Frakes 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 3/7/18. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DEBORAH LOUSIE FRAKES,
Plaintiff,
vs.

Case No. 17-2010-SAC

NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,
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).

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

Substantial evidence requires more than a

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
Plaintiff filed her application for social security

disability benefits on February 26, 2010 (R. at 136).

On May 6,

2011, administrative law judge (ALJ) William G. Horne issued the
1st ALJ decision, finding that plaintiff was not disabled (R. at
4

136-146).

On April 27, 2012, the Appeals Council vacated the

ALJ decision and remanded it for further consideration (R. at
153-154).
On December 7, 2012, ALJ Dennis LeBlanc issued a 2nd ALJ
decision, again denying plaintiff disability benefits (R. at
159-173).

The Appeals Council denied the request for review on

November 14, 2013 (R. at 1-2).

On May 14, 2015, the U.S.

District Court for the Western District of Missouri reversed the
decision of the Commissioner, and remanded the case for further
hearing (R. at 1027-1029).
On September 8, 2016, ALJ Timothy G. Stueve issued the 3rd
ALJ decision (R. at 957-969).

Plaintiff alleges that she has

been disabled since November 17, 2008 (R. at 957).

Plaintiff is

insured for disability insurance benefits through December 31,
2012 (R. at 959).

At step one, the ALJ found that plaintiff has

not engaged in substantial gainful activity since the alleged
onset date (R. at 959).

At step two, the ALJ found that

plaintiff has severe impairments (R. at 959).

At step three,

the ALJ determined that plaintiff’s impairments do not meet or
equal a listed impairment (R. at 960).

After determining

plaintiff’s RFC (R. at 962-963), the ALJ found at step four that
plaintiff is unable to perform past relevant work (R. at 967).
At step five, the ALJ found that plaintiff could perform other
work that exists in significant numbers in the national economy
5

(R. at 967-968).

Therefore, the ALJ concluded that plaintiff

was not disabled (R. at 968).
III.

Are the ALJ’s physical 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
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
6

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’s physical RFC findings limited plaintiff to
sedentary work, with the ability to occasionally lift 10 pounds.
She can stand/walk for 2 hours, and sit for 6 hours in an 8-hour
workday.

She can occasionally climb ramps or stairs, but can

never climb ladders, ropes or scaffolds.

She can occasionally

balance on level surfaces, stoop, kneel, crouch, and crawl.

She

can tolerate occasional exposure to extreme cold, extreme heat,
7

wetness, and humidity.
to vibration.

She can occasionally tolerate exposure

She can occasionally tolerate exposure to

atmospheric conditions.

She can never tolerate exposure to

unprotected moving mechanical parts or unprotected heights.
can work in noise environments up to moderate.

She

She should only

occasionally perform telephone communications (R. at 962-963).
In making his physical RFC findings, the ALJ did not cite
to, rely on, or consider any medical source opinions regarding
plaintiff’s physical RFC.

Plaintiff argues that the ALJ erred

by failing to develop the record by obtaining a medical source
opinion regarding plaintiff’s physical RFC.
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).1

Wells v. Colvin, 727 F.3d 1061, 1071-1072 (10th Cir.
In addition, the ALJ is allowed to engage in less

extensive analysis where none of the record evidence conflicts
with the ALJ’s conclusion that plaintiff can perform work at a
certain exertional level.

Wall v. Astrue, 561 F.3d 1048, 1068

(10th Cir. 2009); Howard v. Barnhart, 379 F.3d 945, 947 (10th Cir.
2004).

However, it should be noted in Wall that the record

1

In Wells, the record contained numerous medical opinions regarding plaintiff’s mental and physical limitations.
727 F.3d at 1071-1074.
8

included a “staggering array of experts whose findings are
reflected in the record on appeal,” 561 F.3d at 1052, including
opinions regarding plaintiff’s physical RFC.
1057, 1059.

561 F.3d at 1055,

In Howard, the ALJ had before him a consultative

examination and report, which supported the ALJ’s RFC
determination.

379 F.3d at 948.

In the case before the court,

there is no medical opinion evidence in the record regarding
plaintiff’s physical RFC.2
Consultative medical examinations may be ordered by the
ALJ.

20 C.F.R. § 1512(b)(2), §1519.

The Commissioner has broad

latitude in ordering consultative examinations.

Nevertheless,

it is clear that, where there is a direct conflict in the
medical evidence requiring resolution, or where the medical
evidence in the record is inconclusive, a consultative
examination is often required for proper resolution of a
disability claim.

Similarly, where additional tests are

required to explain a diagnosis already contained in the record,
resort to a consultative examination may be necessary.

There

must be present some objective evidence in the record suggesting
the existence of a condition which could have a material impact

2

Thus, this case is not like that in Smith v. Colvin, 821 F.3d 1264, 1268 (10th Cir. 2016), in which the ALJ is faced
with conflicting medical opinions, and adopts a middle ground, arriving at an assessment between the two medical
opinions without fully embracing either one, which was found not to be error. Nor is this case like that of Chapo v.
Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012), in which the ALJ gave weight to a medical opinion regarding
plaintiff’s RFC, but tempered it in the claimant’s favor. In all of these opinions, the ALJ had at least one medical
source opinion regarding plaintiff’s RFC.
9

on the disability decision requiring further investigation.

The

claimant has the burden to make sure there is, in the record,
evidence sufficient to suggest a reasonable possibility that a
severe impairment exists.

When the claimant has satisfied this

burden in that regard, it then becomes the responsibility of the
ALJ to order a consultative examination if such an examination
is necessary or helpful to resolve the issue of impairment.

In

a counseled case, the ALJ may ordinarily require counsel to
identify the issue or issues requiring further development.

In

the absence of such a request by counsel, the court will not
impose a duty on the ALJ to order a consultative examination
unless the need for one is clearly established in the record.
The ALJ should order a consultative exam when evidence in the
record establishes the reasonable possibility of the existence
of a disability and the result of the consultative exam could
reasonably be expected to be of material assistance in resolving
the issue of disability.

Hawkins v. Chater, 113 F.3d 1162,

1166-1168, 1169 (10th Cir. 1997)(emphasis added).
The problem with the lack of medical opinion evidence
regarding plaintiff’s physical RFC can be easily seen when
looking at the previous ALJ decisions.

In the 1st ALJ decision

in 2011, the ALJ found that plaintiff had severe physical
impairments of obesity, hearing disorder, chronic bronchitis and
asthma (R. at 138).

The ALJ limited plaintiff to light work (R.
10

at 141).

The Appeals Council in 2012 vacated the decision,

stating that the ALJ needed to give further consideration to
plaintiff’s maximum RFC and provide appropriate rationale with
specific references of record in support of the assessed
limitations (R. at 153-154, emphasis added).
In the 2nd ALJ decision in 2012, another ALJ found that
plaintiff had no severe physical impairments, and could perform
a full range of work at all exertional levels (R. at 161, 165).
On appeal, the U.S. District Court in the Western District of
Missouri reversed the 2nd ALJ decision, and held that the
Commissioner was ordered to give further consideration to the
claimant’s maximum RFC and provide appropriate rationale with
specific references to evidence of record in support of the
assessed limitations (R. at 1027-1029, emphasis added).
Now before the court is a 3rd ALJ decision from 2016 finding
that plaintiff had severe physical impairments of obesity,
hearing disorder, chronic bronchitis, asthma, migraine, diabetes
and hypertension (R. at 959).

This ALJ limited plaintiff to

sedentary work, with some additional limitations.

None of the 3

ALJ’s had before them any medical opinions regarding plaintiff’s
physical RFC, and all 3 ALJ’s came up with very different
physical RFC findings.

After the first two ALJ decisions, the

Appeals Council, in the first instance, and the U.S. District
Court, in the second instance, reversed the ALJ decision, and
11

ordered the Commissioner to give further consideration to
plaintiff’s maximum RFC and provide appropriate rationale with
specific references to evidence of record in support of the
assessed limitations (R. at 154, 1028-1029, emphasis added).
Both the Appeals Council and the U.S. District Court cited
to SSR 96-8p, which stated that the RFC assessment must include
a narrative discussion describing how the evidence supports each
conclusion, citing specific medical facts and nonmedical
evidence.
2013).

Wells v. Colvin, 727 F.3d 1061, 1065, 1069 (10th Cir.

However, despite the mandate of SSR 96-8p, as affirmed

in Wells, and the earlier order of the Appeals Council and the
U.S. District Court, the ALJ failed to cite to any evidence of
record in support of the assessed physical limitations.
An ALJ has a basic obligation in every social security case
to ensure that an adequate record is developed during the
disability hearing consistent with the issues raised.
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.

SSR 96-8p at *5.

As set forth in Hawkins, cited above, there must be present some
objective evidence in the record suggesting the existence of a
condition which could have a material impact on the disability
decision requiring further investigation.

The claimant has the

burden to make sure there is, in the record, evidence sufficient
12

to suggest a reasonable possibility that a severe impairment
exists.

When the claimant has satisfied this burden in that

regard, it then becomes the responsibility of the ALJ to order a
consultative examination if such an examination is necessary or
helpful to resolve the issue of impairment.

The ALJ should

order a consultative exam when evidence in the record
establishes the reasonable possibility of the existence of a
disability and the result of the consultative exam could
reasonably be expected to be of material assistance in resolving
the issue of disability.
The 3rd ALJ decision found that plaintiff had numerous
severe physical impairments (R. at 959).

Thus, the record

clearly demonstrates objective evidence in the record indicating
a number of physical conditions which could have a material
impact on the disability decision requiring further
investigation.

However, in the absence of any medical opinions

regarding plaintiff’s physical RFC, three different ALJ’s have
found that plaintiff is respectively limited to light work, can
perform the full range of work, or is limited to sedentary work.
The ALJ in the 3rd decision summarized the medical evidence
pertaining to plaintiff’s physical impairments (R. at 964), but,
as in the earlier ALJ decisions, failed to provide specific
references to evidence of record in support of his physical RFC
findings, or explain why the evidence limits plaintiff to
13

sedentary work, as opposed to light work, or no exertional
limitations at all.

On the facts of this case, a consultative

examination, or some other medical source opinion(s), could
reasonably be expected to be of material assistance in resolving
the issue of plaintiff’s physical RFC, and whether or not she is
disabled.

See Williams v. Berryhill, 682 Fed. Appx. 665, 668-

669 (10th Cir. March 17, 2017)(The court held that the existing
evidence was not sufficient to make a determination of Ms.
Williams’ claim, noting that there was no medical evidence about
her conversion disorder, its severity, and how it affected her
ability to function.

Even though counsel did not raise the

issue of a consultative examination with the ALJ, there was a
clear need for such an examination because the ALJ had no
evidence upon which to make a finding as to RFC.

Therefore, the

ALJ should have exercised his discretionary power to order a
consultative examination to determine claimant’s capabilities or
RFC).
On remand, the Commissioner is ordered to obtain medical
source opinion or opinions regarding plaintiff’s physical RFC,
either by recontacting a treating medical source, requesting
medical records which may contain a medical source opinion
regarding plaintiff’s physical RFC, or requesting a consultative
examination.

20 C.F.R. §§404.1520b(b)(2).

The ALJ could also

consider having a medical expert testify at the hearing
14

regarding plaintiff’s physical RFC after reviewing the record.3
Furthermore, the ALJ could request a state agency assessment by
a physician who could review the record and provide a written
report setting forth their physical RFC findings and providing a
thorough written explanation for their physical RFC findings.
IV.

Are the ALJ’s mental RFC findings supported by substantial

evidence?
The ALJ’s mental RFC findings limited plaintiff to simple,
routine, and repetitive tasks and decisions, with few, if any
work place changes with no fast-moving assembly line-type work.
She should have no interaction with the public.

She can be

around coworkers throughout the day, but with only brief
incidental interaction with coworkers and no tandem job tasks
(R. at 963).
The ALJ considered the opinions of Dr. McKeehan, a nonexamining medical source, who reviewed the record, and opined on
April 19, 2010 that plaintiff’s only limitation was a moderate
limitation in the ability to understand and remember detailed
instructions (R. at 602).

Dr. McKeehan noted that plaintiff

needs reminders to take showers and medications, can’t go out
3

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).
15

alone because she gets nervous, has no social activities,
concentration is harder, understanding is harder, doesn’t handle
stress or changes in routine well, and has fear of large groups
(R. at 600).

The ALJ gave great weight to her opinions (R. at

961, 966).
The ALJ also gave consideration to the opinions of advanced
registered nurse practitioner (ARNP) Boyd, a treatment provider,
who opined in 2011 and 2016 that plaintiff had numerous marked
and extreme mental limitations (R. at 749-755, 1535-1536).

The

ALJ gave little weight to her opinions (R. at 966), setting
forth in some detail how, in the ALJ’s opinion, the treatment
records are not consistent with the limitations found by ARNP
Boyd, and further noting that the findings of ARNP Boyd are in a
checklist-style form without any rationale for those conclusions
(R. at 966-967).
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
16

adequate to support a conclusion).
the sufficiency of the evidence.

The court can only review

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).
The ALJ set forth portions of the treatment records which
appeared inconsistent with the opinions of ARNP Boyd.
will not reweigh the evidence.

The court

Furthermore, the ALJ noted that

the opinions of ARNP Boyd were on a checklist-style form without
any rationale for her conclusions.

A treating physician’s

opinions can be rejected if they are brief, conclusory, and
unsupported by medical evidence.

Williamson v. Barnhart, 350

F.3d 1097, 1099 (10th Cir. 2003); Bernal v. Bowen, 851 F.2d 297,
301 (10th Cir. 1988); Frey v. Bowen, 816 F.2d 508, 513 (10th Cir.
1987).

The court finds no clear error by the ALJ in his

analysis of the evidence, including the medical opinion
evidence, pertaining to plaintiff’s mental RFC.
However, the court is concerned because the medical
evidence relied on by the ALJ is from April 19, 2010, eight
years ago.

Dr. McKeehan therefore did not have before her six

years of treatment records after that date, including the
opinions expressed by ARNP Boyd in 2011 and 2016.
17

Because this

case is being remanded for the reasons set forth above, the
court will require the Commissioner to obtain an updated medical
source report with opinions regarding plaintiff’s mental RFC
(consultative examination, state agency assessment, and/or a
medical expert to testify after reviewing the record).
V.

Did the ALJ err in his analysis of the 3rd party witness

statements?
Plaintiff argues that the ALJ rejected the statements of 3rd
party witnesses on legally insufficient grounds.

The ALJ gave

little weight to those opinions because they were lay opinions,
and did not outweigh the accumulated medical evidence.
court will not reweigh the evidence.

The

However, in light of the

fact that additional medical opinion evidence will be obtained
regarding plaintiff’s RFC when this case is remanded, the ALJ
should reconsider those statements after considering the
additional medical opinion evidence.
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 7th day of March 2018, Topeka, Kansas.

s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge
18