Lance Alpaugh v. Social Security Administration
MEMORANDUM AND ORDER - It is ordered that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) REMANDING the case for further proceedings consistent with this decision. Signed by District Judge John W. Lungstrum on 09/12/2017. (ses)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
o.b.o. LANCE D. ALPAUGH,
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
MEMORANDUM AND ORDER
Plaintiff seeks review of a decision of the Acting Commissioner of Social Security
(hereinafter Commissioner) denying Disability Insurance benefits (DIB) and
Supplemental Security Income (SSI) benefits to her son, Mr. Lance Alpaugh, who passed
away after the decision, made pursuant to sections 216(i), 223, 1602, and 1614(a)(3)(A)
of the Social Security Act. 42 U.S.C. §§ 416(i), 423, 1381a, and 1382c(a)(3)(A)
(hereinafter the Act). Herein, the court refers to the plaintiff as Ms. Alpaugh or Plaintiff,
and to her son as Mr. Alpaugh or the decedent. Finding error in the Administrative Law
Judge’s (ALJ) evaluation of the decedent’s obesity, the court ORDERS that the decision
On Jan. 20, 2017, Nancy A. Berryhill became Acting Commissioner of Social
Security. In accordance with Rule 25(d)(1) of the Federal Rules of Civil Procedure, Ms.
Berryhill is substituted for Acting Commissioner Carolyn W. Colvin as the defendant. In
accordance with the last sentence of 42 U.S.C. § 405(g), no further action is necessary.
shall be REVERSED and that judgment shall be entered pursuant to the fourth sentence
of 42 U.S.C. § 405(g) REMANDING the case for proceedings consistent herewith.
Mr. Alpaugh applied for DIB and SSI benefits, alleging disability beginning
January 15, 2011. (R. 17, 151, 154, 161). Mr. Alpaugh and the plaintiff exhausted
proceedings before the Commissioner, and now Plaintiff seeks judicial review of the final
decision denying benefits. Plaintiff argues that the ALJ failed to properly consider
conflicts between the vocational expert (VE) testimony and the information provided in
the Dictionary of Occupational Titles (DOT), erred in considering the opinions of a state
agency psychological consultant, Dr. Adams, and two consultant examiners, Dr. Rupp
and Dr. VanLeeuwen, and insufficiently explained her conclusions regarding the
limitations resulting from the decedent’s obesity.
The court’s review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052
(10th Cir. 2009). Section 405(g) of the Act provides that in judicial review “[t]he
findings of the Commissioner as to any fact, if supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). The court must determine whether the ALJ’s factual
findings are supported by substantial evidence in the record and whether she applied the
correct legal standard. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); accord,
White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001). Substantial evidence is more than
a scintilla, but it is less than a preponderance; it is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.
389, 401 (1971); see also, Wall, 561 F.3d at 1052; Gossett v. Bowen, 862 F.2d 802, 804
(10th Cir. 1988).
The court may “neither reweigh the evidence nor substitute [its] judgment for that
of the agency.” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting
Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)); accord,
Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005); see also, Bowling v. Shalala,
36 F.3d 431, 434 (5th Cir. 1994) (The court “may not reweigh the evidence in the record,
nor try the issues de novo, nor substitute [the Court’s] judgment for the
[Commissioner’s], even if the evidence preponderates against the [Commissioner’s]
decision.”) (quoting Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988)). Nonetheless,
the determination 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 constitutes mere conclusion. Gossett, 862 F.2d at 804-05; Ray v.
Bowen, 865 F.2d 222, 224 (10th Cir. 1989).
The Commissioner uses the familiar five-step sequential process to evaluate a
claim for disability. 20 C.F.R. §§ 404.1520, 416.920; Wilson v. Astrue, 602 F.3d 1136,
1139 (10th Cir. 2010) (citing Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)).
“If a determination can be made at any of the steps that a claimant is or is not disabled,
evaluation under a subsequent step is not necessary.” Wilson, 602 F.3d at 1139 (quoting
Lax, 489 F.3d at 1084). In the first three steps, the Commissioner determines whether
claimant has engaged in substantial gainful activity since the alleged onset, whether he
has a severe impairment(s), and whether the severity of his impairment(s) meets or equals
the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt.
P, App. 1). Williams, 844 F.2d at 750-51. After evaluating step three, the Commissioner
assesses claimant’s RFC. 20 C.F.R. §§ 404.1520(e), 416.920(e). This assessment is used
at both step four and step five of the sequential evaluation process. Id.
The Commissioner next evaluates steps four and five of the sequential process-determining whether, in light of the RFC assessed, claimant can perform his past relevant
work, and whether, when also considering the vocational factors of age, education, and
work experience, claimant is able to perform other work in the economy. Wilson, 602
F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In steps one through four the burden is on
the claimant to prove a disability that prevents performance of past relevant work. Blea
v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006); accord, Dikeman v. Halter, 245 F.3d
1182, 1184 (10th Cir. 2001); Williams, 844 F.2d at 751 n.2. At step five, the burden
shifts to the Commissioner to show that there are jobs in the economy within the RFC
assessed. Id.; Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).
The court finds that remand is necessary because the ALJ erred in evaluating Mr.
Alpaugh’s obesity as required by Social Security Ruling 02-1p. Because remand is
necessary to apply the correct legal standard, the court need not decide Plaintiff’s
allegations of error in evaluating the medical opinions or failure to consider inconsistency
between the VE testimony and the DOT. Plaintiff should make those arguments to the
Commissioner on remand.
In her Brief, Plaintiff argues that an ALJ is required to assess the ability of an
obese claimant to move and function within a work environment and is required to
explain how she reached her conclusion whether obesity caused mental or physical
limitations. (Pl. Br. 14) (citing SSR 02-1p, question no. 8). She acknowledges that the
ALJ stated that she had considered the effects of obesity on the decedent’s RFC, but
argues that this is insufficient. Id. at 14-15 and n.3 (containing numerous citations to
district court opinions, several of which do not identify the district court whose opinion is
cited). The Commissioner argues that the ALJ “specifically referenced” Mr. Alpaugh’s
weight and no medical professional opined that he was more limited than did the ALJ,
and that lacking evidence of additional limitations the ALJ’s consideration is “legally
sound.” (Comm’r Br. 5) (citing Howard v. Barnhart, 379 F.3d 945, 948 (10th Cir. 2004)).
In her Reply Brief, Plaintiff argues that Dr. Rupp opined regarding limitations attributable
to the decedent’s obesity and the ALJ did not include them or any other limitation related
to obesity in the RFC assessed. (Reply 8-9). She also argues that Mr. Alpaugh’s obesity
resulted in his death. Id. at 9.
The ALJ’s Findings
Based on SSR 02-1p, the record evidence, and Mr. Alpaugh’s testimony that he is
76 inches tall2 and weighs 400 pounds or more, the ALJ found that he was obese and
Mr. Alpaugh testified that he is six feet, six inches tall, which would equal 78"
tall. (R. 44). Neither party contests the ALJ’s finding regarding Mr. Alpaugh’s height,
stated that she “considered the effects of obesity on claimant’s functional capacity.” (R.
23). The ALJ found that the decedent had a combination of impairments that was severe
within the meaning of the Act, including past reconstructive surgery after a left ankle
fracture and degenerative joint disease of the right foot, that he had type II diabetes and
hypertension which are non-severe, and that his condition does not meet or equal Listing
1.02 for major dysfunction of a joint or joints. Id. at 19-20.
The decedent’s obesity would affect the function of his ankles and feet, and the
ALJ discussed record evidence related to those impairments:
In terms of claimant’s alleged impairments of the ankles, claimant alleged
he has bilateral foot and ankle pain (Exhibits 1F/8; 6F/8, 22; 7F/1 [(R. 326,
378, 392, 396)]). The record shows that he injured his left ankle during a
motorcycle accident, many years ago (Exhibit1F/2 [(R. 320)]). For this
injury, he underwent reconstructive surgery (Exhibits lF/2; 8F/17 [(R. 320,
423)]). In addition to pain, claimant alleged he has swelling below in the
knee [sic] of both legs (Exhibits lF/8, 27 [(R. 326, 345)]). Objectively, xrays of the right foot on January 16, 2014, showed fragmented navicular
and severe degenerative changes of the mid foot right side and (Exhibits
6F/8; 7F/3 [(R. 378, 398)]) and limited range of motion on the right (Exhibit
7F/3 [(R. 398)]). There are no records of recent x-rays of the left foot or
ankle. He has been diagnosed with severe right foot degenerative joint
disease (Exhibit 7F/4 [(R. 399)]), and he has been prescribed Ultram for his
pain symptoms (Exhibit lF/2 [(R. 320)]).
On examination, claimant demonstrated significant difficulty performing
orthopedic maneuvers, and difficulty heel and toe walking (Exhibit 7F/3
[(R. 398)]). He demonstrated moderate difficulty squatting and arising
from a seated position (Exhibit 7F/3 [(R. 398)]). Claimant complains of
difficulty walking to his car (Exhibit 8F/12 [(R. 418)]), and he indicated
and it does not materially affect this court’s decision. If Mr. Alpaugh was over 400
pounds and 78" tall, he would appear marginally less obese than if he were 76" tall and
the same weight. On remand the Commissioner may verify or correct this information.
that his pain symptoms are exacerbated by exposure to weather changes
(Exhibit 7F/1 [(R. 396)]). Claimant testified that he needs to elevate his
foot throughout the day, at the level of his heart. He stated that due to this
need, he spends most of his day in a recliner. He reports that he is able to
sit for an unlimited amount of time, stand for 20 minutes at one time, and
walk for 30 minutes at one time (Exhibit 7F/1 [(R. 396)]).
Despite claimant’s allegations of chronic pain, he has not used pain
medication on a regular basis, and he does not currently use prescription
pain medication (Exhibit 7F/1 [(R. 396)]). He alleged that he must elevate
his foot throughout the day due to edema. However, venous Doppler
examinations of claimant were normal, and he has only trace edema on
examination (Exhibits lF/16; 7F/2 [(R. 334, 397)]). Claimant alleged he has
difficulty standing and walking, but his gait and station are stable, with a
limp favoring the right (Exhibits lF/29; 8F/9; 7F/2 [(R. 347, 397, 415)]).
He has normal joint stability and he does not use an assistive device to
ambulate (Exhibits 6F/18; 7F/1 [(R. 388, 396)]). Claimant retains the
ability to drive, and he demonstrated only mild difficulty getting on and off
the examination table during the consultative examination (Exhibit 7F/3
[(R. 398)]). Finally, claimant has not been given restrictions on performing
activity by his doctor. In fact, he has been advised to exercise (Exhibit
lF/16 [(R. 334)]). Based on this information, the undersigned finds these
impairments are not as severe as alleged.
There is evidence in the record that Mr. Alpaugh’s weight was as high as 430
pounds (R. 396), and at the hearing he reported that he weighs “400 plus pounds.” (R.
44). SSR 02-1p recognizes that obesity “increases the risk of developing impairments
such as type II (so-called adult onset) diabetes mellitus . . . hypertension, . . . [and]
osteoarthritis,” and “may also cause or contribute to mental impairments such as
depression.” Titles II and XVI: Evaluation of Obesity, 2002 WL 34686281, at *3 (Sept.
12, 2002). And the ALJ found each of these impairments was at least a medically
determinable impairment present in this case. (R. 19-20). SSR 02-1p states that the
Social Security Administration (SSA or agency) will consider obesity in determining
whether a claimant has a medically determinable impairment, and whether the claimant’s
impairments are severe. Yet the ALJ did not discuss obesity or find it to be a medically
determinable (or severe) impairment in her step two analysis. Id. And, as Plaintiff points
out, SSR 02-1p requires that the agency, “will explain how we reached our conclusions
on whether obesity caused any physical or mental limitations.” SSR 02-1p, 2002 WL
34686281, at *7. While the court will not require a specific explanation in cases where
the ALJ’s rationale is discernible from the decision, this is not such a case.
Here, the ALJ recognized severe impairments in both ankles, a fragmented
navicular and severe degenerative changes in the mid right foot with limited range of
motion, and noted the decedent’s complaints of pain and edema (R. 23), but she said
nothing about obesity and how it impacted these findings or complaints and did not point
to record evidence supporting her findings (or lack of finding). She recognized Dr.
Rupp’s findings (or opinions?) regarding Mr. Alpaugh’s ability to perform orthopedic
maneuvers, id. but did not relate them to his obesity or explain how she had considered
them together. In fact, she noted Dr. Rupp’s report of mild difficulty getting on and off
the examining table and moderate difficulty squatting and arising from a seated position,
but she did not acknowledge his report that Mr. Alpaugh did not hop, and while Dr. Rupp
reported he had “severe difficulty with heel and toe walking” (R.398), the ALJ reported
only “difficulty heel and toe walking.” (R. 23). While the court is aware that semantics
and characterization are within the purview of the ALJ, in a case such as this, where the
claimant is so obviously obese, and has so many impairments and alleged symptoms
which could be caused or affected by his obesity, all of this evidence suggests that the
ALJ did not adequately explain her conclusions regarding the effects of obesity.
The ALJ acknowledged Mr. Alpaugh’s allegations of edema and difficulty
standing and walking and notes that venous Doppler examinations were normal, trace
edema was found on examination, and “gait and station are stable, with a limp favoring
the right,” and he has “normal joint stability.” (R. 23-24). Here again, these statements
do not contain the full story, and do not explain how the decedent’s obesity affected the
other impairments and findings. The January 16, 2014 treatment record to which the ALJ
cites reveals that joint stability checking found “no laxity or deformities,” and that as to
the right lower extremity “normal stability.” (R. 388). The record reveals that pain
limited Mr. Alpaugh’s active range of motion. Id. Moreover, the record also reveals that
it was at that visit that Mr. Alpaugh’s Advanced Practice Registered Nurse (APRN)
ordered x-rays of his ankle (R. 389), and those x-rays revealed “[f]ragmentation of the
navicular, severe degenerative changes of the midfoot, plantar flexion of the talus, and
marked irregularity of the anterior subtalar joint” (R. 378), as acknowledged by the ALJ.
(R. 23). This fact suggests that Mr. Alpaugh’s right foot was in worse shape than his
treatment provider perceived on her physical examination. In any case, it highlights the
fact that the ALJ did not discuss these findings in relation to the effects of the decedent’s
Again, the court acknowledges that its general practice “is to take a lower tribunal
at its word when it declares that it has considered a matter.” Hackett, 395 F.3d at 1173.
However, SSR 02-1p specifically requires an explanation which is missing here, and
Plaintiff has pointed to several ambiguities in the decision and the record evidence which
beg an explanation. Remand is necessary to accomplish it.
Finally, the court notes that Plaintiff asks the court to remand “with directions to
the Commissioner to grant his application for SSA disability benefits as he sustained his
burden through step four of the sequential evaluation process and the Commissioner did
not sustain her burden at step five.” (Pl. Br. 16). Whether to remand the case for an
immediate calculation and award of benefits is within the discretion of the district court.
Ragland v. Shalala, 992 F.2d 1056, 1060 (10th Cir. 1993); Taylor v. Callahan, 969 F.
Supp. 664, 673 (D. Kan. 1997) (citing Dixon v. Heckler, 811 F.2d 506, 511 (10th Cir.
1987)). In 2006, the Tenth Circuit noted two factors relevant to whether to remand for an
immediate award of benefits: Length of time the matter has been pending and “whether
or not ‘given the available evidence, remand for additional fact-finding would serve [any]
useful purpose but would merely delay the receipt of benefits.’” Salazar v. Barnhart, 468
F.3d 615, 626 (10th Cir. 2006) (quoting Harris v. Sec’y of Health & Human Servs., 821
F.2d 541, 545 (10th Cir. 1987); and citing Sisco v. Dep’t of Health & Human Servs., 10
F.3d 739, 746 (10th Cir. 1993)). The decision to direct an award should be made only
when the administrative record has been fully developed and when substantial and
uncontradicted evidence on the record as a whole indicates that the claimant is disabled
and entitled to benefits. Gilliland v. Heckler, 786 F.2d 178, 184, 185 (3rd Cir. 1986).
The court acknowledges that there is evidence in the record from which it might be
found that the decedent was disabled within the relevant period at issue here. However,
that evidence is not uncontroverted and it is the better course to allow the Commissioner
to bring her expertise to bear on that issue in the first instance. Moreover, Plaintiff does
not cite or argue from any relevant legal authority of the Tenth Circuit on the issue of
remand for an immediate award of benefits.
IT IS THEREFORE ORDERED that judgment shall be entered pursuant to the
fourth sentence of 42 U.S.C. § 405(g) REMANDING the case for further proceedings
consistent with this decision.
Dated this 12th day of September 2017, at Kansas City, Kansas.
s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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