Trusty v. Social Security Administration, Commissioner of

Filing 13

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. See attached for more details. Signed by U.S. District Senior Judge Sam A. Crow on 11/22/2011. (bmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BRANDI TRUSTY,
Plaintiff,
vs.

Case No. 11-4012-SAC

MICHAEL J. ASTRUE,
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

scintilla, but less than a preponderance, and is satisfied by
such evidence that a reasonable mind might accept to support the

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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.
v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).

Ray

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.
Graham v. Sullivan, 794 F. Supp. 1045, 1047 (D. Kan. 1992).

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).

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

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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.

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

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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
the analysis.
1993).

Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir.

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 August 5, 2009, administrative law judge (ALJ) William G.
Horne issued his decision (R. at 12-19).

Plaintiff alleges that

she has been disabled since December 23, 2006 (R. at 12).
Plaintiff is insured for disability insurance benefits through
December 31, 2007 (R. at 12).

At step one, the ALJ found that

plaintiff has not engaged in substantial gainful activity since
her alleged onset date (R. at 13).

At step two, the ALJ found

that plaintiff had the following severe impairments: disorders of

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the back with negative x-rays, status post right hip and ankle
fractures at age 11 resulting in only mild and minor
abnormalities, affective mood disorder and obesity (R. at 13).
At step three, the ALJ determined that plaintiff’s impairments do
not meet or equal a listed impairment (R. at 13-14).

After

determining plaintiff’s RFC (R. at 16), the ALJ found at step
four that plaintiff has no past relevant work (R. at 17).

In the

alternative, at step five, the ALJ found that plaintiff could
perform other jobs that exist in significant numbers in the
national economy (R. at 17).

Therefore, the ALJ concluded that

plaintiff was not disabled (R. at 17-18).
III.

Did the ALJ and/or the Appeals Council err in their

consideration of the opinions of Dr. Mohiuddin?
The hearing in this case was held on July 15, 2009 (R. at
20).

Following the hearing, the record reflects that on July 20,

2009 a mental residual functional capacity (RFC) form, dated July
10, 2009, was filed in the case, which reflected the opinions of
Dr. Mohiuddin (R. at 522-525).
August 5, 2009 (R. at 19).

The ALJ issued his decision on

However, the ALJ never mentioned in

his decision the opinions of Dr. Mohiuddin.1
1

Dr. Mohiuddin found that plaintiff had the following
moderate impairments:
8. The ability to sustain an ordinary routine without special
supervision.
9.

The ability to work in coordination with others or proximity
5

An ALJ must evaluate every medical opinion in the record.
Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004).

Even

on issues reserved to the Commissioner, including plaintiff’s RFC
and the ultimate issue of disability, opinions from any medical
source must be carefully considered and must never be ignored.
Social Security Ruling (SSR) 96-5p, 1996 WL 374183 at *2-3.

The

ALJ “will” evaluate every medical opinion that they receive, and
will consider a number of factors in deciding the weight to give
to any medical opinion.

20 C.F.R. § 404.1527(d).

For these

reasons, it is clear legal error to ignore a medical opinion.
Victory v. Barnhart, 121 Fed. Appx. 819, 825 (10th Cir. Feb. 4,

to others without being distracted by them.
11. The ability to complete a normal workday and workweek without
interruptions from psychologically based symptoms and to perform
at a consistent pace without an unreasonable number and length of
rest periods.
12. The ability to interact appropriately with the general
public.
20. The ability to set realistic goals or make plans
independently of others.
Dr. Mohiuddin also found that plaintiff had the following marked
impairments:
5.

The ability to carry out detailed instructions.

6. The ability to maintain attention and concentration for
extended periods.
7. The ability to perform activities within a schedule, maintain
regular attendance, and be punctual within customary tolerances.
(R. at 523-524).
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2005).
If, as it appears from the record, the opinions of Dr.
Mohiuddin were provided to the ALJ prior to his decision, the ALJ
clearly erred by failing to consider his opinions.

However, the

record also indicates that the Appeals Council stated that it
added to the record additional evidence, including the assessment
by Dr. Mohiuddin (R. at 5).

In their decision denying

plaintiff’s request for review, the Appeals Council stated the
following:
The new evidence submitted does not change
the Administrative Law Judge’s findings and
conclusions during the period at
issue...Further, as it relates to the Mental
Residual Functional Capacity Assessment from
Valeo Behavior Health, it does not appear to
be supported as the most current treatment
records in file from this provider
consistently note normal objective findings
from February 2, 2009 through May 12, 2009.
(R. at 2).

Because the opinions of Dr. Mohiuddin are clearly

part of the record, they will be considered by the district court
in its review of the Commissioner’s decision.

Threet v.

Barnhart, 353 F.3d 1185, 1191 (10th Cir. 2003); O’Dell v.
Shalala, 44 F.3d 855, 859 (10th Cir. 1994).

Furthermore, the

court will examine both the ALJ’s decision and the additional
findings of the Appeals Council.

This is not to dispute that the

ALJ’s decision is the Commissioner’s final decision, but rather
to recognize that the Commissioner’s “final decision” includes
the Appeals Council’s conclusion that the ALJ’s findings remained
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correct despite the new evidence.

Geubelle v. Barnhart, Case No.

09-1297-WEB (D. Kan. Sept. 29, 2003; Doc. 22 at 4-5); see O’Dell,
44 F.3d at 859.
The one reason provided by the Appeals Council for finding
that the assessment by Dr. Mohiuddin does not provide a basis for
changing the ALJ’s findings is that the treatment notes from
February through May 2009 “consistently note normal objective
findings” (R. at 2).

The medical records include five progress

notes dated February 2, 2009, March 2, 2009, April 2, 2009, April
14, 2009, and May 12, 2009 (R. at 483-486, 513-518).

Each of

those progress notes include a number of objective findings.
Those findings are set forth below:
Area

Assessment

Appearance

Over weight

Cognition

Oriented

Affect/Mood

Euthymic

Speech

Clear

Thought

Organized

Perception

Normal

Movement

Unremarkable

Sleep

Fair (1x)
Good (4x)

Appetite

Good

Energy

Good

Libido

Fair/good

Insight

Fair

Judgment

Fair

Current Risk to Self/others

None

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(R. at 483-486, 513-518).
The question before the court is whether the Appeals
Council’s rejection of Dr. Mohiuddin’s report is supported by
substantial evidence in the record.

Harrold v. Astrue, 2008 WL

4866624 at *3 (10th Cir. Nov. 12, 2008).

First, although the

Appeals Council found that the five treatment notes showed
“consistently” normal objective findings (R. at 2), not all of
the findings were normal or good.

All five treatment notes found

that plaintiff’s insight and judgment were only “fair” (R. at
483-486, 513-518).

The fact that the treatment records show only

fair insight and judgment should have been considered in light of
the opinion of Dr. Mohiuddin that plaintiff had a number of
moderate and marked limitations.

The Appeals Council

mischaracterized the five treatment notes by indicating that they
showed consistently normal findings.
Second, the ALJ made mental RFC findings that plaintiff:
...can only perform simple, repetitive tasks
in a low stress environment, and can only
tolerate minimal interaction with the public
and co-workers.
(R. at 16).

As noted by the plaintiff in her brief (Doc. 10 at

12), 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.”

However, the ALJ did not cite to any evidence to

support his finding that plaintiff had only these mental
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limitations, but not others.
The only medical opinion evidence pertaining to plaintiff’s
mental limitations, other than that of Dr. Mohiuddin, was a
mental RFC assessment from Dr. Stern (R. at 347-363).

The ALJ

did not mention the assessment by Dr. Stern in his opinion.

Dr.

Stern found that plaintiff only had the capacity to work in jobs
that require infrequent interaction with coworkers and the
general public (R. at 363).
the ALJ’s RFC findings.

These limitations were included in

However, the ALJ also found that

plaintiff can only perform simple, repetitive tasks in a low
stress environment; this limitation was not mentioned in Dr.
Stern’s report, and the ALJ failed to provide any basis for
including this additional limitation.
Limiting plaintiff to simple work is consistent with Dr.
Mohiuddin’s opinion that plaintiff is markedly limited in
carrying out detailed instructions.

Thus, without explanation,

the ALJ included in his RFC findings at least one limitation
consistent with the opinions of Dr. Mohiuddin; however the ALJ
failed to include many other limitations set forth by Dr.
Mohiuddin.

Given the ALJ’s failure to indicate what weight, if

any, he gave to either the opinions of Dr. Stern or Dr.
Mohiuddin, the court cannot determine what evidence in the record
supported his mental RFC findings.

The court cannot determine if

the ALJ considered Dr. Mohiuddin’s opinions, and, if so, why he

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appeared to include at least one of his limitations, but not
others.

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 Southern 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.
Slicer 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).
Because of the failure of the ALJ to discuss the opinions of
Dr. Mohiuddin or Dr. Stern, the mischaracterization by the

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Appeals Council regarding the treatment notes of Dr. Mohiuddin,
and the failure of the ALJ to explain the basis for his RFC
findings, or indicate what weight, if any, he gave to either Dr.
Stern or Dr. Mohiuddin, the court finds that the Appeals
Council’s rejection of Dr. Mohiuddin’s opinions is not supported
by substantial evidence in the record.

Therefore, this case

shall be remanded in order for the ALJ to make new RFC findings
after giving consideration to all the evidence, including the
opinions of Dr. Mohiuddin.2
IV.

Other issues raised by the plaintiff
Plaintiff has also raised other issues pertaining to the

precision with which limitations were related to the vocational
expert (VE) and whether there were any conflicts between the
vocational expert’s testimony and the Dictionary of Occupational
Titles (DOT).

The court will not reach these issues because they

may be affected by the ALJ’s resolution of the case on remand
after giving further consideration to the medical opinion
evidence, as set forth above.

See Robinson v. Barnhart, 366 F.3d

1078, 1085 (10th Cir. 2004).3

2

In their brief, the defendant argued that Dr. Mohiuddin was
not a treating source (Doc. 11 at 11). That argument was not
raised by the Appeals Council, and therefore will not be
considered by the court. On remand, the ALJ can make that
determination, and decide what relative weight should be accorded
to his opinions.
3

The court will note that plaintiff is correct that SSR 969p states that the RFC assessment must be specific as to the
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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 22nd day of November 2011, Topeka, Kansas.

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

frequency of the individual’s need to alternate sitting and
standing. 1996 WL 374185 at *7. Although the ALJ’s RFC findings
only mentioned a sit/stand option (R. at 16), in the ALJ’s
hypothetical question to the VE, he stated that plaintiff must be
able to sit/stand “at will” (R. at 88). The “at will” limitation
clearly provides the requisite specificity. Forbes v. Barnhart,
2006 WL 4050969 at *8 n.3, Case No. 05-1284-MLB (D. Kan. May 25,
2006; Doc. 10 at 20-21 n.3).
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