Sanchez v. Social Security Administration, Commissioner of

Filing 20

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. Signed by U.S. District Senior Judge Sam A. Crow on 1/31/17. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ADALBERTO SANCHEZ,
Plaintiff,
vs.

Case No. 16-2012-SAC

NANCY A. BERRYHILL,
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 and supplemental security income payments.
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).
1

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

Substantial evidence requires more than a

On January 20, 2017, Nancy A. Berryhill replaced Carolyn W. Colvin as Acting 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
On February 6, 2015, administrative law judge (ALJ) Janice

E. Barnes-Williams issued her decision (R. at 40-51).

Plaintiff

alleges that he has been disabled since August 15, 2011 (R. at
40).

Plaintiff is insured for disability insurance benefits
4

through December 31, 2015 (R. at 40).

At step one, the ALJ

found that plaintiff did not engage in substantial gainful
activity since the alleged onset date (R. at 42).

At step two,

the ALJ found that plaintiff had a severe combination of
impairments (R. at 43).

At step three, the ALJ determined that

plaintiff’s impairments do not meet or equal a listed impairment
(R. at 43).

After determining plaintiff’s RFC (R. at 44-45),

the ALJ found at step four that plaintiff is unable to perform
any past relevant work (R. at 49).

At step five, the ALJ found

that plaintiff could perform other jobs that exist in
significant numbers in the national economy (R. at 49-50).
Therefore, the ALJ concluded that plaintiff was not disabled (R.
at 50-51).2
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.

2

If the RFC

Plaintiff provided material indicating that the Social Security Administration subsequently found that plaintiff was
disabled on February 7, 2015 (Doc. 11 at 50). Thus, the question before the court is whether plaintiff was disabled
from August 15, 2011 through February 6, 2015.
5

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
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).
In reaching his RFC determination, an ALJ is 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 (10th Cir. 2013).

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
6

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 found that plaintiff was limited to sedentary work
in that he can occasionally lift 10 pounds, he can stand or walk
for up to 2 hours, and sit for up to 6 hours in an 8 hour
workday.

Plaintiff needs to alternate between sitting and

standing at least every 30 minutes.

Plaintiff can occasionally

climb ramps and stairs; he can never climb ladders, ropes or
scaffolds; he can never balance.

Plaintiff can occasionally

stoop; he can never kneel, crouch or crawl.

Plaintiff needs a

handheld device for prolonged ambulation and uneven terrain.
Plaintiff must avoid exposure to extreme cold, extreme heat,
wetness (as it relates to weather conditions), humidity,
excessive vibration, and airborne pulmonary irritants.
Plaintiff needs to avoid operational control of moving
machinery, unprotected heights, and hazardous machinery.
Finally, he is limited to simple, routine, repetitive tasks (R.
at 44-45).
In making her RFC findings, the ALJ stated that those
findings are supported by the objective medical evidence
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discussed in the ALJ’s decision, and the opinions of Dr. Sheehan
(in regards to plaintiff’s mental limitations) (R. at 49).

The

ALJ gave at most, only partial weight to the medical opinions
regarding plaintiff’s physical limitations (R. at 48).

However,

an exact correspondence between a medical opinion and the RFC is
not required.

In reaching his RFC determination, an ALJ is

permitted, and indeed required, to rely on all of the record
evidence, including but not limited to medical opinions in the
file.
2013).

Wells v. Colvin, 727 F.3d 1061, 1071-1072 (10th Cir.
The court will therefore examine the record evidence

relied on by the ALJ in making her RFC findings.
First, the ALJ stated in her decision that in July 2012,
plaintiff underwent a sigmoid colon resection, and several days
later a colostomy after he developed an anastomotic leak.
Plaintiff was hospitalized for 24 days (R. at 488; July 25, 2012
through August 17, 2012).

The ALJ then stated that plaintiff’s

diverticulitis condition “has remained stable without need for
additional surgery” (R. at 45-46).
However, the medical record indicates that plaintiff was
again hospitalized for 7 days (from November 2, 2012 through
November 8, 2012) with recurrent diverticulitis (R. at 767).

No

operative condition was noted during that hospital stay (R. at
778).

8

Plaintiff was again hospitalized for 9 days (November 28,
2012 through December 6, 2012) because of ongoing diverticulitis
(R. at 783).

Plaintiff was taken to surgery for a colostomy

takedown (R. at 785).
Plaintiff was again hospitalized for 3 days (December 29,
2012 through December 31, 2012) because of cerebral hypotension
syndrome and subdural hematoma secondary to spinal anesthetic
from his prior surgery (R. at 793).

Plaintiff was again

hospitalized for 4 days (January 8, 2012 through January 11,
2013) because of headaches and the subdural hematoma.

A CAT

scan confirmed in increase in the size of the left
frontoparietal subdural hematoma that contained acute blood
products (R. at 801).

Surgery was performed to drain the

subdural hematoma (R. at 805, 813).
The ALJ asserted that plaintiff’s diverticulitis condition
has remained stable without the need for additional surgery
since his surgeries in July 2012 (R. at 45-46).

However, the

medical record clearly indicates that plaintiff has had
additional inpatient hospitalizations and a subsequent surgery
because of ongoing diverticulitis, and another surgery because
of a hematoma which developed as a complication from a prior
surgery.

The ALJ’s conclusion that plaintiff’s diverticulitis

condition has remained stable without the need for additional
surgery since July 2012 is clearly erroneous.
9

Furthermore, it

should be noted that from July 25, 2012 through January 11,
2013, plaintiff was hospitalized for surgery or related issues
for a total of 47 days, or 27.5% of the total number of days
during that time period (47/171).
Second, the ALJ also stated in her decision that plaintiff,
because of low back pain, underwent a right discectomy and
posterior interbody fusion at L3-L4 without complication in
September 2014.

The ALJ stated that although the lumbar fusion

should be expected to help alleviate plaintiff’s back pain, the
ALJ nonetheless included some limitations in plaintiff’s RFC (R.
at 46).

However, Dr. Manion stated on January 13, 2015 that it

was his impression that plaintiff had possible lumbar failed
back surgery syndrome, lumbosacral spondylosis without evidence
of myelopathy, lumbar radiculopathy, and lumbago (R. at 1672).
The ALJ issued her decision on February 6, 2015, less than one
month after the report from Dr. Manion (R. at 51).

On March 10,

2015, one month after the decision, Dr. Manion diagnosed lumbar
failed back syndrome, lumbar radiculopathy, lumbar spinal
stenosis, and lumbago (R. at 11).

The Appeals Council held that

this evidence is new information about a later time, and does
not affect the decision that plaintiff was not disabled on or
before February 6, 2015 (R. at 2).
The basic principle, derived from the relevant regulations,
is well-established: the Appeals Council must consider
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additional evidence offered on administrative review-after which
it becomes part of the court’s record on judicial review-if it
is (1) new, (2) material, and (3) related to the period on or
before the date of the ALJ’s decision.
F.3d 1324, 1328 (10th Cir. 2011).

Krauser v. Astrue, 638

Where the Appeals Council

rejects new evidence as non-qualifying, and the claimant
challenges that ruling on judicial review, it is a question of
law subject to the court’s de novo review.

Id.

The March 10, 2015 medical record from Dr. Manion
diagnosing lumbar failed back syndrome is new and material
regarding plaintiff’s impairments.

The question before the

court is whether it is related to the period on or before the
date of the ALJ’s decision.

As noted above, the record from Dr.

Manion is only one month after the ALJ decision, and most
importantly, follows from a medical record from Dr. Manion,
dated January 13, 2015, giving an impression of possible lumbar
failed back surgery syndrome.
In the case of Baca v. Department of Health and Human
Services, 5 F.3d 476, 479 (10th Cir. 1993), the court held that
evidence bearing upon an applicant’s condition subsequent to the
date upon which the earning requirement was last met is
pertinent evidence in that it may disclose the severity and
continuity of impairments existing before the earning
requirement date or may identify additional impairments which
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could reasonably be presumed to have been present and to have
imposed limitations as of the earning requirement date.

This

principle equally applies to whether evidence presented to the
Appeals Council is related to the period on or before the date
of the ALJ’s decision.
Dr. Manion was treating plaintiff prior to the ALJ
decision, and on January 13, 2015, less than one month before
the ALJ decision (February 6, 2015) stated that it was his
impression that plaintiff had “possible lumbar failed back
surgery syndrome” (R. at 1672).

Two months later, on March 10,

2015, and only one month after the ALJ decision, Dr. Manion
diagnosed “lumbar failed back syndrome” (R. at 11).
On the facts of this case, the court cannot say that the
failure to consider this additional opinion evidence from a
treatment provider is harmless error.3

In fact, the new evidence

from Dr. Manion provides a clear basis for changing the ALJ’s
decision, Hardman v. Barnhart, 362 F.3d 676, 681 (10th Cir.
2004), especially when considered in conjunction with his
impression only two months earlier.

The diagnosis of lumbar

failed back syndrome, first suggested in January 2015 and then

3

Courts should apply the harmless error analysis cautiously in the administrative review setting. Fischer-Ross v.
Barnhart, 431 F.3d 729, 733 (10th Cir. 2005). However, it may be appropriate to supply a missing dispositive
finding under the rubric of harmless error in the right exceptional circumstance where, based on material the ALJ
did at least consider (just not properly), the court could confidently say that no reasonable factfinder, following the
correct analysis, could have resolved the factual matter in any other way. Fischer-Ross, 431 F.3d at 733-734; Allen
v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004).

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diagnosed in March 2015 clearly undermine the ALJ’s conclusion
that plaintiff’s fusion surgery was without complication and
should be expected to help alleviate plaintiff’s back pain.
This case should be remanded in order for the Commissioner to
consider this additional evidence.
Third, the ALJ discussed plaintiff’s history of chronic
obstructive pulmonary disease (COPD).

The ALJ stated that

“since April 2013 there is no evidence of any COPD
exacerbations,” and that the RFC contains the requisite
pulmonary restrictions (R. at 47).

However, on May 29, 2013

plaintiff was seen by Dr. Khan, who stated the following:
In summary, Mr. Sanchez has chronic hypoxia4
secondary to underlying COPD. He was
hospitalized in the month of April and was
treated for exacerbation of COPD along with
interstitial pneumonia. The interstitial
infiltrates have now completely resolved on
the recent chest x-ray. His COPD, which
probably has an asthmatic component as well
has not been under optimum control as he
required an ER visit few days ago…He has
chronic hypoventilation resulting from
chronic use of methadone and as a result he
is on oxygen on a 24-hour basis. He says
without oxygen he gets very wobbly and short
of breath.
(R. at 907, emphasis added).

This medical record indicates that

plaintiff had a flare-up in May 2013 requiring an emergency room
visit.

Dr. Khan stated that plaintiff’s COPD has not been under

4

Chronic hypoxia is defined as a usually slow, insidious reduction in tissue oxygenation. The patient experiences
persistent mental and physical fatigue, shows sluggish mental responses, and complains of a loss of ability to
perform physical tasks. Unless treated, the condition may lead to disability (http://medical-dictionary.the free
dictionary.com/chronic+hypoxia, Jan. 26, 2017).
13

optimum control, and that he has chronic hypoxia secondary to
underlying COPD.

He also has chronic hypoventilation; as a

result he is on oxygen on a 24-hour basis.

None of the problems

noted above in Dr. Khan’s report were mentioned by the ALJ in
her decision.

This report raises serious questions regarding

the ALJ’s assertion that, since April 2013, there is “no”
evidence of “any” COPD exacerbations.5
As a result of the inaccurate and incomplete statements of
the medical record by the ALJ noted above, the court finds that
substantial evidence does not support the ALJ’s physical RFC
findings.

Contrary to the ALJ’s assertion, plaintiff’s

diverticulitis has not remained stable without the need for
additional surgery since July 2012; in fact, plaintiff has
required additional inpatient hospitalizations and surgeries
either related to that condition or resulting from complications
arising from those surgeries.

The evidence also indicates a

diagnosis of lumbar failed back syndrome, which undermines the
ALJ’s contention that the lumbar fusion should be expected to
help alleviate plaintiff’s back pain.

Finally, contrary to the

ALJ’s assertion of no COPD exacerbations since April 2013, the
medical record reflects that plaintiff’s COPD has not been under
optimum control, noting a flare-up requiring an emergency room
visit in May 2013, a diagnosis of chronic hypoxia secondary to
5

A person undergoing a COPD exacerbation may need to seek medical help at a hospital
(http://www.healthline.com/health/copd/exacerbation-symptoms-and-warning-signs, Jan. 26, 2017).
14

COPD, and a diagnosis of chronic hypoventilation resulting in
plaintiff being on oxygen on a 24-hour basis.
The inaccurate and incomplete statements of the medical
record by the ALJ cannot be deemed harmless error.

This

additional evidence could certainly provide a legitimate basis
for changing the ALJ’s RFC findings.
The ALJ’s mental RFC findings accorded great weight to the
opinions of Dr. Sheehan (R. at 48).

The court will not reweigh

the evidence or substitute its judgment for that of the
Commissioner.

Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th

Cir. 2005); White v. Barnhart, 287 F.3d 903, 905, 908, 909 (10th
Cir. 2002).

Although the court will not reweigh the evidence,

the conclusions reached by the ALJ must be reasonable and
consistent with the evidence.

See Glenn v. Shalala, 21 F.3d

983, 988 (10th Cir. 1994)(the court must affirm if, considering
the evidence as a whole, there is sufficient evidence which a
reasonable mind might accept as adequate to support a
conclusion).
evidence.

The court can only review the sufficiency of the

Although the evidence may support a contrary finding,

the court cannot displace the agency’s choice between two fairly
conflicting views, even though the court may have justifiably
made a different choice had the matter been before it de novo.
Oldham v. Astrue, 509 F.3d 1254, 1257-1258 (10th Cir. 2007).

15

However, on remand, the ALJ should discuss whether to
include in his mental RFC findings the opinion of Dr. Sheehan
that plaintiff would probably do best in a low-stress work
environment (R. at 903).

As SSR 85-15 indicates, any

impairment-related limitations created by an individual’s
response to demands of work, however, must be reflected in the
RFC assessment.

1985 WL 56857 at *6.

The ALJ gave little weight to the opinions of Dr. Cannon,
plaintiff’s treating psychiatrist, because they failed to
contain specific functional limitations (R. at 48).

However, on

remand, the ALJ should consider the statements of Dr. Cannon
that plaintiff has difficulty dealing with the public or group
situations (R. at 1170, 1663), and that plaintiff takes
medications which causes some degree of sedation resulting in
decreased concentration (R. at 1170, 1663).
Plaintiff has also taken issue with the ALJ’s credibility
findings.

The court will not address this issue because it may

be affected by the ALJ’s resolution of the case on remand after
the ALJ gives further consideration to the medical evidence 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

16

of 42 U.S.C. § 405(g) for further proceedings consistent with
this memorandum and order.
Dated this 31st day of January 2017, Topeka, Kansas.

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

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