Cutchlow v. Social Security Administration, Commissioner of

Filing 15

MEMORANDUM AND ORDER - It is ordered that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner's final decision. Signed by District Judge John W. Lungstrum on 10/18/2018. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

SHANTE M. CUTCHLOW,

)
)
Plaintiff,
)
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v.
)
)
NANCY A. BERRYHILL,
)
Acting Commissioner of Social Security,
)
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Defendant.
)
______________________________________)

CIVIL ACTION
No. 17-2628-JWL

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 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). Finding the Administrative Law Judge’s (ALJ)
residual functional capacity (RFC) assessment is supported by substantial evidence, the
court ORDERS that judgment shall be entered pursuant to the fourth sentence of 42
U.S.C. § 405(g) AFFIRMING the Commissioner’s final decision.
I.

Background
Plaintiff argues that the ALJ’s RFC is unsupported by substantial evidence

because he did not include functional limitations resulting from Plaintiff’s mental

impairments or from her carpal tunnel syndrome, he failed to fully and fairly develop the
record to obtain a medical opinion regarding functional impairments resulting from
Plaintiff’s degenerative disc disease or degenerative joint disease, he failed to properly
assess RFC on a function-by-function basis, and he relied on erroneous factors in
evaluating disability.
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 he 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
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[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 she
has a severe impairment(s), and whether the severity of her 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 at step four whether, considering the RFC assessed, claimant can perform
her past relevant work; and at step five whether, when also considering the vocational
factors of age, education, and work experience, claimant is able to perform other work in
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the economy. Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In steps one
through four the burden is on Plaintiff 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 which are within the RFC assessed. Id.; Haddock v. Apfel, 196 F.3d 1084,
1088 (10th Cir. 1999).
The court considers the issues in the order presented in Plaintiff’s Brief and finds
no error in the ALJ’s decision.
II.

Discussion
Much of Plaintiff’s claim of error appears to be based on the assumption that any

alleged technical error justifies remand for a correction of the technical omission. An
example is Plaintiff’s argument that it was error when the ALJ failed to assess functional
limitations resulting from impairments he found were not severe within the meaning of
the Act and the regulations--carpal tunnel syndrome, depression, and anxiety. (Pl. Br. 2728). Were the court to assume, as Plaintiff suggests, that the ALJ erred in failing to
include functional limitations resulting from these impairments in the RFC assessed,
Plaintiff has shown no prejudice resulting from that error. She does not point to record
evidence suggesting specific limitations resulting from these impairments which were not
adequately expressed in the RFC assessed, and she does not argue that the representative
jobs relied upon could not be performed if such limitations were included in the RFC or
in the hypothetical questioning of the vocational expert. And, the court is without
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jurisdiction in judicial review to reweigh the evidence and substitute its judgment for that
of the ALJ. Bowman, 511 F.3d at 1272; accord, Hackett, 395 F.3d at 1172.
A.

Duty to Develop the Record

Plaintiff argues that there are no record medical opinions suggesting functional
limitations resulting from her degenerative disc disease or degenerative joint disease and
that the ALJ has a duty to fully and fairly developed the record by obtaining a medical
opinion in this regard. (Pl. Br. 28). The Commissioner argues both that an ALJ is not
required to have a medical opinion upon which to base his RFC assessment, and that in
this case the state agency medical consultants provided opinions limiting Plaintiff to light
work, and the ALJ tempered those limitations by limiting Plaintiff to a range of sedentary
work. (Comm’r Br. 7-8).
The Commissioner is correct. Although an ALJ is not an acceptable medical
source qualified to render a medical opinion, “the ALJ, not a physician, is charged with
determining a claimant’s RFC from the medical record.” Howard v. Barnhart, 379 F.3d
945, 949 (10th Cir. 2004). “And the ALJ’s RFC assessment is an administrative, rather
than a medical determination.” McDonald v. Astrue, 492 F. App’x 875, 885 (10th Cir.
2012) (citing Social Security Ruling (SSR) 96-05p, 1996 WL 374183, at *5 (July 1996)).
Because RFC assessment is made based on “all of the evidence in the record, not only the
medical evidence, [it is] well within the province of the ALJ.” Dixon v. Apfel, No. 985167, 1999 WL 651389, at **2 (10th Cir. Aug. 26, 1999); 20 C.F.R. §§ 404.1545(a),
416.945(a). Moreover, the final responsibility for determining RFC rests with the
Commissioner. 20 C.F.R. §§ 404.1527(e)(2), 404.1546, 416.927(e)(2), 416.946.
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“[T]here is no requirement in the regulations for a direct correspondence between
an RFC finding and a specific medical opinion.” Chapo v. Astrue, 682 F.3d 1285, 1288
(10th Cir. 2012) (citing Howard, 379 F.3d at 949); Wall, 561 F.3d at 1068-69). The
narrative discussion required to be provided in an RFC assessment by SSR 96-8p does
not require citation to a medical opinion, or even to medical evidence in the
administrative record for each RFC limitation assessed. Castillo v. Astrue, No. 10-1052,
2011 WL 13627, *11 (D. Kan. Jan. 4, 2011). “What is required is that the discussion
describe how the evidence supports the RFC conclusions, and cite specific medical facts
and nonmedical evidence supporting the RFC assessment.” Id. See also, Thongleuth v.
Astrue, No. 10-1101-JWL, 2011 WL 1303374, *13 (D. Kan. Apr. 4, 2011). There is no
need in this case, or in any other, for the Commissioner to base the limitations in his RFC
assessment upon specific statements in medical evidence or opinions in the record.
B.

Function-by-Function Assessment

Plaintiff argues that because the ALJ stated his finding that Plaintiff “has the
residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a)
and 419.967(a)” (R. 94) (finding no. 6) (bolding omitted), he “failed to assess the RFC on
a function-by-function basis and erroneously assessed the exertional level first.” (Pl. Br.
30). The court finds no error. The ALJ provided an RFC assessment as required by 20
C.F.R. §§ 404.1545-1546, 416.945-946. (R. 94-98). That assessment included a
narrative discussion within the meaning of SSR 96-8p. West’s Soc. Sec. Reporting Serv.,
Rulings 143-50 (Supp. 2018). It cited specific medical facts and nonmedical evidence,
discussed how the plaintiff can perform sustained work activities, and described the
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maximum amount of each work activity the plaintiff can perform. Id., at 149. It included
an explanation how ambiguities and material inconsistencies in the evidence were
considered and resolved, and included consideration of the consistency of Plaintiff’s
allegations of symptoms, and of medical opinions regarding Plaintiff’s capabilities. Id. at
149-50. More is not required, and Plaintiff’s Brief points to no specific error in the ALJ’s
discussion.
C.

Erroneous Factors

Plaintiff claims “[t]he ALJ erroneously found Plaintiff was relying only on
Ibuprofen to treat her symptoms as inconsistent with her allegations of disability,” when
“[i]n fact, Plaintiff testified she was taking Lortab and not Ibuprofen.” (Pl. Br. 31) (citing
R. 96, 119). The portion of the decision to which Plaintiff objects is quoted here:
As for the claimant’s back, an MRI in March 2014 showed only minimal
degenerative findings in the lumbar region of the spine (Exhibit B6F/3 [(R.
539)]). The study also identified mild facet arthropathy. The study
specifically excluded disk herniation or central spinal or foraminal stenosis.
Nonetheless, the claimant described pain rated 6-8/10 and used ibuprofen to
treat the pain in early 2014 (Exhibit B8F/31 [(R. 573)]). Physical
examination findings at that time was [sic] positive for straight leg raising
consistent with radiculopathy in the right lower extremity. Subtle weakness
was also noted in the right hip. The claimant demonstrated diminished
sensation to light touch in the medial lower leg on the right hand side in
comparison to the left (Exhibit B8F/32 [(R. 574)]). While these physical
examination findings may support a diagnosis of back disorder, they fail to
demonstrate the claimant is disabled by the associated symptoms.
Furthermore, the claimant’s admitted reliance on ibuprofen to treat her
symptoms shows the associated pain is not so severe as to require more
intensive therapies. This, too, is inconsistent with disability.
(R. 96). As the ALJ found, the MRI report stated, “There is no evidence of a disk
herniation, central spinal or foraminal stenosis.” (R. 539) (emphasis added, all caps

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omitted). Nonetheless, as the ALJ noted, the treatment record on March 20, 2014
revealed that Plaintiff reported pain of 6 to 8 out of 10 and that Plaintiff reported she
“primarily used ibuprofen and she has not utilized any other forms of treatment besides
that.” (R. 573). The ALJ is entitled to rely on treatment records such as this.
As Plaintiff suggests, she testified that she takes Lortab for pain, and that she
“cannot take Ibuprofen due to my hiatal hernia.” (R. 119). The record reveals that
through March 20, 2014 Plaintiff reported that she primarily used Ibuprofen for pain and
that she had not utilized any other forms of treatment for her lower back. It reveals that
she had only “mild facet arthropathy at L4-5 and L5-S1,” and there was no evidence of
herniation or stenosis. (R. 539). As the ALJ found, this “is inconsistent with disability.”
(R. 96). While Plaintiff testified at the hearing on August 25, 2016 that she took Lortab
for pain, the ALJ did not question that testimony, but his finding regarding the record in
March 2014 is not changed by that testimony. Moreover, Plaintiff’s testimony that a
hiatal hernia prevents her taking Ibuprofen merely introduces one more inconsistency
into the record which supports the ALJ’s finding that Plaintiff’s statements “are not
entirely consistent with the medical evidence and other evidence in the record.” (R. 95).
Plaintiff next objects to the ALJ’s explanation that, “Generally, the claimant
presented without any signs of acute distress in 2014 through 2016 (Exhibits Bl5F [(R.
623-48)] and B23F [(R. 805-46)], for examples). This factor also weights negatively
against the consistency of the claimant’s allegations of disability with the medical
evidence.” (R. 97). She argues, “Descriptions like ‘Well-developed, well-nourished
white male in no acute distress’ are useless, a waste of time, [and] provide no
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information.” (Pl. Br. 31) (quoting from http://www.meddean.luc.edu/lumen/meded/
ipm/ipm2/sem3/general_appearance.pdf, p.3). There are at least two problems with this
line of reasoning. First, the link provided by Plaintiff produces a three-page document
identified only as “Patient Centered Medicine 2,” “General Appearance,” “Myles
Sheehan, S.J., M.D.” Although the URL cited leads to a website for the Loyola
University of Chicago, Stritch School of Medicine, there is simply nothing here from
which the court might deduce the weight to accord this unknown authority. Moreover,
reading the document produced by the link cited suggests that it is aimed at medical
personnel (perhaps medical students) and is designed neither to support nor to preclude
an ALJ’s garnering information from medical treatment records.
Here is the entire section from which Plaintiff quotes:
A. How do you communicate general appearance?
Presentation of the physical examination, either in writing or verbally,
should begin with a pithy description of the patient that makes it clear to all
what the person looks like. Descriptions like “Well-developed, well
nourished white male in no acute distress” are useless, a waste of time,
provide no information, and show a profound lack of imagination on the
part of the examiner. Do not feel obliged to use medical language when
standard image conveys the picture more clearly.
http://www.meddean.luc.edu/lumen/meded/ipm/ipm2/sem3/general_appearance.pdf (p.3)
(last visited, Oct. 17, 2018). While this section suggests that a medical examiner should
use his imagination and convey the picture of his patient more clearly, it cannot change
the fact that the treatment records here do not show Plaintiff with signs of acute distress,
and that fact is not entirely consistent with Plaintiff’s allegations.

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In her argument in this regard, Plaintiff also relies on the Eighth Circuit opinion,
“Combs v. Berryhill, 878 F.3d 642, 646 (8th Cir. [] 2017), wherein the Eighth Circuit
reversed and remanded, finding the ALJ improperly relied on his own interpretation of
the medical records.” (Pl. Br. 31). However, an Eighth Circuit opinion is not binding
precedent in the Tenth Circuit. Moreover, the legal standard applied in Combs is
contrary to the law in the Tenth Circuit as noted above. In Combs, the court
acknowledged that an ALJ is to determine “a claimant’s RFC ‘based on all the relevant
evidence, including the medical records, observations of treating physicians and others,
and an individual’s own description of [her] limitations.’” Combs, 878 F.3d at 646
(quoting Strongson v. Barnhart, 361 F.3d 1066, 1070 (8th Cir. 2004)). However, the
Combs court went on to state the law in the Eighth Circuit that, “Because a claimant’s
RFC is a medical question, an ALJ’s assessment of it must be supported by some medical
evidence of the claimant’s ability to function in the workplace.” Combs, 878 F.3d at 646
(quoting Steed v. Astrue, 524 F.3d 872, 875 (8th Cir. 2008); and Cox v. Astrue, 495 F.3d
614, 619 (8th Cir. 2007)). As noted above, the Tenth Circuit recognizes that an RFC
assessment is an administrative assessment rather than a medical assessment, and is well
within the province of the ALJ. Howard, 379 F.3d at 949 (“the ALJ, not a physician, is
charged with determining a claimant’s RFC from the medical record”); McDonald, 492
F. App’x at 885 (“the ALJ’s RFC assessment is an administrative, rather than a medical
determination”); Dixon v. Apfel, No. 98-5167, 1999 WL 651389, at **2 (Because RFC
assessment is based on “all of the evidence in the record, not only the medical evidence,
[it is] well within the province of the ALJ.”); see also Chapo, 682 F.3d at 1288 (“[T]here
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is no requirement in the regulations for a direct correspondence between an RFC finding
and a specific medical opinion.”) (citing Howard, 379 F.3d at 949); and Wall, 561 F.3d at
1068-69). This court may not follow Combs.
Finally, Plaintiff complains that the ALJ “relied on quite limited activities of daily
living as purportedly inconsistent with Plaintiff’s allegations of disability,” despite that in
the Tenth Circuit it has long been established that “the performance of household tasks
does not establish that a person is capable of engaging in substantial gainful activity.”
Thompson v. Sullivan, 987 F.2d 1482, 1489 (10th Cir. 1993). Plaintiff is, of course,
correct in stating the principal from Thompson. However, daily activities performed by
Plaintiff was only one of many inconsistencies upon which the ALJ relied to find
Plaintiff’s allegations inconsistent with the medical and other evidence of record. The
court’s review of a consistency determination is deferential, and giving due deference, the
court finds no error. Wilson, 602 F.3d at 1144; accord Hackett, 395 F.3d at 1173.
IT IS THEREFORE ORDERED that judgment shall be entered pursuant to the
fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner’s final decision.
Dated October 18, 2018, at Kansas City, Kansas.

s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge

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