Schoonover v. Social Security Administration, Commissioner of

Filing 27

MEMORANDUM AND ORDER: The court shall reverse defendant's decision to deny plaintiff's applications for the period after 6/28/07. The court shall direct that this case be remanded to the Commissioner for further proceedings consistent with this opinion. This remand is made under the fourth sentence of 42 U.S.C. § 405(g). Signed by District Judge Richard D. Rogers on 8/11/14. (meh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CURTIS SCHOONOVER,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security Administration
Defendant.

Case No.

12-1469-RDR

MEMORANDUM AND ORDER
Plaintiff was involved in construction work and hurt his
back in late 2005.
be

depressed

Plaintiff’s back injury caused plaintiff to

because

of

necessary

lifestyle

changes.

When

conservative treatment options did not bring sufficient relief,
plaintiff
plaintiff,

had
but

previous job.
2008.
from

back
not

surgery

in

enough

for

December
plaintiff

2006.
to

This
return

helped
to

his

Plaintiff opted to go back to college in January

Plaintiff contends that the initial benefits he enjoyed
the

back

surgery

diminished

or

proved

illusory

as

he

attempted to increase his activity by going to school and doing
other functions.
On July 27, 2009, plaintiff filed applications for social
security disability insurance benefits and supplemental security
income benefits. These applications alleged a disability onset
date of November 15, 2005.

On February 7, 2011, a hearing was

conducted upon plaintiff’s applications.

The administrative law

judge (ALJ) considered the evidence and decided on May 5, 2011
that

plaintiff

was

disabled

for

the

purposes

of

obtaining

benefits for a period beginning on October 15, 2005 and ending
on June 28, 2007.

Thus, this is a “closed-period” case in which

it has been determined that a claimant was disabled for a finite
period of time which started and stopped prior to the date of
the ALJ’s decision.

See Newbold v. Colvin, 718 F.3d 1257, 1260

n.1 (10th Cir. 2013)(describing closed-period cases).
This case is now before the court upon plaintiff’s motion
to

reverse

and

remand

that

portion

of

the

decision

which

determined that plaintiff’s disability ended on June 28, 2007.
I.

STANDARD OF REVIEW
To

establish

qualify
that

for
he

disability

or

she

was

benefits,
“disabled”

a

claimant

under

the

must
Social

Security Act, 42 U.S.C. § 423(a)(1)(E), during the time when the
claimant had “insured status” under the Social Security program.
See Potter v. Secretary of Health & Human Services, 905 F.2d
1346, 1347 (10th Cir. 1990); 20 C.F.R. §§ 404.130, 404.131.

To

be “disabled” means that the claimant is unable “to engage in
any

substantial

determinable

gainful

physical

or

activity
mental

by

reason

impairment

of

any

which

.

medically
.

.

has

lasted or can be expected to last for a continuous period of not
less than 12 months.”

42 U.S.C. § 423(d)(1)(A).
2

For supplemental security income claims, a claimant becomes
eligible in the first month where he or she is both disabled and
has an application on file.

20 C.F.R. §§ 416.202-03, 416.330,

416.335.
The court must affirm the ALJ’s decision if it is supported
by substantial evidence and if the ALJ applied the proper legal
standards.

Newbold, 718 F.3d at 1262.

“Substantial evidence”

is “more than a mere scintilla;” it is “such relevant evidence
as

a

reasonable

conclusion.”

mind

might

accept

as

adequate

to

support

a

Id., quoting Lax v. Astrue, 489 F.3d 1080, 1084

(10th Cir. 2007).

The court must examine the record as a whole,

including whatever in the record fairly detracts from the weight
of

the

defendant’s

decision,

and

on

that

basis

decide

substantial evidence supports the defendant’s decision.

if

Glenn

v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994) (quoting Casias v.
Secretary of Health & Human Services, 933 F.2d 799, 800-01 (10th
Cir. 1991)).

The court may not reverse the defendant’s choice

between two reasonable but conflicting views, even if the court
would have made a different choice if the matter were referred
to the court de novo.

Lax, 489 F.3d at 1084, quoting Zoltanski

v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).

“We neither

reweigh the evidence nor substitute our judgment for that of
[defendant].”

Branum v. Barnhart, 385 F.3d 1268, 1270 (10th Cir.

2004)(interior quotation omitted).
3

II.

THE ALJ’S DECISION (Tr. 11-24).
There is a five-step evaluation process followed in these

cases which is described in the ALJ’s decision.

(Tr. 12-13).

First, it is determined whether the claimant is engaging in
substantial gainful activity.

Second, the ALJ decides whether

the claimant has a medically determinable impairment that is
“severe” or a combination of impairments which are “severe.”

At

step three, the ALJ decides whether the claimant’s impairments
or

combination

of

impairments

meet

or

medically

equal

the

criteria of an impairment listed in 20 C.F.R. Part 404, Subpart
P, Appendix 1.

Next, the ALJ determines the claimant’s residual

functional capacity and then decides whether the claimant has
the residual functional capacity to perform the requirements of
his or her past relevant work.

Finally, at the last step of the

sequential evaluation process, the ALJ determines whether the
claimant is able to do any other work considering his or her
residual

functional

capacity,

age,

education

and

work

experience.
The ALJ’s decision also describes a multi-step process for
determining whether a claimant’s disability continues through
the date of decision.
whether

there

has

(Tr. 13-14).

been

medical

This process focuses upon

improvement

relevant

to

the

ability to work and whether such improvement would allow the

4

claimant to perform past relevant work or other work that exists
in significant numbers in the national economy.
The

ALJ

decision.

made

the

following

specific

findings

in

his

First, plaintiff met the insured status requirements

for Social Security benefits as of October 15, 2005.

Second,

plaintiff did not engage in substantial gainful activity after
November

15,

2005.

severe impairments:

Third,

plaintiff

has

had

the

following

degenerative disc disease of the lumbar

spine status-post surgery and depression.

Fourth, plaintiff has

not had an impairment or combination of impairments that meet or
medically equal the listed impairments in 20 C.F.R. Part 404,
Subpart

P,

Appendix

1.

Fifth,

plaintiff

had

the

residual

functional capacity from October 15, 2005 through June 27, 2007
to perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a)
and

416.967(a)

in

that

plaintiff

could

lift

10

pounds

occasionally and frequently; stand and/or walk less than 2 hours
in an 8-hour work day; sit for up to 6 hours in an 8-hour work
day

with

the

option

to

sit

or

stand

at

will;

except

that

plaintiff was limited to simple unskilled work, with no contact
with the general public.

The ALJ also determined that with

these limitations from October 15, 2005 through June 27, 2007,
that plaintiff was unable to perform his past relevant work or
any jobs that existed in significant numbers in the national
economy.
5

Key

to

beginning

the

on

dispute

June

in

28,

this

2007,

case,

the

plaintiff

ALJ

had

found
the

that,

residual

functional capacity (RFC) to perform the full range of light
work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) in
that plaintiff had the ability:

to lift 20 pounds occasionally

and 10 pounds frequently; to stand and/or walk 2 hours in an 8hour

day;

to

sit

for

up

to

6

hours

in

an

8-hour

workday,

conditioned upon the need to alternate positions every 30 to 60
minutes

from

remaining

at

sitting
his

to

work

standing

up

to

and

station;

for

5

minutes

to

occasionally

while
climb,

balance, stoop, kneel, and crouch with no crawling or climbing
of ladders, ropes or scaffolds, and no concentrated exposure to
temperature extremes, vibration or work hazards.

The ALJ also

determined as part of plaintiff’s RFC that plaintiff should have
no contact with the general public.
Thus,

the

ALJ

determined

that

from

the

beginning

of

plaintiff’s period of disability to the end of the period, there
were medical improvements which allowed plaintiff to: perform
the

lifting

requirements

for

light

work

instead

of

only

sedentary work; to stand and/or walk for 2 hours in an 8-hour
day instead of less than 2 hours; and to sit for up to 6 hours
in an 8-hour workday with the option of alternating positions
from sitting to standing every 30 to 60 minutes for up to 5
minutes, instead of having the option to sit or stand at will.
6

In spite of the medical improvements that the ALJ found, he
continued

to

conclude

that

plaintiff

performing his past relevant work.
with

the

medical

improvements

could

not

return

to

He decided, however, that

plaintiff

could

fulfill

the

requirements of jobs that exist in significant numbers in the
national economy.

The only jobs specified in the ALJ’s decision

were sedentary positions:

printed circuit board assembler; wire

wrapper/patcher; and sealer/closer of small packages.

This was

based upon the testimony of a vocational expert.
III.

STANDARDS FOR MEDICAL IMPROVEMENT.
Under Social Security regulations:
Medical improvement is any decrease in the medical
severity of [an impairment or impairments] which was
present at the time of the most recent [finding of
disability] . . . A determination that there has been
a decrease in medical severity must be based on
changes (improvement) in the symptoms, signs and/or
laboratory
findings
associated
with
[the]
impairment(s).

20

C.F.R.

improvement

§§

404.1594(b)(1)

must

be

linked

and
to

416.994(b)(1)(i).

the

ability

to

Any

engage

in

substantial gainful activity in order to justify a finding that
a

disability

has

ended.

20

C.F.R.

§§

404.1594(b)(3)

and

416.994(b)(1)(ii).
The ALJ must assess a claimant’s RFC after any medical
improvements and then compare the new RFC with the RFC before
the medical improvements.

Newbold, 718 F.3d at 1262.

7

“If the

claimant can perform either [his] past relevant work or other
work, disability will be found to have ended.”

Id. at 1263

(interior quotations omitted).
IV.
EVIDENCE IN THE RECORD RELEVANT TO THE ALJ’S DECISION AND
TO PLAINTIFF’S ARGUMENTS IN THIS CASE.
In

the

months

following

plaintiff’s

December

surgery, plaintiff engaged in some physical therapy.

2006

back

The ALJ

made reference to physical therapy notes dated June 28, 2007
which reported comments from plaintiff that he could tolerate
sitting for two hours, could walk for two miles, and stand for
45 minutes without an increase in pain.
notes

also

reflect

negative

lumbar

(Tr. 18, 420).

tests

and

straight

The
leg

raising tests, and 75% to 100% ratings in the range of motion of
the lumbosacral region.

(Tr. 420).

The ALJ’s decision also refers to two check-the-box forms
describing
capacity.

plaintiff’s

physical

condition

and

functional

One form is signed by Dr. David Hufford.

(Tr. 411).

This form, dated June 28, 2007, indicates that plaintiff can sit
“frequently” which, according to the form, means 34% to 66% of
the time.

The form does not mention a need to alternate sitting

and standing.
(Tr. 443).

The other form is signed by Dr. Pedro Murati.
That form, dated August 6, 2007, indicates that

plaintiff can sit “occasionally” or up to 33% of the time.
form

also

indicates

that

plaintiff

8

would

need

to

The

alternate

sitting, standing and walking.

While the ALJ credited these

forms, he believed that plaintiff was more limited in standing
and walking.

(Tr. 19).

Both forms indicated that plaintiff

could stand or walk “frequently.”
The assessments by Drs. Hufford and Murati are in some
accord with an examination by Dr. Paul Stein on December 11,
2007.

Plaintiff reported to Dr. Stein that he could drive and

that he performed all activities of daily living and personal
hygiene independently.

But, he also told Dr. Stein that he had

back pain that occasionally reached 10 on a 10-point scale.
(Tr. 465-466).

He further reported that he could only stand or

walk for 30 minutes and sit for 15 minutes, and that lying down
was helpful to relieve pain.

(Tr. 465).

Dr. Stein concluded

that plaintiff would need to alternate sitting, standing and
walking at reasonable intervals.

(Tr. 468).

The ALJ agreed

with the alternating sitting and standing limitations.

(Tr.

20).
In January 2008, plaintiff visited his back surgeon, Dr.
Nazih Moufarrij.

He reported that the severe pain he had before

the surgery had subsided, although he had occasional pain down
his left leg and some stiffness, especially in the morning.
(Tr. 483).
who

was

surgery.

In June 2008, plaintiff returned to Dr. Kirk Bliss,
plaintiff’s

treating

physician

prior

to

his

back

Plaintiff reported that he had been doing “fairly well
9

overall” although he still had pain at times and was not able to
do what he could prior to surgery.
prescribed some pain medication.
Bliss in September 2008.

(Tr. 492).

Dr. Bliss

Plaintiff again visited Dr.

At that time, Dr. Bliss diagnosed

plaintiff with “chronic low back pain” and adjusted the pain
medication.

(Tr. 492).

In March 2009, plaintiff saw Dr. Bliss complaining of low
back pain.

(Tr. 491).

Dr. Bliss’s notes characterized the

problem as “chronic” and worsening, and they related plaintiff’s
complaint of leg weakness and pain after walking across campus.
He noted a weakly positive straight leg raising test on the
left.

Also,

a

radiology

report

in

April

2009

noted

“postsurgical laminectory defects” since a prior study in 2005.
(Tr. 499).
In 2009 and 2010, plaintiff saw Dr. David Sollo six times.
He complained of low back pain, more on the left side, but some
on the right side.

He also noted some numbness, tingling and

weakness in his legs.

He reported difficulty (sometimes great

difficulty) walking from class to class, problems from prolonged
sitting, and that lifting and walking made his pain worse.

Dr.

Sollo’s

but

notes

indicated

negative

straight

leg

raises,

postlaminectomy changes at L4-L5 and L5-S1 and a broad-based
disk bulge.

Dr. Sollo administered epidural steroid injections,

which gave plaintiff significant relief.
10

Dr. Sollo’s notes also

reflect that plaintiff was walking “fairly well” in August and
November 2010.
In September and November 2010, plaintiff reported chronic
back pain to Dr. Bliss and Dr. Rick Friesen.

Plaintiff was

referred back to Dr. Moufarrij, his back surgeon, who noted in
September

2010

that

plaintiff

pressure in the low back.

described

constant

burning

There was a discussion of proceeding

with a back fusion which Dr. Moufarrij favored.

(Tr. 555).

Dr. Bliss, who had plaintiff as a patient from at least
2005

through

2011,

signed

a

statement

dated

March

1,

stating that:
[A]fter [plaintiff’s] recovery and rehabilitation from
[the back] surgery, [plaintiff] could on better days
(30% of the time, 50% before the activity of school)
sit for fifteen minutes at a time and three hours out
of eight hours.
His ability to stand was much more
limited.
Walking was limited, and it increased his
pain.
He could with sufficient pacing lift 20-30
pounds (30 pounds would be pushing it) but not
shoulder
height
or
with
bending,
stooping,
or
crouching, which he had to avoid. On bad days (30-40%
of the time when he became active with school, 10%
when he was not active) he could sit just a few
minutes at a time and had to lie down or recline most
of the day, do only nominal lifting and very little
walking such as around the house.
During the
remaining days, he functioned between the better and
the bad days.
He had more good days and fewer bad
days when he was inactive, but these numbers were
subject to change if he had been more active and
especially if he overdid.
Thus, even on his best days he could not tolerate
an 8 hour schedule of even sedentary activity.
Any
schedule of activities would have to accommodate
flexible hours for Mr. Schoonover to succeed because

11

2011

of the variability of his ability to function even in
sedentary activities.
(Tr. 595).
The ALJ commented that he basically agreed with the sitting
requirements in Dr. Bliss’s March 1, 2011 report, but that the
rest

of

the

report

was

less

persuasive

because

Dr.

Bliss

“apparently relied quite heavily on the subjective report of
symptoms and limitations provided by [plaintiff] and seemed to
uncritically

accept

as

[plaintiff] reported.”

true

most,

(Tr. 22).

if

not

all,

of

what

After making this comment,

the ALJ noted that Dr. Bliss’s statements were inconsistent with
plaintiff’s comments to others, thus suggesting apparently that
plaintiff was truthful with others but exaggerated the severity
of his disability to Dr. Bliss.

The ALJ also criticized Dr.

Bliss for not documenting everything in his treatment notes.
(Tr. 22).
The

record

contains

statements

from

two

of

plaintiff’s

instructors at Wichita State University in 2009 and 2010.
332-335).

(Tr.

Each instructor stated that she observed plaintiff as

being very uncomfortable and suffering from pain while sitting
in class, having to squirm in his seat and move around in the
classroom,

and

needing

to

be

absent

because

of

his

medical

issues, even though plaintiff was an enthusiastic and motivated
student.

The ALJ gave these statements (and a corroborating

12

statement

from

plaintiff’s

girlfriend)

little

they did not originate from medical sources.

credit

because

(Tr. 23).

In addition, the record contains a vocational assessment
performed by a human services counselor in August and September
2007.

(Tr.

447-453).

The

counselor

noted

that

although

plaintiff was personable and cordial during the assessment, he
had issues with back pain.

(Tr. 451).

Plaintiff was able to

stay the entire five hours of the assessment on the first day.
But, the second day, he could only stay part of the day and
requested to be excused in the afternoon because of back pain.
He missed the third day’s appointment because pain medication
caused him to oversleep.

The counselor observed that plaintiff

had to frequently get up and walk around in an attempt to manage
his pain.
During the hearing before the ALJ, the vocational expert
testified that jobs existed in substantial numbers for persons
who could perform light work’s lifting requirements and could
“frequently”

sit,

stand

positions

which

the

June

vocational

not

28,

expert

allow

The

2007

for

RFCs

The only jobs specified in the ALJ’s decision as
after

did

87-88).

standing.

RFC

however,

(Tr.

by

plaintiff’s

ALJ,

walk.

formulated

within

the

or

were

testified

frequent

sedentary
“would

difficult to perform . . . with only occasional sitting.”
89).
13

be
(Tr.

V.
THE COURT SHALL REVERSE AND REMAND THE DECISION TO DENY
BENEFITS AFTER JUNE 28, 2007 TO RECONSIDER PLAINTIFF’S SITTING
LIMITATION AND “OTHER SOURCES” EVIDENCE.
Plaintiff
broad

claim

groups

that

a

the

large

ALJ

number

of

erroneously

arguments

determined

under

the

plaintiff’s

medical improvement.

In general, plaintiff disagrees with the

ALJ’s

he

finding

that

experienced

an

improvement

in

his

condition which was so significant as to permit him to engage in
substantial

gainful

activity.

Plaintiff

insists

that

his

condition improved after his back surgery, but that when he
increased his activity by attending college and performing other
tasks,

his

back

pain

also

increased.

So,

according

to

plaintiff, his improvement was too temporary, intermittent and
insufficient to satisfy the requirements of substantial gainful
employment.
The court will not address each of plaintiff’s arguments.
Instead, the court will focus upon two issues.

One of those

issues involves plaintiff’s capacity to sit for periods of time.
The

ALJ’s

statements

regarding

appear to be contradictory.

plaintiff’s

capacity

to

sit

As plaintiff points out,1 the ALJ

stated in his opinion that he “basically agrees with the sitting
requirements” in Dr. Bliss’s March 1, 2011 report.

(Tr. 22).

These requirements are that on “better days” plaintiff can sit
for fifteen minutes at a time and three hours out of eight
1

Doc. No. 18, p. 12.

14

hours.2

(Tr. 595).

Despite agreeing with this assessment, the

ALJ formulated plaintiff’s RFC after June 28, 2007 as allowing
plaintiff to sit for up to 6 hours in an 8-hour workday if he
could alternate positions every 30 to 60 minutes from sitting to
standing for up to 5 minutes.
inconsistent

with

Dr.

(Tr. 18).

Bliss’s

This RFC assessment is

assessment.

It

also

is

inconsistent with Dr. Murati’s assessment that plaintiff could
sit “occasionally” or up to 33% of the time.

Further, it seems

inconsistent with Dr. Hufford’s assessment that plaintiff could
sit

“frequently”

plaintiff’s

or

comment

34%
(also

to

66%

cited

tolerate sitting for two hours.3

of

by

a

the

workday,
ALJ)

that

and

with

he

could

The discrepancy between the

sitting limitations estimated by the doctors and plaintiff and
the ALJ’s six-hour limitation (with the option of alternating
positions every 30 to 60 minutes from sitting to standing for up
to 5 minutes) is significant because it relates to the extent
and duration of plaintiff’s alleged medical improvement and also
because

it

affects

the

relevance

of

the

vocational

expert’s

testimony.
The

ALJ

relied

upon

a

vocational

expert

for

testimony

regarding whether there were jobs in the national economy which

2

According to Dr. Bliss, on “bad days” plaintiff could sit just a few minutes
at a time and had to lie down or recline most of the day. (Tr. 595).
3
It is also inconsistent with plaintiff’s report to Dr. Stein that he could
sit in one position for about 15 minutes and seems to be inconsistent with
the “other sources” evidence discussed elsewhere in this opinion.

15

plaintiff could perform given RFC formulated by the ALJ.

The

jobs which met the 2-hour standing/walking requirements and the
6-hour

sitting

occupations.
testified

requirements

(Tr. 92-93).

that

“it

would

of

the

ALJ

were

sedentary

But, the vocational expert also
be

difficult

to

perform

sedentary

occupations with occasional sitting” and that there would be no
sedentary occupations that could be performed with “sitting less
than three hours.”

(Tr. 89).

Almost all of the assessments in

the record indicate that plaintiff can sit occasionally at most.
Even

Dr.

Hufford’s

assessment

lists

plaintiff’s

“frequent”

sitting limitation at 34% to 66% of a workday – less than six
hours.
Because

the

sitting

limitation

listed

for

plaintiff

appears inconsistent with the record and inconsistent with the
ALJ’s commentary regarding Dr. Bliss’s assessment, and because
the sitting limitation is critical to a consideration of the
vocational expert’s testimony, the court believes the finding of
no disability after June 28, 2007 must be reversed and remanded
for further consideration.
Secondly, the court believes that the ALJ did not give
proper

consideration

record.

to

the

“other

sources”

in

the

This evidence includes the statements from plaintiff’s

girlfriend and the two college instructors.
remarked

evidence

that

these

statements
16

Although the ALJ

corroborated

plaintiff’s

testimony regarding his daily activities, the ALJ appeared to
dismiss the statements because they did not derive from medical
sources and were “of little if any value to determining the
extent to which [plaintiff’s] limited daily activities [were]
the result of his medical impairments.”

(Tr. 23).

There is no dispute in this case that plaintiff suffers
from medical impairments which have the potential to cause the
pain of which he complains.

The main issue in this case appears

to be the genuine extent of plaintiff’s limitations from the
pain

and

pain

depression.

medication

The

“other

in

combination

sources”

evidence

with

plaintiff’s

from

plaintiff’s

girlfriend and the college instructors appears relevant to that
issue and the regulations permit such evidence to be considered
to show the severity of impairments and how they affect work
ability.

20 C.F.R. §§ 404.1513(d) and 416.913(d).

While

the

ALJ

considered

the

statements

to

be

corroborative, he also seemed to dismiss the statements simply
because they did not derive from medical professionals.
improper.

In

addition,

observation

of

the

human

the

ALJ

services

appeared
counselor

to

This is

ignore

who

the

described

plaintiff’s pain from prolonged sitting during the vocational
assessment.
Therefore, the court shall direct upon remand that the ALJ
give full consideration to the other sources evidence using the
17

factors

outlined

416.927(d).

in

sections

20

C.F.R.

§§

404.1527(d)

and

It is not necessary that the ALJ address every

factor for weighing the evidence, but the discussion must be
such that a reviewer can follow the ALJ’s reasoning when the
opinions may have an effect upon the outcome of the case.

See

Akers v. Colvin, 556 Fed.Appx. 754, 757 (10th Cir. 2104) (citing
SSR 06-03p at *6); see also Crowder v. Colvin, 561 Fed.Appx.
740,

745-46

sources

(10th

evidence

Cir.

2014)(remanding

where

the

evidence

case
was

to

reweigh

rejected

other

primarily

because it did not come from an acceptable medical source).
VI.

CONCLUSION
The

court

shall

reverse

defendant’s

decision

to

deny

plaintiff’s applications for benefits for the time period after
June

28,

2007.

The

court

shall

direct

that

this

case

be

remanded to the Commissioner for further proceedings consistent
with

this

opinion.

This

remand

is

made

under

the

sentence of 42 U.S.C. § 405(g).

IT IS SO ORDERED.
Dated this 11th day of August 2014, at Topeka, Kansas.

s/RICHARD D. ROGERS
Richard D. Rogers
United States District Judge

18

fourth