Stookey v. Social Security Administration, Commissioner of

Filing 19

MEMORANDUM AND ORDER: The decision of the Commissioner is reversed and the case is remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this memorandum and order. Signed by U.S. District Senior Judge Sam A. Crow on 7/22/14. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF KANSAS
RAYMOND L. STOOKEY,
Plaintiff,
Vs.

No. 13-2172-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
Raymond L. Stookey’s (“Stookey”) application for disability insurance benefits
and his application for supplemental security income (“SSI”) under the Social
Security Act (“Act”). Stookey alleged a disability onset set date of January 31,
2006, based on a combination of impairments. The administrative law judge
(“ALJ”) filed his decision on February 8, 2012, finding that Stookey was not
under a disability from the alleged onset date through the date of his decision.
(Tr. 10-20). With the Appeals Council’s denial of Stookey’s request for review,
the ALJ’s decision stands as the Commissioner’s final decision. The
administrative record (Dk. 8) and the parties= briefs are on file pursuant to D.
Kan. Rule 83.7.1 (Dks. 9, 17 and 18), 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 that Stookey had not engaged in
substantial gainful activity since the alleged onset date of his disability. At step

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two, the ALJ found the following severe impairments:

“diabetes, peripheral

neuropathy, obesity, mild degenerative joint disease of the spine.” (Tr. 12).
The ALJ excluded from this listing the following impairments as non-severe:
tachycardia, hypertension, hyperlipidemia, asthma, gastroesophogeal reflux
disease (“GERD”), spleen infarction, restless leg syndrome, anxiety and
depression. Id. at 12-13. 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
Stookey had the residual functional capacity (“RFC”) to perform:
sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a)
except the claimant can lift and carry twenty pounds occasionally and
ten pounds frequently; walk or stand two hours of an eight hour work
day, for thirty minutes a time; sit for six hours of an eight hour work day,
for thirty minutes a time; never push or pull with his lower extremities;
occasionally climb stairs; never climb ropes, scaffolds or ladders;
occasionally balance, stoop, crouch, kneel or crawl; he must avoid
prolonged exposure to temperature extremes and vibrating machinery;
much avoid moving machinery and unprotected heights; and secondary
to his reported chronic pain and the potential side effects of medications
he is limited to jobs that do not demand attention to details or
complicated job tasks or instructions.
(Tr. 15). At step four, the ALJ found that the claimant is unable to perform any
past relevant work. (Tr. 18). At step five, the vocational expert provided
testimony from which the ALJ concluded that “[c]onsidering the claimant’s
age, education, work experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national economy that the claimant
can perform.” Id.

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ISSUE ONE:

SUBSTANTIAL EVIDENCE FOR RFC FINDING

The plaintiff first challenges that the ALJ failed to include as part of
the RFC his prior findings that due to the plaintiff’s medically determinable
mental impairments of depression and anxiety he had mild limitations in two
functional areas--social functioning and concentration, persistence, or pace.
Without these limitations in the ALJ’s hypothetical question to the vocational
expert (“VE”), the plaintiff concludes the VE’s testimony cannot be substantial
evidence. RFC is the most a claimant can still do despite physical and mental
limitations. See 20 C.F.R. §§ 404.1545, 416.945(a). To assess a claimant’s
RFC, the ALJ must consider the combined effect of all the claimant’s medically
determinable impairments, whether severe or not severe. See 20 C.F.R. §§
404.1545(a)(2), 416.945(a)(2). “[T]he Commissioner’s procedures do not
permit the ALJ to simply rely on his finding of non-severity as a substitute for
a proper RFC analysis.” Wells v. Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013)
(citing See Social Security Ruling (SSR) 96-8p, 1996 WL 374184 at *4 (July 2,
1996)). “[A] conclusion that the claimant’s mental impairments are
non-severe at step two does not permit the ALJ simply to disregard those
impairments when assessing a claimant’s RFC and making conclusions at steps
four and five.” Id. at 1068-69.
The ALJ’ decision states that the “paragraph B” analysis relates to
steps two and three but that “[t]he mental residual functional capacity

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assessment used at steps 4 and 5 of the sequential evaluation process requires
a more detailed assessment by itemizing various functions contained in the
broad categories found in paragraph B of the adult mental disorders listings in
12.00 of the Listing of Impairments (SSR 96-8p).” (Tr. 15). The ALJ concludes,
“[t]herefore, the following residual functional capacity assessment reflects the
degree of limitation the undersigned has found in the ‘paragraph B” mental
function analysis.” Id. At step four in making the RFC findings, the ALJ wrote
that he had “considered all symptoms and the extent to which these symptoms
can reasonably be accepted as consistent with the objective medical evidence
and other evidence, based on the requirements of 20 CFR 404.1529 and
416.929 and SSRs 96-4p and 96-7p” and also the “opinion evidence in
accordance with the requirements of 20 CFR 404.1527 and 416.927 and SSRs
96-2p, 96-5p, 96-6p and 06-3p.” Id.
Despite this boilerplate in the ALJ’s decision, the court cannot find
anything in the ALJ’s decision at step four showing that he actually engaged “in
any analysis of mental functions and how they may be impacted (or not) by”
Stookey’s “medically determinable mental impairments.” Alvey v. Colvin, 536
Fed. Appx. 792, 794 (10th Cir. Aug. 28, 2013). There is no discussion of the
evidence relating to depression and anxiety and any conclusion on the
associated limitation with the mental impairment. Suttles v. Colvin, 543 Fed.
Appx. 824, 826 (10th Cir. Oct. 31, 2013). The ALJ’s credibility finding on Carol

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Adams, Psy.D, repeats the step two conclusion, “the lack of medical evidence
to establish a severe mental impairment,” and summarily repeats the prior
step two findings of no mental health treatment other than medications from
the treating physician and no referral to mental health professionals. (Tr. 18).
In spite of the boilerplate, the ALJ’s language is suggestive of only relying on
step-two findings to conclude that Stookey apparently had no limitations on his
RFC. This is “inadequate under the regulations and the Commissioner’s
procedures.” Wells, 727 F.3d at 1069.

Based on the ALJ’s decision, “[i]t

“appears, therefore, that the ALJ failed to employ the step-four analytical
procedure prescribed by the regulations.” Alvey, 536 Fed. Appx. at 794.
The Tenth Circuit recognized that a determination of harmless
error would make a remand unnecessary in these circumstances. Id. at 794.
Such a determination is “appropriate ‘where based on material the ALJ did at
least consider (just not properly), we could confidently say that no reasonable
administrative factfinder, following the correct analysis, could have resolved
the factual matter in any other way,’ Allen v. Barnhart, 357 F.3d 1140, 1145
(10th Cir. 2004).” Alvey, 536 Fed. Appx. at 794. From the evidence of record,
the court cannot say that no reasonable factfinder would have resolved the
factual matter differently particularly considering the treating physician’s RFC
form, the recent medical records showing repeated treatment for these
conditions, and increasing dosages of medication prescribed even after the

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records noted some recent improvement.
The plaintiff also complains that the ALJ failed to include his other
non-severe medically determinable impairments in the RFC. In particular, the
ALJ failed to address the plaintiff’s problems with his left hand as included in a
function report and reflected in the treating physician’s RFC findings. (Tr. 253,
605). “An ALJ must ‘consider the limiting effects of all [a claimant's]
impairment(s), even those that are not severe, in determining [RFC].’ 20
C.F.R. § 404.1545(e).” McFerran v. Astrue, 437 Fed. Appx. 634, 638, 2011 WL
3648222, at *3 (10th Cir. 2011). The Commissioner presumes the ALJ found
this limitation was not supported by the medical evidence of record and gives
different reasons for the ALJ’s supposed finding. (Dk. 17, p. 10, citing Tr. 17).
The ALJ’s decision, however, does not include any findings or reasons for
ignoring the plaintiff’s problems with his left hand. One of the hypotheticals
asked of the VE included a limitation with the left upper extremity in pushing,
pulling, reaching, handling and fingering. (Tr. 56-57). Yet, the ALJ’s decision
makes no mention of the evidence on this limitation or his reason for not
including it in the RFC. “[T]he district court may not create post-hoc
rationalizations to explain the Commissioner's treatment of evidence when
that treatment is not apparent from the Commissioner's decision itself.”
Grogan v. Barnhart, 399 F.3d 1257, 1263 (10th Cir. 2005) (citations omitted).
In sum, the court cannot conclude the Commissioner applied the

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correct legal standards in assessing an appropriate RFC and then considered
and weighed the evidence regarding all limitations and impairments for the
RFC finding. A remand is necessary for the agency’s proper consideration of
these issues.
For purposes of this remand, the court also takes up the plaintiff’s
final issue that the Commissioner did not carry his burden at step five in
accepting and relying on the VE’s testimony that the plaintiff could perform the
jobs of surveillance systems monitor, document preparer, and lens inserter.
The plaintiff points out that the Dictionary of Occupational Titles (“DOT”)
describes the first two jobs, monitor and preparer, as requiring a reasoning
level three. The ALJ, however, limited the plaintiff’s RFC “to jobs that do not
demand attention to details or complicated job tasks or instructions.” (Tr. 15).
The plaintiff compares this RFC finding with the definition of level two
reasoning as requiring the ability to “[a]pply commonsense understanding to
carry out detailed but uninvolved written or oral instructions.” 1991 WL
688702. Thus, the plaintiff argues the ALJ relies on VE testimony that conflicts
with DOT in that the identified jobs require a higher reasoning level than
described in the RFC.
The Tenth Circuit follows a rule that was “reaffirmed in Hackett v.
Barnhart, 395 F.3d 1168, 1175 (10th Cir. 2005), and codified in SSR 767
00-4p, that an ALJ must elicit a reasonable explanation for any material

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conflicts between a VE’s testimony and occupational information in the DOT.”
Garcia v. Barnhart, 188 Fed. Appx. 760, 2006 WL 1923984 at *5 (10th Cir.
2006). When there is a “facial conflict” between the claimant’s described RFC
and the reasoning required in DOT for the jobs listed by the VE, the court may
reverse and remand “for an explanation, if any, that would resolve the conflict
so as to permit reliance on the VE’s testimony.” Id. (citing Hackett, 395 F.3d at
1176).
The Commissioner contends the ALJ did not limit the plaintiff to
simple and repetitive work as in Hackett. This is again a post-hoc justification
as the ALJ did not affirmatively state the plaintiff’s reasoning level other than
to rule out attention to details and complicated tasks or instructions which may
correspond with the lower reasoning level of two. The court need not “resolve
whether the one occupation identified by the VE unaffected by the conflict . . .
reflects work in sufficient numbers to conclusively establish the requisite
numerical significance,” as the case is being remanded due to other errors.
Garcia, 2006 WL 1923984 at *6. The court expects the ALJ will follow Hackett
on remand in addressing the evidence at step five.
IT IS THEREFORE ORDERED that the decision of the Commissioner
is reversed and the case is remanded pursuant to sentence four of 42 U.S.C. §
405(g) for further proceedings consistent with this memorandum and order.

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Dated this 22nd day of July, 2014, Topeka, Kansas.

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

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