Todd v. Social Security Administration, Commissioner of

Filing 17

MEMORANDUM AND ORDER: The judgment of the Commissioner is affirmed pursuant to sentence four of 42 U.S.C. § 405(g). Signed by U.S. District Senior Judge Sam A. Crow on 3/11/14. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

LINDA TODD,
Plaintiff,
vs.

Case No. 13-1023-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
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.
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If

the claimant survives step four, the fifth and final step
requires the agency to consider vocational factors (the
claimant’s age, education, and past work experience) and to
determine whether the claimant is capable of performing other
jobs existing in significant numbers in the national economy.
Barnhart v. Thomas, 124 S. Ct. 376, 379-380 (2003).
The claimant bears the burden of proof through step four of
Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th

the analysis.
Cir. 1993).

At step five, the burden shifts to the

Commissioner to show that the claimant can perform other work
that exists in the national economy.

Nielson, 992 F.2d at 1120;

Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).

The

Commissioner meets this burden if the decision is supported by
substantial evidence.

Thompson, 987 F.2d at 1487.

Before going from step three to step four, the agency will
assess the claimant’s residual functional capacity (RFC).

This

RFC assessment is used to evaluate the claim at both step four
and step five.

20 C.F.R. §§ 404.1520(a)(4), 404.1520(e,f,g);

416.920(a)(4), 416.920(e,f,g).
II.

History of case
On August 12, 2011, administrative law judge (ALJ) John B.

Langland issued his decision (R. at 13-22).

Plaintiff alleges

disability beginning on October 30, 2009, the date plaintiff
filed for disability (R. at 13).

At step one, the ALJ found
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that plaintiff has not engaged in substantial gainful activity
since plaintiff’s application date of October 30, 2009 (R. at
15).

At step two, the ALJ found that plaintiff has the

following severe impairments:

anxiety disorder/PTSD,

depression, history of ADHD and decreased visual acuity (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 is unable to perform any past
relevant work (R. at 21).

At step five, the ALJ determined that

plaintiff could perform other jobs that exist in significant
numbers in the national economy (R. at 21-22).

Therefore, the

ALJ concluded that plaintiff was not disabled (R. at 22).
III.

Are the ALJ’s RFC findings supported by substantial

evidence?
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.
5

SSR 96-8p,

1996 WL 374184 at *7.

SSR rulings are binding on an ALJ.

20

C.F.R. § 402.35(b)(1); Sullivan v. Zebley, 493 U.S. 521, 530
n.9, 110 S. Ct. 885, 891 n.9, 107 L. Ed.2d 967 (1990); Nielson
v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993).

When the ALJ

fails to provide a narrative discussion describing how the
evidence supports each conclusion, citing to specific medical
facts and nonmedical evidence, the court will conclude that his
RFC conclusions are not supported by substantial evidence.

See

Southard v. Barnhart, 72 Fed. Appx. 781, 784-785 (10th Cir. July
28, 2003).

The ALJ’s decision must be sufficiently articulated

so that it is capable of meaningful review; the ALJ is charged
with carefully considering all of the relevant evidence and
linking his findings to specific evidence.

Spicer v. Barnhart,

64 Fed. Appx. 173, 177-178 (10th Cir. May 5, 2003).

It is

insufficient for the ALJ to only generally discuss the evidence,
but fail to relate that evidence to his conclusions.

Cruse v.

U.S. Dept. of Health & Human Services, 49 F.3d 614, 618 (10th
Cir. 1995).

When the ALJ has failed to comply with SSR 96-8p

because he has not linked his RFC determination with specific
evidence in the record, the court cannot adequately assess
whether relevant evidence supports the ALJ’s RFC determination.
Such bare conclusions are beyond meaningful judicial review.
Brown v. Commissioner of the Social Security Administration, 245
F. Supp.2d 1175, 1187 (D. Kan. 2003).
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The ALJ made the following RFC findings:

plaintiff can

perform medium work in that she can lift and carry up to 50
pounds occasionally and 25 pounds frequently.

She can stand or

walk a total of 6 hours out of an 8-hour workday.

She can

perform work not involving the reading of fine print or
involving exposure to workplace hazards such as unprotected
heights and dangerous moving machinery.

She can perform simple,

unskilled work involving routine, repetitive tasks within a lowstress environment where she would not be subject to the demands
of fast-paced production work.

She can perform occasional,

simple, work-related decision-making, but no complex planning or
negotiation.

She can tolerate minor, infrequent changes within

the workplace.

She would require frequent (up to once per hour)

redirection to work tasks (R. at 17).
Plaintiff received treatment from Dr. Kerin Schell, a
psychologist, on a number of occasions in 2009-2010 (R. at 201213, 231-259, 260-290).
GAF of 35.2

Dr. Schell repeatedly gave plaintiff a

Standing alone, a low GAF score does not necessarily

evidence an impairment seriously interfering with a claimant’s
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:
31-40: Some impairment in reality testing or communication (e.g., speech is at times illogical,
obscure, or irrelevant) OR major impairment in several areas, such as work or school, family
relations, judgment, thinking, or mood (e.g., depressed man avoid friends, neglects family, and
is unable to work…).
Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR) (4th ed., text revision, American Psychiatric
Association 2000 at 34) (emphasis in original).

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ability to work.

A claimant’s impairment might lie solely with

the social, rather than the occupational sphere.

A GAF score of

fifty or less, however, does suggest an inability to keep a job.
Lee v. Barnhart, 117 Fed. Appx. 674, 678 (10th Cir. Dec. 8,
2004).

On February 10, 2010, Dr. Schell indicated that

plaintiff cannot work for a number of reasons, including
depression, apathy, low energy, manic and racing thoughts,
irritable/angry, anxiety, worry, panic, agoraphobia,
hallucinations, and pain disorder (R. at 246).

Dr. Schell, on

April 9, 2010, described plaintiff’s hallucinations as severe,
categorizing them as occasional borderline psychotic
hallucinations: hearing a voice talking outside of person’s
head; seeing spirits and people occasionally (R. at 280).

On

June 18, 2010, Dr. Schell noted that plaintiff revealed that she
was talking to a murdered friend daily about writing a book (R.
at 265).

The ALJ gave little weight to the opinions of Dr.

Schell for a number of reasons (R. at 19-20).
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.
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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.

The court is concerned with the fact that, other than Dr.
Schell’s notes and assessment, to which the ALJ gave little
weight, there is no other medical opinion evidence regarding
plaintiff’s RFC, and the ALJ has not pointed to any evidence,
medical or otherwise, in support of his RFC findings.

In the

case of Fleetwood v. Barnhart, 211 Fed. Appx. 736 (10th Cir.
Jan. 4, 2007), the ALJ relied on a state agency medical
consultant who filled out a check-the-box evaluation form,
which, standing alone, the court found did not constitute
substantial evidence.

The court stated that no other medical

evidence in the record specifically addressed her ability to
work.

The court held as follows:

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To the extent there is very little medical
evidence directly addressing Ms. Fleetwood's
RFC, the ALJ made unsupported findings
concerning her functional abilities. Without
evidence to support his findings, the ALJ
was not in a position to make an RFC
determination.
The ALJ's inability to make proper RFC
“findings may have sprung from his failure
to develop a sufficient record on which
those findings could be based.” Washington
v. Shalala, 37 F.3d 1437, 1442 (10th
Cir.1994). The ALJ must “make every
reasonable effort to ensure that the file
contains sufficient evidence to assess RFC.”
Soc. Sec. R. 96-8p, 1996 WL 374184, at *5.
Because the disability hearing is
nonadversarial, an ALJ is obligated to
develop the record even where, as here, the
claimant is represented by counsel. Thompson
v. Sullivan, 987 F.2d 1482, 1492 (10th
Cir.1993); accord Hawkins v. Chater, 113
F.3d 1162, 1164, 1168 (10th Cir.1997). Even
though Ms. Fleetwood's counsel did not
request any additional record development,
the need for additional evidence is so
clearly established in this record that the
ALJ was obliged to obtain more evidence
regarding her functional limitations. See
Hawkins, 113 F.3d at 1167-68.
Fleetwood, 211 Fed. Appx. at 740-741; see Martin v. Astrue, Case
No. 09-1235-SAC (June 28, 2010, Doc. 13-15, 16-18).
However, in the case before the court, the record clearly
shows plaintiff’s failure to cooperate.

A note dated November

10, 2009 notes that plaintiff received a prior denial for
failure to cooperate, did not go to CE (consultative exam).
note of November 13, 2009 stated that the agency needed
plaintiff to return adl (activities of daily living form) to
10

A

obtain cooperation to schedule mse (mental status exam).

A note

of November 20, 2009 indicated that a message was left for the
plaintiff, and an attempt to contact plaintiff by phone.

A

message was left with plaintiff’s mother, requesting that
plaintiff call the agency.

Again, on November 24, 2009, an

attempt was made to contact the plaintiff.

A message was left

with a third party and her representative that forms have not
been returned.

On December 2, 2009, a message was left with

plaintiff’s attorney, indicating that plaintiff had not returned
her forms.

The agency requested that the forms be returned or

the agency be contacted by December 4, 2009, or a decision may
need to be made with the information in the file.

On December

4, 2009, a letter was sent to plaintiff asking that the forms be
returned by December 14, 2009, stating that if the forms were
not returned, a decision will be made without this evidence and
this could result in a denial of benefits.

On December 4, 2009,

the agency unsuccessfully attempted to contact plaintiff by
phone.

A message was left with a 3rd party requesting a return

phone call.

On December 15, 2009, it was noted that plaintiff

had failed to cooperate; no response had been received from
plaintiff or a representative of the plaintiff.

The agency was

unable to get the function forms from the plaintiff.

It was

noted that a MSE (mental status exam) was needed to fully assess
the plaintiff’s allegations.

It noted a prior denial for
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failure to cooperate.

The agency notes states that they will

proceed with insufficient evidence (R. at 146-149).
A psychiatric review technique form signed by Dr. Cohen on
December 16, 2009 stated that there was insufficient evidence to
make a medical disposition.

Dr. Cohen indicated that multiple

attempts were made to contact the plaintiff, but that phone
calls and letters did not result in getting the function forms
from the plaintiff.

Dr. Cohen stated that a MSE (mental status

exam) was needed to fully assess plaintiff’s allegations (R. at
214, 224, 226).

On September 21, 2010, Dr. Siemsen filled out a

case analysis stating that there is insufficient evidence due to
failure to cooperate (R. at 292).
The record contains very little evidence, especially
medical opinion evidence regarding plaintiff’s RFC; the only
medical evidence is that of Dr. Schell, and her opinions were
given little weight by the ALJ.

The case law is clear that the

ALJ has a duty to develop a sufficient record on which to base
their RFC findings.

However, in the case before the court, the

agency repeatedly tried to contact plaintiff and her attorney by
phone and letter in order to obtain function forms from the
plaintiff; the agency noted that an MSE (mental status exam) was
needed to fully assess plaintiff’s allegations.

The agency sent

a letter to plaintiff warning her that failure to return the
forms could result in a denial of benefits.
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Dr. Cohen and Dr.

Siemsen were unable to provide opinions because of plaintiff’s
failure to cooperate.
According to C.F.R. § 416.918(a), if a claimant is applying
for benefits, and does not have a good reason for failing or
refusing to take part in a consultative examination or test
arranged by the agency in order to determine if the claimant is
disabled, the agency “may find that you are not disabled.”

In

other words, the regulation indicates that a claimant may be
denied benefits as a sanction for the claimant’s disobedience.
Pearce v. Sullivan, 871 F.2d 61, 62 (7th Cir. 1989).

Although

the ALJ did not expressly cite to this statute to support his
finding that plaintiff was not disabled,3 the court finds that
plaintiff’s failure to fill out function forms needed so that a
mental status exam could be conducted, to permit Dr. Cohen to
evaluate plaintiff’s mental condition, or to permit Dr. Siemsen
to evaluate plaintiff’s condition, provide sufficient reason to
affirm the ALJ’s decision to deny benefits.

An ALJ cannot

develop a sufficient record on which to determine if plaintiff’s
impairments meet or equal a listed impairment or make RFC
findings when plaintiff refuses to cooperate.

On the facts

before the court in this case, the court finds that, because of
plaintiff’s refusal to cooperate, the ALJ did not err by giving

3

The ALJ did note the multiple attempts made to contact plaintiff to obtain forms (R. at 19-20), and defendant’s
brief noted plaintiff’s refusal to cooperate with examinations or provide evidence requested (Doc. 15 at 19).
Plaintiff did not address plaintiff’s failure to cooperate in either her initial brief or her reply brief.
13

little weight to the opinions of Dr. Schell and making a
determination that plaintiff could work based on the ALJ’s RFC
findings.
IT IS THEREFORE ORDERED that the judgment of the
Commissioner is affirmed pursuant to sentence four of 42 U.S.C.
§ 405(g).
Dated this 11th day of March 2014, Topeka, Kansas.

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

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