Watson v. Social Security Administration, Commissioner of
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 11/17/2017. (ses)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DORIS M. WATSON,
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
MEMORANDUM AND ORDER
Plaintiff seeks review of a decision of the Acting Commissioner of Social Security
(hereinafter Commissioner) denying Disability Insurance benefits (DIB) under sections
216(i) and 223 of the Social Security Act. 42 U.S.C. §§ 416(i) and 423 (hereinafter the
Act). Finding no error in the Administrative Law Judge’s (ALJ) decision, 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.
On Jan. 20, 2017, Nancy A. Berryhill became Acting Commissioner of Social
Security. In accordance with Rule 25(d)(1) of the Federal Rules of Civil Procedure, Ms.
Berryhill is substituted for Acting Commissioner Carolyn W. Colvin as the defendant. In
accordance with the last sentence of 42 U.S.C. § 405(g), no further action is necessary.
Plaintiff applied for DIB, alleging disability beginning August 23, 2012. (R. 17,
178). Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial
review of the final decision denying benefits. Plaintiff argues that both the
Administrative Law Judge (ALJ) and the Appeals Council erred when they failed to
discuss the VA 100% disability rating awarded to Plaintiff on March 20, 2014 due to
PostTraumatic Stress Disorder (PTSD). She also argues that the ALJ erred in evaluating
Plaintiff’s ability to sustain work on a regular and continuing basis.
The court’s review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052
(10th Cir. 2009). It 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
[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; 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 residual functional capacity (RFC). 20 C.F.R. § 404.1520(e). This
assessment is used at both step four and step five of the sequential evaluation process. Id.
The Commissioner next evaluates steps four and five of the sequential process-determining whether, in light of the RFC assessed, claimant can perform her past relevant
work; and whether, when also considering the vocational factors of age, education, and
work experience, claimant is able to perform other work in the economy. Wilson, 602
F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In steps one through four the burden is on
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 addressed in Plaintiff’s Brief, and finds
Failure Adequately to Consider and Explain the VA Disability Rating
Plaintiff argues that Social Security Ruling (SSR) 06-3p requires that a disability
decision by another agency may not be ignored by the Commissioner and must be
considered. (Pl. Br. 13) (recognizing that SSR 06-3p is rescinded for all claims filed on
or after March 17, 2017). She points out that such a disability decision must be
considered by an ALJ, and he must explain why he did not find it persuasive. Id. (quoting
Grogan v. Barnhart, 399 F.3d 1257, 1262-63 (10th Cir. 2005)). She argues that neither
the ALJ nor the Appeals Council discussed the significance of the VA’s 100% disability
rating here, and that failure requires remand. She acknowledges that in Vallejo v.
Berryhill, 849 F.3d 951, 955-56 (10th Cir. 2017), the Tenth Circuit decided that the
Appeals Council is not required to discuss new, material, and chronologically relevant
evidence when it denies review of an ALJ’s decision, but argues that Vallejo doesn’t
change the result in this case because the ALJ was not free to ignore the VA disability
award “particularly since he was already put on notice that the VA had granted [Ms.]
Watson a 100% disability rating.” (Pl. Br. 16-17). Moreover, she argues that she is
aware of no “authority suggesting that the Appeals Council’s receipt of new evidence in
the form of a VA disability evaluation excuses Grogan’s requirement that Commissioner
[sic] discuss the significance of such evidence.” Id. at 17 (citing Davis v. Colvin, Civ. A,
No. 13-cv-02271-CMA, 2014 U.S. Dist. LEXIS 123217, at *12-13, 2014 WL 4375876, at
*4-5 (D. Colo. Sept. 4, 2014); and Harvey v. Astrue, No. CIV-10-393-SPS, 2012 U.S.
Dist. LEXIS 39224, at *14-16, 2012 WL 984299, at *5-6 (E.D. Okla. March 22, 2012)).
She argues that remand is necessary for the ALJ to consider and discuss the VA disability
rating in the first instance.
The Commissioner acknowledges that the decision does not contain a specific
discussion of the VA disability rating, but argues that the ALJ stated he considered all of
the evidence in the entire record, and asks the court to take him at his word. (Comm’r Br.
11-12) (citing Flaherty v. Astrue, 515 F.3d 1067, 1071 (10th Cir. 2007)). She suggests
that any error in the ALJ’s failure to specifically discuss the VA disability rating is
harmless. She argues that the ALJ elicited and listened to Plaintiff’s testimony regarding
her VA disability awards and accepted PTSD as one of Plaintiff’s severe impairments,
and that the VA disability rating was not significantly probative and the failure to discuss
it specifically does not warrant remand since it is based on different standards for
determining disability than those of the Act. Id. at 12-13. She argues pursuant to SSR
06-3p that the VA disability rating in this case need not be discussed because it does not
have a bearing on the determination of disability. Id. at 13-14. She distinguishes the
holding of Grogan as applicable only to a failure to consider a VA disability rating in
finding an impairment not severe at step two of the sequential evaluation process, and
argues that the VA disability rating in this case does not speak to either the issue of RFC
or the issue of disability under the Act. Id. at 14. The Commissioner also argues that the
Appeals Council was not required to discuss the VA disability rating when denying
Plaintiff’s request for review of the ALJ decision, particularly because the information in
the evidence presented to the Council was already before the ALJ. Id. at 15.
In her Reply Brief, Plaintiff reiterates her arguments, asserting that had the ALJ
specifically weighed the VA disability rating, he could have changed his decision because
the VA rating showed that Plaintiff’s PTSD was much more severe than the ALJ
determined. (Reply 1-2). She argues that Grogan has been expanded beyond the step two
determination. (Reply 2-3) (citing Baca v. Dep’t of Health & Human Servs. 5 F.3d 476,
480 (10th Cir. 1993); Winick v. Colvin, No. 16-6077, 2017 U.S. App. LEXIS 83, at *3,
11-13, 674 F. App’x 816, 822 (10th Cir. Jan. 4, 2017); Richter v. Chater, 900 F. Supp.
1531, 1534, 1539 (D. Kan. 1995); Hoog v. Colvin, No. 15-9123-SAC, 2016 U.S. Dist.
LEXIS 119366 at *5, 6-8, 2016 WL 4593479 at *2-3 (D. Kan. Sept. 2, 2016); Radlin v.
Colvin, No. 14-1401-EFM, 2015 U.S. Dist. LEXIS 140430 at *3, *7-8, 2015 WL
6031382 at *3 (D. Kan. Oct. 15, 2015); and Wallick v. Astrue, Civ. A. No. 06-1346MLB, 2007 U.S. Dist. LEXIS 89199 at *6, *16-18, 2007 WL 4239463 at *6 (D. Kan.
Oct. 9, 2007)).
Plaintiff argues that the ALJ was not required merely to consider the VA disability
rating, but he was required to explain why the rating was not adopted. She argues the fact
the ALJ never mentioned the VA disability rating “suggests it was overlooked” (Reply 4),
and that the Commissioner’s harmless error argument is without merit. Id., at 5.
The court finds no reversible error, and explains first, why the ALJ’s consideration
was, at worst harmless error, and why the Appeals Council did not err.
The ALJ’s Consideration
As Plaintiff argues, a disability decision by another agency may not be ignored and
the Commissioner must explain why she did not find that decision persuasive. SSR 063p, West’s Soc. Sec. Reporting Serv., Rulings 333-34 (Supp. 2017); Grogan, 399 F.3d at
1262-63. However, as Plaintiff points out, the ALJ brought up the issue of a VA
disability rating at the hearing when he asked about Plaintiff’s receipt of $130 a month
from the VA. (Pl. Br. 14) (quoting R. 64-65). In the course of the hearing, Plaintiff
explained that her disability rating had been 10%, but that it had recently been increased
to 100% due to PTSD. Id. (citing R. 66). In these circumstances, the fact the ALJ did not
mention the VA rating in his decision cannot suggest he did not consider it. And
Plaintiff’s testimony is the only evidence before the ALJ to which she appeals in arguing
that the ALJ should have explained why he did not find the VA rating persuasive. The
burden of proof is on Plaintiff. The mere assertion of a fact by Plaintiff is insufficient to
conclusively establish that fact as something on which the ALJ must rely or refute in his
decision. Moreover, in the medical evidence before the ALJ, there were more than 800
pages of medical records from the VA2 which the ALJ considered, summarized, and
discussed in his decision, and explained why he did not find Plaintiff’s impairments
(which included PTSD) disabling within the meaning of the Act. (R. 19-29, passim).
And, in the proceedings before the ALJ, Plaintiff was represented by counsel who did not
present the VA rating documentation nor argue that the VA rating demonstrated that
Plaintiff was disabled. It has long been recognized in the Tenth Circuit that “when the
claimant is represented by counsel at the administrative hearing, the ALJ should
ordinarily be entitled to rely on the claimant’s counsel to structure and present claimant’s
case in a way that the claimant’s claims are adequately explored.” Hawkins v. Chater,
113 F.3d 1162, 1167 (10th Cir. 1997); see also, Cowan v. Astrue, 552 F.3d 1182, 1188
(10th Cir. 2008); Maes v. Astrue, 522 F.3d 1093, 1097 (10th Cir. 2008); Branum v.
Barnhart, 385, F.3d 1268, 1271 (10th Cir. 2004); Rutledge v. Apfel, 230 F.3d 1172, 1175
(10th Cir. 2000).
Social Security disability evaluation is not a game of “gotcha!” wherein a claimant
may lie in wait for the Commissioner to make a technical error, and seize upon that error
The VA medical records before the ALJ included Exhibits 3F, 4F, 7F, 8F, 9F,
10F, and 15F. (R. 345-468, 482-1114, and 1169-1267).
to secure a second bite at the apple. The ALJ in this case fully considered the evidence
before him, including his discussion with Plaintiff at the hearing regarding the VA
disability rating, and explained his bases for determining Plaintiff is not disabled within
the meaning of the Act. The Tenth Circuit has recognized that a court “cannot insist on
technical perfection,” but is guided instead by common sense in reviewing Social
Security cases. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166, 1167 (10th Cir. 2012).
“Perfection in processing millions of such claims annually is impossible.” Bowen v.
Yuckert, 482 U.S. 137, 157 (1987) (O’Conner, J., concurring). The ALJ had all of the
evidence before him upon which the VA disability rating was based, and he applied the
Commissioner’s five step sequential evaluation process and reached a different
conclusion. Applying its common sense here, the court finds that Plaintiff has shown no
prejudice in the ALJ’s consideration of Plaintiff’s VA disability rating. Lacking specific
documentation of the VA disability determination or argument in that regard from
counsel, the ALJ’s failure--to state that he considered the VA disability rating, did not
credit it to a greater extent than revealed in his decision, and found that it did not support
a finding of disability under the Act--if it was error (and the court does not believe it
was), was harmless in the circumstances. The fact that although he did not, the ALJ
could have credited the VA rating and found Plaintiff disabled, does not justify remand in
the circumstances of this case. Had Plaintiff presented the complete documentation
regarding her VA rating to the ALJ, and the ALJ ignored it or failed to explain his bases
for discounting it, this would be a different case. But, although that evidence was
provided to Plaintiff more than a month before the hearing and about two months before
the decision issued, it was not provided to the ALJ. (R. 1271 (dated December 9, 2014),
1275, 1278 (dated December 22, 2014), 1276, 1279 (dated December 18, 2014)). This
fact is all the more concerning when it is considered that Plaintiff received other medical
records from the VA, dated December 15, 2014 through January 9, 2015, and provided
them by cover letter dated February 13, 2015, for consideration by the ALJ before the
decision issued. (R. 1169-1267).
The Appeals Council’s Consideration
As Plaintiff argues, she presented additional evidence to the Appeals Council
along with her request for review of the ALJ’s decision. (R. 2). This evidence consisted
of a 46-page Appeals Council Brief, two pages of medical records from Premier
Disability Services, LLC, and ten pages of documents from the VA, relating to Plaintiff’s
100% disability rating. (R. 4). As Plaintiff acknowledges, the Appeals Council issued an
“Order of Appeals Council” making that additional evidence a part of the administrative
record in this case. (R. 4) (admitting Exhibits 15E, 16F, 17F, 18F, and 19F). The
Council denied Plaintiff’s request for review, noting that it had considered the additional
evidence, and “found that this information does not provide a basis for changing the
Administrative Law Judge’s decision.” (R. 1, 2).
Plaintiff also acknowledges that the Tenth Circuit recently held “that the Appeals
Council is only required to discuss evidence when it grants review, and here,” the request
for review was denied. (Pl. Br. 16) (citing Vallejo 849 F.3d at 956-57). And, she argues
that she is unaware of any authority that excuses the case from being remanded for the
Commissioner to specifically discuss the significance of the VA disability rating, as
required by Grogan. Id. at 17. However, Vallejo is the very authority of which she
asserts she is unaware.
The facts in Vallejo are remarkably similar to those present here. Ms. Vallejo
applied for Supplemental Security Income benefits. 849 F.3d at 953. In due course, an
ALJ hearing was held at which there were no medical opinions from treating physicians,
but Ms. Vallejo informed the ALJ that her treating physician, Dr. Ratner was preparing a
mental health opinion, and the ALJ stated that the opinion would be considered if it were
received before the ALJ decision was issued. Id. The opinion was prepared but was not
received before the decision issued denying benefits, and Plaintiff sought Appeals
Council review and submitted Dr. Ratner’s opinion to the Council. Id. The Appeals
Council received the opinion evidence, considered it along with other additional
evidence, found that the evidence did not provide a basis to change the decision, and
denied review. Id. Ms. Vallejo sought judicial review. Id.
Because neither the ALJ nor the Appeals Council expressly evaluated [Dr.]
Ratner’s opinion, the district court reversed the Commissioner’s decision
and remanded for the Appeals Council to either (1) determine what weight,
if any, to give to [Dr.] Ratner’s opinion or (2) remand to an ALJ with
directions to make that determination.
Vallejo, 849 F.3d at 953.
In reversing the district court, the Vallejo court noted that in Martinez v. Barnhart,
444 F.3d 1201 (10th Cir. 2006) the claimant had argued that the Appeals Council erred in
failing to explain why a treating physician’s opinion was not supported, but the Martinez
court concluded that although “an express analysis of the Appeals Council’s
determination would be helpful for purposes of judicial review,” it is not required. 849
F.3d at 955 (quoting Martinez, 444 F.3d at 1207-08) (brackets omitted). The court
recognized the tension between the requirement for an express explanation of the weight
accorded a treating physician’s opinion and the Martinez court’s holding that the Appeals
Council is not required to specifically discuss new evidence submitted to it, but held “that
tension does not permit us to ignore the relevant regulations governing administrative
review, which appear to specifically anticipate the outcome in this case.” Id.
Finally, the court in Vallejo recognized the plaintiff’s alternative argument that “‘a
remand for a fact-finder’s weighing of the new evidence was necessary’ because without
the fact-finder’s evaluation of [Dr.] Ratner’s opinion, the court simply couldn’t determine
whether substantial evidence supports the Commissioner’s decision.” Id. 849 F.3d at 956
(quoting Aplee Br. at 23). The court held that Martinez precludes that argument, and that
“[t]he district court’s only option was to conduct a substantial-evidence review by
assessing the entire agency record, including [Dr.] Ratner’s never-before assessed
The Vallejo decision controls the court’s decision in this case. Plaintiff provided
new evidence regarding her VA disability rating to the Appeals Council. The statutes and
regulations do not require the Council to discuss the new evidence. Therefore, the court
must conduct a substantial-evidence review of the entire record evidence, including the
new evidence submitted to the Appeals Council. Plaintiff argues that this court’s decision
in Clement v. Colvin, No. 12-4165-JWL, 201, 2014 U.S. Dist. LEXIS 73740, at *14-16
(D. Kan. May 30, 2014) supports remand for the Commissioner to apply the correct legal
standard and expressly evaluate the VA disability rating. (Pl. Br. 16). However, the
situation presented to this court in Clement was precisely the situation presented to the
Tenth Circuit in the more recent case of Vallejo, and the Tenth Circuit therein clarified
that remand is not appropriate in such a case, but that the court must conduct its own
substantial-evidence review, which this court now proceeds to do.
The first VA document Plaintiff submitted to the Appeals Council (Ex. 17F) (R.
1270-73), apparently contains the first three pages of a six-page VA Rating Decision. (R.
1272) (“2 of 6"), (R. 1273) (“3 of 6"). That document establishes that the VA awarded
Plaintiff 100% disability for PTSD effective March 20, 2014, and continued a 10%
disabled rating, status post a right hand injury. (R. 1271). Plaintiff was denied
entitlement to individual unemployability. (R. 1272). The rating decision included a list
of the evidence upon which the decision was apparently based, but did not include copies
of that evidence. Id. Other than Plaintiff’s VA application forms and personal
statements, the evidence list appears to include a statement from Ms. Linda Gonner and
Plaintiff’s VA treatment records. Id. The portion of the rating decision provided to the
Appeals Council includes at least part of a section numbered one, of a portion of the
decision entitled “Reasons for Decision.” (R. 1273) (all caps and underline omitted). In
that section, it reveals that Plaintiff was diagnosed with “PTSD based upon the Diagnostic
and Statistical Manual of Mental Disorders (Edition V),” that an evaluation of 100% was
assigned from March 20, 2014, and that service connection was determined. (R. 1273).
The document includes a list of 19 symptoms upon which the evaluation of 100%
disability due to PTSD was based. Id. Pages 4, 5, and 6 of the rating decision were
apparently not provided to the Appeals Council.
The next VA document (Ex. 18F), consists of two letters from the VA to Ms.
Watson verifying that she is receiving compensation for 100% disability beginning
December, 1, 2014 in a certain monthly amount (R. 1275), that she is entitled to
commissary and exchange privileges from the Armed Forces, and that her total disability
is considered permanent. (R. 1276). The final VA document (Ex. 19F), appears to be
duplicate copies of the letters in exhibit 18F. (R. 1278-79).
As the Appeals Council found, “this information does not provide a basis for
changing the Administrative Law Judge’s decision.” (R. 2). Plaintiff did not provide
copies of all the evidence upon which the VA’s rating decision stated it based its finding,
so the court is unable to determine whether that evidence included evidence which
requires finding greater limitations than those assessed by the ALJ. However, the ALJ
had all of the VA medical records provided to it, and that presumably included all of the
medical records upon which the VA rating decision was based. If it did not, there was no
reason for the ALJ to seek additional records and Plaintiff failed her burden to provide all
of her relevant medical records. Moreover, the administrative record in this case includes
a third-party function report completed by Ms. Gonner which presumably contained the
same opinions Ms. Gonner provided in her statement to the VA. The ALJ had all of this
information before him and considered it when he made the decision at issue here.
Moreover, based on Plaintiff’s hearing testimony the ALJ was aware that the VA had
awarded Plaintiff 100% disability for her PTSD. There is nothing in the new evidence
presented to the Appeals Council which would compel the ALJ to change his decision.
Contrary to Plaintiff’s argument, the VA rating did not show that Plaintiff’s PTSD was
much more severe than the ALJ determined--it merely showed that the VA had reached a
different result than did the ALJ. Since the new evidence provided to the Appeals
Council does not compel a different result, the only way in which the court might reach
that conclusion would be to reweigh the record evidence before the ALJ and substitute its
judgment for that of the ALJ. It is prohibited from doing so. Bowman, 511 F.3d at 1272;
accord, Hackett, 395 F.3d at 1172; see also, Bowling, 36 F.3d at 434 (The court “may not
reweigh the evidence in the record, nor try the issues de novo, nor substitute [the Court’s]
judgment for the [Commissioner’s], even if the evidence preponderates against the
Plaintiff argues that in his RFC assessment, the ALJ assessed what he found to be
the most of which Plaintiff is capable, but failed to evaluate Plaintiff’s ability to sustain
those capabilities on a regular and continuing basis. (Pl. Br. 18-19). She argues this is so
because the ALJ inadequately considered work Plaintiff did in the VA vocational
rehabilitation program, and improperly rejected her testimony regarding that work. Id.,
As Plaintiff’s argument suggests, the ALJ considered Plaintiff’s work activity after
her alleged onset date:
While there is evidence the claimant has engaged in some work activity
since the alleged onset date, it is not necessary to determine whether that
work activity constitutes disqualifying substantial gainful activity because
there is a basis for denying the claimant’s application at a later step of the
sequential evaluation process, as explained in more detail below.
On the other hand, the undersigned acknowledges that the claimant worked
in various positions through a Veteran’s Administration vocational
rehabilitation program. She reported she was physically unable to complete
this work; VA records show she had poor attendance reportedly caused by
reasons that had nothing to do with diminished functional capacity (See
Exhibit 10F/88 compared to the claimant’s hearing testimony). This
inconsistency has a negative impact on the credibility of the claimant’s
allegations of disability.
Plaintiff argues that a proper evaluation of the record evidence regarding her work
in the VA’s “Incentive Therapy” (IT) work program shows that “[t]he ALJ’s perception
of [Ms.] Watson’s work attempt does not accurately reflect this evidence.” (Pl. Br. 1920) (citing R. 555, 853, 860, 882, 888, 891, 912). The court has considered the record
evidence of Plaintiff’s work activity in the VA’s IT program. In chronological order that
Plaintiff testified at the hearing that she stated in the program in January 2014,
“and tried to go gung-ho and do the five day six hours a day.” (R. 61). On January 16,
2014, Plaintiff called her vocational rehabilitation specialist, stating she can hardly move
and plans to rest today and come in tomorrow. (R. 577). January 21, 2014, Plaintiff
called in stating she is unable to work today because of body pain. (R. 575). February
11, 2014, Plaintiff reported that she was unable to work at this time because of all-over
body pain, and the specialist stated that she would discharge Plaintiff from the program
and perhaps when the weather is warmer she may be able to work. (R. 555).
Thereafter, Plaintiff testified she returned to work in the IT program in November
2014, trying six hours three days a week. (R. 61). On November 6, 2014, the vocational
rehabilitation specialist noted that Plaintiff called in, stating that she fell at work the other
day and was still having discomfort. The specialist told her to take off work and return on
Monday. (R. 891). On November 12, 2014, the vocational rehabilitation specialist
recorded that Plaintiff called in to say she would miss work today because of VA
appointments, but that it looked like Plaintiff’s appointments were actually scheduled for
tomorrow. The specialist noted, “ She did not work any last week I [sic] because of a fall
she had, so she is missing a lot of work.” (R. 888). At her Compensation and Pension
(C&P) exam on November 24, 2014, Plaintiff reported to the examining psychologist:
that she is currently working an IT job at this facility in the clothing room.
She first began working there in January 2013 but was unable to keep the
job. She stated, “I had to quit due to physical fitness. It is a long haul to get
between buildings.” She returned to work on October 27, 2014. She is
currently scheduled 30 hours per week, but has been unable to manage this
schedule. She stated, “There is a lot of times that I can’t do it. I will try to
come in, but most weeks I have not been able to do it. I do my best. I
really need the money. I don’t like depending on other people. I am trying
to make this work.”
(R. 860). November 25, 2014, the vocational rehabilitation specialist recorded, “Veteran
called on Monday 11/24/14 stating she has a C&P and then she planned to come into [sic]
work. Veteran did not work and has only worked one day this PP [(pay period?)].
Unclear if veteran is going to remain in IT. Her attendance is very poor. I will talk with
her and see if she wants to reduce hrs. or give up her position. I will offer direction and
support as needed.” (R. 853). Plaintiff testified that during the IT program she was in
“excruciating pain.” (R. 62).
While it is true that the ALJ could have accepted Plaintiff’s testimony that she quit
the IT program because of excruciating pain, the evidence does not require that result.
The evidence, as summarized above, also supports the inference drawn by the ALJ--that
Plaintiff did not quit working because of her functioning, but that she was looking for
excuses to miss work on the IT program. “The possibility of drawing two inconsistent
conclusions from the evidence does not prevent an administrative agency’s findings from
being supported by substantial evidence. We may not displace the agency’s choice
between two fairly conflicting views, even though the court would justifiably have made
a different choice had the matter been before it de novo.” Lax, 489 F.3d at 1084
(citations, quotations, and bracket omitted); see also, Consolo v. Fed. Maritime Comm’n,
383 U.S. 607, 620 (1966).
Having failed to show error in the ALJ’s evaluation of Plaintiff’s participation in
the IT work program, Plaintiff cannot show that the ALJ failed to evaluate Plaintiff’s
ability to sustain work on a regular and continuing basis. Plaintiff first relies upon
Washington v. Shalala, 37 F.3d 1437 (10th Cir. 1994), wherein the court held, contrary to
the ALJ, that Mr. Washington’s work attempts were sporadic, his performance was
unsatisfactory, and he was fired at least once. (Pl. Br. 18). As Plaintiff argues, the court
in Washington held that “even when [Mr. Washington] attempted to work at a barber
shop, his work was sporadic, his customers were not satisfied with his work, and he was
‘fired’ at least once.” 37 F.3d at 1443. However, before reaching that conclusion, the
court had already found that the ALJ failed to consider the plaintiff’s vision loss,
inadequately evaluated the effect of the plaintiff’s mental impairments on his ability to
work, failed to make findings regarding the physical and mental demands of the
plaintiff’s past work as a barber, and failed to determine whether he could do that work
given the RFC assessed. Id. 37 F.3d at 1442. Only then did the court remind the ALJ
that on remand he must bear in mind two principles--that for an individual such as Mr.
Washington who was living in a structured environment, the ALJ should consider his
ability to function outside the structured setting, and that even if the plaintiff has the
ability to perform certain jobs, the ALJ must consider whether he can hold the jobs for a
significant period of time, especially when the record showed problems such as those
with Mr. Washington’s work attempts. Id. at 1442-43. Here, however, the court has not
found the errors in the ALJ’s evaluation of the record as did the court in Washington.
Therefore, the record here does not demonstrate that the ALJ has ignored or overlooked
record evidence in assessing RFC, which would suggest the ALJ did not evaluate
Plaintiff’s ability for sustained work.
Plaintiff’s appeal to the case of Kilinski ex rel. Kilinski v. Astrue, 430 F. App’x
732 (10th Cir. 2011), fails for the same reasons. In Kilinski, the ALJ erred in evaluating
Ms. Kilinski’s left thumb pain, the Commissioner argued that the error was harmless, and
the district court agreed. 430 F. App’x at 736. The Tenth Circuit found the error was not
harmless because, “if the ALJ had properly analyzed the evidence concerning Ms.
Kilinski’s thumb pain, he might have concluded she was unable to do her past work”
which involved substantial keyboarding. Id. at 737. Because of the ALJ’s failure to
recognize the objective medical evidence regarding Ms. Kilinski’s thumb, the court also
found error in the failure to assess manipulative functioning. Id. It also noted that the
ALJ’s finding Ms. Kilinski could perform sedentary work was based on his findings that
her cancer treatment restored significant function in a short period of time, that she was
able to exercise and walk her large dog, that she was known to be high functioning,
intelligent, and competent, that she had attempted to return to light work, and that “the
fact that she could not sustain her work attempts at the light level did not preclude a
finding that she could do sedentary work.” Id., 430 F. App’x at 737. The court found
substantial record evidence supported the ALJ’s finding that Ms. Kilinski’s cancer
treatment restored significant function in a short period of time, but that her failure to
sustain light work attempts “is not evidence that she could do sedentary work, particularly
because the ALJ did not discuss her work attempts.” Id. at 738. The court noted that Ms.
Kalinski testified that one of the reasons she stopped her work attempts was due to
fatigue, and that the ALJ had found that she had a loss of exertional strength and some
fatigue. Id. Finally, the court also noted that the ALJ had not made a finding that Ms.
Kilinski could sustain work eight hours a day, five days a week and “did not decide if she
could hold a job for a significant period of time in light of her impairments.” Id. (citing
Washington, 37 F.3d at 1442).
The Kilinski court was faced with the situation where the ALJ had overlooked or
ignored considerable record evidence, and in light of that fact, held that his decision
contained no finding that Ms. Kalinski was able to perform work on a regular and
continuing basis. Here, Plaintiff has not shown that the ALJ ignored or overlooked any
record evidence. And, as Plaintiff acknowledges, the ALJ specifically explained, “An
individual’s residual functional capacity is her ability to do physical and mental work
activities on a sustained basis despite limitations from her impairments.” (R. 18).
Moreover, he stated that he had considered the entire record when he assessed Plaintiff’s
RFC. (R. 22).
The Social Security statutes, regulations, and rulings require specific, on-therecord statements of findings in certain cases. They do not require a statement that the
claimant is able, with the RFC assessed, to work on a regular and continuing basis.
Likely that is because within the very definition of RFC is included that ability. Were the
court to remand this case because the ALJ did not include such a statement, it would
require only that the Commissioner rewrite the decision at issue to include such a
statement. The law does not require remand merely for such ministerial corrections.
Wilson v. Sullivan, No. 90-5061, 1991 WL 35284, at *2 (10th Cir. Feb. 28, 1991).
Moreover, were the court to make such a holding, that would require remand in almost all
disability decisions made by the Commissioner until she were to make sure all of the ALJ
decisions include such specific statements. For, in many years of reviewing such
decisions, the court can recall no specific case in which such an overt statement was
Lacking a specific showing of error in the ALJ’s RFC assessment, such as those in
Washington, or Kalinski, the court will not assume that the ALJ did not bear in mind the
required definition of RFC and thereby failed his duty to consider whether, with the RFC
assessed, Plaintiff is able to sustain work on a regular and continuing basis.
The court finds no error in the decision at issue.
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 this 17th day of November 2017, at Kansas City, Kansas.
s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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