Brown v. Social Security Administration, Commissioner of

Filing 15

MEMORANDUM AND ORDER: The Commissioner's decision denying plaintiff Social Security disability insurance benefits is REVERSED and judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) REMANDING the case to the agency for further proceedings consistent with this opinion. Signed by District Judge Daniel D. Crabtree on 7/15/2015. (ms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DONNA S. BROWN,
Plaintiff,
v.
Case No. 14-CV-04064-DDC
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

MEMORANDUM AND ORDER
Pursuant to 42 U.S.C. § 405(g), plaintiff seeks judicial review of the final decision of the
Commissioner of the Social Security Administration (the “Commissioner”) denying her
application for disability benefits under Title II of the Social Security Act, as amended. Plaintiff
has filed a Brief (Doc. 9) requesting judicial review of the Commissioner’s decision. The
Commissioner filed her Response Brief (Doc. 12) and submitted the administrative record with
her Answer (Doc. 6). Because plaintiff filed a Reply Brief (Doc. 13), this matter is now ripe for
decision. Having reviewed the administrative record and the briefs of the parties, the Court
reverses the decision of the Commissioner, orders that judgment be entered under the fourth
sentence of 42 U.S.C. § 405(g), and remands the case to the agency for further proceedings
consistent with this Order.
I.

Procedural History and Factual Background
Plaintiff applied for Social Security disability insurance (“SSD”) benefits under Title II of

the Social Security Act, 42 U.S.C. §§ 401-434, alleging disability beginning February 28, 2011.
(R. 155) The Commissioner denied plaintiff’s application on August 22, 2011 (R. 91), and again

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denied it upon reconsideration on January 23, 2012 (R. 101). Plaintiff requested a hearing before
an Administrative Law Judge (“ALJ”) on January 30, 2012. (R. 110) Following a hearing on
September 5, 2012, the ALJ denied plaintiff’s application for SSD benefits, determining that
plaintiff was not disabled under sections 216(i) and 223(d) of the Social Security Act (R. 8). 42
U.S.C. §§ 416(i), 423(d).
On May 15, 2014, the Appeals Council of the Social Security Administration denied
plaintiff’s administrative appeal (R. 1), rendering the Commissioner’s decision final. Plaintiff
has exhausted her administrative remedies and now seeks judicial review of the final decision
denying her SSD benefits.
II.

Legal Standards
A. Standard of Review
Section 405(g) of Title 42 of the United States Code grants authority to federal courts to

conduct judicial review of final decisions of the Commissioner and “enter, upon the pleadings
and transcript of the record, a judgment affirming, modifying, or reversing the decision . . . with
or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). Judicial review of the
Commissioner’s denial of benefits is limited, extending only to the issues: (a) whether
substantial evidence in the record supports the factual findings; and (b) whether the
Commissioner applied the correct legal standards. Mays v. Colvin, 739 F.3d 569, 571 (10th Cir.
2014); Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); 42 U.S.C. § 405(g). “If supported
by substantial evidence, the [Commissioner’s] findings are conclusive and must be affirmed.”
Sisco v. U.S. Dept. of Health & Human Servs., 10 F.3d 739, 741 (10th Cir. 1993) (citing
Richardson v. Perales, 402 U.S. 389, 390 (1971)).

2

“Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Lax, 489 F.3d at 1084. It must be “more than a scintilla,” but
it need not amount to a preponderance. Id. While courts “consider whether the ALJ followed
the specific rules of law that must be followed in weighing particular types of evidence in
disability cases,” they do not reweigh the evidence or substitute their judgment for the
Commissioner’s. Id. (citation and internal quotation marks omitted). But they do not accept “the
findings of the Commissioner” mechanically or affirm those findings “by isolating facts and
labeling them substantial evidence, as the court[s] must scrutinize the entire record in
determining whether the Commissioner’s conclusions are rational.” Alfrey v. Astrue, 904 F.
Supp. 2d 1165, 1167 (D. Kan. 2012) (citation omitted). When determining whether substantial
evidence supports the Commissioner’s decision, the courts “examine the record as a whole,
including whatever in the record fairly detracts from the weight of the Commissioner’s
decision.” Id. (citation omitted). “‘Evidence is not substantial if it is overwhelmed by other
evidence, particularly certain types of evidence (e.g., that offered by treating physicians) or if it
really constitutes not evidence but mere conclusion.’” Lawton v. Barnhart, 121 F. App’x 364,
366 (10th Cir. 2005) (quoting Frey v. Bowen, 816 F.2d 508, 512 (10th Cir. 1987)).
A “failure to apply the proper legal standard may be sufficient grounds for reversal
independent of the substantial evidence analysis.” Brown ex rel. Brown v. Comm’r of Soc. Sec.,
311 F. Supp. 2d 1151, 1155 (D. Kan. 2004) (citing Glass v. Shalala, 43 F.3d 1392, 1395 (10th
Cir. 1994)). But such a failure justifies reversal only in “appropriate circumstances”—applying
an improper legal standard does not require reversal in all cases. Glass, 43 F.3d at 1395; accord
Lee v. Colvin, No. 12-2259-SAC, 2013 WL 4549211, at *5 (D. Kan. Aug. 28, 2013) (discussing
the general rule set out in Glass). Some errors are harmless, requiring no remand or further

3

consideration. See, e.g., Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161–63 (10th Cir. 2012);
Howard v. Barnhart, 379 F.3d 945, 947 (10th Cir. 2004); Allen v. Barnhart, 357 F.3d 1140, 1145
(10th Cir. 2004).
B. Disability Determination
Claimants seeking SSD benefits carry the burden to show that they are disabled. Wall v.
Astrue, 561 F.3d 1048, 1062 (10th Cir. 2009) (citation omitted). In general, the Social Security
Act defines “disability” as the “inability to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A).
The Commissioner follows “a five-step sequential evaluation process to determine disability.” Barnhart v. Thomas, 540 U.S. 20, 24 (2003) (discussing 20 C.F.R. § 404.1520 (governing claims for disability insurance benefits)). As summarized by our Circuit, this familiar fivestep process is as follows:
Step one requires the agency to determine whether a claimant is presently
engaged in substantial gainful activity. If not, the agency proceeds to consider, at
step two, whether a claimant has a medically severe impairment or impairments.
. . . At step three, the ALJ considers whether a claimant’s medically severe
impairments are equivalent to a condition listed in the appendix of the relevant
disability regulation. If a claimant’s impairments are not equivalent to a listed
impairment, the ALJ must consider, at step four, whether a claimant’s impairments prevent [the claimant] from performing [the claimant’s] past relevant work.
Even if a claimant is so impaired, the agency considers, at step five, whether [the
claimant] possesses the sufficient residual functional capability [(“RFC”)] to
perform other work in the national economy.
Wall, 561 F.3d at 1052 (citations and internal quotation marks omitted); accord 20 C.F.R. §
404.1520(b)-(g). The claimant has the “burden of proof on the first four steps,” but the burden
shifts to the Commissioner “at step five to show that claimant retained the RFC to ‘perform an

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alternative work activity and that this specific type of job exists in the national economy.’”
Smith v. Barnhart, 61 F. App’x 647, 648 (10th Cir. 2003) (quoting Williams v. Bowen, 844 F.2d
748, 751 (10th Cir. 1988)). The analysis terminates if the Commissioner determines at any point
that the claimant is or is not disabled. Casias v. Sec’y of Health & Human Servs., 933 F.2d 799,
801 (10th Cir. 1991).
III.

Discussion
The ALJ determined that plaintiff has the following “severe impairments:” fibromyalgia,

degenerative disc disease of the lumbar spine, status-post decompressive laminectomy, asthma,
obesity, and adult attention deficit disorder (“ADD”). (R. 10) But the ALJ concluded that
plaintiff “does not have an impairment or combination of impairments that meets or medically
equals the severity of one of the listed impairments in 20 CFR Part 404.” (R. 12) Instead, the
ALJ determined that the record evidence supported a finding that plaintiff has the RFC:
to perform sedentary work as defined in 20 CFR 404.1567(a) except that claimant
can lift up to 20 pounds occasionally and 10 pounds frequently. She can stand
and/or walk up to two hours in an eight-hour day, and sit up to six hours in an
eight-hour day. She can occasionally balance, climb, crouch and crawl, and she
can frequently stoop and kneel. She must avoid concentrated exposure to extreme
cold, heat, wetness, humidity, and excessive vibration. She must avoid moderate
exposure to pulmonary irritants such as fumes, odors, dust, gases, and poorly
ventilated areas. She must avoid hazards such as unprotected heights and
machinery. The claimant can perform tasks involving simple to intermediate
instructions.
(R. 14-15) The ALJ also found that plaintiff is unable to perform any past relevant work. (R.
20) But due to plaintiff’s age, education, work experience, and RFC, the ALJ determined that
plaintiff possessed skills that are “transferrable to other occupations with jobs existing in
significant numbers in the national economy.” (R. 20)
Plaintiff argues that the ALJ made five kinds of errors. She contends that: (1) the ALJ
erred at step two of her sequential evaluation by concluding that plaintiff’s anxiety, depression,
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and dysthymic disorders were not severe impairments; (2) the ALJ failed to apply the correct
legal standards when assigning weight to the record medical opinions; (3) the ALJ’s assessment
of plaintiff’s credibility is not supported by substantial evidence; (4) plaintiff’s RFC is a vague
statement lacking the required function-by-function analysis; and (5) the ALJ erred at step five
by relying on the Vocational Expert’s response to a flawed hypothetical question. The Court
addresses each argument, in turn, below.
A. Alleged Error No. 1: The ALJ’s Determination of Severe Impairments
Plaintiff argues that the ALJ erred at step two of her five-step sequential evaluation by
determining that plaintiff’s anxiety, depression, and dysthymic disorders were not severe
impairments. She contends that an impairment must be considered “severe” upon a de minimis
showing that it has more than a minimal effect on her physical or mental ability to work.
According to plaintiff, the ALJ’s failure to declare each of the three mental impairments severe is
inconsistent with the medical evidence and thus produced an incorrect RFP.
Defendant notes, correctly, that step two of the sequential evaluation is a threshold
determination intended only to eliminate groundless disability claims. “In order to meet the
burden of proof at step two, a claimant must demonstrate an impairment or combination of
impairments that significantly limits the claimant’s ability to do basic work activity.” Hawkins v.
Chater, 113 F.3d 1162, 1169 (10th Cir. 1997) (citing 20 C.F.R. § 404.1520(c)). The step two
analysis is described further in 20 C.F.R. § 404.1523 as follows:
In determining whether your physical or mental impairment or impairments are of
a sufficient medical severity that such impairment or impairments could be the
basis of eligibility under the law, we will consider the combined effect of all of
your impairments without regard to whether any such impairment, if considered
separately, would be of sufficient severity. If we do find a medically severe
combination of impairments, the combined impact of the impairments will be
considered throughout the disability determination process. If we do not find that

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you have a medically severe combination of impairments, we will determine that
you are not disabled (see § 404.1520).
An error at step two of the five-step sequence “is usually harmless when the ALJ, as
occurred here, finds another impairment is severe and proceeds to the remaining steps of the
evaluation.” Grotendorst v. Astrue, 370 F. App’x 879, 883 (10th Cir. 2010) (citing Carpenter v.
Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008) (“[A]ny error here became harmless when the ALJ
reached the proper conclusion that [claimant] could not be denied benefits conclusively at step
two and proceeded to the next step of the evaluation sequence.”); Oldham v. Astrue, 509 F.3d
1254, 1256-57 (10th Cir. 2007) (“We can easily dispose of . . . arguments which relate to the
severity of [claimant’s] impairments. The ALJ . . . made an explicit finding that [claimant]
suffered from severe impairments. That was all the ALJ was required to do in that regard.
[Claimant’s] real complaint is how the ALJ ruled at step five.”)). This is so because the ALJ
must consider all medically determinable physical and mental impairments, severe or not, at
steps three through five. See Grotendorst, 370 F. App’x at 883; see also 20 C.F.R. § 404.1523;
20 C.F.R. § 404.1545(a)(2) (“We will consider all of your medically determinable impairments
of which we are aware, including your medically determinable impairments that are not severe
. . . when we assess your residual functional capacity.”).
Here, at step two, the ALJ’s analysis determined that plaintiff suffered from several
severe physical impairments as well as a severe mental impairment. (R. 10) This finding was
sufficient to advance the evaluation of plaintiff’s SSD claim, including all severe and non-severe
impairments, to steps three through five. At step three, the ALJ considered the severity of all of
plaintiff’s mental impairments, individually and in combination, and determined that they did not
meet or medically equal the severity of those listed in 20 CFR Part 404. (R. 12-14) The ALJ
based this determination on the medical evidence. (R. 12-14) And the RFC reflects the
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limitations resulting from all of plaintiff’s physical and mental impairments. (R. 12-14) Thus,
any error by the ALJ at step two was a harmless one. See Grotendorst, 370 F. App’x at 883;
Carpenter, 537 F.3d at 1266; Oldham, 509 F.3d at 1256-57.
B. Alleged Error No. 2: The ALJ’s Evaluation of Medical Opinions
Next, plaintiff argues that the ALJ failed to apply the correct legal standards when
assigning weight to the medical opinions in the administrative record. She contends that the ALJ
erred by giving no weight to the opinion of treating physician, Dr. Dan Magee. She also contests
the weights given to the medical opinions of: (1) Dr. David Fritz, D.O.; (2) Dr. Carol Eades,
M.D.; (3) Dr. Scott Koeneman, Psy.D.; and (4) Dr. Stanley Mintz, Ph.D.
1. Standard for Evaluation of Medical Opinions
The applicable regulations required the ALJ to consider all medical opinions. See 20
C.F.R. § 404.1527(c). They also required the ALJ to discuss the weight assigned to each
opinion. See id. § 404.1527(e)(2)(ii) (“[T]he administrative law judge must explain in the
decision the weight given to the opinions of a State agency medical or psychological consultant
or other program physician, psychologist, or other medical specialist, as the administrative law
judge must do for any opinions from treating sources, nontreating sources, and other
nonexamining sources who do not work for us.”).
“Medical opinions are statements from physicians and psychologists or other acceptable
medical sources that reflect judgments about the nature and severity of [a claimant’s]
impairment(s) including [a claimant’s] symptoms, diagnosis and prognosis, what [a claimant]
can still do despite impairment(s), and [a claimant’s] physical or mental restrictions.” 20 C.F.R.
§ 404.1527(a)(2). The regulations identify three types of “acceptable medical sources:” (1)
treating sources, i.e., medical sources who have treated or evaluated the claimant or have had “an

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ongoing treatment relationship” with the claimant; (2) nontreating sources, i.e., medical sources
who have examined the claimant but lack an ongoing treatment relationship; and (3)
nonexamining sources, i.e., medical sources who render an opinion without examining the
claimant. See id. § 404.1502; Pratt v. Astrue, 803 F. Supp. 2d 1277, 1282 n.2 (D. Kan. 2011).
The Commissioner generally gives more weight to opinions from examining sources than to
those rendered by nonexamining sources. 20 C.F.R. § 404.1527(c)(1). And the Commissioner
generally gives more weight to treating sources because
these sources are likely to be the medical professionals most able to provide a
detailed, longitudinal picture of [the claimant’s] medical impairment(s) and
may bring a unique perspective to the medical evidence that cannot be
obtained from the objective medical findings alone or from reports of
individual examinations, such as consultative examinations or brief
hospitalizations.
Id. § 404.1527(c)(2).
a. Treating Sources
The Commissioner will give the medical opinion of a treating source controlling weight
when it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. §
404.1527(c)(2). The ALJ must consider these two factors when determining whether a treating
physician’s medical opinion “is conclusive, i.e., is to be accorded ‘controlling weight,’ on the
matter to which it relates.” Krauser v. Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011) (citation
omitted). First, the ALJ must consider whether such an opinion is well-supported. Watkins v.
Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). If it is, then the ALJ must “confirm that the
opinion is consistent with other substantial evidence in the record.” Id. And an ALJ “may
decline to give controlling weight to the opinion of a treating physician where he articulate[s]

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specific, legitimate reasons for his decision.” Raymond v. Astrue, 621 F.3d 1269, 1272 (10th Cir.
2009) (citation and internal quotation marks omitted).
The ALJ’s inquiry does not end with a finding that a medical opinion deserves less than
controlling weight. See Krauser, 638 F.3d at 1330; Watkins, 350 F.3d at 1300.
Even if a treating opinion is not given controlling weight, it is still entitled to
deference; at the second step in the analysis, the ALJ must make clear how much
weight the opinion is being given (including whether it is being rejected outright)
and give good reasons, tied to the factors specified in the cited regulations for this
particular purpose, for the weight assigned.
Krauser, 638 F.3d at 1330; accord Watkins, 350 F.3d at 1300-01. Unless the ALJ gives
the treating source opinion controlling weight, it must evaluate the medical opinion in
accordance with factors contained in the regulations. 20 C.F.R. § 404.1527(c); SSR 965p, 1996 WL 374183, at *1, 3. Those factors are
(1) [the] length of treatment relationship and frequency of examination; (2) the
nature and extent of the treatment relationship, including the treatment provided
and the kind of examination or testing performed; (3) the degree to which the
physician’s opinion is supported by relevant evidence; (4) consistency between
the opinion and the record as a whole; (5) whether or not the physician is a
specialist in the area upon which an opinion is rendered; and (6) other factors
brought to the ALJ’s attention which tend to support or contradict the opinion.
Watkins, 350 F.3d at 1301 (citation omitted); 20 C.F.R. § 404.1527(c)(2)-(6). After considering
these factors, the ALJ must give reasons in the decision for “the weight [that the ALJ] ultimately
assigns the [medical] opinion.” Watkins, 350 F.3d at 1301 (citation and internal quotation marks
omitted). But the ALJ need not apply a factor-by-factor analysis so long as the decision is
“‘sufficiently specific to make clear to any subsequent reviewers the weight the [ALJ] gave to
the treating source’s medical opinion and the reasons for that weight.’” Oldham v. Astrue, 509
F.3d 1254, 1258 (10th Cir. 2007) (quoting Watkins, 350 F.3d at 1300). When an ALJ completely

10

rejects an opinion of a treating source, the ALJ must state specific and legitimate reasons for the
decision. Watkins, 350 F.3d at 1301.
An ALJ must give a treating physician’s opinion substantial weight “unless good cause is
shown to disregard it.” Goatcher v. U.S. Dep’t of Health & Human Servs., 52 F.3d 288, 289-90
(10th Cir. 1995). “When a treating physician’s opinion is inconsistent with other medical
evidence, the ALJ’s task is to examine the other physicians’ reports to see if they outweigh the
treating physician’s report, not the other way around.” Id. at 290 (citation and internal quotation
marks and alterations omitted). A reviewing court may reverse and remand a Social Security
case when the ALJ has failed to apply the correct legal standards when weighing the opinion of a
treating physician. Id. at 289. When an ALJ merely finds that a treating physician’s opinion is
not entitled to controlling weight but fails to state clearly how much weight is given to the
medical opinion with good reasons for the weight assigned, “remand is required.” Krauser, 638
F.3d at 1330.
But in other circumstances, the failure to address properly and weigh all opinions is
subject to a harmless error analysis. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161-63 (10th Cir.
2012). “When the ALJ does not need to reject or weigh evidence unfavorably in order to
determine a claimant’s RFC, the need for express analysis is weakened.” Howard v. Barnhart,
379 F.3d 945, 947 (10th Cir. 2004). Consequently, absent inconsistencies between or among the
medical opinions and the ALJ’s RFC determination, any error in considering the opinions is
harmless. Keyes-Zachary, 695 F.3d at 1161-62. And, where such inconsistencies exist, the
courts may
supply a missing dispositive finding under the rubric of harmless error in the right
exceptional circumstance, i.e., where, based on material the ALJ did at least
consider (just not properly), [the court] could confidently say that no reasonable

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administrative factfinder, following the correct analysis, could have resolved the
factual matter in any other way.
Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004).
b. Nonexamining Sources
Evidence from nonexamining sources such as state agency physicians and medical
experts is considered opinion evidence. 20 C.F.R. § 416.927(e). ALJs are not bound by
nonexamining source opinions but must consider them, except for opinions about the ultimate
issue of disability. Id. While the opinion of an agency physician who has never seen the
claimant is generally entitled to little weight, the ALJ can accept the opinion of state agency
physicians over that of treating physicians if the opinions of the state agency physicians are
consistent with the evidence in the record. Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir.
2004); Barnhill v. Astrue, 794 F. Supp. 2d 503, 516 (D. Del. 2011) (citing Jones v. Sullivan, 954
F.2d 125, 129 (3d Cir. 1991)).
2.

Analysis

Plaintiff argues that the ALJ erred by not giving weight to the medial opinion of
plaintiff’s treating physician, Dr. Magee, and in assigning weights to the medical opinions of
four doctors—Dr. Fritz, Dr. Eades, Dr. Koeneman, and Dr. Mintz.
a. Dr. Magee
The ALJ gave no weight to the medical opinion of plaintiff’s treating physician, Dr. Dan
Magee. (R. 19-20) Dr. Magee treated plaintiff from March 13, 2009 to August 9, 2012. (R.
385, 461) During that time, he treated plaintiff for a variety of physical and mental impairments,
including fibromyalgia; recurrent nephrolithiasis; shoulder, neck, and back pain; kidney disease;
fatigue; and adult ADD. (R. 352-96)

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On November 1, 2011, Dr. Magee completed a small portion of a form titled “Medical
Opinion Re: Ability to Do Work-Related Activities (Physical).” (R. 440) The form requested
Dr. Magee to opine about how plaintiff’s “physical capabilities are affected by” her impairments.
(R. 440) The form included a list of 12 work-related movements and instructed Dr. Magee to:
“(1) Indicate your patient’s ability to perform the activity; and (2) Identify the particular medical
findings (e.g., physical examination findings, x-ray findings, laboratory test results, history,
symptoms (including pain), etc.) which support your opinion regarding any limitations.” (R.
440) Immediately below that instruction, the form warned in bold, capital letters: “It is
important that you relate particular medical findings to any reduction in capacity; the usefulness
of your opinion depends on the extent to which you do this.” (R. 440) (bolding and all-caps style
omitted).
Dr. Magee did not provide his opinion on nine of the 12 movements listed on the form.
(R. 440) Instead, at the bottom of the first page, he wrote that he had “not observed [plaintiff] in
any workplace situations other than deskwork. Her abilities to do above activities would be
better appraised by physicians of Midwest Rehab where she was referred.” (R. 440) On page
two, Dr. Magee deferred to plaintiff’s neurosurgeon for an opinion about her ability to twist,
stoop, crouch, and climb. (R. 441) In response to a request for medical findings supporting
plaintiff’s limitations (which Dr. Magee did not identify), he just listed several of plaintiff’s
chronic conditions. (R. 441) But Dr. Magee did provide his opinion that plaintiff should avoid
concentrated exposure to extreme cold, heat, wetness, and humidity, as well as moderate
exposure to fumes, dust, gases, and other hazards. (R. 442) He also anticipated that plaintiff’s
impairments would cause her to miss work “more than three times a month” and require her to
shift from sitting to standing or walking. (R. 441-42)

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“‘When an ALJ rejects a treating physician’s opinion, he must articulate specific,
legitimate reasons for his decision.’” Cowen v. Astrue, 552 F.3d 1182, 1189 (10th Cir. 2008)
(quoting Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004)); see also Watkins, 350 F.3d
at 1301. Here, the ALJ gave no weight to Dr. Magee’s opinion because he “opined that the
claimant has many chronic conditions that would affect her ability to work; however, Dr. Magee
did not provide an opinion on the claimant’s ability to perform lifting, carrying, sitting, standing,
walking, or the need to lie down.” (R. 19) The ALJ explained:
Though Dr. Magee is the claimant’s long time treating physician, the record
shows that he only examined her a few times during the relevant period, and he
was not comfortable providing a full opinion on her ability to function. Based on
this information, I give the opinion of Dr. Magee no weight.
(R. 19)
Plaintiff argues that Dr. Magee’s limited responses on the medical opinion form require
the ALJ to give weight to the opinion. The Court disagrees. For purposes of the Social Security
Act, “[m]edical opinions are statements from physicians . . . that reflect judgments about the
nature and severity of [a claimant’s] impairment(s), including . . . symptoms, diagnosis and
prognosis, what [a claimant] can still do despite impairment(s), and [a claimant’s] physical or
mental restrictions.” 20 C.F.R. § 404.1527(a)(2). A “true medical opinion” includes a
physician’s assessment of the nature and severity of the limitations and information about what
activities a claimant may still perform. See Cowan, 552 F.3d at 1182 (citing § 404.1527(a)(2)).
As the ALJ noted, Dr. Magee was plaintiff’s “long time treating physician,” but he refused to
opine on plaintiff’s ability to perform work-related activities. (R. 19) Dr. Magee’s opinion also
failed to list her medical findings for reductions in plaintiff’s capacity, as instructed on the
opinion form. See Stalford v. Colvin, No. 12-4011-JWL, 2013 WL 872336, at *5 (D. Kan.
March 8, 2013) (finding a physician’s lack of explanation more significant “by the fact that the
14

form explained what was necessary, and highlighted the importance of that information, yet [the
physician’s] opinion was not responsive to the instructions or to the needs of the SSA.”).
The ALJ stated specific reasons for rejecting Dr. Magee’s vague and conclusory opinion.
See Watkins, 350 F.3d at 1300; see also SSR 96-2p, 1996 WL 374188, at *5 (July 2, 1996)
(requiring the ALJ’s decision to give reasons that are “sufficiently specific to make clear to any
subsequent reviewers the weight the adjudicator gave to the treating source’s medical opinion
and the reasons for that weight.”). Because Dr. Magee, as the primary treating physician, failed
to opine on almost all of plaintiff’s physical limitations or remaining abilities, his opinion was
not a true medical opinion, as § 404.1527(a)(2) defines that term. The ALJ thus did not err by
assigning no weight to it.
Plaintiff also argues that the ALJ erred by rejecting Dr. Magee’s opinion because he
examined plaintiff only a “few times” after her alleged disability onset date. Plaintiff is correct.
This is one relevant factor to deciding the weight to assign a treating physician’s opinion. See
Watkins, 350 F.3d at 1301; 20 C.F.R. § 404.1527(c)(2)-(6). But given the deficiencies in Dr.
Magee’s opinion, as discussed above, mentioning this factor without providing further analysis
was a harmless error.
b. Dr. Fritz
Dr. David Fritz treated plaintiff for back pain from April 1, 2009 to August 19, 2009. (R.
274-83) Dr. Fritz performed surgery on plaintiff’s back on June 2, 2009. (R. 276) On August
19, 2009, he released plaintiff from his care and authorized her to return to work with no
restrictions. (R. 273-74) The ALJ gave Dr. Fritz’s opinion great weight, stating:
[O]n August 19, 2009, David Fritz, D.O., the claimant’s treating neurosurgeon
released the claimant from his care and allowed her to return to work without
restrictions (Exhibit 1F/3). I give this opinion great weight, as the claimant was
released to work by Dr. Fritz and has not returned to him for further treatment.
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(R.18)
Plaintiff argues that the ALJ erred in giving weight to Dr. Fritz’s medical opinion for two
reasons. First, plaintiff asserts that the opinion is not relevant because it was issued eighteen
months before the onset of her disability. Second, plaintiff argues that the ALJ’s RFC contains
work-related restrictions that contradict Dr. Fritz’s opinion.
As for plaintiff’s first argument, the date of Dr. Fritz’s opinion does not eliminate its
relevance to the ALJ’s evaluation. Indeed, the ALJ must consider and weigh all medical
opinions in the record. 20 C.F.R. § 404.1527(c) (“Regardless of its source, we will evaluate
every medical opinion we receive.”). This is a “‘well-known and overarching requirement’” of
all Social Security evaluations. Breckenridge v. Astrue, No. 10-1327-SAC, 2011 WL 3847179,
at *3 (D. Kan. Aug. 30, 2011) (quoting Martinez v. Astrue, 422 F. App’x 719, 724 (10th Cir.
2011)). And medical opinions given before the alleged onset of disability are relevant to an
ALJ’s decision. See Hamlin, 365 F.3d at 1215 (“[E]ven if a doctor’s medical observations
regarding a claimant’s allegations of disability date from earlier, previously adjudicated periods,
the doctor’s observations are nevertheless relevant to the claimant’s medical history and should
be considered by the ALJ.”) (citing Groves v. Apfel, 148 F.3d 809, 810-11 (7th Cir. 1998);
Frustaglia v. Sec’y of Health & Human Servs., 829 F.2d 192, 193 (1st Cir. 1987)). Therefore,
the ALJ was required to evaluate and weigh Dr. Fritz’s medical opinion, even though it was
given before the onset of plaintiff’s alleged disability.
Plaintiff’s second argument contends that the ALJ erred by giving great weight to Dr.
Fritz’s opinion because it is inconsistent with the RFC. Two months after plaintiff’s back
surgery, Dr. Fritz determined that she was able to return to work without restriction. (R. 273-74)
In contrast, the RFC includes several work-related physical limitations. (R.14-15) Plaintiff
16

contends that the weight given to Dr. Fritz’s opinion is illogical and not supported by the RFC.
Defendant argues that the ALJ gave the opinion great weight because it undermined plaintiff’s
credibility.
Contrary to plaintiff’s contention, Dr. Fritz’s opinion is not inconsistent with the RFC.
The ALJ’s decision explained, expressly, that it gave Dr. Fritz’s opinion great weight because
plaintiff “was released to work without restrictions by Dr. Fritz and has not returned to him for
further treatment.” (R. 18) Further, the ALJ cited the opinion in assessing the severity of
plaintiff’s back problems, stating, in relevant part:
Furthermore, the claimant did well following her back surgery, and she has never
returned to her surgeon since she was released to work without restrictions in
2009 (Exhibit 1F/3) . . . . In addition, Dr. Magee suggested that she return to her
neurosurgeon; however, she has never returned to Dr. Fritz (Exhibit 23F/2).
Based on this information, I find this impairment is not as severe as alleged.
(R. 17)
It is evident that the ALJ used Dr. Fritz’s opinion to evaluate the credibility of plaintiff’s
alleged back problems. This is proper use of a medical opinion contained in the record. See 20
C.F.R. § 404.1529(a) (“In determining whether you are disabled, we consider all your symptoms,
including pain, and the extent to which your symptoms can reasonably be accepted as consistent
with the objective medical evidence and other evidence.”); see also Eggleston v. Bowen, 851
F.2d 1244, 1247 (10th Cir. 1988) (affirming credibility assessment when some of claimant’s
assertions were inconsistent with record medical evidence). Indeed, following the RFC, the ALJ
confirmed that it “considered all symptoms and the extent to which these symptoms can
reasonably be accepted as consistent with objective medical evidence.” (R. 15) The ALJ
evaluated Dr. Fritz’s medical opinion, applied it to plaintiff’s testimony, and explained the

17

reason that it deserved great weight. The Court thus finds no error in the weight given to the
opinion.
c. Dr. Eades
The ALJ gave the medical opinion of reviewing physician, Dr. Carol Eades, great weight,
stating:
On January 23, 2012, Carol Eades, M.D., opined that the claimant can lift 20
pounds occasionally and 10 pounds frequently, stand or walk up to two hours in
an eight hour day, sit up to six hour [sic] in an eight-hour day, occasionally climb,
crouch and crawl, and frequently stoop and kneel. Dr. Eades opined that the
claimant should avoid concentrated exposure to extreme cold, vibration, fumes,
odors, dust, gases and poor ventilation (Exhibits 4A; 22F). I give this opinion
great weight, as it is consistent with the medical record and the claimant’s reports
of her ability to perform activities of daily living.
(R. 19) Plaintiff argues that the ALJ erred by not identifying the specific links between Dr.
Eades’s opinion, the medical record, and plaintiff’s testimony. She contends that the ALJ’s
conclusion that the opinion is consistent with the medical record and her ability to perform
activities of daily living is not “sufficiently specific” to permit a meaningful review of the
decision.
The ALJ described several of Dr. Eades’ findings before assigning her opinion great
weight. (R. 19) In doing so, the ALJ articulated her reasons for determining that Dr. Eades’
opinion is consistent with the record medical evidence. Specifically, the ALJ noted that Dr.
Eades had determined that plaintiff could lift 20 pounds occasionally and 10 pounds frequently.
(R. 19) This finding is consistent with the opinion of reviewing physician Dr. C.A. Parsons (R.
19, 66), and does not conflict with the opinions of plaintiff’s two treating physicians, Dr. Fritz
(R. 18, 273-74) and Dr. Magee (R. 19-20, 440-43). Next, Dr. Eades’ opinion about plaintiff’s
ability to stand, walk, and sit (R. 19) is significantly more restrictive than Dr. Parson’s opinion
(R. 19, 66), and does not conflict with the treating physicians’ opinions (R. 18, 19-20, 274, 440).
18

Finally, the record shows that Dr. Eades’ conclusion that plaintiff should avoid exposure to
environmental irritants is consistent with Dr. Magee’s medical opinion (R. 19-20, 442), more
restrictive than Dr. Parson’s opinion (R. 19, 67-68), and does not conflict with Dr. Fritz’s
opinion (R. 18, 274). The ALJ’s evaluation is thus sufficiently specific for the Court to review
and affirm that Dr. Eades’ opinion was consistent with the medical record.
In contrast, the ALJ’s decision fails to specify how Dr. Eades’ opinion aligns with
plaintiff’s reported ability to perform activities of daily living. The ALJ addressed plaintiff’s
testimony at step three of the sequential evaluation process, finding, in relevant part:
In activities of daily living, the claimant lives with her husband. She reported that
she spends most of her day in bed, sleeping (Exhibits 5E/8; 18F/3). She showers
daily, and she appears at her appointments adequately dressed and groomed
(Exhibits 5E/8; 6F/2; 18F/3); however, she reported that some days, she feels too
depressed to perform her self-care routine (Exhibits 5E/8). She is able to prepare
meals, and she reported that she is only restricted by physical impairments when
cooking (Exhibits 5E/9; 6F/3). She also does laundry and dishes (Exhibits 5E/9;
6F/3). The claimant reported during a January 2012 consultative examination that
her husband now does most of the housework, shopping and cooking (Exhibit
18F/3). The claimant continues to drive, and she was able to drive herself to a
consultative examination (Exhibits 5E/10; 6F/2). The claimant reported that she
needs encouragement from her husband to complete her daily activities (Exhibit
5E/9 [sic] Based on this information, I find the claimant has mild restrictions in
this area.
(R. 12-13) The ALJ’s decision fails to reconcile this description of plaintiff’s testimony with Dr.
Eades’ medical opinion. It is unclear from the decision what, if any, aspect of plaintiff’s
activities of daily living correspond with Dr. Eades’ work-related findings. But because Dr.
Eades’ opinion is consistent with the entire medical record and plaintiff’s RFC, the ALJ’s failure
to explain the specific links between the opinion and plaintiff’s testimony is harmless error. See
Keyes-Zachary, 695 F.3d at 1161-62 (citing Howard, 379 F.3d at 947 (“When the ALJ does not
need to reject or weigh evidence unfavorably in order to determine a claimant’s RFC, the need
for express analysis is weakened.”)).
19

d. Dr. Koeneman
Dr. Scott Koeneman performed a mental status examination of plaintiff on June 22, 2011.
(R. 18, 400) Dr. Koeneman’s exam “did not reveal the presence of psychological difficulties
that would preclude [plaintiff] from obtaining and maintaining employment.” (R. 18) The
ALJ’s decision also recognized that Dr. Koeneman’s exam found that plaintiff “appears capable
of following and remembering simple instructions, making adequate work-related decisions, and
sustaining her concentration on simple tasks over a normal eight-hour workday.” (R. 18) The
ALJ gave this opinion great weight, finding that “the testing performed by Dr. Koeneman shows
that claimant has adequate [mental abilities] to perform at least simple work tasks[,]” and that he
“did not opine that the claimant could not perform intermediate tasks required of semi-skilled
work.” (R. 19)
Plaintiff argues that the ALJ’s interpretation of Dr. Koeneman’s opinion is reversible
error. She contends that Dr. Koeneman determined that she is capable of performing just simple
tasks and instructions. In plaintiff’s view, the ALJ cannot extend Dr. Koeneman’s findings to
imply that she is “at least” capable of simple tasks or instructions. If the ALJ truly gave the
opinion great weight, plaintiff contends that she must be “disabled pursuant to Medical
Vocational Guideline Rule 201.14. 20 C.F.R. Part 404, Subpart P, Appendix 2, §201.14.” Doc.
9 at 25.
The Court finds no error in the ALJ’s interpretation of Dr. Koeneman’s opinion. It is the
ALJ’s duty to interpret all medical opinions and explain the weight given to each one. 20 C.F.R.
§ 404.1527(c). Opinions about issues that may dispose of the disability determination are
reserved for the Commissioner. See 20 C.F.R. § 404.1527(d)(2) (“Although we consider
opinions from medical sources on issues such as whether your impairment(s) meets or equals the

20

requirements of any impairment(s) in the Listing of Impairments in appendix 1 to this subpart . . .
or the application of vocational factors, the final responsibility for deciding those issues is
reserved to the Commissioner.”). And “[t]he fact that an ALJ may prefer one medical opinion
over another or may interpret a medical opinion such that the opinion is internally consistent
does not mean that the ALJ has substituted his medical judgment for that of the medical source.”
Bronson v. Astrue, 530 F. Supp. 2d 1172, 1180 (D. Kan. Jan. 8, 2008).
Here, the ALJ stated, correctly, that Dr. Koeneman had determined plaintiff was capable
of following simple instructions and maintaining concentration on simple tasks. (R. 18) And the
ALJ was correct: Dr. Koeneman did not opine that plaintiff was incapable of performing
intermediate work-related tasks. (R. 19) While Dr. Koeneman’s opinion did not say explicitly
that plaintiff was able to perform “at least” simple tasks, the ALJ’s finding was supported by the
record medical evidence. Notably, an independent consultative examiner, Dr. Stanley Mintz,
opined that plaintiff was able to understand and follow both simple and intermediate instructions.
(R. 19) The ALJ’s decision and the medical record thus support the ALJ’s interpretation of Dr.
Koeneman’s opinion.
Next, plaintiff argues that the ALJ had a duty to develop the record if it found that Dr.
Koeneman’s opinion was ambiguous. Plaintiff is correct that an ALJ must “fully and fairly
develop the record as to material issues.” Baca v. Dept. of Health & Human Servs., 5 F.3d 476,
479-80 (10th Cir. 1993). But the Court can find no indication that the ALJ believed Dr.
Koeneman’s opinion was ambiguous. Instead, the ALJ’s decision describes Dr. Koeneman’s
conclusions succinctly, states the weight given to the opinion, and notes that it did not limit
plaintiff to just simple tasks and instructions. The Court cannot and will not create an ambiguity

21

where none exists, and it may not substitute its judgment for the Commissioner’s. See Lax, 489
F.3d at 1084.
e. Dr. Mintz
Dr. Stanley Mintz, an independent consultative examiner, performed a mental status
examination of plaintiff on January 5, 2012. (R. 19, 451) Dr. Mintz determined that plaintiff
exhibited symptoms of mental illness, but they would not preclude her from employment. (R.
19, 453) Dr. Mintz concluded that plaintiff was able to understand simple and intermediate
instructions. (R. 19, 453) The ALJ gave Dr. Mintz’s opinion great weight because it was
consistent with the opinion of Dr. Koeneman. (R. 19)
Plaintiff contends that Dr. Mintz’s finding that plaintiff is able to follow intermediate
instructions is not consistent with Dr. Koeneman’s opinion. Plaintiff argues that the ALJ erred
by not resolving this inconsistency before assigning great weight to Dr. Mintz’s opinion. The
Court disagrees. As discussed above, the ALJ’s analysis of Dr. Koeneman’s opinion reconciled
any inconsistency between Dr. Mintz and Dr. Koeneman’s opinions. The ALJ performed this
reconciliation as part of evaluating and interpreting the record medical evidence, and both
opinions are consistent with the RFC. Thus, the ALJ did not err in assigning weight to Dr.
Mintz’s opinion.
f. Conclusion
The Court concludes that the ALJ did not err, or committed only harmless error, in
assigning weight to the five medical opinions described above. Accordingly, plaintiff’s
argument on this point is denied.

22

C. Alleged Error No. 3: The ALJ’s Credibility Determination
Plaintiff challenges the ALJ’s credibility determination on the ground that it is not
supported by substantial evidence. Plaintiff argues that the ALJ erred by finding her less
credible because she did not attempt to find employment requiring only simple, routine, and
repetitive tasks. Plaintiff contends that if reduced to such work as suggested by the ALJ, it
would require a finding that she was disabled under Medical Vocational Guideline 201.14. 20
C.F.R. Part 404, Subpart P, Appendix 2, §201.14.
A claimant’s work history is one factor the ALJ must consider when evaluating the
credibility of subjective statements about pain and other symptoms. See Campbell v. Barnhart,
56 F. App’x 438, 441 (10th Cir. 2003) (citing 20 C.F.R. § 404.1529(c)(3)). The ALJ also must
consider: (1) the claimant’s daily activities; (2) the location, duration, frequency, and intensity
of the claimant’s pain or other symptoms; (3) any precipitating and aggravating factors; (4) the
type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken;
(5) any treatment, other than medication, the claimant received; (6) any other measures used by
the claimant to relieve its pain or symptoms; and (7) any other factors pertaining to the
claimant’s functional limitations that are caused by its pain or other symptoms. 20 C.F.R. §
404.1529(c)(3)(i)-(vii).
The ALJ’s decision contains an extensive evaluation of plaintiff’s credibility, as required
by 20 C.F.R. § 404.1529. (R. 15-18) As part of that evaluation, the ALJ considered plaintiff’s
work history, explaining:
In terms of the claimant’s work history, the record shows that the claimant has a
very consistent history of work prior to the alleged onset date (Exhibit 4D), and
she stopped working at the time of the alleged onset date, due to symptoms of her
impairments causing her to make mistakes at work (Exhibits 2E/3; 7E/4). Each of
these facts weighs in the claimant’s favor regarding her motivation to work.
However, the record does not show that the claimant attempted to return to work
23

at a position that would require performance of only simple, routine, repetitive
tasks.
(R. 18) The ALJ references plaintiff’s certified earnings record (R. 174-75), her adult disability
report (R. 181), and a work activities questionnaire completed by the human resources
department of Shawnee County, Kansas (R. 225) as support for her analysis. (R. 18) The record
confirms that plaintiff worked for 10 years before her alleged disability onset date. (R. 225)
Also, the record shows that plaintiff left her most recent employment before her onset date and
has not attempted to secure replacement work. (R. 181) There is no evidence in the record that
contradicts the ALJ’s work history finding. Accordingly, the finding is supported by substantial
evidence. See Lax, 489 F.3d at 1084.
Also, it is evident from the ALJ’s decision that plaintiff’s work history was but one of
many factors considered in the credibility determination. (R. 15-18) The ALJ compared
plaintiff’s reports of pain and other symptoms with her testimony describing her daily activities
(R. 18), history of medication (R. 16-17), medical treatment history (16-17), and other
information in the record before determining that plaintiff was only “partially credible.” (R. 18)
And contrary to plaintiff’s contention, there is no indication that her failure to seek less skilled
employment was given undue weight in the ALJ’s credibility determination. See Campbell, 56
F. App’x at 441 (affirming credibility assessment when “the ALJ did not place undue emphasis
on plaintiff’s work history, but considered it as but one of several factors bearing on her
credibility.”). “‘Credibility determinations are peculiarly the province of the finder of fact’” and
should not be disturbed “‘when supported by substantial evidence.’” Kepler v. Chater, 68 F.3d
387, 391 (10th Cir. 1995) (quoting Diaz v. Secretary of Health & Human Servs., 898 F.2d 774,
777 (10th Cir. 1990)). The Court finds that substantial evidence supports the ALJ’s credibility
determination. The Court thus rejects plaintiff’s argument on this point.
24

D. Alleged Error No. 4: The ALJ’s Residual Functional Capacity Assessment
Plaintiff next argues that the ALJ erred because her RFC assessment failed to comply
with Social Security Ruling 96-8p (“SSR 96-8p”). Plaintiff contends that the ALJ’s mental RFC
is erroneous because it is “a vague statement that does not contain a mental function-by-function
assessment of Plaintiff’s abilities.” Doc. 9 at 29. In support of her argument, plaintiff points to
the introductory explanation of SSR 96-8p, which provides, in relevant part:
The RFC assessment must first identify the individual’s functional limitations or
restrictions and assess his or her work-related abilities on a function-by-function
basis, including the functions in paragraphs (b), (c) and (d) of 20 CFR 404.1545
and 416.945. Only after that may RFC be expressed in terms of the exertional
levels of work, sedentary, light, medium, heavy, and very heavy.
(R. 28) (quoting SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996)). Plaintiff notes that 20
C.F.R. § 404.1545(c) and § 416.945(c) list the mental functions that the ALJ must assess at step
four:
When we assess your mental abilities, we first assess the nature and extent of your
mental limitations and restrictions and then determine your residual functional
capacity for work activity on a regular and continuing basis. A limited ability to
carry out certain mental activities, such as limitations in understanding,
remembering, and carrying out instructions, and in responding appropriately to
supervision, co-workers, and work pressures in a work setting, may reduce your
ability to do past work and other work.
Doc. 9 at 29 (quoting 20 C.F.R. §§ 404.1545(c), 416.945(c)). Defendant never responds to this
argument.
A claimant bears the burden of proving that her impairments prevent her from performing
work performed in the past. Brown v. Comm’r of Soc. Sec. Admin., 245 F.Supp.2d 1175, 1186
(D. Kan. 2003) (citing Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988)). But if the ALJ
determines that the claimant is not disabled at step four, SSR 96-8p requires the ALJ “to make
specific and detailed predicate findings concerning the claimant’s RFC, the physical and mental

25

demands of claimant’s past jobs, and how those demands mesh with the claimant’s particular
exertional and nonexertional limitations.” Id. (citations omitted). The policy interpretation
section of SSR 96-8p provides, in relevant part:
The RFC assessment must include a narrative discussion describing how the
evidence supports each conclusion, citing specific medical facts (e.g. laboratory
findings) and nonmedical evidence (e.g., daily activities, observations). In
assessing RFC, the adjudicator must discuss the individual’s ability to perform
sustained work activities in an ordinary work setting on a regular and continuing
basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and
describe the maximum amount of each work-related activity the individual can
perform based on the evidence available in the case record. The adjudicator in the
case record must also explain how any material inconsistencies or ambiguities in
the evidence in the case record were considered and resolved.
SSR 96-8p, 1996 WL 374184, at *7 (July 2, 1996).
The ALJ determined that plaintiff has the mental RFC to “perform tasks involving simple
to intermediate instructions.” (R. 15) Before reaching this decision, the ALJ analyzed all of
plaintiff’s mental impairments, in detail, at steps two and three of the five-step sequential
evaluation. At step two, the ALJ described plaintiff’s testimony about her anxiety, depression,
and dysthymic disorder and then compared that testimony to the record medical evidence. (R.
11) Specifically, the ALJ’s step two analysis found, in relevant part:
Though claimant alleged that these impairments are disabling, the record shows
that she does not require mental health treatment, nor does she use any mental
health medications. She has not required a mental health hospitalization. In
addition, she is pleasant during treatment (Exhibits 4F/3; 6F/2; 10F/3; 18F/3), she
displays no uncontrolled or unmanageable behaviors, and she demonstrated no
evidence of suicidal or homicidal ideations, or psychotic symptoms (Exhibit
6F/2). Finally, she stated that she was able to work previously with these
impairments (Exhibit 6F/1).
(R. 11)
Step three required the ALJ to determine the extent that a mental impairment, or
combination of mental impairments, limited plaintiff’s abilities across the following four

26

functional areas: (1) activities of daily living; (2) social functioning; (3) concentration,
persistence, or pace; and (4) episodes of decompensation. 20 C.F.R. § 404.1520a(c)(3)
(referencing paragraph B of the adult mental disorders listings in 12.00 of the Listing of
Impairments). The ALJ relied upon the record medical evidence at step three and, again,
performed a detailed assessment of plaintiff’s mental impairments. (R. 12-14) Following her
step three assessment, the ALJ’s decision includes the following paragraph:
The limitations identified in the “paragraph B” criteria are not a residual
functional capacity assessment but are used to rate the severity of mental
impairments at steps 2 and 3 of the sequential evaluation process. The mental
residual functional capacity assessment used at steps 4 and 5 of the sequential
evaluation process requires a more detailed assessment by itemizing various
functions contained in the broad categories found in paragraph B of the adult
mental disorders listings in 12.00 of the Listing of Impairments (SSR 96-8p).
Therefore, the following residual functional capacity assessment reflects the
degree of limitation I have found in the “paragraph B” mental function analysis.
(R. 14) (emphasis added).
After describing plaintiff’s RFC at step four, the ALJ discussed the medical opinions in
the administrative record. (R. 18-20) The medical evidence included four physicians who
opined on plaintiff’s mental impairments. (R. 18-20) The ALJ gave great weight to Dr.
Koeneman’s and Dr. Mintz’s opinions. (R. 18-19) As discussed in the ALJ’s decision, both
doctors concluded, independently, that plaintiff was capable of maintaining employment,
handling her own finances, and following simple to intermediate instructions. (R. 18-19) Also,
the ALJ’s decision gave the medical opinions of Dr. McRoberts and Dr. Fantz little weight
because both had failed to acknowledge that plaintiff’s adult ADD caused moderate limitations
in concentration, persistence, and pace. (R. 19)
The ALJ performed a detailed analysis of the record at steps two, three, and four of the
sequential evaluation process. Her decisional narrative evaluates the record evidence on

27

plaintiff’s ability to understand and follow instructions, interact with authority figures and coworkers, and otherwise cope with the pressures of employment, as required by 20 C.F.R. §
404.1545(c) and § 416.945(c). The ALJ incorporated her analysis at steps two and three into the
RFC. (R. 14) And the RFC includes the mental limitations found by the ALJ during her
evaluation of the record. Thus, the Court finds that the RFC is supported by substantial evidence
and satisfies the requirements of 20 C.F.R. § 404.1545, as interpreted by SSR 96-8p.
E. Alleged Error No. 5: The ALJ’s Hypothetical Question
Finally, plaintiff argues that the ALJ erred at step five by posing a flawed hypothetical
question to the Vocational Expert (“VE”). Plaintiff contends that the hypothetical did not
include all of the restrictions caused by plaintiff’s mental impairments. Specifically, she argues
that the hypothetical was inconsistent with the ALJ’s findings that plaintiff has mild difficulty in
social functioning, mild difficulty with activities of daily living, and moderate deficiencies in
concentration, persistence, or pace.
Plaintiff’s argument relies on the Tenth Circuit’s holding in Wiederholt v. Barnhart, 121
F. App’x 833 (10th Cir. 2005). In Wiederholt, the ALJ determined that the claimant had a
mental RFC “limited to simple, unskilled job tasks.” Id. at 839. But the ALJ determined that
claimant also had “mild restrictions in activities of daily living, mild difficulties in maintaining
social functioning, [and] moderate difficulties in maintaining concentration, persistence, or
pace.” Id. (internal quotations omitted). At step five of her sequential evaluation, the Wiederholt
ALJ asked the VE a hypothetical question about the level of work a claimant, who has a mental
RFC “limited to simple, unskilled tasks,” could perform. Id. (internal quotations omitted). The
VE responded that, based on the mental RFC described by the ALJ, the claimant could perform
“unskilled light or sedentary work.” Id. The ALJ relied on this response in her denial of

28

benefits. Id. The court held that the Wiederholt ALJ had committed reversible error, and
explained why:
The relatively broad, unspecified nature of the description “simple” and
“unskilled” does not adequately incorporate the ALJ’s additional, more specific
findings regarding Mrs. Wiederholt’s mental impairments. Because the ALJ
omitted, without explanation, impairments that he found to exist, such as
moderate difficulties maintaining concentration, persistence, or pace, the resulting
hypothetical question was flawed. Moreover, there is no evidence to suggest that
the VE heard testimony or other evidence allowing her to make an individualized
assessment that incorporated the ALJ’s specific additional findings about Mrs.
Wiederholt’s mental impairments. Cf. Diaz v. Sec’y of Health & Human Servs.,
898 F.2d 774, 777 (10th Cir.1990). The VE’s opinion that Mrs. Wiederholt could
do unskilled light or unskilled sedentary work is therefore not substantial
evidence to support the ALJ’s decision.
Id.
The hypothetical question put to the VE in this case is quite similar to the Wiederholt
question. Here, the ALJ determined that plaintiff has the mental RFC to perform “tasks
involving simple to intermediate instructions.” (R. 15) The ALJ found that plaintiff also has
mild difficulty in social functioning, mild difficulty with activities of daily living, and moderate
deficiencies in concentration, persistence, or pace. (R. 12-13) But the ALJ’s hypothetical to the
VE described a claimant who is limited mentally to “simple to intermediate instructions.” (R.
52) As in Wiederholt, this limitation did not adequately incorporate the ALJ’s more specific
findings about plaintiff’s mental impairments. Wiederholt, 121 F. App’x at 839. And also like
Wiederholt, there is no evidence that the VE heard testimony or was given other evidence about
the ALJ’s more specific mental findings. Id.
The ALJ’s failure to describe all of her mental findings resulted in an incomplete
hypothetical and thus prevented the VE from making a full, individualized assessment of
plaintiff’s mental abilities. To put it another way, asking an incomplete question may have
produced an inaccurate opinion. The VE’s opinion that plaintiff has work skills that are
29

transferable to other occupations thus is not substantial evidence supporting the ALJ’s
determination that plaintiff is “not disabled” at step five. See Hargis v. Sullivan, 945 F.2d 1482,
1492 (10th Cir. 1991) (quoting Ekeland v. Bowen, 899 F.2d 719,724 (8th Cir. 1990)
(“[T]estimony elicited by hypothetical questions that do not relate with precision all of
claimant’s impairments cannot constitute substantial evidence to support the Secretary’s
decision.”)).
Based on this error, the Court remands the case to the ALJ for further proceedings. On
remand, the ALJ should present the VE with a complete description of plaintiff’s physical and
mental limitations. Only then can the vocational expert’s testimony serve as substantial evidence
in support of (or against) the ALJ’s decision.
IV.

Conclusion
Based on the above analysis, the Court reverses and remands the Commissioner’s

decision. Judgment shall be entered in accordance with the fourth sentence of 42 U.S.C. §
405(g), reversing the Commissioner’s decision and remanding the case for further proceedings
consistent with this Order.
IT IS THEREFORE ORDERED BY THE COURT THAT the Commissioner’s
decision denying plaintiff Social Security disability insurance benefits is REVERSED and
judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) REMANDING
the case to the agency for further proceedings consistent with this opinion.
IT IS SO ORDERED.
Dated this 15th day of July, 2015, at Topeka, Kansas.

s/ Daniel D. Crabtree_____
Daniel D. Crabtree
United States District Judge
30