Opinion
Case No. 2:01CV889
March 13, 2003
ORDER
I. INTRODUCTION
Plaintiff, pursuant to 42 U.S.C. § 405(g), seeks judicial review of the decision of the Commission of Social Security denying his claim for disability insurance under Title II of the Social Security Act, 42 U.S.C. § 401-33. Plaintiff claims disability due to problems with a variety of mental impairments including dysthymic disorder, attention deficit hyperactivity disorder, intermittent explosive disorder, depressive disorder, and schizotypal personality disorder. Plaintiff originally claimed disability from January 1, 1997. Plaintiff's application was denied initially and upon reconsideration. After a hearing on September 19, 2000, the Administrative Law Judge ("ALJ") denied benefits, concluding that plaintiff was able to work as an Auto Detailer, Cleaner II, or Housekeeper. The Appeals Council denied plaintiff's subsequent request for review.
II. STANDARD OF REVIEW
The court reviews the Commissioner's decision to evaluate whether the record contains substantial evidence to support the findings, and to determine whether the correct legal standards were applied. Pacheco v. Sullivan, 931 P.2d 695, 696 (10th Cir. 1991). substantial evidence to support the Commissioner's decision that plaintiff is not disabled is "`such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Hamilton v. Secretary at Health Human Services, 961 F.2d 1495, 1498 (10th Cir. 1992) (citation omitted). In reviewing the Commissioner's decision, the court cannot weigh the evidence or substitute its discretion for that of the Commissioner, but the court has the duty to carefully consider the entire record and make its determination on the record as a whole. See Kelley v. Chater, 62 F.3d 335, 337 (10th Cir. 1995). Where evidence as a whole can support either the agency's decision or an award of benefits, the agency's decision must be affirmed. Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990).
The Commissioner has established a five-step sequential evaluation process to determine if a claimant is disabled. Reyes v. Bowen, 845 F.2d 242, 243 (10th Cir. 1988) (listing five steps) 20 C.F.R. § 404.1520, 416.920. The first step is to decide whether the claimant is currently engaged in substantial gainful employment. The second step is to decide whether the claimant's impairments are severe. The third step is to decide whether the impairments meet or equal one of the listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. The fourth step is to decide whether the claimant's impairments prevent him from performing his past relevant work. The fifth and last step is to decide whether the claimant could engage in other substantial gainful activity considering his age, education, and past work experience. If a claimant is determined to be disabled or not disabled at any step, the evaluation process ends there.Sorenson v. Bowen, 888 F.2d 706, 710 (10th Cir. 1989). The burden of proof is on the claimant through step four; then it shifts to the Commissioner. See id. (citing Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989)). However, the Commissioner's decision is subject to reversal if the incorrect legal standards were applied. Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir. 1988).
III. DISCUSSION
It appears from the court's review of the parties' briefs, including the Federal Register attachment to plaintiff's reply brief, that improper legal standards were applied. Subsequent to filing its Answer Brief and Memorandum in Opposition, the defendant has acknowledged the applicability of the "C" criteria of 12.04 and that it was in effect at the time of the ALJ's decision. (Telephone Conference with ASUA Carlie Christensen, March 13, 2003.)
Plaintiff is therefore correct that at the time the ALJ rendered his decision, listing 12.04 of 20 C.F.R. Pt. 404, Subpt. P, App. 1 had been amended to include the C criteria for listing 12.04. The hearing before the ALJ was conducted September 19, 2000 and his decision rendered December 27, 2000. The "C" criteria was applicable to all decisions rendered after September 20, 2000. Hence, when the ALJ found that plaintiff had not met the B criteria of 12.04, he was required to consider the C criteria of 12.04.
The ALJ's failure in this regard makes the decision subject to reversal because incorrect legal standards were applied. See Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir. 1988). Accordingly, the court will not proceed to discuss the evidence relied upon by the ALJ in making his determination under Step 3.
Regarding the ALJ's determination under Step 5, the court finds the ALJ overestimated plaintiff's RFC and failed to articulate why he found plaintiff's allegations of total disability inconsistent with objective medical and other evidence. In addition, the Vocational Expert testified, and the ALJ concurred, that the plaintiff could not perform his past relevant work as a laborer, assembly line worker, fast food worker, and cleaner. Then the Vocational Expert testified, and the ALJ concurred, that plaintiff is nevertheless capable of performing work as a "Cleaner II, or Cleaner/Housekeeper." There seems to be little or no explanation for this inconsistency. The ALJ failed to fully develop the record in this important regard.
In short, the court finds the record does not contain substantial evidence to support the ALJ's findings with regard to Step 5. Accordingly, the court finds the case should be reversed and remanded for additional consideration of the facts established as they relate to criteria C; and reversed and remanded as to the ALJ's findings under Step 5 so the record can be more fully developed.
SO ORDERED.