United States District Court, W.D. Missouri, Central Division
JESSE L. COLBERT, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
ORDER AFFIRMING THE COMMISSIONER'S
KAYS, CHIEF JUDGE
Jesse L. Colbert (“Colbert”) petitions for review
of an adverse decision by Defendant, the Acting Commissioner
of Social Security (“Commissioner”). Colbert
applied for Social Security disability insurance benefits
under Title II of the Social Security Act (“the
Act”), 42 U.S.C. §§ 401-434, and for
supplemental security income under Title XVI of the Act, 42
U.S.C. §§ 1381 et seq. The Administrative
Law Judge (“ALJ”) found that Colbert could
perform other relevant work and was therefore not disabled.
carefully reviewing the record and the parties'
arguments, the Court finds the ALJ's opinion is supported
by substantial evidence on the record as a whole. The
Commissioner's decision is AFFIRMED.
and Factual Background
complete facts and arguments are presented in the
parties' briefs and are repeated here only to the extent
filed his application under Title II on May 17, 2013, and
under Title XVI on August 31, 2013. He alleges a disability
onset date of August 31, 2013. The Commissioner denied the
application at the initial claim level, and Colbert appealed
the denial to an ALJ. After a hearing, the ALJ denied
Colbert's claim on July 31, 2015, finding that he was not
disabled under the Act. The Appeals Council denied
Colbert's request for review on October 28, 2016. Colbert
has exhausted all administrative remedies and judicial review
is now appropriate under 42 U.S.C. § 405(g).
Commissioner follows a five-step sequential evaluation
process to determine whether a claimant is
disabled, that is, unable to engage in any substantial
gainful activity by reason of a medically determinable
impairment that has lasted or can be expected to last for a
continuous period of at least twelve months. 42 U.S.C. §
federal court's review of the Commissioner's decision
to deny disability benefits is limited to determining whether
the Commissioner's findings are supported by substantial
evidence on the record as a whole. Buckner v.
Astrue, 646 F.3d 549, 556 (8th Cir. 2011). Substantial
evidence is less than a preponderance, but enough evidence
that a reasonable mind would find it sufficient to support
the Commissioner's decision. Id. In making this
assessment, the court considers evidence that detracts from
the Commissioner's decision, as well as evidence that
supports it. McKinney v. Apfel, 228 F.3d 860, 863
(8th Cir. 2000). The court must “defer heavily”
to the Commissioner's findings and conclusions. Hurd
v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010). The court
may reverse the Commissioner's decision only if it falls
outside of the available zone of choice, and a decision is
not outside this zone simply because the court might have
decided the case differently were it the initial finder of
fact. Buckner, 646 F.3d at 556.
argues that the ALJ erred: (1) at steps two and three by
failing to properly evaluate his diabetic peripheral
neuropathy, toxic myopathy, and global assessment of
functioning (“GAF”) scores, (2) at step four by
failing to properly evaluate the medical evidence, (3) at
step four by failing to properly evaluate his subjective
complaints, and (4) at step five by improperly relying on the
testimony of the vocational expert. After reviewing the
record and the applicable law, the Court finds these
arguments are without merit.
Substantial evidence supports the ALJ's evaluation of
Colbert's impairments at steps two and three.
argues that the ALJ improperly found that his diabetic
peripheral neuropathy and toxic myopathy were non-severe. The
ALJ evaluates whether the claimant's impairments are
severe at the second step of the sequential evaluation
process. 20 C.F.R. § 404.1520(a)(4)(ii). A severe
impairment significantly limits a claimant's ability to
do work-related activities. See Kirby v. Astrue, 500
F.3d 705, 707-08 (8th Cir. 2007). The impairment must also be
expected to result in death or have lasted-or be expected to
last-for a continuous period of at least 12 months. 20 C.F.R.
§ 404.1509. The severe impairment standard is not
onerous, but it is not toothless either. Kirby, 500
F.3d at 708. It is the claimant's burden to establish
severity. Id. at 707.
the ALJ found that Colbert's diagnosis with toxic
myopathy was a non-severe impairment. The record reveals that
on the date Colbert was diagnosed, his examinations were
normal and the physician did not prescribe any treatment for
the condition. R. at 341-42, 576-77. The fact that a claimant
was diagnosed with an impairment does not mean the impairment
is severe. See Buckner v. Astrue, 646 F.3d 549, 557
(8th Cir. 2011). As for Colbert's diabetic peripheral
neuropathy, the ALJ addressed this diagnosis while discussing
the RFC. R. at 35-36. The ALJ addressed Colbert's
diabetes and neuropathy as required by the applicable
regulations. See 20 C.F.R. §§ 404.1545(e),
416.945(e) (“[W]e will consider the limiting effects of
all your impairment(s), even those that are not severe, in
determining your residual functional capacity.”).
Therefore, because the ALJ addressed Colbert's diabetic
neuropathy at step four, the ALJ's failure to discuss it
at step two did not affect the outcome and is harmless error.
See Branch v. Colvin, No. 4:14-cv-1188, 2015 WL
5157752, at *15 (E.D. Mo. Sept. 2, 2015) (“For judicial
review of the denial of ...