Baker v. Social Security Administration, Commissioner of

Filing 16

MEMORANDUM AND ORDER. The judgment of the Commissioner is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this memorandum and order. See attached for more details. Signed by U.S. District Senior Judge Sam A. Crow on 4/20/2011. (bmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ELIZABETH W. BAKER,
Plaintiff,
vs.

Case No. 10-1253-SAC

MICHAEL J. ASTRUE,
Commissioner of
Social Security,
Defendant.
MEMORANDUM AND ORDER
This is an action reviewing the final decision of the
Commissioner of Social Security denying the plaintiff
supplemental security income payments.

The matter has been fully

briefed by the parties.
I.

General legal standards
The court's standard of review is set forth in 42 U.S.C.

§ 405(g), which provides that "the findings of the Commissioner
as to any fact, if supported by substantial evidence, shall be
conclusive."

The court should review the Commissioner's decision

to determine only whether the decision was supported by
substantial evidence and whether the Commissioner applied the
correct legal standards.
(10th Cir. 1994).

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

Substantial evidence requires more than a

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

1

conclusion.

The determination of whether substantial evidence

supports the Commissioner's decision is not simply a quantitative
exercise, for evidence is not substantial if it is overwhelmed by
other evidence or if it really constitutes mere conclusion.
v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).

Ray

Although the court

is not to reweigh the evidence, the findings of the Commissioner
will not be mechanically accepted.

Nor will the findings be

affirmed by isolating facts and labeling them substantial
evidence, as the court must scrutinize the entire record in
determining whether the Commissioner's conclusions are rational.
Graham v. Sullivan, 794 F. Supp. 1045, 1047 (D. Kan. 1992).

The

court should examine the record as a whole, including whatever in
the record fairly detracts from the weight of the Commissioner's
decision and, on that basis, determine if the substantiality of
the evidence test has been met.

Glenn, 21 F.3d at 984.

The Social Security Act provides that an individual shall be
determined to be under a disability only if the claimant can
establish that they have a physical or mental impairment expected
to result in death or last for a continuous period of twelve
months which prevents the claimant from engaging in substantial
gainful activity (SGA).

The claimant's physical or mental

impairment or impairments must be of such severity that they are
not only unable to perform their previous work but cannot,
considering their age, education, and work experience, engage in

2

any other kind of substantial gainful work which exists in the
national economy.

42 U.S.C. § 423(d).

The Commissioner has established a five-step sequential
evaluation process to determine disability.

If at any step a

finding of disability or non-disability can be made, the
Commissioner will not review the claim further.

At step one, the

agency will find non-disability unless the claimant can show that
he or she is not working at a “substantial gainful activity.”

At

step two, the agency will find non-disability unless the claimant
shows that he or she has a “severe impairment,” which is defined
as any “impairment or combination of impairments which
significantly limits [the claimant’s] physical or mental ability
to do basic work activities.”

At step three, the agency

determines whether the impairment which enabled the claimant to
survive step two is on the list of impairments presumed severe
enough to render one disabled.

If the claimant’s impairment does

not meet or equal a listed impairment, the inquiry proceeds to
step four, at which the agency assesses whether the claimant can
do his or her previous work; unless the claimant shows that he or
she cannot perform their previous work, they are determined not
to be disabled.

If the claimant survives step four, the fifth

and final step requires the agency to consider vocational factors
(the claimant’s age, education, and past work experience) and to
determine whether the claimant is capable of performing other

3

jobs existing in significant numbers in the national economy.
Barnhart v. Thomas, 124 S. Ct. 376, 379-380 (2003).
The claimant bears the burden of proof through step four of
the analysis.
1993).

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

At step five, the burden shifts to the Commissioner to

show that the claimant can perform other work that exists in the
national economy.

Nielson, 992 F.2d at 1120; Thompson v.

Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).

The Commissioner

meets this burden if the decision is supported by substantial
evidence.

Thompson, 987 F.2d at 1487.

Before going from step three to step four, the agency will
assess the claimant’s residual functional capacity (RFC).

This

RFC assessment is used to evaluate the claim at both step four
and step five.

20 C.F.R. §§ 404.1520(a)(4), 404.1520(e,f,g);

416.920(a)(4), 416.920(e,f,g).
II.

History of case

On March 26, 2010, administrative law judge (ALJ) Glenn A.
Neel issued his decision (R. at 10-17).

Plaintiff alleges that

she has been disabled since February 26, 2003 (R. at 10).

At

step one, the ALJ found that plaintiff has not engaged in
substantial gainful activity since the application date of
November 14, 2007 (R. at 12).

At step two, the ALJ found that

plaintiff had the following severe impairments: obesity;
degenerative joint disease/degenerative disc disease of the

4

cervical, thoracic, and lumbar spine; degenerative joint disease
of the left knee; asthma; and left shoulder bursitis.
Furthermore, the ALJ found plaintiff’s Crohn’s disease, diabetes,
and mental impairments to be non-severe (R. at 12-13).

At step

three, the ALJ determined that plaintiff’s impairments do not
meet or equal a listed impairment (R. at 13).

After determining

plaintiff’s RFC (R. at 13), the ALJ found at step four that
plaintiff is able to perform past work as a telephone solicitor
(R. at 17).

Therefore, the ALJ concluded that plaintiff was not

disabled (R. at 17).
III.

Are the ALJ’s RFC findings supported by substantial

evidence?
According to SSR 96-8p, the RFC assessment “must include a
narrative discussion describing how the evidence supports each
conclusion, citing specific medical facts...and nonmedical
evidence.”

The ALJ must explain how any material inconsistencies

or ambiguities in the evidence in the case record were considered
and resolved.

The RFC assessment must always consider and

address medical source opinions.

If the RFC assessment conflicts

with an opinion from a medical source, the ALJ must explain why
the opinion was not adopted.

SSR 96-8p, 1996 WL 374184 at *7.

SSR rulings are binding on an ALJ.

20 C.F.R. § 402.35(b)(1);

Sullivan v. Zebley, 493 U.S. 521, 530 n.9, 110 S. Ct. 885, 891
n.9, 107 L. Ed.2d 967 (1990); Nielson v. Sullivan, 992 F.2d 1118,
5

1120 (10th Cir. 1993).

When the ALJ fails to provide a narrative

discussion describing how the evidence supports each conclusion,
citing to specific medical facts and nonmedical evidence, the
court will conclude that his RFC conclusions are not supported by
substantial evidence.

See Southard v. Barnhart, 72 Fed. Appx.

781, 784-785 (10th Cir. July 28, 2003).

The ALJ’s decision must

be sufficiently articulated so that it is capable of meaningful
review; the ALJ is charged with carefully considering all of the
relevant evidence and linking his findings to specific evidence.
Spicer v. Barnhart, 64 Fed. Appx. 173, 177-178 (10th Cir. May 5,
2003).

It is insufficient for the ALJ to only generally discuss

the evidence, but fail to relate that evidence to his
conclusions.

Cruse v. U.S. Dept. of Health & Human Services, 49

F.3d 614, 618 (10th Cir. 1995).

When the ALJ has failed to

comply with SSR 96-8p because he has not linked his RFC
determination with specific evidence in the record, the court
cannot adequately assess whether relevant evidence supports the
ALJ’s RFC determination.

Such bare conclusions are beyond

meaningful judicial review.

Brown v. Commissioner of the Social

Security Administration, 245 F. Supp.2d 1175, 1187 (D. Kan.
2003).
The ALJ made the following RFC findings in this case:
After careful consideration of the entire
record, I find the claimant has the residual
functional capacity to lift and/or carry up
to 20 pounds occasionally and 10 pounds
6

frequently; to stand and/or walk for no more
than two hours total during an eight-hour
workday; and to sit for no more than six
hours total during an eight-hour workday.
Claimant can occasionally climb ramps/stairs;
never climb ladders/ropes/scaffolds;
occasionally balance and stoop; and never
kneel, crouch, or crawl. She can occasionally
reach and handle with the non-dominant left
upper extremity; and she must avoid
concentrated exposure to temperature extremes
aud fumes, odors, dusts, gases, and poor
ventilation. She can be around no hazards,
including no driving as part of work, due to
side effects of medication. In other words, I
find the claimant is able to perform less
than the full range of "sedentary" work as
defined in 20 CFR 416.967(a).
(R. at 13).
The ALJ’s weight limitations were in accordance with the
opinion of Dr. Reed that plaintiff not lift more than 20 pounds
(R. at 14, 357).

The ALJ also indicated that he essentially

agreed with the state agency assessment by Dr. Goering, a
nonexamining physician (R. at 407-414), with slight modification
based upon the consultative assessment by Dr. Chaudry (R. at 15).
Dr. Chaudry examined and interviewed the plaintiff, and
prepared a physical RFC assessment at the request of the
defendant (R. at 444-458).

In his physical examination, he noted

that plaintiff had a painful range of motion in the lumbosacral
spine with muscle tenderness.

In the left shoulder, he found a

diminished range of motion with tenderness (R. at 446).
findings included the following limitations:
-lift and carry up to 10 lbs. occasionally
7

His RFC

(R. at 448)
-sit for 4 hours, stand for 3 hours, and walk
for 1 hour in an 8 hour workday (R. at 449)
-never reach overhead with her left hand (R.
at 450)
-occasionally reach (other than overhead),
handle, finger, feel and push/pull with the
left hand (R. at 450)
-occasional use of foot controls (R. at 450)
-never climb ladders or scaffolds (R. at 451)
-never stoop, kneel, crouch or crawl (R. at
451)
-occasionally balance & climbs stairs/ramps
(R. at 451)
-never be around unprotected heights (R. at
452)
-never be around humidity, wetness, dust,
odors, fumes (R. at 452)
-limit to occasional use of moving mechanical
parts, operating a motor vehicle, and being
around extreme temperatures & vibrations (R.
at 452)
Dr. Chaudry stated that plaintiff could not perform overhead
reaching with the left hand/arm because of left shoulder
tendonitis.

He further indicated that repetitive bending and

lifting more than 10 pounds was limited due to lower back/neck
pain and osteoarthritis.

He opined that these limitations have

been present for 7 years (R. at 453).
The ALJ analyzed the opinions of Dr. Chaudry as follows:
Dr. Chaudry's Medical Source Statement is
8

essentially consistent with "sedentary" work.
I have given Dr. Chaudry's opinion some
weight; however, Dr. Chaudry'S opinions
regarding claimant's ability to sit, stand,
and walk without interruption are obviously
solely based on claimant's statements, e.g.
that she could walk only three minutes at one
time. Additionally, his opinion that claimant
can never reach overhead and has other
significant limits regarding the left upper
extremities is not supported by the objective
findings or the results of the x-rays of her
left upper extremity. Also, Dr. Chaudry's
opinion that claimant can never stoop is not
supported by the medical evidence of record
as a whole.
...a one-time consultative examiner, such as
Dr. Chaudry, is not a "treating physician" to
be primarily relied upon in Social Security
disability determinations. Additionally, the
fact that Dr. Chaudry failed to provide any
medical "findings" to support his disability
statement should be sufficient to dispose of
this opinion weight issue. Dr. Chaudry's
opinion is clearly based for the most part
upon claimant's subjective complaints and
self-reported symptoms, which I do not find
to be very credible.
(R. at 16, emphasis added).
As a general rule, the opinion of an examining physician is
generally entitled to less weight than that of a treating
physician, and the opinion of an agency physician who has never
seen the claimant is entitled to the least weight of all.
Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004).
Chaudry is an examining physician.

Dr.

The ALJ gave greater weight

to the opinions of Dr. Goering, an agency physician who never saw

9

or examined plaintiff.1
The ALJ discounted the opinions of Dr. Chaudry because,
according to the ALJ, Dr. Chaudry failed to provide any medical
findings to support his opinions, and the opinions of Dr. Chaudry
were clearly based for the most part upon plaintiff’s subjective
complaints and self-reported symptoms.

In the case of Langley v.

Barnhart, 373 F.3d 1116, 1121 (10th Cir. 2004), the court held:
The ALJ also improperly rejected Dr.
Hjortsvang's opinion based upon his own
speculative conclusion that the report was
based only on claimant's subjective
complaints and was “an act of courtesy to a
patient.” Id. The ALJ had no legal nor
evidentiary basis for either of these
findings. Nothing in Dr. Hjortsvang's reports
indicates he relied only on claimant's
subjective complaints or that his report was
merely an act of courtesy. “In choosing to
reject the treating physician's assessment,
an ALJ may not make speculative inferences
from medical reports and may reject a
treating physician's opinion outright only on
the basis of contradictory medical evidence
and not due to his or her own credibility
judgments, speculation or lay opinion.”
McGoffin v. Barnhart, 288 F.3d 1248, 1252
(10th Cir.2002) (quotation omitted; emphasis
in original). And this court “held years ago
that an ALJ's assertion that a family doctor
naturally advocates his patient's cause is
not a good reason to reject his opinion as a
treating physician.” Id. at 1253.
More recently, in the case of Victory v. Barnhart, 121 Fed. Appx.

1

Dr. Goering’s assessment is dated September 9, 2008 (R. at
414); Dr. Chaudry’s assessment is dated December 8, 2009 (R. at
453). Thus, Dr. Goering, who never saw or examined the
plaintiff, did not have before him the assessment of Dr. Chaudry
when making his own assessment.
10

819 (10th Cir. Feb. 4, 2005), the court held:
The ALJ's finding that Dr. Covington's
opinion was based on claimant's own
subjective report of her symptoms
impermissibly rests on his speculative,
unsupported assumption. See Langley, 373 F.3d
at 1121 (holding that ALJ may not reject a
treating physician's opinion based on
speculation). We find no support in the
record for the ALJ's conclusion. Nothing in
Dr. Covington's report indicates that he
based his opinion on claimant's subjective
complaints, and the ALJ's finding ignores all
of Dr. Covington's examinations, medical
tests, and reports. Indeed, the ALJ's
discussion of Dr. Covington omits entirely
his March 22, 2001 examination and report.
His April 3, 2001 statement might well have
been based on his recent first-hand
examination and observation of claimant
during this examination, performed less than
two weeks earlier, rather than on claimant's
subjective complaints, as the ALJ speculated.
See Morales v. Apfel, 225 F.3d 310, 317 (3d
Cir.2000) (noting that the treating
physician's opinion may “reflect expert
judgment based on a continuing observation of
the patient's condition over a prolonged
period of time”).
121 Fed. Appx. at 823-824.
The ALJ does not cite to any evidence in the record to
support his assertion that Dr. Chaudry’s opinions were based for
the most part upon plaintiff’s subjective complaints and selfreported symptoms.

Dr. Chaudry, in addition to taking

information from the plaintiff (R. at 444-445), also performed a
physical examination of the plaintiff (R. at 445-446).

His

examination found a painful range of motion with tenderness in
the lumbosacral spine, and a diminished range of motion with
11

tenderness in the left shoulder (R. at 446).

This examination

included detailed findings on a “range of joint motion evaluation
chart” of the back, neck, hip, knees, ankles, shoulders, elbows,
wrists, and hands (R. at 455-457), and findings of plaintiff’s
range of motion of the lumbosacral and cervical spine (R. at
458).

Nothing in Dr. Chaudry’s report indicates that he

primarily relied on plaintiff’s subjective complaints.
Furthermore, contrary to the ALJ’s assertion that Dr. Chaudry
failed to provide any medical findings to support his opinions,
Dr. Chaudry in fact performed an examination of the plaintiff,
including an examination and detailed report of the range of
motion of plaintiff’s back, neck, hip, knees, ankles, shoulders,
elbows, wrists, hands, and lumbosacral and cervical spine.

There

is no medical evidence indicating that the examination findings
regarding plaintiff’s range of motion are inconsistent with the
opinions of Dr. Chaudry.

As the court indicated in Victory, the

opinions of Dr. Chaudry may well have been based on his firsthand examination and observation of the plaintiff during the
examination rather than on plaintiff’s subjective complaints, as
the ALJ speculated.

For these reasons, the court concludes that

the ALJ’s assertion that Dr. Chaudry’s opinions are based for the
most part on plaintiff’s subjective complaints and self-reported
symptoms is not supported by substantial evidence.

Therefore,

this case shall be remanded in order for the defendant to

12

consider the opinions of Dr. Chaudry in light of the fact that
there is no evidence that Dr. Chaudry relied for the most part on
plaintiff’s subjective complaints, and in light of the detailed
examination by Dr. Chaudry, including his numerous findings
regarding plaintiff’s range of motion.
The ALJ stated that he “essentially agree[d]” with the
assessment by Dr. Goering, a nonexamining physician, with “slight
modification” based upon the opinions of Dr. Chaudry (R. at 15).
However, the ALJ offered no explanation for why he essentially
agreed with Dr. Goering.

Furthermore, a comparison of the

opinions of Dr. Goering and Dr. Chaudry with the ALJ’s RFC
findings indicates that the ALJ’s RFC findings adopted the
opinions of Dr. Chaudry in many particulars.
The ALJ adopted the lifting and carrying limitations set
forth not only by Dr. Goering (R. at 408), but also by Dr. Reed,
who performed a consultative examination on the plaintiff (R. at
356-357).

Regarding postural limitations, Dr. Goering and Dr.

Chaudry agreed in regards to plaintiff’s ability to climb and
balance, and those findings are reflected in the ALJ’s RFC (R. at
409, 451, 13).

However, Dr. Goering and Dr. Chaudry disagreed on

the extent of plaintiff’s limitation in four postural categories:
category

Dr. Goering

Dr. Chaudry

ALJ finding

stoop

occasional

never

occasional

kneel

occasional

never

never

13

crouch

occasional

never

never

crawl

occasional

never

never

(R. at 409, 451, 13).

As can be seen, in the four postural

categories in which Dr. Goering and Dr. Chaudry disagreed
regarding the extent of plaintiff’s limitations, the ALJ adopted
the opinion of Dr. Chaudry in 3 of those 4 areas of disagreement,
i.e., that plaintiff can never kneel, crouch or crawl.

However,

in one category, the ALJ adopted the opinion of Dr. Goering that
plaintiff could occasionally stoop.

The ALJ stated that Dr.

Chaudry’s opinion that plaintiff can never stoop is not supported
by the medical evidence of record as a whole (R. at 16).
However, the ALJ failed to indicate why the medical evidence did
not support Dr. Chaudry’s opinion that plaintiff can never stoop.
The failure of the ALJ to adopt the opinion of Dr. Chaudry that
plaintiff cannot stoop is especially puzzling in light of the
fact that on every other postural limitation in which Dr. Chaudry
and Dr. Goering had disagreed, the ALJ had adopted the opinion of
Dr. Chaudry that plaintiff could not engage in those activities.
According to SSR 96-9p, although most postural activities
are not required in sedentary work, a complete inability to stoop
would significantly erode the unskilled sedentary occupational
base and a finding that the claimant is disabled would usually
apply.

1996 WL 374185 at *7-8.

For this reason it is critical

for the ALJ, when this case is remanded, to provide a sufficient

14

evidentiary basis for finding whether or not plaintiff can stoop.
Dr. Chaudry indicated in his assessment that plaintiff
cannot reach overhead with the left upper extremity; Dr. Chaudry
also indicated that plaintiff can only occasionally do other
reaching with the left upper extremity, and can only occasionally
handle, finger, feel, and push/pull with the left upper extremity
(R. at 450).

Dr. Chaudry stated that the limitation of no

overhead reaching was based on a finding of left shoulder
tendonitis (R. at 453).

Dr. Chaudry’s examination indicated that

plaintiff had a diminished range of motion in her left shoulder
with anterior and posterior deltoid tenderness (R. at 446).
However, the ALJ stated that the opinion of Dr. Chaudry that
plaintiff can never reach overhead and has other significant
limitations with her left upper extremity was not supported by
the objective findings or the results of the x-rays of her left
upper extremity (R. at 16).

An x-ray of the left shoulder showed

“essentially unremarkable left shoulder with mild osteopenia
present” (R. at 461, 15).
The ALJ indicated that he essentially agreed with the
opinions of Dr. Goering, with slight modification based on the
opinions of Dr. Chaudry (R. at 15).

Dr. Goering found that

plaintiff had no manipulative limitations (i.e., reaching,
handling, fingering and feeling) (R. at 410).

Dr. Chaudry, as

noted above, opined that plaintiff cannot reach overhead with the

15

left upper extremity, and is limited to only occasional other
activity with the left upper extremity.

The ALJ found that

plaintiff can only “occasionally” reach and handle with the nondominant left upper extremity (R. at 13).

By limiting plaintiff

to occasional reaching and handling with the left upper
extremity, the ALJ rejected the opinions of Dr. Goering on those
particulars, and adopted in part the opinion of Dr. Chaudry,
despite the ALJ’s assertion that the limitations of Dr. Chaudry
regarding the left upper extremity were not supported by the
evidence.

However, the ALJ offered absolutely no explanation for

adopting some of the limitations set forth by Dr. Chaudry
regarding the use of plaintiff’s left upper extremity, but not
others.

Furthermore, the court will not speculate as to why the

ALJ adopted some of Dr. Chaudry’s limitations regarding
plaintiff’s left upper extremity, but not others.

According to

SSR 96-8p, the RFC assessment “must” include a narrative
discussion describing how the evidence supports each conclusion,
citing to specific medical and nonmedical evidence.

The ALJ

failed to comply with SSR 96-8p when making his findings
regarding the extent of plaintiff’s left upper extremity
limitations.

For this reason, the court concludes that the ALJ’s

findings regarding the limitations on the use of plaintiff’s left
upper extremity are not supported by substantial evidence.
The ALJ indicated that he gave great weight to the x-ray

16

results of the left shoulder when rejecting the opinions of Dr.
Chaudry regarding the limitations in plaintiff’s left upper
extremity.

However, the ALJ offered no explanation and did not

cite to any medical evidence that the x-ray findings supported
some of the limitations by Dr. Chaudry, but not others.

When

this case is adjudicated on remand, it must be kept in mind that
an ALJ is not entitled to sua sponte render a medical judgment
without some type of support for his/her determination.

The

ALJ’s duty is to weigh conflicting evidence and make disability
determinations; he is not in a position to render a medical
judgment.

Bolan v. Barnhart, 212 F. Supp.2d 1248, 1262 (D. Kan.

2002).
In summary, the ALJ erred in his analysis of the opinions of
Dr. Chaudry.

The ALJ also erred by failing to cite to specific

medical or other evidence to support portions of his RFC
findings.

Therefore, this case shall be remanded in order for

the ALJ to properly consider the opinions of Dr. Chaudry and to
make RFC findings in accordance with SSR 96-8p.
IV.

Did the ALJ err in his step four analysis?
Plaintiff argues that the ALJ failed to make the required

findings at step four.

At step four, the ALJ is required by

Social Security Ruling (SSR) 82-62 to make findings of fact
regarding: 1) the individual’s residual functional capacity, 2)
the physical and mental demands of prior jobs or occupations, and
17

3) the ability of the individual to return to the past occupation
given his or her residual functional capacity.

Henrie v. United

States Dep’t of HHS, 13 F.3d 359, 361 (1993).

Thus, at the third

or final phase of the analysis, the ALJ determines whether the
claimant has the ability to meet the job demands found in phase
two despite the mental and/or physical limitations found in phase
one.

At each of these three phases, the ALJ must make specific

findings.
2007);

Frantz v. Astrue, 509 F.3d 1299, 1303 (10th Cir.

Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996).2

2

In Winfrey, the court noted that the Secretary glossed over
the absence of the required ALJ findings by relying on the
testimony of the vocational expert (VE) that plaintiff could meet
the mental demands of his past relevant work, given his mental
limitations as found by the ALJ. The court stated that this
practice of delegating to a VE many of the ALJ’s fact finding
responsibilities at step four appears to be of increasing
prevalence and is to be discouraged. The court went on to say as
follows:
Requiring the ALJ to make specific findings
on the record at each phase of the step four
analysis provides for meaningful judicial
review. When, as here, the ALJ makes
findings only about the claimant’s
limitations, and the remainder of the step
four assessment takes place in the VE’s head,
we are left with nothing to review...a VE may
supply information to the ALJ at step four
about the demands of the claimant’s past
relevant work...[but] the VE’s role in
supplying vocational information at step four
is much more limited than his role at step
five...Therefore, while the ALJ may rely on
information supplied by the VE at step four,
the ALJ himself must make the required
findings on the record, including his own
evaluation of the claimant’s ability to
perform his past relevant work.
18

An ALJ can comply with these requirements if he quotes the VE’s
testimony with approval in support of his own findings at phases
two and three of the step four analysis.
F.3d 758, 760-761 (10th Cir. 2003).3

Doyal v. Barnhart, 331

When the ALJ fails to make

findings at phase two of step four regarding the physical and/or
mental demands of plaintiff’s past work, the case will be
remanded for a proper step four analysis.

Bowman v. Astrue, 511

F.3d 1270, 1271-1273 (10th Cir. 2008); Frantz v. Astrue, 509 F.3d
at 1303-1304; Kilpatrick v. Astrue, 559 F. Supp.2d 1177, 11821185 (D. Kan. 2008)(Belot, D.J.).

However, when the ALJ makes

proper findings at step five, any error at step four will be

Winfrey, 92 F.3d at 1025.
3

The ALJ’s findings in Doyal were as follows:
The vocational expert testified that the
claimant's past relevant work as a
housecleaner and sewing machine operator
would be classified as light and unskilled,
and her past relevant work as an activities
director would be classified as light and
semiskilled.... The vocational expert
indicated that the claimant's past relevant
work as a housecleaner and sewing machine
operator did not require lifting more than 20
pounds, walking for prolonged periods, or
performing tasks requiring bilateral normal
grip strength.

Doyal, 331 F.3d at 760. The ALJ found that plaintiff could
perform past relevant work as a housecleaner and a sewing machine
operator. 331 F.3d at 761. As noted above, the ALJ cited with
approval the testimony of the vocational expert concerning the
physical demands of the 2 past jobs which the ALJ found that the
claimant could still perform.
19

deemed harmless error.

Martinez v. Astrue, 316 Fed. Appx. 819,

824 (10th Cir. Mar. 19, 2009); see Murrell v. Shalala, 43 F.3d
1388, 1389-1390 (10th Cir. 1994).
The court will not reach this issue because it may be
impacted when this case is remanded after giving proper
consideration to the opinions of Dr. Chaudry and making proper
RFC findings in accordance with SSR 96-8p.

See Robinson v.

Barnhart, 366 F.3d 1078, 1085 (10th Cir. 2004)

However, on

remand, any step four findings must be made in accordance with
the regulations and case law set forth above.
V.

Did the ALJ err in analyzing plaintiff’s credibility?
Plaintiff argues that the ALJ erred in his analysis of

plaintiff’s credibility.

The court will not reach this remaining

issue because it may be affected by the ALJ’s resolution of the
case on remand after giving proper consideration to the opinions
of Dr. Chaudry and making new RFC findings in accordance with SSR
96-8p.

See Robinson v. Barnhart, 366 F.3d at 1085.

IT IS THEREFORE ORDERED that the judgment of the
Commissioner is reversed and remanded pursuant to sentence four
of 42 U.S.C. § 405(g) for further proceedings consistent with
this memorandum and order.
Dated this 20th day of April 2011, Topeka, Kansas.
s/ Sam A. Crow
Sam A. Crow, U.S. District Senior Judge
20