Jagodzinski v. Social Security Administration, Commissioner of

Filing 14

MEMORANDUM AND ORDER. The judgment of the Commissioner is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this memorandum and order. See attached for more details. Signed by U.S. District Senior Judge Sam A. Crow on 9/11/2013. (bmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

GARY T. JAGODZINSKI,
Plaintiff,
vs.

Case No. 12-2509-SAC

CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,1
Defendant.

MEMORANDUM AND ORDER
This is an action reviewing the final decision of the
Commissioner of Social Security denying the plaintiff disability
insurance benefits.

The matter has been fully briefed by the

parties.
I.

General legal standards
The court's standard of review is set forth in 42 U.S.C.

§ 405(g), which provides that "the findings of the Commissioner
as to any fact, if supported by substantial evidence, shall be
conclusive."

The court should review the Commissioner's

decision to determine only whether the decision was supported by
substantial evidence and whether the Commissioner applied the
correct legal standards.
(10th Cir. 1994).

Glenn v. Shalala, 21 F.3d 983, 984

Substantial evidence requires more than a

1

Carolyn W. Colvin became Acting Commissioner of Social Security on February 14, 2013, replacing Michael J.
Astrue, the former Commissioner of Social Security.
1

scintilla, but less than a preponderance, and is satisfied by
such evidence that a reasonable mind might accept to support the
conclusion.

The determination of whether substantial evidence

supports the Commissioner's decision is not simply a
quantitative exercise, for evidence is not substantial if it is
overwhelmed by other evidence or if it really constitutes mere
conclusion.

Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).

Although the court is not to reweigh the evidence, the findings
of the Commissioner will not be mechanically accepted.

Nor will

the findings be affirmed by isolating facts and labeling them
substantial evidence, as the court must scrutinize the entire
record in determining whether the Commissioner's conclusions are
rational.
1992).

Graham v. Sullivan, 794 F. Supp. 1045, 1047 (D. Kan.

The court should examine the record as a whole,

including whatever in the record fairly detracts from the weight
of the Commissioner's decision and, on that basis, determine if
the substantiality of the evidence test has been met.

Glenn, 21

F.3d at 984.
The Social Security Act provides that an individual shall
be determined to be under a disability only if the claimant can
establish that they have a physical or mental impairment
expected to result in death or last for a continuous period of
twelve months which prevents the claimant from engaging in
substantial gainful activity (SGA).
2

The claimant's physical or

mental impairment or impairments must be of such severity that
they are not only unable to perform their previous work but
cannot, considering their age, education, and work experience,
engage in any other kind of substantial gainful work which
exists in the national economy.

42 U.S.C. § 423(d).

The Commissioner has established a five-step sequential
evaluation process to determine disability.

If at any step a

finding of disability or non-disability can be made, the
Commissioner will not review the claim further.

At step one,

the agency will find non-disability unless the claimant can show
that he or she is not working at a “substantial gainful
activity.”

At step two, the agency will find non-disability

unless the claimant shows that he or she has a “severe
impairment,” which is defined as any “impairment or combination
of impairments which significantly limits [the claimant’s]
physical or mental ability to do basic work activities.”

At

step three, the agency determines whether the impairment which
enabled the claimant to survive step two is on the list of
impairments presumed severe enough to render one disabled.

If

the claimant’s impairment does not meet or equal a listed
impairment, the inquiry proceeds to step four, at which the
agency assesses whether the claimant can do his or her previous
work; unless the claimant shows that he or she cannot perform
their previous work, they are determined not to be disabled.
3

If

the claimant survives step four, the fifth and final step
requires the agency to consider vocational factors (the
claimant’s age, education, and past work experience) and to
determine whether the claimant is capable of performing other
jobs existing in significant numbers in the national economy.
Barnhart v. Thomas, 124 S. Ct. 376, 379-380 (2003).
The claimant bears the burden of proof through step four of
Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th

the analysis.
Cir. 1993).

At step five, the burden shifts to the

Commissioner to show that the claimant can perform other work
that exists in the national economy.

Nielson, 992 F.2d at 1120;

Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).

The

Commissioner meets this burden if the decision is supported by
substantial evidence.

Thompson, 987 F.2d at 1487.

Before going from step three to step four, the agency will
assess the claimant’s residual functional capacity (RFC).

This

RFC assessment is used to evaluate the claim at both step four
and step five.

20 C.F.R. §§ 404.1520(a)(4), 404.1520(e,f,g);

416.920(a)(4), 416.920(e,f,g).
II.

History of case
February 23, 2011, administrative law judge (ALJ) William

G. Horne issued his decision (R. at 13-19).

Plaintiff alleges

that he has been disabled since January 1, 2000 (R. at 13).
Plaintiff is insured for disability insurance benefits through
4

December 31, 2004 (R. at 15).

At step one, the ALJ found that

plaintiff has not engaged in substantial gainful activity from
January 1, 2000 through December 31, 2004 (R. at 15).

At step

two, the ALJ found that plaintiff has the following severe
impairment:

hearing loss (R. at 15).

At step three, the ALJ

determined that plaintiff’s impairments do not meet or equal a
listed impairment (R. at 16).

After determining plaintiff’s RFC

(R. at 16), the ALJ determined at step four that plaintiff is
able to perform past relevant work as a corrections officer (R.
at 18).

Therefore, the ALJ concluded that plaintiff was not

disabled (R. at 19).
III.

Are the ALJ’s RFC findings supported by substantial

evidence?
According to SSR 96-8p, the RFC assessment “must include a
narrative discussion describing how the evidence supports each
conclusion, citing specific medical facts...and nonmedical
evidence.”

The ALJ must explain how any material

inconsistencies or ambiguities in the evidence in the case
record were considered and resolved.

The RFC assessment must

always consider and address medical source opinions.

If the RFC

assessment conflicts with an opinion from a medical source, the
ALJ must explain why the opinion was not adopted.
1996 WL 374184 at *7.

SSR 96-8p,

SSR rulings are binding on an ALJ.

20

C.F.R. § 402.35(b)(1); Sullivan v. Zebley, 493 U.S. 521, 530
5

n.9, 110 S. Ct. 885, 891 n.9, 107 L. Ed.2d 967 (1990); Nielson
v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993).

When the ALJ

fails to provide a narrative discussion describing how the
evidence supports each conclusion, citing to specific medical
facts and nonmedical evidence, the court will conclude that his
RFC conclusions are not supported by substantial evidence.

See

Southard v. Barnhart, 72 Fed. Appx. 781, 784-785 (10th Cir. July
28, 2003).

The ALJ’s decision must be sufficiently articulated

so that it is capable of meaningful review; the ALJ is charged
with carefully considering all of the relevant evidence and
linking his findings to specific evidence.

Spicer v. Barnhart,

64 Fed. Appx. 173, 177-178 (10th Cir. May 5, 2003).

It is

insufficient for the ALJ to only generally discuss the evidence,
but fail to relate that evidence to his conclusions.

Cruse v.

U.S. Dept. of Health & Human Services, 49 F.3d 614, 618 (10th
Cir. 1995).

When the ALJ has failed to comply with SSR 96-8p

because he has not linked his RFC determination with specific
evidence in the record, the court cannot adequately assess
whether relevant evidence supports the ALJ’s RFC determination.
Such bare conclusions are beyond meaningful judicial review.
Brown v. Commissioner of the Social Security Administration, 245
F. Supp.2d 1175, 1187 (D. Kan. 2003).
The ALJ made the following RFC findings:

6

...through the date last insured [December
31, 2004], the claimant had the residual
functional capacity to perform medium work
as defined in 20 CFR 404.1567(c) except he
has a 10% hearing loss.
(R. at 16).

Plaintiff argues that the ALJ failed to comply with

SSR 96-8p by failing to explain the evidentiary basis for his
RFC findings.
The record contains a report from Dr. Siemsen, who
performed a state agency assessment after reviewing the record
in the case.

After summarizing the evidence, Dr. Siemsen stated

the following:
Evidence as a whole is found to be
insufficient to fully assess all the C’s
alleged impairments and the resulting
functional loss prior to the DLI [date last
insured] of 12/31/04.
(R. at 380).

The ALJ noted this finding by Dr. Siemsen in his

opinion (R. at 17).
The only RFC assessment in the file is from Dr. Puderbaugh,
a treating physician.
25, 2009.

The assessment was prepared on September

He identified several physical impairments that he

asserted prevented plaintiff from working, including
COPD(emphysema), chronic pain, hypertonic bladder, hearing loss
and poor night vision (R. at 374).

He then prepared a RFC

assessment which included the following limitations:
Lift less than 10 pounds frequently
Lift a maximum of 10 pounds at one time
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Stand/walk for less than 1 hour in an 8 hour
workday
Needs to lie down, recline, or elevate foot
for over 4 hours in an 8 hour workday
Plaintiff cannot use hands/arms for
activities requiring repetitive motion
Plaintiff cannot push/pull arm controls
repeatedly and cannot push/pull leg and foot
controls repeatedly
Plaintiff cannot crouch, crawl, kneel, or
climb
Plaintiff can only occasionally bend, squat,
stoop and reach
Plaintiff has a severe limitation against
exposure to marked changes in temperature
and humidity, and against exposure to dust
and fumes
(R. at 375-376).

Dr. Puderbaugh opined that he believed

patient’s claims of pain, and stated that they are supported by
degenerative changes of the lumbar spine on an x-ray dated March
23, 2009.

He stated that he has seen objective evidence of the

pain (R. at 376).

He further opined that plaintiff’s pain is

frequently debilitating, and that he suffers from fatigue which
reduces his ability to perform activities noted on the
assessment.

He stated that plaintiff’s impairments or treatment

would result in the plaintiff being absent from work more than 3
times a month (R. at 377).

He indicated that plaintiff’s severe

impairment of breathing and shortness of breath would make it

8

difficult for him to work on a sustained basis.

He stated that

plaintiff had been functioning at this level since 2000.

He

stated that the laboratory and clinical findings that supported
his opinions are: wears hearing aids, COPD on x-ray, FEV/FVC
reduction on PFT’s, degenerative spinal changes on x-ray, and
history of pulmonary infarct (R. at 378).
The ALJ assigned little weight to Dr. Puderbaugh’s opinion.
The ALJ did so because Dr. Puderbaugh provided no evidence in
support of his findings that the plaintiff was unable to perform
work prior to the alleged onset date (R. at 18).2

The ALJ noted

that, to support his opinions, he referenced pulmonary function
testing in 2007 and a lumbar spine x-ray taken in March 2009 (R.
at 17, 374, 376).

The ALJ also stated that his opinions were

inconsistent with and not supported by the treatment records at
Exhibit 5F pages 406-409 (R. at 18, 786-789).
The treatment records referenced by the ALJ were from 2002.
They show a diagnosis of diabetes and chronic obstructive
pulmonary disease (COPD).

It notes plaintiff has a chronic

cough and shortness of breath (R. at 787).

2

His respiration was

The court would note that the issue before the ALJ was whether plaintiff was unable to work between the alleged
onset date and his date last insured. Plaintiff alleged an onset date of January 1, 2000, and his date last insured was
December 31, 2004. Dr. Puderbaugh opined that plaintiff had the limitations noted in his report as of 2000. The
ALJ clearly erred by discounting Dr. Puderbaugh’s opinion because there was no evidence to support a finding that
plaintiff was unable to work prior to the alleged onset date. First, Dr. Puderbaugh opined that plaintiff had the
limitations noted as of 2000, which is not prior to the alleged onset date of January 1, 2000. Second, whether
plaintiff was unable to perform work prior to the alleged onset date is of no relevance to a determination of whether
plaintiff could work on or after the alleged onset date. Although this specific issue was not raised by the parties,
because this case is being reversed and remanded for other reasons, it will be addressed in order to forestall the
repetition of avoidable error. Chapo v. Astrue, 682 F.3d 1285, 1292 (10th Cir. 2012).
9

clear with good air exchange bilaterally (R. at 788).

The

treatment records from 2002 are silent regarding plaintiff’s
physical limitations.
The ALJ’s RFC findings limited plaintiff to medium work
with a 10% hearing loss (R. at 16).

The ALJ stated that his RFC

assessment was based on the medical evidence of record during
the period between January 1, 2000 and December 31, 2004, and
plaintiff’s descriptions of his limitations (R. at 18).
However, the ALJ does not point to any medical evidence in
support of a finding that plaintiff can perform medium work.
Furthermore, plaintiff’s testimony does not support the ALJ’s
RFC findings.

Plaintiff testified that he had COPD, and that

from 1999-2004 he was on oxygen.

The COPD resulted in coughing

a lot, and difficulty breathing, especially in the summertime
(R. at 42).

He indicated that he was on oxygen 24 hours a day

(R. at 58).

From 1999-2004, plaintiff testified that he could

only walk about a couple of blocks, and had difficulty standing
for more than 30 minutes (R. at 43).
As set forth above, “the RFC assessment must include a
narrative discussion describing how the evidence supports each
conclusion, citing specific medical facts and nonmedical
evidence.”

Wells v. Colvin, __ F.3d ___, 2013 WL 4405723 at *5

(10th Cir. Aug. 19, 2013)(emphasis in original).

The problem

with the ALJ’s RFC findings is that he does not show how the
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evidence supports his finding that plaintiff can perform medium
work.

The ALJ did not cite to any medical facts or nonmedical

evidence in support of his RFC finding that plaintiff can
perform medium work.
In the case of Fleetwood v. Barnhart, 211 Fed. Appx. 736
(10th Cir. Jan. 4, 2007), the ALJ relied on a state agency
medical consultant who filled out a check-the-box evaluation
form, which, standing alone, the court found did not constitute
substantial evidence.

The court stated that no other medical

evidence in the record specifically addressed her ability to
work.

The court held as follows:
To the extent there is very little medical
evidence directly addressing Ms. Fleetwood's
RFC, the ALJ made unsupported findings
concerning her functional abilities. Without
evidence to support his findings, the ALJ
was not in a position to make an RFC
determination.
The ALJ's inability to make proper RFC
“findings may have sprung from his failure
to develop a sufficient record on which
those findings could be based.” Washington
v. Shalala, 37 F.3d 1437, 1442 (10th
Cir.1994). The ALJ must “make every
reasonable effort to ensure that the file
contains sufficient evidence to assess RFC.”
Soc. Sec. R. 96-8p, 1996 WL 374184, at *5.
Because the disability hearing is
nonadversarial, an ALJ is obligated to
develop the record even where, as here, the
claimant is represented by counsel. Thompson
v. Sullivan, 987 F.2d 1482, 1492 (10th
Cir.1993); accord Hawkins v. Chater, 113
F.3d 1162, 1164, 1168 (10th Cir.1997). Even
though Ms. Fleetwood's counsel did not
11

request any additional record development,
the need for additional evidence is so
clearly established in this record that the
ALJ was obliged to obtain more evidence
regarding her functional limitations. See
Hawkins, 113 F.3d at 1167-68.
Fleetwood, 211 Fed. Appx. at 740-741; see Martin v. Astrue, Case
No. 09-1235-SAC (June 28, 2010, Doc. 13-15, 16-18).
The problem in this case is the absence of evidence
regarding plaintiff’s impairments and limitations on or before
December 31, 2004, his date last insured.

Dr. Siemsen reviewed

the records and found that there was insufficient evidence to
make an RFC finding.3

Dr. Puderbaugh opined that plaintiff had

numerous limitations dating back to 2000, but he only cited to
testing from 2007 and 2009.

He offered no explanation for

opining that plaintiff’s limitations existed as far back as
2000.

The medical records indicate that Dr. Puderbaugh began

seeing plaintiff in 2007 (Doc. 4 at 11; Doc. 11 at 10).

The

medical records cited from 2002 provide no indication regarding
plaintiff’s limitations at that time.

The ALJ gave little

weight to the opinions of Dr. Puderbaugh.
In light of the fact that the ALJ gave little weight to the
opinions of Dr. Puderbaugh, the ALJ failed to explain how the
evidence supports a finding that plaintiff can perform medium
work, with some hearing loss.

The only other medical opinion on

3

The treatment records from 2002 referenced by the ALJ (R. at 15, 786-789), previously discussed, were not
mentioned by Dr. Siemsen in his report.
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this issue was the opinion of Dr. Siemsen, who after reviewing
the file, stated that the record was insufficient to make an RFC
finding.

The ALJ does not cite to any evidence in support of

his RFC finding; this is especially troubling when Dr. Siemsen
opined that the record was insufficient to make an RFC finding.
When the medical evidence indicates either that plaintiff has
limitations that prevent employment, or that the record is
insufficient to make an RFC finding, it is incumbent on the ALJ
to comply with SSR 96-8p by providing a narrative explanation
for his RFC finding that plaintiff can perform medium work,
citing to specific medical facts and/or nonmedical evidence in
support of his RFC findings.
The ALJ has failed to comply with SSR 96-8p.

The ALJ, as

noted above, must make every reasonable effort to make sure the
file contains sufficient evidence to assess RFC.

The ALJ has

offered no explanation of how the evidence supports his RFC
finding that plaintiff can perform medium work.

Therefore, this

case shall be remanded in order for the ALJ to comply with the
requirements of SSR 96-8p, including a narrative discussion
describing how the evidence supports each conclusion in the RFC
assessment, citing specific medical facts and nonmedical
evidence.4

4

Defendant’s brief cites to the case of Chapo v. Astrue, 682 F.3d 1285 (10th Cir. 2012), which states, in relevant
part:

13

When this case is remanded, the ALJ shall develop a
sufficient record on which to make RFC findings.

The ALJ should

consider recontacting plaintiff’s treating medical sources, or
request additional records.

20 C.F.R. § 404.1520b(c);

Fleetwood, 211 Fed. Appx. at 741; Lamb v. Barnhart, 85 Fed.
Appx. 52, 57 (10th Cir. Dec. 11, 2003).

Either the ALJ or

plaintiff’s counsel should consider contacting Dr. Puderbaugh in
order to ascertain the basis for his opinion that plaintiff’s
limitations, as he described them, date back to 2000.

The ALJ

could also consider having a medical expert testify at the
hearing regarding plaintiff’s RFC after reviewing the record.5

…there is no requirement in the regulations for a direct correspondence between
an RFC finding and a specific medical opinion on the functional capacity in
question….
We have thus “rejected [the] argument that there must be specific, affirmative,
medical evidence on the record as to each requirement of an exertional work
level before an ALJ can determine RFC within that category.
Chapo, 682 F.3d at 1288-1289. However, the court’s ruling in this case does not require that there be a direct
correspondence between an RFC finding and a specific medical opinion on the functional capacity in question, or
specific, affirmative, medical evidence on the record as to each requirement of an exertional work level before an
ALJ can determine plaintiff’s RFC. The holding in Chapo does not change the requirement in Fleetwood that to the
extent there is very little medical evidence directly addressing a claimant’s RFC, the ALJ’s findings may be found to
be unsupported by substantial evidence. The file must contain sufficient evidence to assess RFC. In the case before
the court, the ALJ fails to cite to any evidence in support of his RFC finding that plaintiff can perform medium
work. By contrast, in Chapo, the record included two physical RFC assessments (by Dr. Amin and Dr. Krause),
Chapo, 682 F.3d at 1287. The court in Chapo reversed the decision of the Commissioner and remanded the case for
further hearing. On remand, even with two physical RFC assessments, the court was troubled because of the
staleness of one of those assessments, and encouraged the ALJ on remand to obtain an updated exam or report.
Chapo, 682 F.3d at 1293.
5

The U.S. Supreme Court has considered the use of medical advisors at administrative hearings and approved of the
concept. Richardson v. Perales, 402 U.S. 389, 408 (1971). Such opinions are competent evidence and in
appropriate circumstances may constitute substantial evidence supporting the ALJ’s decision. Lopez v. Apfel, 1997
WL 758831 at *2 (10th Cir. Dec. 9, 1997)(ALJ properly relied on opinions of medical advisor and consulting
physicians who disagreed with treating physician on issue of disability); Torres v. Secretary of HHS, 870 F.2d 742,
744 (1st Cir. 1989)(the testimony of a medical advisor who reviews the record, testifies and is subject to crossexamination may constitute substantial evidence depending on the circumstances, including the nature of the illness
and the information provided to the advisor).
14

In the alternative, the ALJ could request a state agency
assessment by a physician to review the record and provide a
written report setting forth their RFC findings and providing a
thorough written explanation for their RFC findings.
Plaintiff also asserts error by the ALJ for disregarding
the testimony of the vocational expert (VE) and in the
hypothetical question posed to the VE.

The court will not

address these issues because they may be affected by the ALJ’s
resolution of the case on remand after the ALJ makes RFC
findings in accordance with SSR 96-8p, as set forth above.

See

Robinson v. Barnhart, 366 F.3d 1078, 1085 (10th Cir. 2004).
IT IS THEREFORE ORDERED that the judgment of the
Commissioner is reversed and remanded pursuant to sentence four
of 42 U.S.C. § 405(g) for further proceedings consistent with
this memorandum and order.
Dated this 11th day of September, 2013, Topeka, Kansas.

s/ Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

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