Brown v. Social Security Administration, Commissioner of
Filing
14
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. Signed by U.S. District Senior Judge Sam A. Crow on 3/19/14. (mb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ALLEN LEROY BROWN,
Plaintiff,
vs.
Case No. 12-1456-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 July 21, 2011, administrative law judge (ALJ) James
Harty issued his decision (R. at 12-25).
Plaintiff alleges that
he had been disabled since September 19, 2007 (R. at 12).
Plaintiff is insured for disability insurance benefits through
4
December 31, 2013 (R. at 14).
At step one, the ALJ found that
plaintiff has not engaged in substantial gainful activity since
the alleged onset date (R. at 14).
At step two, the ALJ found
that plaintiff has the following severe impairments:
degenerative disc disease of the cervical spine, lumbago,
chronic pain syndrome, headaches, status post right shoulder
surgery, depression, anxiety and mood disorder-not otherwise
specified (R. at 15).
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 17), the
ALJ determined at step four that plaintiff could not perform any
past relevant work (R. at 23).
At step five, the ALJ determined
that plaintiff could perform other jobs that exist in
significant numbers in the national economy (R. at 23-24).
Therefore, the ALJ concluded that plaintiff was not disabled (R.
at 24-25).
III.
Are the ALJ’s RFC findings supported by substantial
evidence in the record?
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.
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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
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.
6
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).
The ALJ found that the plaintiff has the RFC to perform
light work, except that he must be afforded the option to sit
for up to 30 minutes and then to stand for up to 30 minutes.
He
is limited to no more than occasional kneeling, crouching,
crawling and climbing ladders and scaffolds, and he must avoid
climbing ropes.
He is limited to no more than occasional
overhead reaching with the upper right dominant extremity; he
must avoid concentrated exposure to cold temperature extremes
and vibration; and he is limited to occupations that do not
require exposure to dangerous machinery and unprotected heights.
Plaintiff is limited to simple, routine, repetitive tasks not
performed in a fast-paced production environment, which involve
only simple work-related decisions, and relatively few workplace
changes.
Plaintiff is limited to no more than occasional
interaction with supervisors, coworkers, and the general public
(R. at 17).
The court will first address the issue of plaintiff’s
mental impairments.
Plaintiff argues that the ALJ failed to
indicate what evidence was credited that supported the mental
limitations contained in plaintiff’s RFC (Doc. 7 at 15).
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The record contains a psychiatric review technique form
prepared by Dr. Cohen on December 14, 2009.
Dr. Cohen opined
that plaintiff did not have severe mental impairments (R. at
491-503).
The ALJ gave little weight to this opinion, stating
that later evidence showed the plaintiff had greater mental
limitations (R. at 23).
The only other medical opinion evidence regarding
plaintiff’s mental RFC are 2 psychiatric/psychological
questionnaires (eight pages) filled out by Dr. Alonzo, a
treatment provider; the first is dated September 9, 2010 (R. at
567-574), and the second is dated June 2, 2011 (R. at 607-614).
In the first questionnaire, Dr. Alonzo found that plaintiff was
moderately limited in 10 categories, and markedly limited in 10
other categories (R. at 570-572).
In the second questionnaire,
Dr. Alonzo found that plaintiff was mildly limited in 8
categories, moderately limited in 4 categories, and markedly
limited in 8 categories (R. at 610-612).
Dr. Alonzo identified
the clinical findings that supported his diagnoses (R. at 568,
608), and stated that plaintiff is not even capable of
performing a low stress job (R. at 573, 613).
In the second
questionnaire, he stated that plaintiff experiences episodes of
deterioration or decompensation in work-like settings (R. at
612).
8
Dr. Alonzo also indicated in the second questionnaire that
plaintiff could not function in and out of his house (R. at
613).
The ALJ found that this is completely contrary to
plaintiff’s appearance at the hearing, his daily activities, his
sworn testimony, or the treatment notes from Horizon.
The ALJ
accorded “little” weight to this opinion, further noting the
opinions by Dr. Alonzo lack support by objective testing, in the
record or in plaintiff’s longitudinal history (R. at 22).
The ALJ found that plaintiff had anger management problems
brought on by stress, but found that plaintiff could function in
a low-stress environment.
In order to resolve plaintiff’s
stress, anger and resentment, the ALJ limited plaintiff’s
contact with other workers and supervisors, and further limited
him to work in a low-stress environment (R. at 22).
The ALJ
thus limited plaintiff to simple, routine, repetitive tasks not
performed in a fast-paced production environment, which involves
only simple work-related decisions and relatively few workplace
changes.
Plaintiff was also limited to no more than occasional
interaction with supervisors, coworkers, and the general public
(R. at 17).
However, the ALJ has not cited to any evidence, medical or
otherwise, that supports the mental limitations contained in the
ALJ’s RFC findings for the plaintiff.
Furthermore, the ALJ
found that plaintiff had moderate limitations in social
9
functioning, and in concentration, persistence or pace (R. at
16).
However, the latter limitation is not contained in either
the ALJ’s RFC findings (R. at 17) or in the hypothetical
question posed to the VE (R. at 344).
Even simple work can be ruled out by a vocational expert on
the basis of a serious impairment in concentration and
attention.
Moderate impairments may also decrease a claimant’s
ability to perform simple work.
Bowers v. Astrue, 271 Fed.
Appx. 731, 733 (10th Cir. March 26, 2008); see Brosnahan v.
Barnhart, 336 F.3d 671, 675 (8th Cir. 2003); Newton v. Chater, 92
F.3d 688, 695 (8th Cir. 1996)(two medical opinions indicated that
that claimant had moderate limitations in his ability to
maintain attention and concentration for extended periods; the
vocational expert testified that a moderate deficiency in
concentration and persistence would cause problems on an ongoing
daily basis regardless of what the job required from a physical
or skill standpoint; the court rejected the Commissioner’s
contention that deficiencies in attention and concentration,
along with other mental limitations, did not have to be included
in the hypothetical question because the question limited the
claimant’s capabilities to simple jobs).
In Wiederholt v. Barnhart, 121 Fed. Appx. 833, 839 (10th
Cir. Feb. 8, 2005), the ALJ posed a hypothetical question that
limited plaintiff to simple, unskilled work, and omitted from
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the hypothetical the ALJ’s earlier and more specific findings
that she had various mild and moderate restrictions.
The court
held that the relatively broad, unspecified nature of the
description “simple” and “unskilled” did not adequately
incorporate additional, more specific findings regarding a
claimant’s mental impairments (including moderate difficulty in
maintaining concentration, persistence, or pace), and therefore
the hypothetical question was flawed.
Because of the flawed
hypothetical, the court found that the VE’s opinion that the
claimant could perform other work was therefore not substantial
evidence to support the ALJ’s decision.
Neither the ALJ’s RFC findings (R. at 17) nor the
hypothetical question to the vocational expert (R. at 344)
mention the ALJ’s own finding that plaintiff has moderate
difficulties with concentration, persistence, or pace.
It is
clear from the case law that such a limitation may well impact
plaintiff’s ability to perform even simple jobs.
Because of the
failure of the ALJ to include this limitation in his RFC
findings or in his hypothetical question to the VE, the court
finds that the VE’s testimony does not constitute substantial
evidence that the Commissioner has met his burden of proving
that there are jobs in the national economy that the plaintiff
can perform.
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Furthermore, as stated in SSR 96-8p, “the RFC assessment
must include a narrative discussion describing how the evidence
supports each conclusion, citing specific medical facts (e.g.,
laboratory findings) and nonmedical evidence (e.g., daily
activities, observations).”
Wells v. Colvin, 727 F.3d 1061,
1069 (10th Cir. 2013)(emphasis in original).
An exact
correspondence between a medical opinion and the RFC is not
required.
In reaching his RFC determination, an ALJ is
permitted, and indeed required, to rely on all of the record
evidence, including but not limited to medical opinions in the
file.
That said, in cases in which the medical opinions appear
to conflict with the ALJ’s decision regarding the extent of a
plaintiff’s impairment(s) to the point of posing a serious
challenge to the ALJ’s RFC assessment, it may be inappropriate
for the ALJ to reach an RFC determination without expert medical
assistance.
The Commissioner must make every reasonable effort
to ensure that an acceptable medical source has completed the
medical portion of the case review and any applicable RFC
assessment.
Wells, 727 F.3d at 1071-1072.
In the case before the court, the ALJ has given little
weight to any of the medical opinion evidence regarding
plaintiff’s mental RFC, and has failed to cite to any evidence
in support of his mental RFC findings.
12
Therefore, on remand,
the ALJ should carefully reconsider whether further medical
evidence is needed on this issue.
Wells, 727 F.3d at 1072.
The court will next address the issue of plaintiff’s
physical impairments.
The record includes two questionnaires
filled out by Dr. Crater, plaintiff’s treating physician.
The
first one was filled out on June 2, 2010 (R. at 545-552), and
the second one was filled out on June 3, 2011 (R. at 598-605).
On both forms, Dr. Crater indicated that plaintiff could not sit
and stand/walk for 8 hours in an eight-hour day (R. at 547,
601).
Dr. Crater also set out numerous other limitations,
including limitations in lifting/carrying, and using arms for
reaching (essentially precluded) (R. at 548-551, 602-604).
In
both questionnaires, Dr. Crater set out plaintiff’s diagnosis,
prognosis, clinical findings that support his diagnosis,
laboratory and diagnostic test results, and primary symptoms.
Dr. Crater indicated on both questionnaires that plaintiff’s
symptoms and functional limitations are reasonably consistent
with plaintiff’s physical and/or emotional impairments (R. at
545-552, 599-605).
In the first questionnaire, Dr. Crater
opined that plaintiff cannot do a full time competitive job that
requires activity on a sustained basis, and that plaintiff’s
pain, fatigue or other symptoms are severe enough to interfere
with attention and concentration (R. at 550).
13
The ALJ stated that the medical imagery and Dr. Crater’s
treatment notes do not support such severe restrictions;
furthermore, plaintiff had testified that he was advised to use
his right arm and does use his right arm.
The ALJ gave Dr.
Crater’s exertional restrictions some weight, as it is supported
by the medical record and previous evidence limiting the
plaintiff to light work.
However, the rest of Dr. Crater’s
opinions were given little weight, as the ALJ determined that
they are not supported by the treatment notes, the overall
medical record and previous discussion of plaintiff’s shoulder
condition (R. at 20).
The record also contains an independent medical evaluation
by Dr. Murati dated October 13, 2008 (R. at 440-445).
He found
that plaintiff could do no work above his right shoulder and
could not climb ladders or crawl.
Dr. Murati placed no
restrictions on plaintiff’s ability to sit, stand and/or walk
(R. at 445).
The ALJ found that Dr. Murati’s restrictions are
somewhat inconsistent with plaintiff’s testimony; however, the
ALJ acknowledged that plaintiff has some limitations on the use
of the upper right arm.
The ALJ gave some weight to Dr.
Murati’s opinions and limited plaintiff in his use of his right
upper extremity (R. at 20).
A physical RFC assessment was prepared and subsequently
affirmed by Dr. Tawadros (R. at 483-490, 507).
14
The assessment
limited plaintiff to lifting 20 pounds occasionally and 10
pounds frequently (R. at 484).
It included some postural
restrictions (R. at 485), stated that plaintiff should do no
above shoulder work due to injury (R. at 486), and also
contained some environmental restrictions (R. at 487).
The ALJ
gave some weight to this opinion (R. at 20-21), and most of the
restrictions on this assessment are included in the ALJ’s RFC
findings.
Finally, the ALJ mentioned a treatment note from Dr.
Prohaska, dated October 14, 2008 (R. at 19-20).
In that note,
it states the following:
The patient returns to modified work with
permanent work restrictions of occasional
over shoulder height work and no lifting
greater than 20-25 lbs. The patient is now
at maximum medical improvement and is
released from further immediate care.
(R. at 451).
The limitation by Dr. Prohaska of only occasional
over shoulder height work does not preclude occasional over
shoulder height work with the right upper extremity.
Thus, it
is not in conflict with the ALJ’s RFC finding limiting plaintiff
to no more than occasional overhead reaching with the upper
right extremity (R. at 17).
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
15
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.
Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004).
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).
In his physical RFC findings, the ALJ gave greater weight
to the opinions of Dr. Tawadros, a non-examining physician.
The
ALJ also gave some weight to the opinions of Dr. Murati, an
examining physician, and gave the least weight to the opinions
of Dr. Crater, a treating physician.
The ALJ also noted
plaintiff’s activities and use of his right arm (R. at 18-20).
Limitations to light work (20 pounds occasionally and 10 pounds
frequently) are supported by Dr. Prohaska, Dr. Murati and Dr.
16
Tawadros.
Postural and environmental limitations are consistent
with the opinions of Dr. Tawadros.
The ALJ noted the opinions of Dr. Prohaska, a treating
physician, but stated that it was a report from a physical
therapist (R. at 19-20).
It is unclear from the opinion what
weight the ALJ gave to this opinion, or whether the ALJ relied
on it to support his finding that plaintiff is limited to no
more than occasional reaching with the right upper extremity.
The weight given to this opinion is important in light of the
fact that Dr. Murati, Dr. Crater and Dr. Tawadros all opined
that plaintiff cannot perform any above shoulder work with the
right upper extremity.
In light of the fact that this case is
being remanded for other reasons, as set forth above, on remand,
the ALJ should articulate what weight was given the various
medical opinions regarding plaintiff’s physical RFC, including
the opinions of Dr. Prohaska.
IV.
Did the ALJ err in his credibility analysis and did the ALJ
rely on flawed VE testimony?
Plaintiff also argues that the ALJ erred in his credibility
analysis and that the ALJ relied on flawed VE testimony.
The
court will not address these remaining issues in detail because
they may be affected by the ALJ’s resolution of the case on
remand after the ALJ reviews its RFC findings, as set forth
17
above.
See Robinson v. Barnhart, 366 F.3d 1078, 1085 (10th Cir.
2004).
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 19th day of March 2014, Topeka, Kansas.
s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge
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