Simpson v. Social Security Administration, Commissioner of

Filing 30

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 3/13/2013. (bmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MONICA L. SIMPSON,
Plaintiff,
vs.

Case No. 12-1077-SAC

CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,1
Defendant.

MEMORANDUM AND ORDER
This is an action reviewing the final decision of the
Commissioner of Social Security denying the plaintiff disability
insurance benefits and 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

1

Carolyn W. Colvin became Acting Commissioner of Social Security on February 14, 2013, replacing Michael J.
Astrue, the former Commissioner of Social Security.
1

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

Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).

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.
1992).

Graham v. Sullivan, 794 F. Supp. 1045, 1047 (D. Kan.

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).
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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 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.
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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
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

the analysis.
Cir. 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 July 22, 2011, administrative law judge (ALJ) Michael R.

Dayton issued his decision (R. at 9-20).

Plaintiff alleges that

she has been disabled since December 31, 2006 (R. at 9).
Plaintiff is insured for disability insurance benefits through
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March 31, 2008 (R. at 11).

At step one, the ALJ found that

plaintiff has not engaged in substantial gainful activity since
plaintiff’s alleged onset date (R. at 11).

At step two, the ALJ

found that plaintiff had the following severe impairments:

mild

degenerative changes of the lumbar spine, obesity, chronic
bronchitis, left heel spur, history of right ankle fracture,
major depression and personality disorder not otherwise
specified (R. at 11).

At step three, the ALJ determined that

plaintiff’s impairments do not meet or equal a listed impairment
(R. at 12).

After determining plaintiff’s RFC (R. at 14), the

ALJ determined at step four that plaintiff is able to perform
past relevant work as a food clerk, bakery (R. at 18).

In the

alternative, at step five, the ALJ determined that plaintiff
could perform other jobs that exist in significant numbers in
the national economy (R. at 19-20).

Therefore, the ALJ

concluded that plaintiff was not disabled (R. at 20).
III.

Did the ALJ err in his consideration of the medical source

evidence regarding plaintiff’s mental impairments when assessing
plaintiff’s RFC?
On March 22, 2010, Dr. Martha Wike, a licensed
psychologist, prepared a psychological evaluation on the
plaintiff.

Her medical source opinions were as follows:
A) The claimant’s ability to understand and
remember instructions is probably mildly to

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moderately impaired as a result of
depression.
B) The claimant’s ability to sustain
attention and concentration is moderately
impaired as a result of depression.
C) The claimant’s ability to interact with
other people is moderately to markedly
impaired as a result of depression and her
personality disorder.
D) The claimant’s ability to adapt to
changes in her routine or work-like settings
is probably moderately impaired as a result
of depression and probably borderline
intellectual functioning.
(R. at 586-590).

The ALJ gave significant weight to the

opinions of Dr. Wike, except for giving only some weight to her
opinion that plaintiff’s ability to interact with other people
was moderately to markedly impaired (R. at 17).
On April 5, 2000, Dr. Phay prepared a state agency mental
RFC assessment.

Dr. Phay opined that plaintiff was moderately

limited in the following categories:
The ability to maintain attention and
concentration for extended periods.
The ability to perform activities within a
schedule, maintain regular attendance, and
be punctual within customary tolerances.
The ability to complete a normal workday and
workweek without interruptions from
psychologically based symptoms and to
perform at a consistent pace without an
unreasonable number and length of rest
periods.

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The ability to interact appropriately with
the general public.
The ability to accept instructions and
respond appropriately to criticism from
supervisors.
The ability to get along with coworkers or
peers without distracting them or exhibiting
behavioral extremes.
The ability to respond appropriately to
changes in the work setting.
(R. at 606-608).

The ALJ indicated that he gave “significant

weight” to this opinion (R. at 18).
The ALJ’s mental RFC findings were as follows:
The claimant is able to perform simple and
some detailed tasks, maintain concentration
to complete simple and some detailed tasks
and perform activities within a normal
workweek. The claimant also has the ability
to interact with general public, supervisors
and peers in the work place but this is
limited to no more than frequently. The
claimant could appropriately respond to
infrequent changes and hazards in the
workplace.
(R. at 14).

The ALJ explained his findings as follows:

Thus, due to the claimant’s depression and
personality disorder, it is reasonable to
conclude that she is able to perform simple
and some detailed tasks, maintain
concentration to complete simple and some
detailed tasks and perform activities within
a normal workweek. The claimant also has
the ability to interact with general public,
supervisors and peers in the work place but
this is limited to no more than frequently.
The claimant could appropriately respond to
infrequent changes and hazards in the
workplace.
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(R. at 17).
Plaintiff argues that the ALJ did not explain how moderate
limitations in various categories permitted plaintiff to perform
even simple tasks in a competitive job on a full-time basis, and
further argues that a limitation to simple work would not
accommodate various moderate limitations (Doc. 18 at 6-7; Doc.
20 at 6-7).

In the case of Newton v. Chater, 92 F.3d 688, 695

(8th Cir. 1996), the factual situation was as follows:
There is no dispute in the medical evidence
that Newton suffers from deficiencies of
concentration, persistence, or pace, or that
these were not mentioned in the hypothetical
question. Dr. Scott found that Newton had
moderate deficiencies in his ability to
carry out detailed instructions, maintain
attention and concentration for extended
periods, perform activities within a
schedule, maintain regular attendance, be
punctual within customary tolerances,
complete a normal work week, and perform at
a consistent pace without an unreasonable
number and length of rest periods. Dr.
McDonough found that Newton was markedly
limited in his ability to carry out detailed
instructions and moderately limited in his
ability to maintain attention and
concentration for extended periods.
Consistent with these findings, the ALJ
stated on the Psychiatric Review Technique
Form attached to the decision that Newton
“often” has deficiencies of concentration,
persistence, or pace (emphasis added).
The court held that since these deficiencies were not included
in the hypothetical question to the vocational expert, the
expert did not base his opinion on the full extent of the
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claimant’s limitations, and his testimony could not have
constituted substantial evidence to support the Commissioner’s
decision.

Id.

The court went on to state the following:

The Commissioner contends that these
deficiencies did not have to be included in
the hypothetical question because the
question limited Newton's capabilities to
simple jobs. She notes that Drs. Scott and
McDonough concluded that Newton's
concentration problems did not significantly
limit his abilities to follow short and
simple instructions and make simple workrelated decisions, and that Dr. Domingo
determined Newton could maintain
concentration for simple work.
The vocational expert stated on crossexamination, however, that Newton's
concentration and persistence problems
related to basic work habits needed to
maintain employment. A moderate deficiency
in these areas, the expert testified, would
cause problems on an ongoing daily basis,
“regardless of ... what the job required
from a physical or skill standpoint.” The
expert's original response to the
hypothetical question may thus have been
different if the question had already
described all of Newton's functional
limitations. See Smith, 31 F.3d at 717. Any
hypothetical question on remand should
include Newton's deficiencies of
concentration, persistence, or pace so that
the vocational expert might accurately
determine his ability to work.
Newton, 92 F.3d at 695.
In the case before the court, the vocational expert (VE)
testified that the moderate limitations included in the mental
assessment by Dr. Phay could, depending on the definition of

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moderately limited, preclude all work (R. at 61-62).

Therefore,

as in Newton, the ALJ erred by not including in his RFC findings
all of the moderate limitations set forth by Dr. Phay and Dr.
Wike; a limitation to simple and some detailed tasks does not
sufficiently incorporate those moderate limitations.

This case

shall therefore be remanded in order for plaintiff’s RFC to
either include the specific moderate limitations included in the
reports of these two medical sources, or provide a legally
sufficient explanation for not including those limitations, and
determine the impact of those moderate limitations on
plaintiff’s ability to work.
IV.

Did the ALJ err at step two in finding that plaintiff’s

sciatica was not medically determinable?
At step two, the ALJ found that sciatica was not a
medically determinable impairment, noting that there was no
evidence from an acceptable medical source to establish the
existence of sciatica as an impairment; the ALJ further noted
that a physical examination on January 19, 2010 showed chronic
back pain without radiculitis, which contradicts a finding of
sciatica.

The ALJ also noted that there are no nerve conduction

studies or imaging studies in the file to confirm this diagnosis
(R. at 12).
An impairment “must result from anatomical, physiological,
or psychological abnormalities which can be shown by medically
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acceptable clinical and laboratory diagnostic techniques,” and
“must be established by medical evidence consisting of signs,
symptoms, and laboratory findings, not only by [plaintiff’s]
statement of symptoms.

20 C.F.R. §§ 404.1508, 416.908.

Evidence to establish a medically determinable impairment must
come from “acceptable medical sources.”

20 C.F.R. §§

404.1513(a), 416.913(a).
Medical records indicate that plaintiff was diagnosed with
sciatica on numerous occasions (R. at 362, 365, 374, 400, 474476, 542, 625).

Therefore, on remand, the ALJ shall evaluate

these and other medical records, make a determination whether
these records establish a medically determinable impairment, and
if so, determine its impact, if any, on plaintiff’s ability to
work.
V.

Did the ALJ err in evaluating plaintiff’s credibility?
Plaintiff also asserts error by the ALJ in his credibility

findings.

The court will not discuss this issue in detail

because it may be affected by the ALJ’s resolution of the case
on remand after giving further consideration to the medical
source opinion evidence regarding plaintiff’s mental impairments
and limitations, as set forth above.

See Robinson v. Barnhart,

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

However, the court will

briefly address one issue raised by plaintiff in her brief.

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In his decision, the ALJ stated that plaintiff has not
received the type of medical treatment one would expect for an
individual with disabling pain (R. at 16).

In the case of

Morgan v. Astrue, Case No. 08-1392-JTM (April 29, 2010; Doc. 16
at 16-17), the court faced the same issue as is before the court
in this case.

The court held:

...the ALJ also relied on the fact that
plaintiff had not had surgery or inpatient
hospitalization, and had not been referred
to physical therapy, when considering the
medical evidence relating to plaintiff’s
RFC, including the opinions of Dr.
Gillenwater (R. at 26; Doc. 13 at 7).
However, the ALJ did not cite to any
evidence regarding the relevance or
significance, if any, of the fact that
plaintiff had not had surgery, inpatient
hospitalization, or physical therapy. In
the case of Hamlin v. Barnhart, 365 F.3d
1208, 1221 (10th Cir. 2004), the ALJ noted
that the claimant did not require an
assistive device for his neck. The court
held that there is no evidence that any
physician recommended such a device or
suggested that one would have provided any
pain relief. The court stated that an ALJ
is not free to substitute his own medical
opinion for that of a disability claimant’s
treating doctors. As noted above, 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 the absence of any medical evidence
indicating the relevance or significance of
the fact that plaintiff did not receive
certain treatments, the ALJ is in no
position to render a medical judgment
regarding the relevance or significance of
the fact that plaintiff did not receive
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certain treatments. Park v. Astrue, Case
No. 07-1382-MLB, 2008 WL 4186871 at *5 (D.
Kan. Sept. 9, 2008, Doc. 17 at 11-12); see
Newman v. Astrue, Case No. 08-1391-JTM (D.
Kan. Feb. 2, 2010; Doc. 18 at 10-12)(ALJ
erred by failing to cite to any medical
evidence to support his assertion that
plaintiff had not received the type of
treatment one would expect for a totally
disabled individual); Burton v. Barnhart,
Case No. 06-1051-JTM (D. Kan. Nov. 1, 2006;
Doc. 12 at 15)(ALJ erred by relying on the
lack of certain types of treatment in the
absence of any evidence that such treatment
was recommended, would have lessened the
claimant’s limitations, or provided pain
relief); Mazza v. Barnhart, Case No. 061018-JTM (D. Kan. Oct. 25, 2006; Doc. 13 at
20)(same). For this reason, the ALJ erred
by relying on the absence of surgery,
hospitalization, or physical therapy without
any medical evidence regarding the relevance
or significance of the lack of such
treatment.

(emphasis added); quoted with approval in Eckert v. Astrue, Case
No. 12-2142-SAC (D. Kan. Feb. 7, 2013; Doc. 16 at 9-11)(ALJ had
asserted that plaintiff not received the type of treatment one
would expect for a totally disabled individual); Dannels v.
Astrue, Case No. 10-1416-SAC (D. Kan. Dec. 20, 2011; Doc. 19 at
9-11)(wherein the ALJ had stated that the claimant had not
generally received the type of medical treatment one would
expect for a totally disabled individual).
As in the above cases, the ALJ asserted that the plaintiff
had not received the type of medical treatment one would expect
for a person with disabling pain.
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However, the ALJ cited to no

evidence or medical authority in support of these assertions,
and did not cite to any statute, regulation or ruling in support
of these assertions.

For the reasons set forth above, the ALJ

clearly erred by relying on relying on this unsupported
assertion as a basis for discounting plaintiff’s credibility.
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 March, 2013, Topeka, Kansas.

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

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