Roberts v. Social Security Administration, Commissioner of
MEMORANDUM AND ORDER - The Commissioners decision is REVERSED, and judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) REMANDING the case for further proceedings. Signed by District Judge John W. Lungstrum on 9/14/2011. (ses)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MICHAEL J. ASTRUE,
Commissioner of Social Security,
MEMORANDUM AND ORDER
Plaintiff seeks review of a decision of the Commissioner of Social Security
(hereinafter Commissioner) denying disability insurance benefits (DIB) and supplemental
security income (SSI) under sections 216(i), 223, 1602, and 1614(a)(3)(A) of the Social
Security Act. 42 U.S.C. §§ 416(i), 423, 1381a, and 1382c(a)(3)(A) (hereinafter the Act).
Finding error in the Commissioner’s evaluation of Plaintiff’s obstructive sleep apnea, the
court ORDERS that the decision is REVERSED, and that judgment shall be entered
pursuant to the fourth sentence of 42 U.S.C. § 405(g) REMANDING the case for further
proceedings consistent with this opinion.
Plaintiff applied for both DIB and SSI on September 25, 2006, alleging disability
beginning on January 6, 2006. (R. 38, 97-107). The applications were denied initially
and upon reconsideration, and Plaintiff requested a hearing before an Administrative Law
Judge (ALJ). (R. 38, 31-34, 66-67). Plaintiff’s request was granted, and Plaintiff
appeared with counsel for a video hearing before ALJ Raul C. Pardo on June 26, 2009.
(R. 9-30, 38). At the hearing, testimony was taken from Plaintiff and from a vocational
expert. (R. 10, 38).
ALJ Pardo issued his decision on August 19, 2009 finding that although Plaintiff is
unable to perform her past relevant work she is able to make an adjustment to other work
existing in the economy in significant numbers. (R. 38-45). Consequently, he found that
Plaintiff is not disabled within the meaning of the Act, and denied her applications for
benefits. (R. 45).
Plaintiff sought Appeals Council review of the ALJ’s decision, but
was denied. (R. 1-8). Therefore, the ALJ’s decision is the final decision of the
Commissioner. (R. 1); Blea v. Barnhart, 466 F.3d 903, 908 (10th Cir. 2006). Plaintiff
now seeks judicial review of that decision. (Doc. 1).
The court’s jurisdiction and review are guided by the Act. Weinberger v. Salfi,
422 U.S. 749, 763 (1975) (citing 42 U.S.C. § 405(g)); Wall v. Astrue, 561 F.3d 1048,
1052 (10th Cir. 2009) (same); Brandtner v. Dep’t of Health and Human Servs., 150 F.3d
1306, 1307 (10th Cir. 1998) (sole jurisdictional basis in social security cases is 42 U.S.C.
§ 405(g)). Section 405(g) of the Act provides for review of a final decision of the
Commissioner made after a hearing in which the Plaintiff was a party. It also 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 factual findings are supported by substantial evidence in the record and
whether the ALJ 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
evidence as a reasonable mind might accept to support a conclusion. 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). 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).
An individual is under a disability only if that individual can establish that she has
a physical or mental impairment which prevents her from engaging in any substantial
gainful activity and which is expected to result in death or to last for a continuous period
of at least twelve months. Thompson v. Sullivan, 987 F.2d 1482, 1486 (10th Cir. 1993)
(citing 42 U.S.C. § 423(d)); see also, Knipe v. Heckler, 755 F.2d 141, 145 (10th Cir.
1985) (quoting identical definitions of a disabled individual from both 42 U.S.C.
§§ 423(d)(1) and 1382c(a)(3)(A)); accord, Lax, 489 F.3d at 1084 (citing 42 U.S.C.
§§ 423(d)(1)(A), 1382c(a)(3)(A)). The claimant’s impairments must be of such severity
that she is not only unable to perform her past relevant work, but cannot, considering her
age, education, and work experience, engage in any other substantial gainful work
existing in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
The Commissioner uses a five-step sequential process to evaluate disability. 20
C.F.R. §§ 404.1520, 416.920 (2009); 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, 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. If claimant’s impairment(s) does not meet or
equal a listed impairment, the Commissioner assesses claimant’s residual functional
capacity (hereinafter RFC). 20 C.F.R. §§ 404.1520(e), 416.920(e). This assessment is
used at both step four and step five of the sequential evaluation process. Id.
After assessing claimant’s RFC, the Commissioner evaluates steps four and five-whether claimant can perform her past relevant work, and whether, when considering
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 claimant to prove a disability that prevents
performance of past relevant work. Blea, 466 F.3d at 907; 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 jobs existing in the economy within Plaintiff’s
capability. Id.; Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).
Plaintiff claims the ALJ erred in assessing the effects of her sleep apnea and
obesity, and in failing to properly consider the opinion of psychological consultant, Dr.
Kovach. The Commissioner argues that the ALJ properly evaluated the medical opinions,
and properly assessed Plaintiff’s RFC, including the effects of sleep apnea and obesity.
Although the court is not convinced that the ALJ erred in considering Dr. Kovach’s
opinion or in considering the effects of obesity on Plaintiff’s capabilities, it agrees with
Plaintiff that the ALJ improperly relied upon speculation or upon his own lay opinion in
assessing the effects of obstructive sleep apnea in this case. Therefore, it must remand to
the Commissioner for proper consideration. Having determined that remand is necessary
because of the ALJ’s error in evaluating sleep apnea, the court will not belabor the issues
of obesity or of Dr. Kovach’s opinion. Plaintiff may make her arguments in that regard to
the Commissioner on remand.
Consideration of Obstructive Sleep Apnea
Plaintiff claims the ALJ erred because his RFC assessment “does not contain
sufficient limitations” related to Plaintiff’s obstructive sleep apnea. (Pl. Br. 7). She
argues that the ALJ relied upon the physical RFC assessment formulated by a single
decision maker (SDM) and affirmed by two state agency medical consultants, but that
that assessment did not sufficiently account for the effects of sleep apnea, such as
reasonable cognitive restrictions, and a prohibition on exposure to hazards and potentially
life-threatening machinery. Id. at 9-10. Finally, she argues that although the ALJ is not a
doctor, he asserted that he is well acquainted with the effects of obstructive sleep apnea
and that those affects would be substantially alleviated with the consistent use of a C-PAP
(Continuous Pressure Air Pathway) machine. Id. at 10. Plaintiff argues that such a
conclusory statement based upon the ALJ’s lay opinion constitutes a failure to base the
decision upon substantial record evidence. Id. at 11.
The Commissioner argues that the ALJ properly assessed Plaintiff’s RFC, and that
the assessment is based upon substantial evidence in the record. (Comm’r Br. 13-15).
Specifically, he summarizes the record evidence regarding sleep apnea; notes that Dr.
Carson opined regarding some decrease in concentration, persistence, or pace; asserts that
the ALJ properly found the effects of Plaintiff’s symptoms not as severe as Plaintiff
alleged; and concludes that the ALJ “accounted for any difficulties Plaintiff might have in
concentration, persistence, or pace by limiting her to work involving simple or semicomplex instructions.” Id. at 15. The Commissioner does not address Plaintiff’s
argument that the ALJ supported his decision with his own lay opinion rather than with
At step two of his decision, the ALJ recognized that sleep apnea is a “severe”
impairment in the circumstances of this case. (R. 40). He found at step three that
Plaintiff’s sleep apnea does not meet the criteria of Listing 3.01. (R. 42). In his RFC
assessment, the ALJ discussed the effects of sleep apnea on Plaintiff’s functional
The claimant also testified that she typically will fall asleep three to four
times a week, for a quarter to three quarters of an hour. The claimant also
testified that she has been using Continuous Pressure Air Pathway (C-PAP)
machine on a regular basis since 2004. Notably, the claimant’s
discontinuation of work, and application for disability in 2006 coincided
with a period of time when she was not using her CPAP device (Exhibit
27F, 28F [(R. 475-87)]). According to her polysomnography study, use of
the C-PAP machine reduced her respiratory disturbance index from 96.6
events per hour to 7.6 events (Exhibit 12F [(R. 295-320)]). . . .
Additionally, the undersigned is well acquainted with the effects of severe
obstructive sleep apnea, while the claimant’s symptoms might be
reasonably commensurate with an untreated condition, they would be
substantially alleviated with the consistent use of the CPAP machine.
As the Commissioner argues, it is the ALJ’s responsibility to assess RFC. 20
C.F.R. §§ 404.1546(c), 416.946(c). Moreover, the court cannot substitute its judgment
for that of the Commissioner. Bowman, 511 F.3d at 1272 Were this simply a matter of
determining whether in his RFC the ALJ had provided “sufficient limitations” related to
Plaintiff’s sleep apnea, the court would be inclined to agree with the Commissioner that
the ALJ had properly considered the record evidence regarding sleep apnea, had properly
found Plaintiff’s allegations of symptoms resulting from sleep apnea not credible, and had
adequately accounted for the effects of sleep apnea in his RFC assessment.
However, as Plaintiff points out, the ALJ stated his assessment that he “is well
acquainted with the effects of severe obstructive sleep apnea, [and that] claimant’s
symptoms . . . would be substantially alleviated with the consistent use of the CPAP
machine.” (R. 43) (emphases added). Moreover, the ALJ did not cite to record evidence
or admissible medical authority for this conclusion. Thus, it appears that the ALJ’s
assessment of the effects of sleep apnea in this case were dependent upon his own alleged
familiarity with, and personal expertise regarding, the effects of severe obstructive sleep
apnea and the restorative effects of consistent use of the CPAP machine, and were not
based upon substantial evidence in the record. This is error.
While an RFC assessment is for the ALJ to make, he must base that RFC
assessment upon the record evidence. He may not form his own lay opinion regarding
plaintiff’s limitations and use that opinion to the exclusion of any medical opinion.
Winfrey v. Chater, 92 F.3d 1017, 1022 (10th Cir. 1996) (ALJ may not substitute his
medical judgment for that of a physician); Kemp v. Bowen, 816 F.2d 1469, 1476 (10th
Cir. 1987) (ALJ “can not interpose his own ‘medical expertise’ over that of a physician”).
The ALJ here did not specifically reject a particular medical opinion contained in the
record, but he did rely upon his own lay opinion to the exclusion of either relying upon
specific record evidence or, if necessary, of seeking a medical opinion. As Plaintiff
argues, the ALJ is not a medical expert with the training or expertise to know either the
deleterious effects of obstructive sleep apnea or the restorative effects of consistent use of
a CPAP machine in general. Nor does he have the training or expertise to evaluate
Plaintiff’s medical condition in particular, to determine whether in this case the
restorative effects of consistent use of a CPAP machine would substantially alleviate the
effects of obstructive sleep apnea.
Further, the ALJ did not cite to record evidence which demonstrates the propriety
of his finding. The ALJ cited evidence suggesting that Plaintiff’s discontinuation of work
and application for disability coincided with a period when she was not using a CPAP
machine, and the record confirms that Plaintiff told Dr. Kovach in October of 2006 that
she had not been able to afford a CPAP machine “[s]o far.” (R. 477). The ALJ also cited
a sleep study performed in December, 2006 that showed a “respiratory disturbance index”
(RDI) of 96.6 without CPAP, which improved to 7.6 with use of the CPAP. (R. 309, 310,
318-20). The “Recommendations” section of the sleep study cautions that “[t]he patient
has been instructed never to drive or operate heavy equipment if at all sleepy.” (R. 31920).
But, the ALJ did not cite record evidence or medical authority that Plaintiff’s
symptoms will be substantially alleviated with consistent use of the CPAP machine. In
the circumstances of this case, the court’s concern is not merely a matter of semantics.
The caution to avoid driving “if at all sleepy,” suggests that the reduction of a patient’s
RDI in a sleep study conducted over one night’s time does not necessarily imply that
consistent use of a CPAP machine will in every case result in a commensurate reduction
in sleepiness or in a reduction in the propensity to fall asleep during waking hours. And,
the ALJ did not cite to, or take administrative notice of, any admissible medical authority
upon which he could properly base the determination that consistent use of a CPAP
machine would substantially alleviate Plaintiff’s symptoms. Therefore, remand is
necessary for the Commissioner to properly evaluate the effects of sleep apnea in this
case based upon the record evidence and/or upon admissible medical authority.
The court does not intend to imply by this holding that each finding in an RFC
assessment must be based upon a specific medical source opinion appearing in the record.
But, the RFC assessment must be based upon record evidence, rather than upon the ALJ’s
personal opinion regarding the effects of an impairment. To be sure, the ALJ is
responsible to assess plaintiff’s RFC. 20 C.F.R. §§ 404.1546, 416.946. That assessment,
however, must be based upon all of the relevant evidence in the case record. Id.
§§ 404.1545(a), 416.945(a); Soc. Sec. Ruling (SSR) 96-8p West’s Soc. Sec. Reporting
Serv., Rulings 147 (Supp. 2011). The ALJ must provide a narrative discussion describing
how the evidence supports his conclusion, explaining how any ambiguities and material
inconsistencies in the evidence were considered and resolved, and, if the assessment
conflicts with a medical source opinion(s), explaining why the ALJ did not adopt the
opinion(s). SSR 96-8p West’s Soc. Sec. Reporting Serv., Rulings 149-50 (Supp. 2011).
An ALJ may not merely form his own lay opinion, and rely upon that opinion in lieu of
seeking record evidence or in lieu of seeking a medical source opinion. McGoffin v.
Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002) (ALJ may not reject physician’s opinion
“due to his or her own credibility judgments, speculation or lay opinion”) (emphasis in
IT IS THEREFORE ORDERED that the Commissioner’s decision is
REVERSED, and that judgment shall be entered pursuant to the fourth sentence of 42
U.S.C. § 405(g) REMANDING the case for further proceedings.
Dated this 14th day of September 2011, at Kansas City, Kansas.
s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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