations or no more than mild limitations in

these areas. He specifically discussed the opinion of Dr. Gary Hackney, a consultative examiner.

Dr. Hackney found that Plaintiff had borderline personality disorder, bipolar disorder, social

anxiety disorder, post-traumatic stress disorder (“PTSD”), mild intellectual disability, and a

series of substance abuse disorders in sustained remission. Dr. Hackney also opined that

Plaintiff had marked limitations in essentially all four functional areas. The ALJ found,

however, that Dr. Hackney’s findings regarding these limitations were not a “reliable indicator of

the claimant’s true capabilities” because Plaintiff was extremely non-cooperative, lacked focus,

and refused to do the tasks asked of her during the consultive exam.19

Plaintiff contends that the ALJ went beyond his zone of discretion by discrediting Dr.

Hackney’s clinical judgment that Plaintiff suffered from a medically determinable mental

impairment. The Commissioner asserts that the ALJ reasonably concluded that Plaintiff failed to

17 Id.

18 Id. at *5 (first citing Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997); and then citing 20 C.F.R. §§

404.1520(c), 404.1522).

19 Doc. 14-3 at 19.

establish that she had any medically determinable mental health impairment other than substance

abuse disorder. The Commissioner notes that Plaintiff did not allege any mental health

conditions in her disability reports and did not have any mental health treatment. The only

evidence of a mental health condition was Dr. Hackney’s findings from his exam of Plaintiff.

Dr. Hackney found that Plaintiff had marked limitations in several areas, but he also observed

that Plaintiff was extremely uncooperative and did not perform many tasks simply because

Plaintiff did not want to do them.

In addition, the ALJ elaborated in his step-four discussion relating to Plaintiff’s RFC that

the evidence did not support a medically determinable mental health impairment other than

substance abuse disorder. The ALJ noted that other than Dr. Hackney’s determination that

Plaintiff had PTSD, depression, anxiety disorder, and borderline personality disorder, the other

state agency psychological consultants found no medically determinable mental health

impairments. The ALJ stated that there were no findings or reliable testing results to support a

medically determinable mental health disorder. Specifically, the ALJ found that the limitations

noted by Dr. Hackney’s testing were not reliable because of Plaintiff’s non-cooperation during

the examination. She was “extremely non cooperative, unpleasant, hostile, evasive, and

negative.”20 And the ALJ noted Dr. Hackney’s statement that Plaintiff “refused to try a number

of tasks because she didn’t want to do so, was not focused whatsoever during testing, would not

perform tasks, gave only minimal history information, refused to try, and simply responded with

‘I don’t know’s’ [sic] when asked questions.”21 Finally, the ALJ found that Dr. Hackney’s

opinions regarding Plaintiff’s marked limitations were not consistent with Plaintiff’s daily

20 Id. at 25.

21 Id.

activities, the medical evidence of record,22 or interactions with other medical providers.23 Thus,

the ALJ concluded that Dr. Hackney’s opinions regarding Plaintiff’s limitations were not

reliable. In sum, the ALJ articulated sufficient reasons demonstrating that substantial evidence

supports his finding that Plaintiff did not have any medically determinable mental impairments

other than substance abuse.

Finally, even if it was error for the ALJ to determine that Plaintiff did not have the

medically determinable impairments of PTSD, depression, anxiety disorder, and borderline

personality disorder, it was harmless. The ALJ found four severe medically determinable

impairments and one non-severe medically determinable mental impairment of substance abuse.

“[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.”24 Even if the ALJ erred in failing to find

Plaintiff’s PTSD, depression, anxiety disorder, and borderline personality disorder as medically

determinable impairments, “the Tenth Circuit has stated that ‘a failure to find an impairment

medically determinable is essentially a step-four error,’ which can ‘be obviated if the ALJ

considered the non-medically determinable impairment in assessing the RFC.’”25 Here, as noted

above, the ALJ thoroughly discussed the evidence regarding Plaintiff’s mental health

impairments and limitations—either through Plaintiff’s non-severe substance abuse disorder or

22 There was no other evidence of mental health impairments.

23 Plaintiff’s other medical evidence “repeatedly characterized the claimant as cooperative, pleasant, and

the like . . . and does not include any mention of concerns regarding the claimant’s cognitive abilities and/or abilities

to manage her medication, or need of close supervision, which would be expected with the opined marked

limitations and full scale IQ of 53.” Id.

24 Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016).

25 Bryant v. Berryhill, No. 15-1151-HE, 2017 WL 401263, at *5 (W.D. Okla. Jan. 30, 2017) (quoting Ray v.

Colvin, 657 F. App’x 733, 734 (10th Cir. 2016)).

the functional limitations proposed by Dr. Hackney—in assessing Plaintiff’s RFC. Accordingly,

there is no basis to reverse the ALJ’s decision.

V. Conclusion

The ALJ’s RFC determination is supported by substantial evidence. Plaintiff has not

shown that the ALJ’s decision is inconsistent with the Social Security Act, regulations, and

applicable case law.

IT IS THEREFORE ORDERED BY THE COURT that Defendant’s decision denying

Plaintiff disability benefits is AFFIRMED.

IT IS SO ORDERED.

Dated: February 4, 2022

S/ Julie A. Robinson

JULIE A. ROBINSON

UNITED STATES DISTRICT JUDGE