Doles v. Social Security Administration, Commissioner of

Filing 17

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 8/7/2013. (bmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

RUTH DOLES,
Plaintiff,
vs.

Case No. 12-1257-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.
3

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 21, 2011, administrative law judge (ALJ) Linda

L. Sybrant issued her decision (R. at 13-19).

Plaintiff alleges

that she has been disabled since August 28, 2008 (R. at 13).
Plaintiff is insured for disability insurance benefits through
4

December 31, 2013 (R. at 15).

At step one, the ALJ found that

plaintiff has not engaged in substantial gainful activity since
plaintiff’s alleged onset date (R. at 15).

At step two, the ALJ

found that plaintiff has the following severe impairments:
degenerative disc disease of the cervical spine; weight
disproportionate to height at 5’3” tall with weight ranging
between 218 and 240 pounds; and chronic obstructive pulmonary
disease (R. at 15).

At step three, the ALJ determined that

plaintiff’s impairments do not meet or equal a listed impairment
(R. at 17).

After determining plaintiff’s RFC (R. at 17), the

ALJ determined at step four that plaintiff is able to perform
her past relevant work (R. at 18-19).

Therefore, the ALJ

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

Did the ALJ err by failing to consider the opinions of Dr.

Adams, Dr. Schulman and Dr. Bergmann-Harms regarding plaintiff’s
mental RFC?
On November 15, 2010, Dr. Adams prepared a mental RFC
assessment in which she opined that plaintiff had moderate
impairments in the ability to understand, remember and carry out
detailed instructions; in the ability to maintain attention and
concentration for extended periods; and in the ability to
interact with the general public.

Dr. Adams stated that

plaintiff can complete simple tasks, is limited in working with
the public, but can interact with co-workers and supervisors (R.
5

at 456-458).

This assessment was affirmed by Dr. Schulman on

February 8, 2011 (R. at 489), and by Dr. Bergmann-Harms on June
17, 2011 (R. at 583) (Doc. 16 at 8).

This assessment, which was

adopted by three medical sources, was never mentioned by the
ALJ.

Defendant concedes that this assessment was not discussed

by the ALJ (Doc. 16 at 8-9).

Dr. Adams, in a separate report,

opined that plaintiff’s depression was severe, and indicated
that plaintiff had moderate difficulties in maintaining social
functioning, and moderate difficulties in maintaining
concentration, persistence, or pace (R. at 442-454).

In making

this finding, Dr. Adams referred to the diagnosis by Dr. Jordan,
a consultative examiner, who, on July 22, 2010, diagnosed major
depressive disorder, severe, without psychotic features (R. at
327, 454).

Dr. Adams also noted that Dr. Risk, a treatment

provider, diagnosed plaintiff on August 4, 2010 with major
depressive disorder, severe, with psychosis (R. at 367-374,
454).

This report was also adopted by Dr. Schulman and Dr.

Bergmann-Harms (R. at 489, 583).
An ALJ must evaluate every medical opinion in the record.
Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004).

This

rule was recently described as a “well-known and overarching
requirement.”

Martinez v. Astrue, 2011 WL 1549517 at *4 (10th

Cir. Apr. 26, 2011).

Even on issues reserved to the

Commissioner, including plaintiff’s RFC and the ultimate issue
6

of disability, opinions from any medical source must be
carefully considered and must never be ignored.
Ruling (SSR) 96-5p, 1996 WL 374183 at *2-3.

Social Security

The ALJ “will”

evaluate every medical opinion that they receive, and will
consider a number of factors in deciding the weight to give to
any medical opinion.

20 C.F.R. §§ 404.1527(c), 416.927(c).

is clear legal error to ignore a medical opinion.

It

Victory v.

Barnhart, 121 Fed. Appx. 819, 825 (10th Cir. Feb. 4, 2005).
Furthermore, 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 adjudicator must also 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 adjudicator must explain
why the opinion was not adopted.
1996 WL 374184 at *7.
According to the regulations, 20 C.F.R. § 404.1527(e)(2)(i)
states that ALJ’s must consider findings and opinions of
nonexamining state agency medical and psychological consultants.
Furthermore, 20 C.F.R. § 404.1527(e)(2)(ii) states that unless
the treating source opinion is given controlling weight (which
did not occur in this case), the ALJ “must” explain in the
7

decision the weight given to the opinions of state agency
medical or psychological consultants.

SSR 96-6p reiterates that

ALJs may not ignore the opinions of state agency consultants,
and must explain the weight given to these opinions in their
decisions.

1996 WL 374180 at *1, 2.

Although an ALJ is not required to discuss every piece of
evidence, the ALJ must discuss significantly probative evidence
that he rejects.
(10th Cir. 1996).

Clifton v. Chater, 79 F.3d 1007, 1009-1010
Furthermore, the general principle that the

ALJ is not required to discuss every piece of evidence does not
control when an ALJ has opinion evidence from a medical source.
In such a situation, the ALJ must make clear what weight he gave
to that medical source opinion.

Knight v. Astrue, 388 Fed.

Appx. 768, 771 (10th Cir. July 21, 2010).
The ALJ found that plaintiff did not have any severe mental
impairments, and apparently gave great weight to the testimony
of Dr. Jonas, who testified at the hearing (R. at 29-35).
ALJ stated that Dr. Jonas testified to no more than mild
symptoms (R. at 16).

The ALJ later stated the following:

The medical expert found little evidence to
support a severe mental impairment and
testified that the physical evidence does
not support the claimant’s allegations of
severely limited functional capacity.
(R. at 18).

8

The

The record includes a consultative examination on July 22,
2010 done by Dr. Jordan, who diagnosed major depressive
disorder, recurrent, severe, without psychotic features (R. at
325-327).

Treatment records from July 21, 2011 from Dr.

Carolina state that plaintiff’s diagnosis is major depressive
disorder, recurrent, severe, with psychotic features (R. at
584); this diagnosis was initially made on August 4, 2010 by Dr.
Risk (R. at 367-374).
The record also contains a medical source statement-mental
by Dr. Risk on October 20, 2010 which opines that plaintiff is
markedly limited in 8 categories, and extremely limited in 3
categories (R. at 386-387).

The ALJ, noting that it was

prepared after a couple of treatment sessions, and that it came
without any explanation, gave it no weight (R. at 18).
As the case law clearly indicates, a medical source opinion
cannot be ignored, and it is clear error to ignore a medical
opinion.

In the case before the court, the ALJ rejected the

opinions of a treatment provider regarding plaintiff’s mental
limitations (Dr. Risk).

The record also contains a diagnosis by

a consultative psychologist of major depressive disorder,
recurrent, severe, with psychotic features (Dr. Jordan), and a
diagnosis by treatment providers of major depressive, disorder,
recurrent, severe, without psychotic features (Dr. Risk and Dr.
Carolina).

The state agency assessment adopted by three
9

medical sources relied on these diagnoses in finding that
plaintiff had a severe mental impairment and various limitations
due to that impairment.

However, despite the contrary opinions

of four medical sources, including a treatment provider, the ALJ
apparently gave great weight to the opinions of a non-examining
medical expert who found little evidence to support a severe
mental impairment.

On these facts, the failure to even mention

a report adopted by three medical sources opining that plaintiff
had a severe mental impairment with a number of limitations
cannot be excused.
This case shall therefore be remanded in order for the ALJ
to consider what weight should be accorded to this assessment
adopted by three medical sources, and it should be weighed after
taking into consideration all of the medical opinion evidence,
including the diagnoses by Dr. Jordan, Dr. Risk and Dr.
Carolina, and the medical source statement by Dr. Risk.

The ALJ

shall then make a determination of whether, in light of this
assessment, plaintiff has a severe mental impairment.

The ALJ

shall also make RFC findings that explain what weight, if any,
should be accorded to the opinions contained in the assessment.
IV.

Did the ALJ err in considering plaintiff’s obesity?
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.
10

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

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 this case, the ALJ found that plaintiff’s obesity
(weight disproportionate to height) was a severe impairment (R.
at 15), and her nocturnal hypoxemia is secondary to obesity,
which is reversible with motivation (R. at 18).

The ALJ’s RFC

findings then limited plaintiff to light work with various
postural and environmental limitations (R. at 17).

On the one

hand, the ALJ did not explain in his decision how she reached
her conclusion on whether obesity caused any physical or mental
limitations.

On the other hand, 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
11

findings.

See Arles v. Astrue, 438 Fed. Appx. 735, 740 (10th

Cir. Sept. 28, 2011); Warner v. Astrue, 338 Fed. Appx. 748, 751
(10th Cir. July 16, 2009).

In light of the fact that this case

is being remanded for other reasons, the court will direct the
ALJ to explain how she reached her conclusion on whether obesity
caused any physical or mental limitations, as required by SSR
02-01p.

Furthermore, plaintiff should point to evidence in the

record indicating what limitations are attributable to
plaintiff’s obesity.
V.

Did the ALJ err in his step four analysis?
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 evaluating what weight should be accorded to the state
agency assessment, and making RFC findings that either includes
the limitations contained in the assessment, or that provides a
legally sufficient explanation for not including those
limitations.

See Robinson v. Barnhart, 366 F.3d 1078, 1085

(10th Cir. 2004).
If the ALJ again makes findings at step four, the ALJ shall
make those findings in accordance with the case law and agency
rulings.

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 3) the ability
12

of the individual to return to the past occupation given his or
her residual functional capacity.
of HHS, 13 F.3d 359, 361 (1993).

Henrie v. United States Dep’t
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

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

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.
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
13

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,
1182-1185 (D. Kan. 2008)(Belot, D.J.).

However, when the ALJ

makes proper findings at step five, any error at step four will
be 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).
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 7th day of August, 2013, Topeka, Kansas.

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

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.
14