Hill v. Social Security Administration, Commissioner of

Filing 28

MEMORANDUM AND ORDER: The decision of the Commissioner is affirmed pursuant to sentence four of 42 U.S.C. §405(g). Signed by U.S. District Senior Judge Sam A. Crow on 2/28/14. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF KANSAS
RAYNELL HILL,
Plaintiff,
Vs.
No. 12-2635-SAC
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
MEMORANDUM AND ORDER
This is an action reviewing the final decision of the defendant
Commissioner of Social Security ("Commissioner") that denied the claimant
Raynell Hill’s (“Hill”) application for supplemental security income (“SSI”)
under Title XVI of the Social Security Act (AAct@). Alleging a disability onset set
date of January 5, 2007, based on a combination of impairments including
back and ankle pain related to a 1984 automobile accident, vision problems,
anxiety, and depression. (R. 21, 23, 30-33). The administrative law judge
(“ALJ”) filed his decision on November 3, 2009, finding that Hill was not
disabled. (R. 9-15). The Appeals Council on July 25, 2012, denied Hill’s request
for review, so the ALJ’s decision stands as the Commissioner’s final decision.
With the administrative record (Dk. 9) and the parties= briefs on file pursuant
to D. Kan. Rule 83.7.1 (Dks. 17, 22 and 27), the case is ripe for review and
decision.

STANDARD OF REVIEW
The court's standard of review is set forth in 42 U.S.C. ' 405(g),
which provides that the Commissioner=s finding "as to any fact, if supported by
substantial evidence, shall be conclusive." The court also reviews Awhether the
correct legal standards were applied.@ Hackett v. Barnhart, 395 F.3d 1168,
1172 (10th Cir. 2005). Substantial evidence is that which Aa reasonable mind
might accept as adequate to support a conclusion.@ Richardson v. Persales,
402 U.S. 389, 401 (1971) (quotation and citation omitted). AIt requires more
than a scintilla, but less than a preponderance.@ Lax v. Astrue, 489 F.3d 1080,
1084 (10th Cir. 2007) (citation omitted). The review for substantial evidence
Amust be based upon the record taken as a whole@ while keeping in mind
Aevidence is not substantial if it is overwhelmed by other evidence in the
record.@ Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (internal
quotation marks and citations omitted). In its review of Awhether the ALJ
followed the specific rules of law that must be followed in weighing particular
types of evidence in disability cases, . . . [the court] will not reweigh the
evidence or substitute . . . [its] judgment for the Commissioner=s.@ Lax, 489
F.3d at 1084 (internal quotation marks and citation omitted).
The court's duty to assess whether substantial evidence exists:
"is not merely a quantitative exercise. Evidence is not substantial 'if it is
overwhelmed by other evidence--particularly certain types of evidence (e.g.,
that offered by treating physicians)--or if it really constitutes not evidence but

mere conclusion.'" Gossett v. Bowen, 862 F.2d 802, 805 (10th Cir. 1988)
(quoting Fulton v. Heckler, 760 F.2d 1052, 1055 (10th Cir. 1985)). At the
same time, the court Amay not displace the agency=s choice between two fairly
conflicting views, even though the court would justifiably have made a
different choice had the matter been before it de novo.@ Lax v. Astrue, 489 F.3d
at 1084 (internal quotation marks and citation omitted). The court will
Ameticulously examine the record as a whole, including anything that may
undercut or detract from the ALJ=s findings in order to determine if the
substantiality test has been made.@ Wall v. Astrue, 561 F.3d at 1052 (internal
quotation marks and citation omitted).
By statute, a disability is the Ainability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to . . . last for a continuous period of not
less than 12 months.@ 42 U.S.C. ' 423(d)(1)(A). An individual "shall be
determined to be under a disability only if his physical or mental impairment or
impairments are of such severity that he is not only unable to do his previous
work but cannot, considering his 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)(2)(A).
A five-step sequential process is used in evaluating a claim of
disability. Bowen v. Yuckert, 482 U.S. 137, 140 (1987). The first step entails
determining whether the Aclaimant is presently engaged in substantial gainful

activity.@ Wall v. Astrue, 561 F.3d at 1052 (internal quotation marks and
citation omitted). The second step requires the claimant to show he suffers
from a Asevere impairment,@ that is, any Aimpairment or combination of
impairments which limits [the claimant=s] physical or mental ability to do basic
work activities.@ Barnhart v. Thomas, 540 U.S. 20, 24 (2003) (internal
quotation marks and regulatory citations omitted). At step three, the claimant
is to show his impairment is equivalent in severity to a listed impairment. Lax,
489 F.3d at 1084. “If a claimant cannot meet a listing at step three, he
continues to step four, which requires the claimant to show that the
impairment or combination of impairments prevents him from performing his
past work.” Id. Should the claimant meet his burden at step four, the
Commissioner then assumes the burden at step five of showing “that the
claimant retains sufficient RFC [residual functional capacity] to perform work
in the national economy” considering the claimant’s age, education, and work
experience. Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010) (internal
quotation marks and citation omitted). Substantial evidence must support the
Commissioner’s showing at step five. Thompson v. Sullivan, 987 F.2d 1482,
1487 (10th Cir. 1993).
ALJ’S DECISION
At step one, the ALJ found Hill had not engaged in substantial
gainful activity since January 5, 2007. At step two, the ALJ found the following

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severe impairments:

“remote history of left ankle fracture with development

of residual osteoarthritis.” (R. 11). The ALJ excluded from this listing the
following impairments as non-severe:

hypertension, mild depression,

adjustment disorder with mixed anxiety and depression. At step three, the ALJ
did not find that the impairments, individually or together, equaled the
severity of the Listing of Impairments. Before moving to steps four and five,
the ALJ determined that Hill had the residual functional capacity (“RFC”) to
perform:
some light work as defined in 20 CFR 416.967(b) including lifting and
carrying twenty pounds occasionally and ten pounds frequently, sitting
six hours per day, standing and walking two hours per day, occasionally
crouching, crawling, kneeling, bending, reaching, and climbing stairs,
and never climbing ropes, ladders or scaffolds or operating foot controls.
(R. 12). At step four, the ALJ found that the claimant had no past relevant
work. (R. 13). At step five, the vocational expert provided testimony from
which the ALJ concluded that “the clamant is capable of making a successful
adjustment to other work that exists in significant numbers in the national
economy.” (R. 14). A decision of “not disabled” was filed.
ISSUE ONE:

SUBSTANTIAL EVIDENCE FOR RFC FINDING

Citing and summarizing SSR 96–8p which interprets the rules for
assessing RFC, the plaintiff challenges that the record lacks competent medical
opinion evidence to sustain the ALJ’s finding that Hill has the RFC to perform
light work. Specifically, the plaintiff contends there is no medical evidence to

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show that Hill can lift and carry 20 pounds occasionally and 10 pounds
frequently. The plaintiffs notes the only medical opinion on RFC comes from
the consulting examiner, Dr. Tawadros, who reviewed Dr. Schultz’
examination report and then concluded that Hill could lift and carry only ten
pounds, both occasionally and frequently. (R. 454-460). The plaintiff
challenges that the ALJ did not discuss or identify what weight was given Dr.
Tawadros’ opinion and did not mention the examination report prepared by Dr.
Schultz. The plaintiff surmises that the ALJ ignored these opinions. Finally, the
plaintiff attacks the ALJ’s decision for not providing a narrative discussion of
the evidence supporting the RFC assessment and, therefore, leaving the
impression that the RFC assessment is based on no more than the ALJ’s
uninformed lay opinion.
As part of the RFC assessment, the ALJ found that Hill’s
statements were not credible insofar as they were contrary to the RFC
assessment and that the evidence showed Hill “retained a substantial work
capacity despite her alleged symptoms and limitations.” (R. 13). The ALJ cited
the objective medical evidence found in the 2006 consultative examinations
which revealed some restricted motion in left ankle and mild impairment with
gait and in the 2007 consultative examination which showed full range of
motion with left ankle and no impairment in gait. (R. 13). The ALJ observed the
claimant’s inconsistent statements in testifying at the hearing that she could

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only walk two blocks and then in having said she “walks a lot” as found in a
medical record. Id. The ALJ noted her extensive range of daily living activities
and her ability to walk in the hearing room “without noticeable difficulty.” (R.
13). The ALJ found nothing in the medical record to support Hill’s testimony
about a limitation on sitting. The ALJ also stated that the medical records from
treating Hill’s ankle were reviewed. He found evidence of “occasional
treatment for pain and swelling of the left ankle which resolves with treatment
such as cortisone steroid injections.” (R. 13). He also summarized what other
treatment options were being discussed. Finally, the ALJ noted:
The record indicates that until May, 2007 the claimant was capable of
standing and walking a total of six hours out of an eight hour day, recent
reports indicate that she is more limited. Thus undersigned has reduced
her residual functional capacity to two hours for purposes of this
decision.
Id.
“Since the purpose of the credibility evaluation is to help the ALJ
assess a claimant’s RFC, the ALJ’s credibility and RFC determinations are
inherently intertwined.” Poppa v. Astrue, 569 F.3d 1167, 1171 (10th Cir.
2009). Because it is for the ALJ, not the physician, to determine the RFC from
the medical record, “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.” Chapo v. Astrue, 682 F.3d 1285, 1288 (10th
Cir. 2012 (citation omitted). “In reaching his RFC determination, an ALJ is

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permitted, and indeed required, to rely on all of the record evidence, including
but not limited to medical opinions in the file.” Wells v. Colvin, 727 F.3d 1061,
1071-72 (10th Cir. 2013) (citing See SSR 96-8p, 1996 WL 374184, at *5).
“The RFC determination necessarily reflects how the ALJ has respectively
weighed the medical opinions of record.” Roggi v. Colvin, 2013 WL 5304084 at
*13 (D. Kan. Sept. 20, 2013).
The ALJ’s decision reflects that he not only cited Dr. Tawadros’
opinion, including her additional comments, (R. 13, Ex. 21F), but his RFC
determinations on standing and frequent lifting and carrying also match those
opined by Dr. Tawadros. (R. 13 and 454). For that matter, the ALJ also
discussed Dr. Schultz’s treatment notes in referencing that Hill received a
cortisone steroid injection for her ankle as part of her occasional treatment for
pain and swelling. (R. 13, 451, and 460). The ALJ’s decision does not show that
he ignored the opinions and reports of either physician as argued by the
plaintiff. The case law does not require an exact correspondence between the
ALJ’s RFC determination and Dr. Tawadros’ medical opinion on functional
capacity. The plaintiff has not shown any material conflicts between the ALJ’s
RFC determination and any of the medical evidence of record. Occasionally
lifting 20 pounds is a finding entirely consistent with the total evidence of
record, including the plaintiff’s daily living activities. A remand for a more
detailed discussion of Dr. Tawadros’ opinion on this particular limitation is

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unnecessary when the court is satisfied that ALJ’s RFC determination is not an
uninformed lay opinion but is otherwise consistent with the entire record,
including the medical evidence as a whole. See Wall v. Astrue, 561 F.3d 1048,
1068-69 (10th Cir. 2009).
ISSUE TWO:

THIRD PARTY STATEMENT OF JOYCE WARREN

The record includes two third-party function reports completed by
Hill’s sister, Joyce Warren, and dated January 31, 2007, and July 24, 2007,
respectively. (R. 145-153, 190-198). Although it does not mention specifically
these reports, the ALJ’s decision sets out that “all the evidence” or “the entire
record” was carefully considered. (R. 9, 11). The plaintiff argues error by
presuming the ALJ failed to consider this third party testimony as to its
consistency with the plaintiff’s pain testimony and as evidence of the plaintiff’s
symptoms and impact on her ability to work. The plaintiff does not identify how
Warren’s statements significantly corroborate or supplement the plaintiff’s
pain testimony or symptoms. Warren’s brief answers offer little more than a
nominal affirmation of the plaintiff’s daily activities and the plaintiff’s
allegations that pain was the reason for staying off her feet.
The Commissioner concedes the ALJ’s decision omits any specific
discussion by name of the sister’s testimony but argues her testimony is
“largely cumulative” of the claimant’s so reversal is not required, citing Brescia
v. Astrue, 287 Fed. Appx. 626, 630-31 (10th Cir. 2008), which held:

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While the ALJ did not explicitly discuss the statements of Ms. Brescia's
sister and friend, we do not believe this omission is grounds for remand
given the nature of their evidence, which was largely cumulative of Ms.
Brescia's testimony and written statements. See Adams v. Chater, 93
F.3d 712, 715 (10th Cir. 1996) (rejecting a rule requiring an ALJ to make
specific written findings concerning each witness's credibility); Clifton v.
Chater, 79 F.3d 1007, 1009–10 (10th Cir. 1996) (holding that an ALJ is
not required to discuss every piece of evidence). Further, where, as
here, the ALJ's decision states that he considered all of the evidence,
“our general practice, which we see no reason to depart from here, is to
take a lower tribunal at its word when it declares that it has considered a
matter.” Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005).
Id. In reply, the plaintiff challenges that the “largely cumulative” argument is a
“post hoc rationalization” and that reversal and remand is required because
the ALJ failed to mention specifically the sister’s testimony.
The court does not find error here. See Blanton v. Astrue, 2013 WL
65447 at *4 (D. Kan. 2013). As the above cases demonstrate, an argument
over the cumulative nature of the evidence is not subject to the “post hoc
rationalization” rule. Warren’s reports are consistent with and essentially
cumulative of the claimant’s own testimony and reports concerning her daily
living activity statements on the nature and severity of her conditions. Many of
the answers appearing on Warren’s reports are brief, uncertain and indefinite
in nature. Thus, her reports simply offer no further insights into the plaintiff’s
condition and offer only the barest corroboration of the plaintiff’s own
testimony and reports. The ALJ properly evaluated the weight and credibility of
the plaintiff’s alleged conditions based on the medical treatment evidence, a
psychologist’s impression of malingering, the ALJ’s observation of the

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plaintiff’s movement at the hearing, the plaintiff’s inconsistencies in reporting
her physical activities, and the level and regularity of the plaintiff’s daily living
activities. The ALJ’s decision emphasizes a careful consideration of “all the
evidence” and “the entire record.” (R. 9, 11). The court concludes the plaintiff
has not shown error that requires remand based on nothing more than the
ALJ’s failure to list or mention the sister’s reports in this instance. See Childers
v Colvin, 2013 WL 3756571 at *6-*7 (D. Kan. 2013).
ISSUE THREE:

DEVELOPMENT OF THE RECORD

The plaintiff next argues that, “[u]nder the circumstances, the ALJ
was required to obtain information from a medical professional with regard to
Ms. Hill’s RFC.” The plaintiff does not explain specifically what “circumstances”
support this argument. Conceding that her counsel did not request further
development of the record, the plaintiff stands on the unexplained position,
“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.”
Dk. 17, pp. 28-29).
This court has recognized that the Tenth Circuit law applicable on
the ALJ’s duty to develop the medical evidence for the record is found in the
case of Madrid v. Barnhart, 447 F.3d 788, 790 (10th Cir. 2006), which held:
“It is beyond dispute that the burden to prove disability in a social
security case is on the claimant.” Hawkins v. Chater, 113 F.3d 1162,
1164 (10th Cir. 1997); 20 C.F.R. § 404. 1512(a) (“[Y]ou must bring to
our attention everything that shows that you are ... disabled.”).

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Nevertheless, because a social security disability hearing is a
nonadversarial proceeding, the ALJ is “responsible in every case ‘to
ensure that an adequate record is developed during the disability
hearing consistent with the issues raised.’“ Hawkins, 113 F.3d at 1164
(quoting Henrie v. United States Dep't of Health & Human Servs., 13
F.3d 359, 360–61 (10th Cir. 1993)); 20 C.F.R. § 404.944 (requiring the
ALJ to “look[ ] fully into the issues”). Generally, this means that the “ALJ
has the duty to . . . obtain[ ] pertinent, available medical records which
come to his attention during the course of the hearing.” Carter v. Chater,
73 F.3d 1019, 1022 (10th Cir. 1996). Moreover, the ALJ's “duty is
heightened” when a claimant, like Mr. Madrid, appears before the ALJ
without counsel. Henrie, 13 F.3d at 361; Musgrave v. Sullivan, 966 F.2d
1371, 1374 (10th Cir. 1992) (same); see also Dixon v. Heckler, 811 F.2d
506, 510 (10th Cir. 1987) (“The [ALJ's] duty of inquiry takes on special
urgency when the claimant has little education and is unrepresented by
counsel.”).
Aldrich v. Colvin, 2013 WL 4768065 at *6 (D. Kan. 2013). The Tenth Circuit
recently summarized the relevant law:
In disability proceedings, the Social Security Administration bears a duty
to develop the record. Wall v. Astrue, 561 F.3d 1048, 1062–63 (10th Cir.
2009). But to trigger this duty, the claimant must raise the issue to be
developed and that issue must be substantial on its face. Id. at 1063. As
a result, the claimant must ensure that the record contains evidence
suggesting a reasonable possibility of a severe impairment. Id. In
deciding whether the record is sufficient, we must consider whether
objective evidence suggests a condition which could materially affect the
disability decision and require further investigation. Hawkins v. Chater,
113 F.3d 1162, 1167 (10th Cir. 1997).
Villalobos v. Colvin, 2013 WL 4504778 at *1 (10th Cir. 2013). The plaintiff does
not point to her counsel arguing before the ALJ that the record was inadequate
or insufficient and requesting any additional examinations or records. The
plaintiff’s brief does not identify what issues, substantial on their face, would
require more investigation based on the objective evidence. Finding none, the

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court concludes this issue is without merit.
ISSUE FOUR:

HYPOTHETICAL QUESTION

The plaintiff argues the ALJ erred in omitting from his hypothetical
questions to the vocational expert any mention of her non-exertional
limitations, in particular the pain attributable to her left ankle fracture. The
Commissioner points to the ALJ’s credibility findings that accepted the
plaintiff’s pain complaints as partially credible and accounted for these
complaints by limiting her to light weight. Having failed to show that the ALJ’s
credibility findings and RFC findings are not supported by substantial evidence,
the plaintiff is unable to prevail on this claim as well.
An ALJ must accept and include in his hypothetical questions only
those limitations supported by substantial evidence of record. Shepherd v.
Apfel, 184 F.3d 1196, 1203 (10th Cir. 1999) (“claimant's testimony . . ., by
itself, is insufficient to establish the existence of an impairment” for inclusion in
a hypothetical). The ALJ is not required to include in a hypothetical question
limitations “claimed by plaintiff but not accepted by the ALJ as supported by
the record.” Bean v. Chater, 77 F.3d 1210, 1214 (10th Cir. 1995).
Consequently, it is enough if the posed hypothetical question “adequately
reflected the impairments and limitations that were borne out by the
evidentiary record.” Newbold v. Colvin, 718 F.3d 1257, 1268 (10th Cir. 2013).

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The ALJ here properly included in his hypothetical question only those
limitations he found to be credible from the evidence of record. Having
discounted the credibility of the plaintiff's pain complaints, the ALJ was not
compelled to include these in his question. The court is satisfied that the ALJ
did not err in limiting his hypothetical to those findings that are supported by
substantial evidence.
The plaintiff’s reply brief raises for the first time a new argument
concerning the ALJ’s failure to consider the plaintiff’s obesity in combination
with her other impairments. Arguments raised for the first time in a reply brief
are waived and will not be considered by the court. Water–Pik, Inc. v. Med–
Systems, Inc., 726 F.3d 1136, 1160 (10th Cir. 2013); Lynch v. Barrett, 703
F.3d 1153, 1160 n. 2 (10th Cir.), cert. denied, 133 S. Ct. 2352 (2013). This
argument was waived.
IT IS THEREFORE ORDERED that the decision of the Commissioner
is affirmed pursuant to the fourth sentence of 42 U.S.C. § 405(g).
Dated this 28th day of February, 2014, Topeka, Kansas.

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

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