Lodwick v. Social Security Administration, Commissioner of

Filing 19

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 12/13/2011. (bmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
FREDRICK GARY LODWICK,
Plaintiff,
vs.

Case No. 10-1394-SAC

MICHAEL J. ASTRUE,
Commissioner of
Social Security,
Defendant.
MEMORANDUM AND ORDER
This is an action reviewing the final decision of the
Commissioner of Social Security denying the plaintiff disability
insurance benefits.

The matter has been fully briefed by the

parties.
I.

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

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

The court should review the Commissioner's decision

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

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

Substantial evidence requires more than a

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

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conclusion.

The determination of whether substantial evidence

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

Ray

Although the court

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

Nor will the findings be

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

The

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

Glenn, 21 F.3d at 984.

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

The claimant's physical or mental

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

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

42 U.S.C. § 423(d).

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

If at any step a

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

At step one, the

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

At

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

At step three, the agency

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

If the claimant’s impairment does

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

If the claimant survives step four, the fifth

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

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jobs existing in significant numbers in the national economy.
Barnhart v. Thomas, 124 S. Ct. 376, 379-380 (2003).
The claimant bears the burden of proof through step four of
Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir.

the analysis.
1993).

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 4, 2009, administrative law judge (ALJ) Michael R.
Dayton issued his decision (R. at 12-19).

Plaintiff alleges that

he has been disabled since April 21, 2006 (R. at 12).

Plaintiff

is insured for disability insurance benefits through December 31,
2011 (R. at 14).

At step one, the ALJ found that plaintiff has

not engaged in substantial gainful activity since April 21, 2006
(R. at 14).

At step two, the ALJ found that plaintiff had the

following severe impairments: degenerative changes in the

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cervical and lumbar spine, history of Bell’s palsy with reduced
vision and double vision in the right eye, migraine headaches and
diabetes (R. at 14).

At step three, the ALJ determined that

plaintiff’s impairments do not meet or equal a listed impairment
(R. at 14).

After determining plaintiff’s RFC (R. at 15), the

ALJ determined at step four that plaintiff was unable to perform
past relevant work (R. at 17-18).

At step five, the ALJ

determined that jobs exist in significant numbers in the national
economy that plaintiff could perform (R. at 18-19).

Therefore,

the ALJ concluded that plaintiff was not disabled (R. at 19).
III.

Did the ALJ err in his RFC findings by giving substantial

weight to the opinions of Dr. Estivo and Dr. Murati, but, without
explanation, including only some of the limitations set forth by
Dr. Murati in his report?
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” (emphasis added).
WL 374184 at *7.

SSR 96-8p, 1996

SSR rulings are binding on an ALJ.
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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, 1120 (10th Cir. 1993).
The ALJ made the following RFC findings:
After careful consideration of the entire
record, the undersigned finds that the
claimant has the residual functional capacity
to perform less than the full range of light
work as defined in 20 CFR 404.1567(b), that
requires lifting up to 20 pounds occasionally
and lifting/carrying up to 10 pounds
frequently; standing or walking at least 6
hours in an 8 hour workday with normal breaks
and sitting 6 hours in an 8 hour workday with
normal breaks. Pushing and/or pulling are
limited to 20 pounds occasionally and up to
10 pounds frequently. The claimant could not
perform work requiring climbing on ropes,
ladders or scaffolds or over the shoulder
work. In addition, the claimant should avoid
moderate exposure to heights and hazards.
(R. at 15).1

In support of his RFC findings, the ALJ stated the

following:
Due to the claimant's cervical and lumbar
pain, it is reasonable to conclude that the
claimant is limited to lifting up to 20
pounds occasionally and lifting/carrying up
to 10 pounds frequently and the same
restrictions for pushing and/or pulling. For
the same reasons, the evidence supports a
finding that the claimant could not perform
work requiring climbing on ropes, ladders or
scaffolds or over the shoulder work. Although
the claimant testified to restricted standing
and sitting, no doctor has imposed limits in
performing these functions. Thus, the
objective evidence supports a finding that
1

The ALJ also included a limitation of no crawling in his
hypothetical question to the vocational expert (R. at 39-40).
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the claimant could stand, walk or sit 6 hours
in an 8 hour workday with normal breaks. In
addition, it is reasonable to conclude that
the claimant should avoid moderate exposure
to heights and hazards due to his vision
problems.
As for the opinion evidence, substantial
weight is given to the opinions of Dr. Estivo
(Exhibit 8F/4) and Dr. Murati (Exhibit 12F)
as they are well supported and consistent
with the longitudinal record.
(R. at 17, emphasis added).
Dr. Estivo, a treating physician, stated in medical records
on June 21, 2007 that plaintiff should have a permanent
restriction of limited overhead work (no more than 1/3 of a full
work day). Dr. Estivo did not believe that plaintiff required
further restrictions (R. at 235).

Dr. Murati performed an

independent medical examination dated October 23, 2007 (R. at
274-278).

He opined that plaintiff should not climb ladders,

crawl, or perform work on the right above shoulder level.

He

limited plaintiff to carrying/lifting/pushing/pulling no more
than 35 pounds occasionally and 20 pounds frequently.

Finally,

Dr. Murati also stated that plaintiff should do no work more than
24 inches from the body on his right side, and should also avoid
awkward positions of the neck (R. at 278).
As noted above, the ALJ gave “substantial” weight to the
opinions of Dr. Estivo and Dr. Murati.

The ALJ stated that he

found that their opinions were well supported and consistent with

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the longitudinal record.

The ALJ expanded on the restriction set

forth by Dr. Estivo by not permitting any over the shoulder work,
and also included many of the restrictions set forth by Dr.
Murati, and even included some restrictions more severe than
those set forth by Dr. Murati (e.g., the ALJ imposed greater
lifting and carrying limits than those opined by Dr. Murati).
However, the ALJ did not mention, and, without explanation, did
not include the restrictions set forth by Dr. Murati that
plaintiff should do no work more than 24 inches from the right
side of the body and should avoid awkward positions of the neck.
As noted above, SSR 96-8p requires that if the RFC
assessment conflicts with an opinion from a medical source, the
ALJ must explain why the opinion was not adopted.

In the case of

Brown v. Commissioner of Social Security Administration, 245 F.
Supp.2d 1175, 1186-1187 (D. Kan. 2003), the ALJ purported to base
his RFC findings on a state agency medical assessment.

However,

the ALJ’s findings were not consistent with many items reflected
in the assessment.

The court noted that the ALJ never explained

why he made findings inconsistent with the assessment, nor did he
even acknowledge that he was rejecting portions of the
assessment.

The ALJ failed to explain how inconsistencies in the

evidence were considered and resolved.

The court therefore held

that the ALJ failed to comply with SSR 96-8p.
In Moore v. Astrue, Case No. 10-1242-SAC (D. Kan. May 18,

8

2011, Doc. 16 at 7-10)), the ALJ, despite “agreeing” with the
opinions of Dr. Cohen, did not include in his RFC findings all of
the limitations set forth by Dr. Cohen in his mental RFC
assessment, or, in the alternative, did not provide an
explanation for not including those limitations in his RFC
findings.

The court, citing to Brown, held that, despite relying

on the opinions of Dr. Cohen when formulating his RFC findings,
the ALJ failed to comply with SSR 96-8p because his RFC findings
were not fully consistent with or rejected portions of Dr.
Cohen’s RFC assessment, and no explanation was provided for
failing to include all of his limitations.

Similarly, in Hicks

v. Astrue, Case No. 10-1046-SAC (March 24, 2011, Doc. 27 at 610), the ALJ gave “substantial weight” to the opinions of Dr.
Siemsen; however, the ALJ failed to include in his RFC findings a
manipulative limitation included in Dr. Siemsen’s report, and
offered no explanation for not including this limitation in his
RFC findings.

Again, the court, citing to Brown, held that,

despite relying on the opinions of Dr. Siemsen when formulating
his RFC findings, the ALJ failed to comply with SSR 96-8p because
his RFC findings were not fully consistent with or rejected
portions of Dr. Siemsen’s RFC assessment, and no explanation was
provided for failing to include all of his limitations.

See also

Cowan v. Astrue, Case No. 09-1154-WEB (D. Kan. May 27, 2010, Doc.
19 at 7-10)(the court reversed the decision of the Commissioner

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because, despite indicating that he made RFC findings
“consistent” with the state agency physicians, the ALJ, without
explanation, did not include some of the limitations from the
state agency physician’s report in his RFC findings); Balderes v.
Astrue, Case No. 08-1378-WEB (D. Kan. Nov. 10, 2009, Doc. 24 at
7-11)(the court reversed the decision of the Commissioner because
the ALJ, despite “adopting” the opinions of Dr. Adams, failed to
provide any explanation for not including in his RFC findings
some of the limitations in the report of Dr. Adams); Baker v.
Astrue, Case No. 08-1382-MLB (D. Kan. Oct. 9, 2009, Doc. 17 at 712)(the court reversed the decision of the Commissioner because
the ALJ, despite giving great or substantial weight to the
opinions of Dr. Whitten and Dr. Mintz, failed to provide any
explanation for not including in his RFC findings some of the
limitations in their reports); Valdez v. Astrue, Case No. 081260-MLB (D. Kan. Aug. 19, 2009, Doc. 12 at 13-17)(the court
reversed the decision of the Commissioner because the ALJ,
despite giving substantial weight to the opinions of Dr. Stern,
failed to provide any explanation for not including some of Dr.
Stern’s limitations in his RFC findings, in violation of SSR 968p); Smith v. Astrue, Case No. 08-1052-MLB (D. Kan. June 4, 2009,
Doc. 20 at 7-13)(the court reversed the decision of the
Commissioner because the ALJ, despite “adopting” two medical
assessment opinions, made RFC findings which did not match either

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assessment; the court held that the ALJ violated SSR 96-8p
because the ALJ’s RFC assessment conflicted with medical source
opinions that he had purportedly adopted, and the ALJ failed to
explain why he did not include in his RFC findings all of the
restrictions contained in those medical assessments); McLeland v.
Astrue, Case No. 07-1233-MLB (D. Kan. Feb. 11, 2009, Doc. 26 at
13-16)(ALJ offered no explanation for not including in RFC
findings a moderate limitation from a medical source accorded
“substantial” weight by the ALJ; court held the ALJ failed to
comply with SSR 96-8p because the ALJ failed to explain why the
limitation was not included in the RFC findings).
In the case before the court (Lodwick), as in the many cases
cited above, the ALJ asserts that he gave “substantial” weight to
the opinions of Dr. Estivo and Dr. Murati.

The ALJ further

stated that their opinions were “well supported and consistent
with the longitudinal record” (R. at 17).

However, without

explanation, the ALJ did not include some of the limitations
contained in Dr. Murati’s report.

This clearly violates SSR 96-

8p, which requires that if the RFC assessment conflicts with an
opinion from a medical source, the ALJ must explain why the
opinion was not adopted.

In the absence of any evidence on this

issue, the court cannot speculate on the impact, if any, of these
additional limitations on plaintiff’s ability to work.

For this

reason, the case must be remanded in order for the ALJ to

11

consider these limitations by Dr. Murati, and either include them
in his RFC findings, or provide a reasonable explanation for not
including them in his RFC findings.

Upon remand, the ALJ shall

make RFC findings that fully comply with the requirements of SSR
96-8p.
Defendant’s brief tries to set forth rationales which might
explain why the ALJ did not include some of the limitations in
Dr. Murati’s report (Doc. 17 at 14-16).
rationales were in the ALJ decision.

However, none of these

The ALJ decision failed to

even mention the limitations of Dr. Murati that were not
included; furthermore, the ALJ offered no explanation for not
including those limitations in his RFC findings.

An ALJ’s

decision should be evaluated based solely on the reasons stated
in the decision.
Cir. 2004).

Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th

A decision cannot be affirmed on the basis of

appellate counsel’s post hoc rationalizations for agency action.
Knipe v. Heckler, 755 F.2d 141, 149 n.16 (10th Cir. 1985).

A

reviewing court may not create post hoc rationalizations to
explain the Commissioner’s treatment of evidence when that
treatment is not apparent from the Commissioner’s decision.
Grogan v. Barnhart, 399 F.3d 1257, 1263 (10th Cir. 2005).

By

considering legal or evidentiary matters not considered by the
ALJ, a court risks violating the general rule against post hoc
justification of administrative action.

12

Allen v. Barnhart, 357

F.3d 1140, 1145 (10th Cir. 2004).

The ALJ clearly erred by

failing to provide any explanation for not including all of the
limitations in Dr. Murati’s report in his RFC findings.

For this

reason, the rationales offered for the first time by defendant in
their brief will not be considered by the court.
IV.

Did the ALJ err by failing to consider all the evidence when

making his RFC findings?
Plaintiff asserts that the ALJ erred by failing to mention
certain evidence before making his RFC findings (Doc. 14 at 4-7).
Although the record must demonstrate that the ALJ considered all
of the evidence, an ALJ is not required to discuss every piece of
evidence.

Rather, in addition to discussing the evidence

supporting his decision, the ALJ also must discuss the
uncontroverted evidence he chooses not to rely upon, as well as
significantly probative evidence that he rejects.

Clifton v.

Chater, 70 F.3d 1007, 1009-1010 (10th Cir. 1996); see Carpenter
v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008).

The court must

make sure that the ALJ gave the relevant evidence due
consideration.

Andersen v. Astrue, 319 Fed. Appx. 712, 721 (10th

Cir. Apr. 3, 2009).

The court finds no clear error by the ALJ

simply because he failed to mention each piece of evidence cited
by plaintiff in his brief.

In making his RFC findings, the ALJ

indicated he gave substantial weight to the medical opinions of
Dr. Estivo and Dr. Murati.

The ALJ’s error, as noted above, was
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to fail to include, without any explanation, some of the
limitations contained in Dr. Murati’s report.
V.

Did the ALJ err in his credibility analysis?
Credibility determinations are peculiarly the province of

the finder of fact, and a court will not upset such
determinations when supported by substantial evidence.

However,

findings as to credibility should be closely and affirmatively
linked to substantial evidence and not just a conclusion in the
guise of findings.
1995).

Kepler v. Chater, 68 F.3d 387, 391 (10th Cir.

Furthermore, the ALJ cannot ignore evidence favorable to

the plaintiff.

Owen v. Chater, 913 F. Supp. 1413, 1420 (D. Kan.

1995).
When analyzing evidence of pain, the court does not require
a formalistic factor-by-factor recitation of the evidence.

So

long as the ALJ sets forth the specific evidence he relies on in
evaluating the claimant’s credibility, the ALJ will be deemed to
have satisfied the requirements set forth in Kepler.

White v.

Barnhart, 287 F.3d 903, 909 (10th Cir. 2002); Qualls v. Apfel,
206 F.3d 1368, 1372 (10th Cir. 2000).

Furthermore, the ALJ need

not discuss every relevant factor in evaluating pain testimony.
Bates v. Barnhart, 222 F. Supp.2d 1252, 1260 (D. Kan. 2002).

An

ALJ must therefore explain and support with substantial evidence
which part(s) of claimant’s testimony he did not believe and why.
McGoffin v. Barnhart, 288 F.3d 1248, 1254 (10th Cir. 2002).
14

It

is error for the ALJ to use standard boilerplate language which
fails to set forth the specific evidence the ALJ considered in
determining that a claimant’s complaints were not credible.
Hardman v. Barnhart, 362 F.3d 676, 679 (10th Cir. 2004).

On the

other hand, an ALJ’s credibility determination which does not
rest on mere boilerplate language, but which is linked to
specific findings of fact fairly derived from the record, will be
affirmed by the court.

White, 287 F.3d at 909-910.

The court will not reweigh the evidence or substitute its
judgment for that of the Commissioner.

Hackett v. Barnhart, 395

F.3d 1168, 1173 (10th Cir. 2005); White v. Barnhart, 287 F.3d
903, 905, 908, 909 (10th Cir. 2002).

Although the court will not

reweigh the evidence, the conclusions reached by the ALJ must be
reasonable and consistent with the evidence.

See Glenn v.

Shalala, 21 F.3d 983, 988 (10th Cir. 1994)(the court must affirm
if, considering the evidence as a whole, there is sufficient
evidence which a reasonable mind might accept as adequate to
support a conclusion).
of the evidence.

The court can only review the sufficiency

Although the evidence may support a contrary

finding, the court cannot displace the agency’s choice between
two fairly conflicting views, even though the court may have
justifiably made a different choice had the matter been before it
de novo.

Oldham v. Astrue, 509 F.3d 1254, 1257-1258 (10th Cir.

2007).

15

On remand, the ALJ will need to make new credibility
findings after considering the limitations in Dr. Murati’s report
which were not mentioned by the ALJ or included in the RFC
findings.

However, the court finds no clear error by the ALJ in

his credibility analysis as set forth in the first full paragraph
at R. at 17.
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 13th day of December 2011, Topeka, Kansas.

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

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