Case Name in Social Security Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
TROY M.,1 	)
)
Plaintiff, 	)
) 	CIVIL ACTION
v. 	)
) 	No. 24-1239-JWL
FRANK BISIGNANO,2 	)
Commissioner of Social Security, 	)
)
Defendant. 	)
______________________________________)
MEMORANDUM AND ORDER
Plaintiff seeks review of a decision of the Commissioner of Social Security
denying Social Security Disability Insurance (SSDI) benefits pursuant to sections 216(i)
and 223 of the Social Security Act, 42 U.S.C. §§ 416(i) and 423 (hereinafter the Act).
Finding no 	mental
impairments, the court ORDERS that judgment shall be entered pursuant to the fourth
sentence of 42 U.S.C. § 405(g) AFFIRMING 	final decision.
I. 	Background
1
interest of protecting the privacy interests of disability claimants, it has determined to
caption Social Security decisions 	last name.
2 On May 7, 2025, Mr. Bisignano was sworn in as Commissioner of Social Security. In
accordance with Rule 25(d)(1) of the Federal Rules of Civil Procedure, Mr. Bisignano is
substituted for Acting Commissioner Lee Dudek as the defendant. Pursuant to the last
sentence of 42 U.S.C. § 405(g), no further action is necessary.
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Plaintiff protectively filed an application for SSDI benefits on November 23,
2022. (R. 14, 237-39). After exhausting administrative remedies before the Social
Security Administration (SSA), Plaintiff filed this case seeking judicial review of the
405(g). Plaintiff claims the ALJ failed
adequately to evaluate the impact of
functional capacity (RFC). (Pl. Br. 7-14).
Wall v. Astrue, 561 F.3d 1048, 1052
findings of the Commissioner as to any fact, if supported by substantial evidence, shall be
405(g). The court must determi
findings are supported by substantial evidence in the record and whether she applied the
correct legal standard. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); accord,
White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001). Substantial evidence 	s to
the weight, not the quantity, of the evidence. It requires more than a scintilla, but less
than a preponderance; it is only
Richardson v. Perales, 402 U.S. 389, 401
(1971); see also, Wall, 561 F.3d at 1052; Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir.
1988). 	ust find that the
evidence not only supports [a contrary] conclusion, but compels it I.N.S. v. Elias-
Zacarias, 502 U.S. 478, 481, n.1 (1992) (emphases in original).
Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting
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, 933 F.2d 799, 800 (10th Cir. 1991)); accord,
Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005); see also, Bowling v. Shalala,
nor try the issues de novo
Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988) (brackets in
Bowling)). Nonetheless, the determination whether substantial evidence supports the
substantial if it is overwhelmed by other evidence or if it constitutes mere conclusion.
Gossett, 862 F.2d at 804-05; Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).
The Commissioner uses the familiar five-step sequential process to evaluate a
claim for disability. 20 C.F.R. § 404.1520; Wilson v. Astrue, 602 F.3d 1136, 1139 (10th
Cir. 2010) (citing Williams v. Bowen
determination can be made at any of the steps that a claimant is or is not disabled,
Wilson, 602 F.3d at 1139 (quoting
Lax, 489 F.3d at 1084). In the first three steps, the Commissioner determines whether
claimant has engaged in substantial gainful activity since the alleged onset, whether he
has a severe impairment(s), and whether the severity of his impairment(s) meets or equals
the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt.
P, App. 1). Williams, 844 F.2d at 750-51. After evaluating step three, the Commissioner
RFC. 20 C.F.R. § 404.1520(e). This assessment is used at both step
four and step five of the sequential evaluation process (SEP). Id.
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The Commissioner next evaluates steps four and five of the process determining
at step four whether, considering the RFC assessed, claimant can perform his past
relevant work; and at step five whether, when also considering the vocational factors of
age, education, and work experience, he is able to perform other work in the economy.
Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In steps one through four the
burden is on Plaintiff to prove a disability that prevents performance of past relevant
work. Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006); accord, Dikeman v. Halter,
245 F.3d 1182, 1184 (10th Cir. 2001); Williams, 844 F.2d at 751 n.2. At step five, the
burden shifts to the Commissioner to show that there are jobs in the economy which are
within the RFC previously assessed. Id.; Haddock v. Apfel, 196 F.3d 1084, 1088 (10th
Cir. 1999). The court addresses the errors alleged in 	.
II. 	Discussion
determinable and not severe at step two of the SEP. (Pl. Br. 7). He argues she erred,
consider the impact of 	mental impairments at step
four 	failed to explain why she omitted any limitations accounting for them in the
RFC. Id. Plaintiff argues the ALJ erred in finding 	mental impairments not
severe based upon 	testimony; the treatment records of Licensed Professional
Counselor (LPC), Ms. Sweet; the findings of a neuropsychological consultation by Dr.
Fuendeling, PhD; and the medical opinion of Ms. Sweet, LPC. Id., 8-10.
Plaintiff argues that even if the ALJ properly found his mental impairments not
severe at step two of the SEP,
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Wells v. Colvin,
727 F.3d 1061, 1064 (10th Cir. 2013).
mental impairments were not severe at step two is not a
substitution for a proper RFC analysis. See Mary E. K. v. Kijakazi, No. 21-
CV-2373-TC, 2023 WL 4105155, at *3 (D. Kan. June 21, 2023)
Wells, 727 F.3d at 1068-1069)). And while a nonsevere
s
ability to do basic work activities, it may--when considered with limitations
or restrictions due to other impairments--be critical to the outcome of a
SSR 96-8p, 1996 WL 374184, at *5. The ALJ failed to provide
reasons supported by substantial evidence for failing to consider
mental impairments at step four.
(Pl. Br. 10).
Plaintiff argues the ALJ erred in failing to explain how his mental functional
limitations were considered in assessing his Mental RFC. Id.
regarding physical symptoms and his consideration of daily activities discussed only how
was insufficient to offer rationale for
omitting any mental limitations from the RFC. Id., 11-12. He recognized the ALJ
status
consultation but argues error because she also found
on Pl 	-reports without providing an evidentiary basis for that finding. Id. 12.
Plaintiff argues the ALJ relied on a selective reading of the report of Dr.
less serious findings while ignoring
recommendations suggesting significant mental symptoms. (Pl. Br. 12-13). Finally,
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that left the ALJ without sufficient evidence to evaluate the impact
of 	mental impairments on his ability to function
fully and fairly develop the record. Id. 14.
impairments not severe at step two of the evaluation process and even if there were the
error would be harmless because the ALJ considered all
assessing RFC and in
mental symptoms, his function report, a statement from his wife, his mental health
treatment, a neuropsychological evaluation, and a medical opinion as to his mental
capacity Id. He argues Plaintiff has not identified any evidence in the record
regarding his mental impairments that the ALJ failed to consider. Id. He argues the
in assessing RFC and at steps four and five renders any step two
error harmless. Id. at 6.
He also argues that
RFC was adequate for three reasons. First, he argues mild mental limitations assessed in
the four broad mental functional areas do not require functional mental RFC limitations.
Id. (citing Vigil v. Colvin, 805 F.3d 1199, 1203 (10th Cir. 2015) ( a moderate limitation
does not necessarily translate to a work-related functional limitation for purposes of
)). He points out that a mild limitation in one of the four broad
mental functional areas means functioning in that area is only 	20
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C.F.R., Pt. 404, Subpt. P, App. 1, § 12.00(F)(2)(b);
limitations in all four broad mental functional areas
mental impairments are not severe. 	404.1520a(d)(1)).
Second, the Commissioner argues the regulations only require that all the
they be specifically discussed in assessing RFC. Id. 9-10 (citing 20 C.F.R.
§ 404.1545(a)(2)).
making it clear such impairments were properly considered
Id. 13 (no.3, bold omitted).
the ALJ faile 	is demonstrably
symptoms when formulating the RFC Id. 14. He cites the record evidence regarding
decision. Id. 14-16. The Commissioner concludes by arguing that Plaintiff has not
shown the record evidence compels an outcome
Id. 17.
In his Reply Brief, Plaintiff reiterates the arguments in his brief. He also argues an
ALJ is required to explain how the non-severe mental impairments are considered at
step four. 	Beer v. Kijakazi, No. CIV-20-351-AMG, 2021 WL
3824837, at *3 (W.D. Okla. Aug. 26, 2021)). He argues,
clear discussion of how 	non-severe mental impairments were
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and 	reports, the ALJ did not cite evidence to explain how the
non-severe mental impairments were considered in assessing the RFC.
Id., 4-5. He argues the ALJ did not justify failing to provide mental functional limitations
speculation that the jobs at step five were sufficient to address
mental impairments was impermissible post hoc rationale Id. 5.
A. 	Alleged Step Two Error
Plaintiff does not seriously allege error in finding mental impairments not severe
at step two of the SEP and the court finds no error. The regulations provide that at step
two the SSA will rate the degree of limitation a claimant has in each of the four broad
mental functional areas and if the degree of limitation found in each of the areas is
will generally conclude that your impairment(s) is not
severe, unless the evidence otherwise indicates that there is more than a minimal
limitation in your ability to do basic work activities 	404.1520a(d)(1).
Here, the ALJ found:
limitation in any of the functional areas and the
evidence does not otherwise indicate that there is more than a minimal
non-severe.
(R. 19) (underline in original). The ALJ clearly applied the correct legal standard at step
two and Plaintiff does not demonstrate that his limitation in any functional area was
moderate or greater or that the evidence demonstrates more than a minimal limitation in
his ability to perform basic mental work activities. 	that his
testimony; the treatment records of Ms. Sweet; the findings of a neuropsychological
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consultation by Dr. Fuendeling, PhD; and the medical opinion of Ms. Sweet demonstrate
that his mental impairments are severe does not cite to evidence which compels a
finding of severity. Therefore, it is essentially a request for the court to reweigh the
above, the court may not do so. Bowman, 511 F.3d at 1272; Hackett, 395 F.3d at 1172;
see also, Bowling, 36 F.3d at 434.
B. 	Alleged Errors in Evaluating RFC Limitations
impairments at step four also fails. T
made after the step-
medically equals the severity of a Listed Impairment and is used at step four to determine
if the claimant can do past relevant work and at step five to determine if the claimant can
adjust to other work. 20 C.F.R. § 404.1520(a)(4)(iii-v), (e).
evidence and his allegations of symptoms discussed only inconsistencies regarding
physical activities and daily activities only as related to physical functional limitations.
(Pl. Br. 11-12). However, Plaintiff ignores the inconsistencies found by the ALJ in her
step two evaluation 	, wherein she found:
mental status [examination] demonstrates limited abnormalities during
treatment presentations, and
Abnormalities demonstrated during a
November 2022 neuropsychological evaluation were also limited, although
euthymic mood and evidence of stress with effort was demonstrated;
however, the provider recommended lifestyle modifications to include pain
relief using something other than cannabis products, as well as counseling
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and insomnia treatment. The claimant testified to limited/no psychotropic
medication use because of undesirable side effects.
(R. 18) (citations omitted).
Discussing the functional area of understanding, remembering, or applying
disabling mental limitations
completion of four or more years of college in June 2020, with no history
of special education participation. He lives independently with his family,
and participates in outpatient therapeutic counseling for his symptoms. A
November 2022 neuropsychological evaluation yielded findings regarding
intellectual functioning in the average range, although mild neurocognitive
disorder
weakness in attention and some aspects of mental control and organization
that fall within executive functioning. Mental status indicates he is alert,
oriented, and/or engaged during various encounters.
Id., 18-19 (quoting R. 1738, citations omitted). 	of each of the other
three mental functional areas includes identical or similar statements including the
abilities to drive, to go outside/leave home alone for up to two hours at a time; shop in
stores; and to keep in touch with others in person, on the phone, and via texting. Id. 19.
disabling mental impairments and the record evidence occurred in the section of the
import. This case is a judicial
are not
entirely consistent with the medical evidence and other evidence in the record for the
reasons explained in this decision.
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in the step two section of the decision are inconsistencies as much as inconsistencies
explained in the RFC assessment between the step three and step four sections or in any
other section of the decision.
Plaintiff acknowledges the ALJ presented inconsistencies between the record
the ALJ must address
inconsistencies regarding each impairment or at least each class of impairments to
discount 	allegations of symptoms relevant to mental impairments. This court
has held previously that the Commissioner must explain his reasons for discounting a
claima 	symptoms but need not provide a basis to discount every alleged
symptom. Betsy Mae L. v. Bisignano, Civ. A. No. 24-2467-JWL, 2025 WL 2561293, *5
(D. Kan. August 26, 2025) ((citing this court s decision in Attia D. S. v. O Malley, Civ.
A. No. 23-1262-JWL, 2024 WL 4381228, at *6 (D. Kan. Oct. 2, 2024). Moreover, as
discussed above the ALJ here also
impairments upon which she relied to discount his alleged symptoms, and Plaintiff does
not point to evidence compelling a finding of consistency.
upon claimant [sic] self-report of symptoms during counseling
Plaintiff is correct that an ALJ must have an evidentiary basis to discount a medical
-reports. Langley v. Barnhart, 373 F.3d
1116, 1121 (10th Cir. 2004), and Victory v. Barnhart, 121 F. App x 819, 823-24 (10th
Cir. 2005). Here,
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-reported symptoms.
appears largely based upon claimant self-report of symptoms during counseling,
rather than upon observed clinical abnormalities, where rarely the claimant is noted as
frustrated in addition to being engaged and cooperative. (R. 26) (citations omitted).
Thus,
-reports which are presented in the
treatment notes rather than observed clinical abnormalities which do not appear in the
treatment notes 	limited abnormalities during treatment presentations
showing Plaintiff is engaged and cooperative but, rarely, frustrated. Id. Moreover, the
ALJ found the opinion
is not consistent with findings during a November 2022 neuropsychological
evaluation where abnormalities included euthymic mood and evidence of
stress with effort; however, other findings were largely within normal limits
and the provider recommended lifestyle modifications to include pain relief
using something other than cannabis products, as well as counseling and
insomnia treatment to improve functioning.
Id.
lifestyle modification, counseling, and insomnia treatment while ignoring
that suggested significant mental symptoms consistent with
reports. (Pl. Br. 12-13).
Dr. Fruendeling
doctor provided his recommendations in his neuropsychological consultation report:
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Recommendations:
1) Given that 	attention and memory complaints are currently at
a level that can be explained in large part by his regular use of cannabis
products, I encourage [Plaintiff] to refrain from regular use of cannabis and
find other ways to manage pain instead.
2) Although I have not assigned a formal diagnosis of depression or
anxiety, [Plaintiff] describes history of both and indicate[s] moderate to
severe levels of current symptomatology. A referral to PCMHI for brief
assessment and possible therapeutic intervention might be helpful to his
overall functioning, including his cognitive functioning.
3) It seems likely that disrupted or dysregulated sleep is also contributing to
cognitive complaints. The effects of insomnia on attention are
usually well understood. Notably, narcolepsy or hypersomnia can also
impact attention and memory, likely because of the cognitive effort and
resources that patients expend trying to maintain alertness.
4) Given the specificity of 	deficits to language and the
possibility of lateralization that this raises, new imaging may be helpful in
understanding the etiology underlying his deficits
(R. 1004-05, 1754 (duplicate) (bold in original)).
explanation of his recommendations as
recorded in his discussion with Plaintiff and his wife:
Recommendations:
1) Given that 	attention and memory complaints are currently at
a level that can be explained in large part by his regular use of cannabis
products, I encourage [Plaintiff] to refrain from regular use of cannabis and
find other ways to manage pain instead. Notably, he has tried numerous
approaches to pain management, but does not appear to have had CBT for
pain. I discussed with him referral to our pain clinic, and he agreed to this.
2) Although I have not assigned a formal diagnosis of depression or
anxiety, [Plaintiff] describes history of both and indicate[s] moderate to
severe levels of current symptomatology. [Plaintiff and his wife] are
currently seeing a counselor in the community. If this is not helpful, [I]
suggested that they seek a referral to PCMHI through his PCP.
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3) It seems likely that disrupted or dysregulated sleep is also contributing to
cognitive complaints. The effects of insomnia on attention are
usually well understood. Notably, narcolepsy or hypersomnia can also
impact attention and memory, likely because of the cognitive effort and
resources that patients expend trying to maintain alertness. I suggested to
the [Plaintiff and his wife] that they discuss with their current counselor
whether she is able to provide CBT-I. If she is not, I suggested that they
seek CBT-I through the Joplin CBOC.
4) Given the specificity of 	deficits to language and the
possibility of lateralization that this raises, new imaging may be helpful in
understanding the etiology underlying his deficits.
5) Now that [Plaintiff] is established with a neurologist in VA and will
hopefully have a consistent relationship with her, I also suggest that they
pursue a work up for possible seizure activity. While this may not be the
most likely etiology for his issues, I think it is worth looking into.
(R. 1738-39) (bold in original). The ALJ considered and specifically cited each of these
notes recorded by Dr. Fruendeling in his reasons for discounting the opinion of Ms.
Sweet. (R. 26) (citing Ex. C15F/78-79, 91-94 (R. 1738-39, 1751-54)).
When considered in light of this evidence specifically relied upon by the ALJ,
that the psychologist s recommendation: (that a referral to PCMHI
might be helpful) and his suggestions: ( 	issues with organization and
variable attention are particularly consistent with the impacts of insomnia or hypersomnia
and of mood; that it seems likely that disrupted or dysregulated sleep is also contributing
to 	cognitive complaints; that new imaging may be helpful in understanding the
etiology underlying 	deficits 	memory difficulty is likely
secondary to his attentional trouble, which could be fully explained by his use of
marijuana or derivative products, anxiety and mood, or dysregulated sleep, while his
language weakness is unlikely to result from those factors, and he may have left temporal
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seizure activity or some related neurological issue that underlies his language difficulty,
cataplexy, and migraines) might constitute significant mental symptoms consistent with
reports (Pl. Br. 13), is simply without merit. The statements or
recommendations cited by Plaintiff are merely Dr. Fruen
steps which might be explored if current treatment is not productive, statements of fact
which did not significantly affect his diagnoses or recommendations, and speculation
regarding potential neurological base
that
were as severe as Ms. Sweet opined or that Dr. Fruendeling found disabling mental
limitations. In other words, Plaintiff has not cited evidence which compels a different
finding but essentially asks the court to reweigh the evidence more favorably to his
so. Bowman, 511 F.3d at 1272; accord, Hackett, 395 F.3d at 1172; see also, Bowling, 36
F.3d at 434.
s
left the ALJ without sufficient evidence to
evaluate the impact of 	] mental impairments on his ability to function (Pl.
decision. Plaintiff testified that his mental impairments are disabling and Ms. Sweet
similarly opined that his mental impairments are disabling. The Commissioner found
inconsistencies in
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finding of insufficient evidence but a finding that the evidence does not support
develop the record, Plaintiff points to no evidence which was necessary to the decision at
issue and was not secured or developed by the ALJ, and the court finds none. Plaintiff
simply did not meet his burden of proof.
As noted above, in his Reply Brief Plaintiff argued,
the ALJ is required to explain how the non-severe mental impairments are
considered at step four. See Beer v. Kijakazi, No. CIV-20-351-AMG, 2021
WL 3824837, at *3-4
mental limitations, and the
The ALJ did not attempt to tie any of this evidence to his decision not to
(Pl. Reply 2-3).
The court acknowledges that non-severe mental impairments must be considered
in assessing RFC and in all further steps of the SEP but it does not agree that an ALJ is
required to explain how she considered them at step four. In the Beer decision, the court
only further statement about Plaintiff's mental impairments was at the
end of his Step 2 analysis that
Beer, 2021 WL 3824837, at *3. 	here contains a statement at the end
of her step two analysis identical in every respect to the statement quoted above by the
Beer court. (R. 19). However, thereafter in her RFC assessment the ALJ makes
or oblique as those found by the Beer court.
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clinical abnormalities, was inconsistent with evidence of limited abnormalities during
(R. 26).
disabling symptoms, specifically noting:
Mentally, they are not consistent with limited outpatient counseling for
mental impairment; with limited medication use; with neuropsychological
evaluation yielding findings regarding intellectual functioning in the
average range, although mild neurocognitive disorder and insomnia were
diagnosed to
some aspects of mental control and organization that fall within executive
functioning; 	mental status findings indicating the claimant
is alert, oriented, and/or engaged during various encounters.
Id. 27 (citations omitted).
The evidence clearly reveals the ALJ considered
when assessing his RFC, and in doing so she determined he had no mental functional
limitations preventing him from engaging in substantial gainful work activity even when
considered in conjunction with his other impairments. She also noted in her step two
Id. 19. She was not
required to state some additional magic words. Plaintiff has the burden of proof in
presenting his functional limitations. To demonstrate he has met that burden before a
court, Plaintiff must suggest a mental limitation or limitations which should have been
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assessed and point to record evidence which compels finding that limitation or those
limitations. In a case such as this, where the ALJ has applied the correct legal standards
and has explained her consideration, any other course is merely asking the court to
reweigh the evidence and substitute its judgment for that of the ALJ.
IT IS THEREFORE ORDERED that judgment shall be entered pursuant to the
fourth sentence of 42 U.S.C. §
Dated February 25, 2026, at Kansas City, Kansas.
s:/_John W. Lungstrum____
John W. Lungstrum
United States District Judge
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