Werth v. Social Security Administration, Commissioner of

Filing 17

MEMORANDUM AND ORDER. The judgment of the Commissioner is affirmed pursuant to sentence four of 42 U.S.C. § 405(g). See attached for more details. Entered by U.S. District Senior Judge Sam A. Crow on 7/17/2013. (bmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

SANDRA WERTH,
Plaintiff,
vs.

Case No. 12-1201-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.

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).
2

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 November 18, 2010, administrative law judge (ALJ)

Michael A. Lehr issued his decision (R. at 12-23).

Plaintiff

alleges that she has been disabled since July 29, 2008 (R. at
12).

Plaintiff is insured for disability insurance benefits
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through December 31, 2013 (R. at 14).

At step one, the ALJ

found that plaintiff has not engaged in substantial gainful
activity since plaintiff’s alleged onset date (R. at 14).

At

step two, the ALJ found that plaintiff has the following severe
impairments: multiple sclerosis, degenerative disc disease of
the lumbar spine, obesity, and a history of left rotator cuff
tear (R. at 14).

At step three, the ALJ determined that

plaintiff’s impairments do not meet or equal a listed impairment
(R. at 15).

After determining plaintiff’s RFC (R. at 16), the

ALJ determined at step four that plaintiff is unable to perform
his past relevant work (R. at 21).

At step five, the ALJ

determined that plaintiff could perform other jobs that exist in
significant numbers in the national economy (R. at 22).
Therefore, the ALJ concluded that plaintiff was not disabled (R.
at 22-23).
III.

Did the ALJ make a RFC determination in accordance with

SSR 96-8p?
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.
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If the RFC

assessment conflicts with an opinion from a medical source, the
ALJ must explain why the opinion was not adopted.
1996 WL 374184 at *7.

SSR 96-8p,

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, 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.
6

Brown v. Commissioner of the Social Security Administration, 245
F. Supp.2d 1175, 1187 (D. Kan. 2003).
The ALJ made the following RFC findings:
…claimant has the residual functional
capacity to perform a range of light work…in
that she can lift 25 pounds occasionally and
frequently; can stand and/or walk about 4
hours out of an 8 hour workday for no more
than one hour at a time; can sit for about 4
hours out of an 8 hour workday for no more
than one hour at a time; and push and/or
pull the same weights; can only occasionally
stoop and kneel; can never crouch or crawl;
and must avoid concentrated exposure to
temperature extremes, weather, wetness and
humidity, dust and fumes, vibration, and
workplace hazards such as dangerous moving
machinery and unprotected heights.
(R. at 16).
The record includes a physical RFC assessment by Dr.
Mallonee, plaintiff’s treating physician (R. at 335-336).

The

ALJ gave controlling weight to the opinions of Dr. Mallonee,
except for one limitation.

The ALJ did not include in his RFC

findings the opinion of Dr. Mallonee that plaintiff could only
stand and/or walk for 3 hours out of an 8 hour workday; the ALJ
found that plaintiff could stand and/or walk for 4 hours in an 8
hour workday (R. at 20).

The ALJ did not give controlling

weight to this opinion for the following reasons:
Dr. Mallonee’s conclusion regarding the
claimant’s ability to stand and walk is not
given controlling weight because it is
inconsistent with the longitudinal record
and the claimant’s reported activities of
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daily living. The undersigned notes that
the claimant has indicated sitting causes
her more difficulty than standing or
walking; however, Dr. Mallonee reported her
standing and walking was more limited tha[n]
her ability to sit (Exhibit 4E). In
addition, as discussed above, the claimant
is able to walk up to a mile at one time,
has reported needing only brief rest periods
after walking, and according to Dr.
Mallonee, is able to stand and/or walk for
up to one hour without rest. These
abilities indicate the claimant’s ability to
stand and/or walk is no more limited than
her ability to sit…the evidence suggests her
ability to stand and/or walk is
approximately the same, or better than, her
ability to sit.
(R. at 20).
Plaintiff testified that she takes 4 to 8 hours, including
breaks, to mow the yard with a push mower.

She stated that she

is able to mow for 45 minutes to 1 hour before needing to take a
break (R. at 40-41).

She also stated in a report that she shops

once a week (in stores and by mail), stating that she shops for
1 to 1 ½ hours (R. at 173).

She indicated she can walk up to

one mile a day (R. at 50), and that it takes her an hour to walk
a mile; plaintiff further testified that she did not think she
could sit for an hour (R. at 55).
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).

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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).
The ALJ did not accept the opinion of Dr. Mallonee that
plaintiff was limited to standing and/or walking for 3 hours in
an 8 hour workday, relying on plaintiff’s activities of daily
living.

The ALJ found that plaintiff’s ability to stand/walk is

no more limited than her ability to sit; in fact, the ALJ stated
that the evidence suggested that her ability to stand/walk is
approximately the same, or better than, her ability to sit.
Plaintiff testified that she could push a mower for 4-8 hours,
with little breaks, and could mow for up to 1 hour at a time
before needing a break.

While plaintiff said she could walk for

1 hour, she further indicated that she did not think she could
sit for that long.

The court finds that substantial evidence in

the record supports the finding of the ALJ not to adopt the
opinion of Dr. Mallonee that plaintiff can only stand/walk for 3
hours in an 8 hour workday.
The ALJ also accorded only some weight to the opinion of
Dr. Daily, who had indicated in February 2009 that plaintiff
perform light work on a ½ time basis for 4 weeks, and further
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indicated in March 2009 that plaintiff could perform regular
work ½ time (R. at 280, 432).

Plaintiff alleges that the ALJ

improperly discounted these opinions by Dr. Daily.

However, Dr.

Daily indicated in May 2009 that plaintiff would not qualify for
disability (R. at 254, 431).

Furthermore, neither Dr. Mallonee

nor Dr. Siemsen had limited plaintiff to working only ½ a day.
Dr. Mallonee had indicated that plaintiff could sit and
stand/walk for 7 hours in an 8 hour workday, and Dr. Siemsen had
opined that plaintiff could sit and stand/walk for 8 hours in an
8 hour workday (R. at 325-333).

Plaintiff had testified that

she could cut the grass with a push mower in 4-8 hours, stopping
and resting for a little bit, and could cut the grass for up to
an hour before taking a break (R. at 40-41).

Substantial

evidence supported the ALJ’s decision to only give some weight
to the opinions of Dr. Daily.
Finally, plaintiff argues that the ALJ failed to consider
plaintiff’s obesity in making his RFC findings.

SSR 02-1p is a

social security ruling governing the evaluation of obesity.

It

states that, when assessing RFC, obesity may cause limitations
of various functions, including exertional, postural and social
functions.

Therefore, an assessment should also be made of the

effect obesity has upon the claimant’s ability to perform
routine movement and necessary physical activity within the work
environment.

Obesity may also affect the claimant’s ability to
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sustain a function over time.

In cases involving obesity,

fatigue may affect the individual’s physical and mental ability
to sustain work activity.

2002 WL 32255132 at *7.

The

discussion in the SSR on obesity and RFC concludes by stating
that: “As with any other impairment, we will explain how we
reached our conclusions on whether obesity caused any physical
or mental limitations.” 2002 WL 32255132 at *8.
In his decision, the ALJ found obesity to be a severe
impairment, and cited to SSR 02-01p when discussing whether
plaintiff’s impairments met or equaled a listed impairment,
providing a detailed explanation for his finding that
plaintiff’s impairments, after considering plaintiff’s obesity,
did not meet or equal a listed impairment (R. at 15-16).

The

ALJ also discussed plaintiff’s obesity, including her weight and
body mass index (BMI), when discussing plaintiff’s RFC findings,
and stated that obesity was a factor in limiting plaintiff to
light work (R. at 19).
Furthermore, plaintiff has failed to point to any evidence
in the record indicating that plaintiff’s obesity resulted in
limitations not included in the ALJ’s RFC findings.

In the case

of Arles v. Astrue, 438 Fed. Appx. 735, 740 (10th Cir. Sept. 28,
2011), the ALJ specifically stated that plaintiff’s obesity was
evaluated under the criteria set forth in SSR 02-1p, and that
the court’s practice was to take a lower tribunal at its word
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when it declares that it has considered a matter [citing to
Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005].
Moreover, the court noted that the claimant did not discuss or
cite to any evidence showing that obesity further limited his
ability to perform a restricted range of sedentary work.

The

court held that the ALJ’s decision provided an adequate
explanation of the effect of obesity on plaintiff’s RFC.
In the case of Warner v. Astrue, 338 Fed. Appx. 748, 751
(10th Cir. July 16, 2009), the ALJ found that the claimant’s body
mass index placed her in the obese range and concluded that she
had significant restrictions in her abilities to perform work
related activities, in part, as a result of her obesity.

The

ALJ followed this statement with a detailed discussion of the
claimant’s orthopedic, muscular, rheumatic, and joint issues,
coronary artery disease, and pain.

The ALJ made RFC findings

consistent with the assessment of the medical consultant.

The

court held that the ALJ decision adequately discussed the effect
of obesity on the claimant’s other severe impairments.
In the case before the court, the ALJ found that plaintiff
was obese, and set forth his BMI.

The ALJ indicated that

plaintiff’s obesity, in combination with other impairments,
limited him to light work with other limitations.

Finally,

plaintiff failed to cite to any medical or other evidence
showing that obesity resulted in limitations not contained in
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the ALJ’s RFC findings.

Therefore, the court finds no error by

the ALJ in his consideration of plaintiff’s obesity.
In summary, the court finds that the ALJ’s RFC assessment
included a narrative discussion describing how the evidence
supported each conclusion, and cited to specific medical facts
and nonmedical evidence.

The ALJ explained how material

inconsistencies in the evidence in the case record were
considered and resolved.

When an ALJ finding conflicted with a

medical opinion, the ALJ explained why the opinion was not
adopted, and substantial evidence supported that explanation.
Therefore, the court finds that the ALJ’s RFC findings were in
accordance with the requirements of SSR 96-8p.
IT IS THEREFORE ORDERED that the judgment of the
Commissioner is affirmed pursuant to sentence four of 42 U.S.C.
§ 405(g).
Dated this 17th day of July 2013, Topeka, Kansas.

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

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