Kitzman v. Social Security Administration, Commissioner of

Filing 9

MEMORANDUM AND ORDER. IT IS ACCORDINGLY ORDERED this 20th day of August, 2013, that the judgment of the Commissioner is REVERSED, and that judgment be entered in accordance with the fourth sentence of 42 U.S.C. § 405(g) REMANDING the case for further proceedings consistent with this Memorandum and Order. Signed by District Judge Eric F. Melgren on 8/20/2013. (alm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

COLIN M. KITZMAN,
Plaintiff,

vs.

Case No. 11-2513-EFM

MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

MEMORANDUM AND ORDER
Plaintiff Colin M. Kitzman seeks review of a final decision by the Commissioner of
Social Security (“Commissioner”) denying his application for disability and disability insurance
benefits under Title II of the Social Security Act. Plaintiff claims that the Commissioner’s
decision should be reversed because the administrative law judge (“ALJ”) failed to consider
third-party statements, the ALJ’s credibility and residual functioning capacity determinations
were not supported by substantial evidence, and the ALJ failed to properly assess whether work
existed in the national economy within Plaintiff’s residual functioning capacity. Because the
Court finds that the ALJ erred as described below, the Court orders that the decision of the
Commissioner is reversed and remanded.

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I.

Factual and Procedural Background

Kitzman was an employee at Lansing Correctional Facility when he suffered a workrelated injury. While testing the integrity of cell bars, Kitzman heard his wrist pop. He was
originally diagnosed with a severe sprain and was prescribed physical therapy to help treat the
injury.

After Kitzman developed hand swelling and pain radiating up his right arm, he

underwent an MRI. The results of the MRI indicated faint joint effusion due to minimal
inflammatory synovitis.
Kitzman then went to Dr. Brett Miller, M.D., who diagnosed Kitzman with a partial tear
of his triangular fibrocartilage complex and scapholunate ligament. Dr. Miller performed an
arthroscopy on Kitzman’s wrist. Following the arthroscopy, Kitzman underwent occupational
therapy and was thought to have mild reflex sympathetic dystrophy syndrome. Kitzman reported
continuing problems with his wrist and sought a second opinion from Dr. Brian Divelbiss, M.D.,
in November 2007.
Dr. Divelbiss diagnosed Kitzman with clinical cubital tunnel syndrome along with
probable complex regional pain syndrome.

Kitzman subsequently underwent two stellate

ganglion blocks. Dr. Divelbiss performed a neuroplasty of Kitzman’s right ulnar nerve at the
elbow and later performed a right wrist arthroscopy and debridement. In August 2008, Dr.
Divelbiss determined that Kitzman had reached maximum medical improvement and imposed
work restrictions. Dr. Divelbiss recommended Kitzman follow up with his family physician for
pain medications necessitated by his on-the-job injury and the resultant care of the injury.
Kitzman began seeing Dr. Chad Johanning for help with pain management in November
2008. In January 2009, Dr. John Moore IV, M.D., diagnosed Kitzman with complex regional

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maintained pain syndrome and recommended Kitzman undergo pain management and avoid
further surgeries. Kitzman continued to see Dr. Johanning for pain management.
Kitzman’s application for disability benefits was initially denied on September 2, 2008,
and again denied after reconsideration on January 27, 2009. Kitzman requested a hearing and
appeared before an administrative law judge (“ALJ”). The ALJ denied Kitzman’s request for
benefits, and the Social Security Administration’s Appeals Council denied Kitzman’s request for
review on August 5, 2011. Because Kitzman has exhausted all administrative remedies available
to him, the Commissioner’s decision denying Kitzman’s application for benefits is now final and
this Court has jurisdiction to review the decision.1
II.

Legal Standard

Pursuant to 42 U.S.C. § 405(g), “[t]he findings of the Commissioner of Social Security as
to any fact, if supported by substantial evidence, shall be conclusive.” Upon review, the Court
must determine whether substantial evidence supports the factual findings and whether the ALJ
applied the correct legal standard.2 “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.”3 The Court is not to reweigh the evidence or substitute
its opinion for the ALJ.4 The Court must examine the record as a whole, including whatever in
the record detracts from the ALJ’s findings, to determine if the ALJ’s decision is supported by

1

See 45 U.S.C. § 405(g) (granting jurisdiction to the federal courts to review “any final decision of the
Commissioner of Social Security”); 20 C.F.R. § 404.900 (outlining when the Commissioner’s decisions regarding
social security benefits becomes final).
2

Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).

3

Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (quotations and citations omitted).

4

Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (citations omitted).

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substantial evidence.5 Evidence is not substantial if it is overwhelmed by other evidence or if it is
a mere conclusion.6
To establish a disability, a claimant must demonstrate a physical or mental impairment
that has lasted, or can be expected to last, for a continuous period of twelve months and an
inability to engage in any substantial gainful work existing in the national economy due to the
impairment.7 The ALJ uses a five-step sequential process to evaluate whether a claimant is
disabled.8 The claimant bears the burden during the first four steps.9
In steps one and two, the claimant must demonstrate that he is not presently engaged in
substantial gainful activity and he has a medically severe impairment or combination of
impairments.10 “At step three, if a claimant can show that the impairment is equivalent to a listed
impairment, he is presumed to be disabled and entitled to benefits.”11 If, however, the claimant
does not establish an impairment at step three, the process continues. The ALJ assesses the
claimant’s residual functioning capacity (RFC), and at step four, the claimant must demonstrate
that his impairment prevents him from performing his past work.12 The Commissioner has the
burden at the fifth step to demonstrate that work exists in the national economy within the

5

Wall, 561 F.3d at 1052 (citing Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007)).

6

Id. (citing Grogan v. Barnhart, 399 F.3d 1257, 1261–62 (10th Cir. 2005)); see also Gossett v. Bowen, 862
F.2d 802, 805 (10th Cir. 1988) (citations omitted).
7

42 U.S.C. § 1382c(3)(A); see also Id. § 423(d)(1)(A).

8

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

9

Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).

10

Id. (citations omitted).

11

Id.

12

Id.; see also 20 C.F.R. § 416.920(a)(4)(iv).

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claimant’s RFC.13 The RFC assessment is used to evaluate the claim at both step four and step
five.14
III.

Analysis

The ALJ determined that Kitzman satisfied steps one and two of the sequential process,
finding Kitzman was not presently engaged in substantial gainful activity and that he had a
medically severe impairment. The ALJ then determined Kitzman did not satisfy step three
because his impairments did not meet or equal a listed impairment. After formulating Kitzman’s
RFC, the ALJ found that under step four, Kitzman was unable to perform any past relevant work.
At step five, the ALJ determined that Kitzman could perform the requirements of representative
occupations such as a surveillance system monitor. For that reason, the ALJ concluded Kitzman
was not disabled under the Social Security Act.
Kitzman argues that the ALJ erred because she failed to consider third-party statements
when assessing his credibility and because her credibility determination is not supported by
substantial evidence. Kitzman also argues that the ALJ’s RFC determination is not supported by
substantial evidence. Finally, Kitzman contends the ALJ erred in finding that there were jobs in
significant numbers he could perform because during the disability hearing she gave the
vocational expert a hypothetical that did not match Kitzman’s RFC.
A.

Credibility Determination
Credibility determinations are peculiarly the province of the finder of fact, and a court

will not upset such determinations when supported by substantial evidence. However, findings
as to credibility should be closely and affirmatively linked to substantial evidence and not just a
13

Id.; 20 C.F.R. § 416.920(a)(4)(v).

14

See 20 C.F.R. § 404.1520(a)(4)(iv)–(v).

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conclusion in the guise of findings.15 Furthermore, an ALJ cannot ignore evidence favorable to
the plaintiff.16
The Court will affirm an ALJ’s credibility determination which does not rest on mere
boilerplate language but instead is linked to specific findings of fact fairly derived from the
record.17 Although the Court will not reweigh the evidence or substitute its judgment for that of
the ALJ, the ALJ’s conclusions must be reasonable and consistent with the evidence.18 The Court
cannot displace the ALJ’s choice between two fairly conflicting views even though the Court
may have justifiably made a different choice.19
When evaluating a claimant’s allegations of pain, the ALJ must consider (1) whether
claimant established a pain-producing impairment by objective medical evidence, (2) whether
there is a “loose nexus” between the proven impairment and the claimant’s subjective allegations
of pain, and (3) whether considering all the evidence, both objective and subjective, claimant’s
pain is in fact disabling.20 If an impairment established by objective medical evidence is
reasonably expected to produce some pain, allegations of disabling pain emanating from that
impairment require consideration of all relevant evidence.21 The claimant need not produce
direct medical evidence of the cause and effect relationship between the impairment and the
15

Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995).

16

Owen v. Chater, 913 F. Supp. 1413, 1420 (D. Kan. 1995).

17

White v. Barnhart, 287 F.3d 903, 909–10 (10th Cir. 2002).

18

Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005); White, 287 F.3d at 905, 908; see also Glenn
v. Shalala, 21 F.3d 983, 988 (10th Cir. 1994).
19

Oldham v. Astrue, 509 F.3d 1254, 1257–1258 (10th Cir. 2007).

20

See Kepler, 68 F.3d at 390–91; Thompson v. Sullivan, 987 F. 2d 1482, 1488–89 (10th Cir. 1993); Luna
v. Bowen, 834 F.2d 161, 163–65 (10th Cir. 1987).
21

Luna, 834 F.2d at 163–65.

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degree of claimant’s subjective complaints.22 The absence of an objective medical basis for the
degree of severity of pain may affect the weight to be given to the claimant’s subjective
allegations of pain, but a lack of objective corroboration of the pain’s severity cannot justify
disregarding those allegations.
Here, the ALJ found Kitzman’s medically determinable impairments could reasonably be
expected to cause the alleged symptoms, but the intensity, persistence, and limiting effects of the
symptoms were not as limiting as Kitzman alleged. In making this determination, the ALJ
considered Kitzman’s statements regarding his pain, Kitzman’s missed physical therapy
appointments, Dr. Moore’s May 26, 2009 evaluation of Kitzman, and the other medical
evidence. The ALJ concluded that Kitzman’s statements regarding the intensity, persistence, and
limiting effects of his symptoms were not credible to the extent they were inconsistent with his
RFC.
1.

Third-Party Statements

Kitzman argues that the ALJ erred by failing to discuss the written statements of his wife
and the Social Security Administration’s agent, D. Twombly. Mrs. Kitzman completed a thirdparty function report for her husband on January 2, 2009.23 In the report, Mrs. Kitzman discussed
the nature and severity of her husband’s pain including how his pain made him unable to walk
the dog, sleep through the night, do house or yard work, go outside when the weather was wet or
cold, drive for long periods of time, stand more than twenty minutes, or concentrate when on

22

Id. at 165.

23

Mrs. Kitzman’s Third Party Function Report, Doc. 3-8, at 58–65.

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pain medication.24 D. Twombly’s September 24, 2008 report indicates that Kitzman had
difficulty using his hand and that he wore an arm brace on his right hand.25
In Adams v. Chater, the Tenth Circuit held an ALJ is not required to make specific,
written findings of each witness’s credibility when the written decision reflects that the ALJ
considered the witness’s testimony.26 Thirteen years later, the Tenth Circuit confirmed this rule
in Blea v. Barnhart.27 In Blea, the plaintiff argued that remand was necessary because the ALJ
failed to discuss or consider the lay opinion of the plaintiff’s wife.28 The ALJ’s decision did not
mention any particulars of Mrs. Blea’s testimony or even mention that she had testified regarding
the nature and severity of her husband’s impairments.29 The Commissioner asserted there was no
reversible error because the ALJ is not required to make written findings about each witness’s
credibility. The Blea court affirmed the ruling in Adams and noted that “it [was] not at all clear
that the ALJ considered Mrs. Blea’s testimony in making his decision.”30 Because the record did
not indicate that the ALJ considered Mrs. Blea’s testimony, the Court remanded the case so the
ALJ could properly consider the third-party testimony.31
Here, the ALJ did not discuss Mrs. Kitzman’s or D. Twombly’s statements or refer to
them in any other way in the written decision. The Commissioner maintains the ALJ did not err
24

Id.

25

D. Twombly Disability Report, Doc. 3-8, at 2–4.

26

93 F.3d 712, 715 (10th Cir. 1996).

27

466 F.3d 903, 914–15 (10th Cir. 2006).

28

Id. at 915.

29

Id.

30

Id.

31

Id.

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because she was not required to specifically discuss all of the evidence. As Blea indicates,
however, the ALJ is not required to make specific written findings regarding the credibility of
witnesses only if the written decision reflects the ALJ considered the witness’s testimony.32
Furthermore, the ALJ’s failure to consider Mrs. Kitzman’s and D. Twombly’s statements
is not harmless error, as the Commissioner argues, because the ALJ’s consideration of these
statements could have impacted the weight she assigned to Kitzman’s allegations.

Mrs.

Kitzman’s and D. Twombly’s statements are significantly probative because they corroborate
Kitzman’s claims regarding the intensity, persistence, and limiting effects of his symptoms.
Specifically, Mrs. Kitzman’s statement that her husband’s pain prevents him from sleeping at
night supports Kitzman’s pain allegations as well as Dr. Johanning’s notation in his Physician’s
RFC Form that the degree of pain was “debilitating.”33 There may be reasons to discount Mrs.
Kitzman’s and D. Twombly’s statements; the Court, however, will not engage in a post-hoc
analysis of the weight that should be accorded these statements. The ALJ erred when she failed
to indicate in her written decision that she had considered Mrs. Kitzman’s and D. Twombly’s
statements. The remedy for this error is reversal so the ALJ may properly consider the proffered
third-party statements from D. Twombly and Mrs. Kitzman.34

32

Id.

33

Dr. Johanning’s Residual Functional Capacity Form, Doc. 3-14, at 612.

34

See Blea, 466 F.3d at 915 (citing Baker v. Bowen, 886 F.2d 289, 291 (10th Cir. 1989) (“[W]here the
record on appeal is unclear as to whether the ALJ applied the appropriate standard by considering all the evidence
before him, the proper remedy is reversal and remand.”)).

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2.

Missed Physical Therapy Appointments

Kitzman next argues that the ALJ erred by failing to properly analyze his missed physical
therapy appointments. The ALJ noted Kitzman had cancelled physical therapy appointments ten
times and was a “no show” for two additional appointments.35 The ALJ also noted that when
Kitzman cancelled one of the appointments, he told the physical therapist, “‘[I] did not make it to
see the doctor in K.C. due to car trouble. I don’t see him until November 6, so I won’t have to
go back to work.’”36
Before an ALJ may rely on a claimant’s failure to pursue treatment as evidence of the
claimant’s lack of credibility, the ALJ must consider the Frey factors: (1) whether the treatment
at issue would restore claimant’s ability to work, (2) whether the treatment was prescribed, (3)
whether the treatment was refused, and (4) whether the refusal was without justifiable excuse.37
Here, the ALJ used Kitzman’s missed physical therapy appointments in her credibility
determination.38 The ALJ mainly focused on the third factor—Kitzman’s cancelled and “no
show” physical therapy appointments. The ALJ also briefly considered the fourth factor when
she mentioned that Kitzman cancelled an appointment because he had yet to see the doctor in
Kansas City. Kitzman contends that the ALJ’s truncated analysis of the Frey factors was
insufficient.

35

ALJ Decision, Doc. 3-4, at 16. The ALJ incorrectly listed the October 18, 2007 appointment in the list of
cancelled appointments. See Physical Therapy Records, Doc. 3-9, at 25 (noting statements Kitzman made while at
October 18, 2007 appointment as well as Kitzman’s response to the physical therapy).
36

Id.

37

Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th Cir. 1993) (citing Frey v. Bowen, 816 F.2d 508, 517
(10th Cir. 1987)).
38

ALJ Decision at 15–16.

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The Commissioner argues that the ALJ did not err in her analysis of the Frey factors
because Kitzman’s “no show” appointments reflected poorly on his credibility and undermined
his excuses for cancelling appointments. The ALJ, however, failed to consider whether Kitzman
had a justifiable reason for the “no show” appointments. The physical therapist’s notes indicate
that for both of the “no show” appointments, Kitzman called the same day to let her know why
he missed the appointments.39 Kitzman failed to show for the November 21, 2007 appointment
because he had the wrong appointment time, and he failed to show for the January 1, 2008
appointment because his child was sick.40 Moreover, as Kitzman notes, he had a justifiable
reason to cancel some of his physical therapy appointments, and he rescheduled many of his
cancelled appointments. The ALJ failed to provide sufficient reasoning and analysis of the
missed appointments as required by Frey, including whether Kitzman had a justifiable reason for
missing the appointments. Accordingly, the ALJ erred by failing to properly apply the Frey test
when determining whether Kitzman’s missed appointments undermined his credibility.41
3.

Dr. Moore and Symptom Magnification

Kitzman argues that the ALJ erred in relying on Dr. Moore’s finding that Kitzman’s
symptom magnification tests were positive. In a May 26, 2009 worker’s compensation letter, Dr.
Moore noted that Kitzman’s strength measurements were unreliable because Kitzman tested
positive for symptom magnification during his strength assessment. Dr. Moore also noted that
he measured Kitzman’s permanent partial impairment at twenty percent of the right upper
extremity at the elbow, that Kitzman had no permanent restrictions, and that Kitzman required no
39

Physical Therapy Records, Doc. 3-9, at 21, 24.

40

Id.

41

See Thompson, 987 F.2d at 1490.

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further medical or surgical care. The ALJ found “these results consistent with the missed
therapy appointments when it comes to credibility analysis.”42 She further noted that “findings of
symptom magnification would suggest the claimant’s symptoms are not as intense as he has
alleged and further support that his alleged symptoms are not inconsistent with the residual
functional capacity.”43
Kitzman contends the ALJ should not have relied on Dr. Moore’s finding of symptom
magnification because (1) Dr. Moore was the only physician who found symptom magnification,
(2) other doctors found Kitzman’s claims regarding his impairment to be credible, (3) the
symptom magnification test related only to his strength assessment and not his claims regarding
pain, and (4) Dr. Moore’s May 26, 2009 opinion is inconsistent with his opinion rendered four
months earlier. Kitzman also argues that Dr. Moore’s opinion has limited value under 20 C.F.R.
§ 404.1527(d)(2)(2010) because he was a physician paid to render an opinion for the purposes of
a worker’s compensation claim. The Commissioner contends the ALJ was permitted to consider
Dr. Moore’s finding of symptom magnification in evaluating Kitzman’s credibility.
While the Commissioner is correct that the ALJ may consider symptom magnification
when making a credibility determination, Kitzman appears to be challenging the weight the ALJ
assigned Dr. Moore’s opinion rather than the ALJ’s general ability to consider evidence of
symptom magnification. The ALJ did place particular emphasis on Dr. Moore’s symptom
magnification finding when she concluded Kitzman’s symptoms were not as intense as he
alleged, and Kitzman is correct that Dr. Moore’s symptom magnification finding does appear to
have some limitations. Because the ALJ will have to properly consider third-party statements
42

ALJ Decision, Doc. 3-4, at 17.

43

Id.

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and the Frey factors on remand, the Court will not assess the weight the ALJ assigned Dr.
Moore’s finding of symptom magnification. The Court instructs the ALJ to consider Kitzman’s
objections to Dr. Moore’s assessment when reevaluating Kitzman’s credibility.
4.

Regulatory Factors and Credibility

Kitzman argues the ALJ erred by failing to specify which parts of his testimony were not
credible and by failing to relate the evidence to the regulatory factors relevant to making a
credibility determination. The relevant factors the Commissioner considers when evaluating a
claimant’s symptoms, such as pain, are defined in 20 C.F.R. § 404.1529(c)(3). These factors
include daily activities; the location, duration, frequency, and intensity of the pain; precipitating
and aggravating factors; the type, dosage, effectiveness, and side effects of any medication taken
to relieve pain or alleviate other symptoms; and treatment, other than medication, received for
relief of pain or other symptoms.44 Kitzman notes the ALJ also failed to consider his work
history and earnings and his attempt to return to work at Lansing Correctional Facility and to
work part-time after his injury, as required by SSR 96-7p. Although the ALJ’s credibility
determination must be supported by substantial evidence, the Tenth Circuit has held that this
does not “require a formalistic factor-by-factor recitation of the evidence. So long as the ALJ
sets forth the specific evidence he relies on in evaluating the claimant's credibility, the dictates of
Kepler are satisfied.”45
Here, the ALJ did mention in the written decision that she examined the evidence based
on the requirements of regulatory factors including 20 C.F.R. § 404.1529(c)(3) and SSR 96-7p.

44

20 C.F.R. § 404.1529(c)(3).

45

Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000) (citing Kepler v. Chater, 68 F.3d 387, 391 (10th
Cir. 1995) (requiring a link between the evidence and the credibility determination).

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The ALJ also discussed which factors she used to make her credibility determination—
Kitzman’s statements regarding his impairment, Kitzman’s missed physical therapy
appointments, Dr. Moore’s finding of symptom magnification, and the medical evidence.
Although the ALJ did not provide a formalistic factor-by-factor recitation of the evidence, she
was not required to do so.
The Commissioner argues that because the ALJ did discuss the evidentiary factors
showing that Kitzman’s symptoms were not as limiting as he alleged, the ALJ’s credibility
determination should be upheld. The Commissioner cites Castillo v. Astrue,46 to support his
argument. In Castillo, the Court upheld the ALJ’s credibility determination because the ALJ
evaluated all of the evidence, based the credibility determination on the correct legal standard,
and affirmatively linked the credibility determination to substantial evidence in the record.47
Here, the ALJ did sufficiently set forth the specific evidence she relied upon in evaluating
Kitzman’s credibility, but she did not apply the correct legal standard when she analyzed this
evidence. Accordingly, Castillo is not applicable in this case.
B.

RFC Assessment and Step 5
Because this Court concludes the ALJ did not follow the correct legal standards when

making her credibility determination, the Court will not reach the remaining issues raised in the
petition. The ALJ’s RFC and evaluation of whether work exists in the national economy within
Kitzman’s RFC assessment may be affected by the ALJ’s reconsideration of her credibility
determination in accordance with the Court’s preceding analysis.

46

2011 WL 13627 (D. Kan. Jan. 4, 2011).

47

Id. at 10.

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IT IS ACCORDINGLY ORDERED this 20th day of August, 2013, that the judgment
of the Commissioner is REVERSED, and that judgment be entered in accordance with the
fourth sentence of 42 U.S.C. § 405(g) REMANDING the case for further proceedings consistent
with this memorandum and order.
IT IS SO ORDERED.

ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE

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