Heppler 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 8/28/2013. (bmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JAMES LEROY HEPPLER, JR.,
Plaintiff,
vs.

Case No. 12-1267-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).
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 March 25, 2011, administrative law judge (ALJ) James

Harty issued his decision (R. at 20-28).

Plaintiff alleges that

he has been disabled since January 12, 2009 (R. at 20).
Plaintiff is insured for disability insurance benefits through
4

September 30, 2012 (R. at 22).

At step one, the ALJ found that

plaintiff has not engaged in substantial gainful activity since
plaintiff’s alleged onset date (R. at 22).

At step two, the ALJ

found that plaintiff has the following severe impairments:
schizoaffective disorder and panic disorder without agoraphobia
(R. at 22).

At step three, the ALJ determined that plaintiff’s

impairments do not meet or equal a listed impairment (R. at 23).
After determining plaintiff’s RFC (R. at 24), the ALJ determined
at step four that plaintiff is unable to perform his past
relevant work (R. at 26).

At step five, the ALJ found that

plaintiff could perform jobs that exist in significant numbers
in the national economy (R. at 27-28).

Therefore, the ALJ

concluded that plaintiff was not disabled (R. at 28).
III.

Did the ALJ err in his consideration of plaintiff’s daily

activities?
In his decision, the ALJ made the following finding when
evaluating plaintiff’s credibility:
The claimant’s self-reported activities of
daily living are inconsistent with
allegations of totally debilitating
symptomatology. The claimant reported his
activities include watching television and
performing household chores. He could
obtain a driver’s license if he wanted one.
He is able to pay bills and count change.
While he testified that he did not like to
leave the house, he also claimed that he
liked to take walks twice each day and in
the adult function report he stated that he
was able to go shopping.
5

(R. at 25).
According to the regulations, activities such as taking
care of yourself, household tasks, hobbies, therapy, school
attendance, club activities or social programs are generally not
considered to constitute substantial gainful activity.
C.F.R. § 404.1572(c) (2013 at 399).

20

Furthermore, although the

nature of daily activities is one of many factors to be
considered by the ALJ when determining the credibility of
testimony regarding pain or limitations, Thompson v. Sullivan,
987 F.2d 1482, 1489 (10th Cir. 1993), the ALJ must keep in mind
that the sporadic performance of household tasks or work does
not establish that a person is capable of engaging in
substantial gainful activity.

Krauser v. Astrue, 638 F.3d 1324,

1332-1333 (10th Cir. 2011); Thompson, 987 F.2d at 1490.
In the case of Draper v. Barnhart, 425 F.3d 1127, 1130-1131
(8th Cir. 2005), the ALJ noted that the claimant engaged in
household chores, including laundry, grocery shopping, mowing,
cooking, mopping and sweeping.

The ALJ concluded that

claimant’s allegations of disabling pain were inconsistent with
her reports of her normal daily activities and were therefore
not deemed credible.

The court found that substantial evidence

did not support this conclusion, holding as follows:
The fact that Draper tries to maintain her
home and does her best to engage in ordinary
6

life activities is not inconsistent with her
complaints of pain, and in no way directs a
finding that she is able to engage in light
work. As we said in McCoy v. Schweiker, 683
F.2d 1138, 1147 (8th Cir.1982) (en banc),
the test is whether the claimant has “the
ability to perform the requisite physical
acts day in and day out, in the sometimes
competitive and stressful conditions in
which real people work in the real world.”
In other words, evidence of performing
general housework does not preclude a
finding of disability. In Rainey v. Dep't
of Health & Human Servs., 48 F.3d 292, 203
(8th Cir.1995), the claimant washed dishes,
did light cooking, read, watched TV, visited
with his mother, and drove to shop for
groceries. We noted that these were
activities that were not substantial
evidence of the ability to do full-time,
competitive work. In Baumgarten v. Chater,
75 F.3d 366, 369 (8th Cir.1996), the ALJ
pointed to the claimant's daily activities,
which included making her bed, preparing
food, performing light housekeeping, grocery
shopping, and visiting friends. We found
this to be an unpersuasive reason to deny
benefits: “We have repeatedly held...that
‘the ability to do activities such as light
housework and visiting with friends provides
little or no support for the finding that a
claimant can perform full-time competitive
work.’” Id. (quoting Hogg v. Shalala, 45
F.3d 276, 278 (8th Cir.1995)). Moreover, we
have reminded the Commissioner
that to find a claimant has the
residual functional capacity to
perform a certain type of work,
the claimant must have the ability
to perform the requisite acts day
in and day out, in the sometimes
competitive and stressful
conditions in which real people
work in the real world...The
ability to do light housework with
assistance, attend church, or
7

visit with friends on the phone
does not qualify as the ability to
do substantial gainful activity.
Thomas v. Sullivan, 876 F.2d 666, 669 (8th
Cir.1989) (citations omitted).
Draper, 425 F.3d at 1131 (emphasis added).
Watching television, performing household chores, paying
bills, counting change, taking walks and going shopping do not
qualify as the ability to do substantial gainful activity.
Watching television is not inconsistent with allegations that a
person is unable to work.

See Krauser v. Astrue, 638 F.3d 1324,

1333 (10th Cir. 2011)(watching television not inconsistent with
allegations of pain and concentration problems).

What is

particularly troublesome is the language of the ALJ that
plaintiff’s daily activities are inconsistent with allegations
of “totally debilitating symptomatology” (R. at 25).

One does

not need to be utterly or totally incapacitated in order to be
disabled.

Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir.

2001); Jones v. Sullivan, 804 F. Supp. 1398, 1405 (D. Kan.
1992).

Therefore, on remand, the ALJ will need to examine

plaintiff’s daily activities in light of the regulations and
case law set forth above.
Furthermore, when evaluating plaintiff’s credibility, an
ALJ must explain and support with substantial evidence which
part(s) of a claimant’s testimony he does not believe and why.

8

McGoffin v. Barnhart, 288 F.3d 1248, 1254 (10th Cir. 2002).

The

ALJ failed to identify which part(s) of a claimant’s testimony
he did not believe and why; the ALJ simply set forth reasons for
not finding him to be fully credible (R. at 25-26; Doc. 16 at
12).

When this case is remanded, the ALJ should explain and

support with substantial evidence which part(s) of a claimant’s
testimony he does not believe and why.
IV.

Do the ALJ’s RFC rulings comply with the requirements of

SSR 96-8p?
The ALJ found that plaintiff had an RFC with the following
nonexertional impairments (the ALJ found no exertional
limitations):
he is limited to simple, routine repetitive
tasks not performed in a fast-paced
production environment (which is an
environment in which other people control
the pace, such as on an assembly line). He
is also limited to occupations that only
involve simple, work-related decisions and
in general relatively few changes. He is
limited to occasional interaction with
supervisors and the general public.
(R. at 24).
Dr. Hon, a treating physician, opined on a mental RFC
assessment form that plaintiff had marked impairments in 11
categories, moderate impairments in 5 categories, and no
significant limitations in 4 categories (R. at 317-319, 323326).

The ALJ found that his assessment was inconsistent with

9

the other evidence of record, including the doctor’s own
treatment notes.

The ALJ noted that Dr. Hon gave plaintiff a

GAF of 55, indicating moderate limitations, which, according to
the ALJ, is not consistent with Dr. Hon’s opinion that the
plaintiff is unable to work.2

The ALJ therefore gave “little”

weight to the opinions of Dr. Hon (R. at 26).
Dr. Fantz completed a non-examining state agency mental RFC
assessment (R. at 287-299, 301-303).

He opined that plaintiff

had moderate limitations in the ability to understand, remember
and carry out detailed instructions (R. at 301).
assessment was affirmed by Dr. Stern (R. at 314).

This
The ALJ gave

“some” weight to this opinion, stating that the record does not
support the opinion of Dr. Fantz that plaintiff has no
difficulties with social interaction or problems with adaptation
(R. at 26).
The ALJ made RFC findings which included the mental
limitations contained in the assessment by Dr. Fantz.

The ALJ

also included some additional mental limitations contained only
in Dr. Hon’s assessment, including limitations in plaintiff’s
ability to interact with the public and supervisors, and respond
2

GAF (global assessment of functioning) scores can be found in the Diagnostic and Statistical Manual of Mental
Disorders. The scores in this case represent the following:
51-60: Moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks)
OR moderate difficulty in social, occupational or school functioning (e.g., few friends,
conflicts with peers or co-workers).
Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR) (4th ed., text revision, American Psychiatric
Association 2000 at 34) (emphasis in original).
10

to changes in the workplace (R. at 24, 301-302, 317-318).3
However, the ALJ failed to explain why he only included these
additional limitations, but not others.
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.
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

3

Dr. Hon gave plaintiff “marked” limitations in these categories (R. at 318). The ALJ limited plaintiff to work that
involved in general relatively few changes, and was limited to occasional interaction with supervisors and the
general public (R. at 24). Thus, it would appear that the ALJ gave some weight to these limitations by Dr. Hon, as
the ALJ provided no other reason for including these limitations.
11

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.
Brown v. Commissioner of the Social Security Administration, 245
F. Supp.2d 1175, 1187 (D. Kan. 2003).
In the case of Frye v. Astrue, Case No. 10-1251-SAC (D.
Kan. July 6, 2011; Doc. 13 at 7-10), the ALJ, as in the case
before the court, gave “little” weight to one medical opinion,
and “some” weight to the state agency assessment.

However, the

ALJ made RFC findings that did not clearly correlate with any
evidence in the case record.

The ALJ provided no explanation

for making RFC findings which were more restrictive than the
medical assessment given “some” weight, but less restrictive
than the other medical assessment given “little” weight.

12

The

court therefore held that the ALJ failed to comply with SSR 968p.
As set forth above, “the RFC assessment must include a
narrative discussion describing how the evidence supports each
conclusion, citing specific medical facts and nonmedical
evidence.”

Wells v. Colvin, __ F.3d ___, 2013 WL 4405723 at *5

(10th Cir. Aug. 19, 2013)(emphasis in original).

The ALJ gave

“little” weight to the opinions of Dr. Hon and “some” weight to
the medical opinions from Dr. Fantz.

However, the ALJ never

provided a clear explanation for making RFC findings more
restrictive than the assessment by Dr. Fantz, but less
restrictive than the assessment by Dr. Hon.

The ALJ never

explained how the medical and other evidence supported the
limitations set out in the ALJ’s RFC findings.

The ALJ did not

cite to any evidence or testimony, which, in his opinion,
supported the mental limitations set forth in his RFC findings,
including some limitations found only in Dr. Hon’s assessment,
but did not support many of the other mental limitations
contained in the medical opinion by Dr. Hon.4

An ALJ should

explain why he rejected some limitations contained in an
assessment, but appeared to adopt other limitations contained in
the assessment.
2007).

Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir.

As in Haga, in the case before the court it is simply

4

An ALJ can rely on all the record evidence, including but not limited to medical opinions in the file when reaching
his RFC determination. Wells v. Colvin, 2013 WL 4405723 at *8.
13

unexplained why the ALJ included some of the limitations found
in Dr. Hon’s assessment, but not others.

The court therefore

concludes that the ALJ’s RFC findings fail to comply with SSR
96-8p.

This case shall therefore be remanded in order for the

ALJ to make RFC findings that comply with SSR 96-8p.
V.

Did the ALJ err in giving somewhat greater weight to the

opinions of Dr. Fantz as compared to the opinions of Dr. Hon, a
treatment provider?
As noted above, the ALJ gave “some” weight to the opinions
of Dr. Fantz, who did not examine or treat the plaintiff, and
gave only “little” weight to the opinions of Dr. Hon, a
treatment provider.

The opinions of physicians, psychologists,

or psychiatrists who have seen a claimant over a period of time
for purposes of treatment are given more weight than the views
of consulting physicians or those who only review the medical
records and never examine the claimant.

The opinion of an

examining physician is generally entitled to less weight than
that of a treating physician, and the opinion of an agency
physician who has never seen the claimant is entitled to the
least weight of all.
(10th Cir. 2004).

Robinson v. Barnhart, 366 F.3d 1078, 1084

When a treating source opinion is inconsistent

with the other medical evidence, the ALJ’s task is to examine
the other medical source’s reports to see if they outweigh the
treating source’s reports, not the other way around.
14

Treating

source opinions are given particular weight because of their
unique perspective to the medical evidence that cannot be
obtained from the objective medical findings alone or from
reports of individual examinations, such as consultative
examinations.

If an ALJ intends to rely on a nontreating

physician or examiner’s opinion, he must explain the weight he
is giving to it.
Cir. 2004).

Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th

The ALJ must provide a legally sufficient

explanation for rejecting the opinion of treating medical
sources in favor of non-examining or consulting medical sources.
Robinson, 366 F.3d at 1084.
A treating physician’s opinion about the nature and
severity of the claimant’s impairments should be given
controlling weight by the Commissioner if well supported by
clinical and laboratory diagnostic techniques and if it is not
inconsistent with other substantial evidence in the record.
Castellano v. Secretary of Health & Human Services, 26 F.3d
1027, 1029 (10th Cir. 1994); 20 C.F.R. §§ 404.1527(d)(2),
416.927(d)(2).

When a treating physician opinion is not given

controlling weight, the ALJ must nonetheless specify what lesser
weight he assigned the treating physician opinion.
Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004).

Robinson v.

A treating

source opinion not entitled to controlling weight is still

15

entitled to deference and must be weighed using all of the
following factors:
(1) the length of the treatment relationship and the frequency
of examination;
(2) the nature and extent of the treatment relationship,
including the treatment provided and the kind of examination or
testing performed;
(3) the degree to which the physician’s opinion is supported by
relevant evidence;
(4) consistency between the opinion and the record as a whole;
(5) whether or not the physician is a specialist in the area
upon which an opinion is rendered; and
(6) other factors brought to the ALJ’s attention which tend to
support or contradict the opinion.
Watkins v. Barnhart, 350 F.3d 1297, 1300-1301 (10th Cir. 2003).
After considering the above factors, the ALJ must give good
reasons in his/her decision for the weight he/she ultimately
assigns the opinion.

If the ALJ rejects the opinion completely,

he/she must then give specific, legitimate reasons for doing so.
Watkins, 350 F.3d at 1301.
The ALJ discussed the medical records of Dr. Hon, and
explained why the ALJ found that they did not support the
opinions expressed by Dr. Hon, and therefore why he gave
“little” weight to his opinions.

The ALJ indicated that he gave

“some” weight to the opinions of Dr. Fantz, but concluded that
plaintiff had some additional limitations.

Although plaintiff

argues that the form filled out by Dr. Fantz was a check-the-box
form (Doc. 11 at 11), in fact, Dr. Fantz provided a narrative
explanation for his findings, including a review of some of the

16

treatment notes (R. at 299).

Dr. Stern, who affirmed the

opinions of Dr. Fantz, also included a narrative discussion of
the evidence to explain his findings, including a review of some
of the treatment notes (R. at 314).

By contrast, Dr. Hon

provided no narrative explanation for his findings.
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).

However, regardless of the

relative weight given to the medical opinions, as set forth
above, the ALJ must comply with SSR 96-8p, and describe how the
evidence supports each conclusion.

This is especially important

when the ALJ makes RFC findings which were more restrictive than
a medical assessment given “some” weight, but less restrictive
than another medical assessment given “little” weight.
Furthermore, in light of the errors by the ALJ in his analysis
of plaintiff’s credibility and daily activities, when this case
is remanded, the ALJ should make new findings regarding the
17

relative weight to give to the medical opinions after giving
proper consideration to plaintiff’s credibility and daily
activities.
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 28th day of August, 2013, Topeka, Kansas.

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

18