Price v. Social Security Administration, Commissioner of

Filing 25

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 3/26/14. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

SKYE PRICE,
Plaintiff,
vs.

Case No. 13-1055-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
Plaintiff filed his application for social security

disability on March 3, 2005 (R. at 17).

On December 20, 2007,

administrative law judge (ALJ) Edmund C. Were issued the 1st ALJ
decision denying plaintiff disability benefits (R. at 17-32).
4

Following the decision of the Appeals Council on June 6, 2009
denying review of the ALJ decision (R. at 14-16), plaintiff
sought judicial review of the agency decision.

On August 17,

2010, Judge Lungstrum reversed the decision of the Commissioner
and remanded the case for further hearing (R. at 524-548).
On November 18, 2011, administrative law judge (ALJ) James
Harty issued the 2nd ALJ decision (R. at 474-493).

Plaintiff

alleges that he had been disabled since November 1, 2003 (R. at
474).

Plaintiff is insured for disability insurance benefits

through March 31, 2009 (R. at 477).

At step one, the ALJ found

that plaintiff did not engage in substantial gainful activity
since the alleged onset date (R. at 477).

At step two, the ALJ

found that plaintiff has the following severe impairments:
degenerative disc disease of the lumbar spine status/post
discectomy, major depressive disorder, and alcohol dependence
(R. at 477).

At step three, the ALJ determined that plaintiff’s

impairments, including the substance abuse disorder, meet a
listed impairment (R. at 479).

If the plaintiff stopped the

substance use, the ALJ found that plaintiff’s impairments would
not meet a listed impairment (R. at 480).

After assessing

plaintiff’s RFC (R. at 481), the ALJ found at step four that,
absent substance use, plaintiff would be unable to perform past
relevant work (R. at 492).

At step five, the ALJ found that

plaintiff could still perform a significant number of jobs in
5

the national economy (R. at 492-493).

The ALJ concluded that

substance use disorder is a contributing factor material to the
determination of disability because the plaintiff would not be
disabled if he stopped the substance use.

Because the substance

use is a contributing factor material to the determination of
disability, the plaintiff has not been disabled at any time from
the alleged onset date through the date of the ALJ decision (R.
at 493).
III.

Did the ALJ err in his consideration of the medical

evidence?
Plaintiff first argues that the ALJ erred by failing to
identify the weight given the opinions of Dr. Morrow or Dr.
Oommen (Doc. 15 at 27).

Dr. Oommen prepared a consultative

examination and assessment on October 15, 2005 (R. at 271-275),
and Dr. Morrow prepared a consultative examination and
assessment on February 19, 2010 (R. at 870-872).
The ALJ referenced both examinations in his decision (R. at
484, 485, 486, 489-490).

The ALJ cited to the findings of Dr.

Oommen to discount opinions of Dr. Goertzen (R. at 489-490).
The ALJ also cited to the findings of Dr. Morrow to discount
plaintiff’s allegations (R. at 486).

However, neither Dr.

Oommen nor Dr. Morrow offered any opinions regarding plaintiff’s
ability to work.

Thus, neither offered an opinion that could be

evaluated by the ALJ for purposes of making RFC findings.
6

Endriss v. Astrue, 506 Fed. Appx. 772, 778 (10th Cir. Dec. 26,
2012)(although physical therapist indicated that plaintiff had
limitations in claimant’s cervical range of motion, she did not
opine as to how those limitations would affect claimant’s
ability to function; thus, the ALJ did not err by not evaluating
the weight to be given to those findings).

Therefore, the court

finds no error in the ALJ’s consideration of the reports from
Dr. Oommen or Dr. Morrow.
Plaintiff also alleges error in the ALJ’s analysis of the
opinions of Dr. Goertzen, a treatment provider.

The ALJ gave

some weight to his opinions, but stated that his opinions were
not entitled to controlling weight due to internal
inconsistencies and the lack of objective support in the record
(R. at 489-490).

The court would note that the opinions of Dr.

Goertzen are on a check-the-box physical RFC assessment form
with no explanation or narrative in support of his opinions (R.
at 293-299A).

The ALJ stated that his opinions are not

supported by other medical findings, and discussed those medical
findings which the ALJ found not to support the opinions of Dr.
Goertzen.

Plaintiff does not cite to any other medical opinion

evidence that supports the limitations set forth by Dr.
Goertzen.

The physical RFC assessment, affirmed by Dr. Siemsen,

contained a narrative summary in support of those findings,

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unlike the assessment by Dr. Goertzen (R. at 891-900).

The ALJ

accorded “some” weight to this opinion (R. at 490).
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).

The court finds no clear

error by the ALJ in his analysis of the opinions of Dr.
Goertzen.
The court will next consider the weight given by the ALJ to
the opinions of Dr. Allen, who performed a consultative mental
status exam on the plaintiff on February 25, 2010 (R. at 865867).

Dr. Allen’s conclusions were as follows:
Mr. Price appears to be able to understand
and carry out simple instructions. His
problems with depression and anxiety may
sometimes get in the way of his sustaining
attention and concentration. He would work
best [in] a low-key environment that is not
very crowded. He may have some difficulty
with sustaining attendance, but could
maintain standards of productivity. He
really does not have much of an opportunity
to be persistent with regular tasks, and it
is suspected that there could be some
problems with his managing his finances.

(R. at 867).

The ALJ gave “significant” weight to her opinions

(R. at 490).
The ALJ’s mental RFC findings for the plaintiff limited him
to simple routine repetitive tasks not performed in a fast-paced
production environment or as an integral part of a team.
8

Plaintiff was further limited to occasional interaction with
supervisors, coworkers, and the general public (R. at 482).

The

ALJ, despite giving “significant” weight to this opinion, did
not expressly include in his RFC findings some of the
limitations in Dr. Allen’s report, including difficulty with
sustaining attention and concentration, and difficulty with
sustaining attendance, and the ALJ offered no explanation for
failing to include the limitations in Dr. Allen’s report in his
RFC findings.
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).
In the case of Martinez v. Astrue, 422 Fed. Appx. 719, 724725 (10th Cir. Apr. 26, 2011), the court held that the ALJ erred
9

by failing to include all of the limitations found by Dr.
LaGrand without explaining why he rejected some of the
limitations, especially in light of the ALJ’s conclusion that
the medical source’s opinion was entitled to “great weight.”
The ALJ simply ignored certain limitations contained in the
medical report.

The court held that the ALJ may have had

reasons for giving great weight to some of the limitations set
forth by the medical source, while rejecting other limitations.
However, before rejecting some of the limitations, the ALJ was
required to discuss why he did not include those limitations.
An ALJ should explain why he rejected some limitations contained
in a RFC assessment from a medical source while appearing to
adopt other limitations contained in the assessment.

Haga v.

Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007).
Defendant argues that while not exactly the same, Dr.
Allen’s opinions are substantially consistent with the ALJ’s
mental RFC findings (Doc. 22 at 7).

However, the opinions of

Dr. Allen are not substantially consistent with the ALJ’s RFC
findings.

The ALJ limited plaintiff to simple, routine,

repetitive tasks not performed in a fast-paced production
environment.2

However, even simple work can be ruled out by a

vocational expert on the basis of a serious impairment in
2

Although the ALJ had earlier found that plaintiff had moderate difficulties with concentration, persistence or pace
(R. at 480), and in light of the “significant” weight given to the opinion of Dr. Allen (including difficulty with
sustaining attention and concentration), the ALJ, inexplicably, did not include any limitations in attention and
concentration in his RFC findings for the plaintiff.
10

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).
Furthermore, 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 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
11

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.
The ALJ’s RFC findings are silent regarding limitations on
sustaining attention and concentration, and sustaining
attendance, and the ALJ offers no explanation for not including
them in the RFC findings.

It is clear from the case law that

such a limitation may well impact plaintiff’s ability to perform
even simple jobs.

The ALJ clearly erred by giving “significant”

weight to the opinions of Dr. Allen, but, without explanation,
not including all of the limitations contained in her report in
the ALJ’s RFC findings.

On remand, the ALJ should either

include all of the limitations in the assessment in the RFC
findings, or, in the alternative, provide a legally sufficient
explanation for not including these limitations in plaintiff’s
RFC findings.
IV.

Did the ALJ err in finding plaintiff’s alcohol

dependence material to a determination of disability?
In 1996, Congress passed Public Law 104-121.
following language to 42 U.S.C. § 423(d)(2):

12

It added the

(C) An individual shall not be considered to
be disabled for purposes of this title if
alcoholism or drug addiction would (but for
this subparagraph) be a contributing factor
material to the Commissioner’s determination
that the individual is disabled.

20 C.F.R. § 404.1535 (disability insurance) and § 416.935 (SSI)
are identical, and are the implementing regulations governing
this issue.

The implementing regulations make clear that a

finding of disability is a condition precedent to an application
of §423(d)(2)(C).

The Commissioner must first make a

determination that the claimant is disabled.

He must then make

a determination whether the claimant would still be found
disabled if he or she stopped abusing alcohol or drugs.

If so,

then the alcohol or drug use is not a contributing factor
material to the finding of disability.

If however, the

claimant’s remaining impairments would not be disabling without
the alcohol or drug abuse, then the alcohol or drug abuse is a
contributing factor material to the finding of disability.

The

ALJ cannot begin to apply §423(d)(2)(C) properly when he has not
yet made a finding of disability.

Drapeau v. Massanari, 255

F.3d 1211, 1214-1215 (10th Cir. 2001).

In other words, an ALJ

must first conduct the five-step inquiry without separating out
the impact of alcoholism or drug addiction.

If the ALJ finds

that the claimant is not disabled under the five-step inquiry,
then the claimant is not entitled to benefits and there is no
13

need to proceed with the analysis under §§ 404.1535 or 416.935.
If the ALJ finds that the claimant is disabled and there is
medical evidence of his or her drug addiction or alcoholism,
then the ALJ should proceed under §§ 404.1535 or 416.935 to
determine if the claimant would still be found disabled if he or
she stopped using alcohol or drugs.

Bustamante v. Massanari,

262 F.3d 949, 955 (9th Cir. 2001).
Plaintiff argued that, contrary to the ALJ’s findings, his
functioning did not improve when he was sober.

The defendant

responded by stating that “although the ALJ’s decision is
unclear on this point, substantial evidence supports his finding
that Plaintiff’s functioning improved during sobriety” (Doc. 22
at 6 n.2, emphasis added).
In the case of Salazar v. Barnhart, 468 F.3d 615 (10th Cir.
2006), the court referred to a teletype sent out by the
Commissioner which pertains to Pub. L. 104-121.

The court

summarized portions of the teletype as follows:
Shortly after the law [Pub. L. 104-121] was
amended, the Commissioner sent out a
teletype on applying the new law, which
speaks to situations where a claimant has
one or more other mental impairments in
addition to DAA [drug addiction or
alcoholism]. It stresses the need for
careful examination of periods of abstinence
and also directs that if the effects of a
claimant's mental impairments cannot be
separated from the effects of substance
abuse, the DAA is not a contributing factor
material to the disability determination.
14

..........
With regard to the materiality finding, the
Commissioner's teletype further directs that
where a medical or psychological examiner
cannot project what limitations would remain
if the claimant stopped using drugs or
alcohol, the disability examiner should find
that DAA is not a contributing factor
material to the disability determination.
..........
Further, the Commissioner's teletype
instructs that where the record is devoid of
any medical or psychological report,
opinion, or projection as to the claimant's
remaining limitations if she stopped using
drugs or alcohol, an ALJ should “find that
DAA is not a contributing factor material to
the determination of disability.”
Salazar, 468 F.3d at 623, 624 (emphasis added).
As in Salazar, the ALJ in the case before the court does
not, in support of his assertion that plaintiff is not disabled
absent consideration of his substance use, cite to any medical
report, opinion, or projection as to plaintiff’s remaining
physical and mental limitations if he stopped substance use.
Even defendant admitted the ALJ’s decision is unclear on the
point that substantial evidence supported the ALJ’s finding that
plaintiff’s functioning improved during sobriety.

By contrast,

Dr. Xu, a treating psychiatrist, had opined that plaintiff’s
limitations would be disabling even if drug and alcohol abuse
were to stop (R. at 359-362).

Although the ALJ set forth

15

reasons for discounting the opinions of Dr. Xu (R. at 487), the
ALJ failed to cite to any medical or psychological report,
opinion, or projection as to plaintiff’s remaining limitations
if he stopped using drugs or alcohol, as required by Salazar.
Therefore, this case shall be remanded in order for the ALJ to
make new findings on the issue of whether plaintiff’s substance
use is a contributing factor material to the determination of
disability in accordance with the statues, regulations, and case
law set forth above.
One of the reasons the ALJ gave for discounting the
opinions of Dr. Xu is that the GAF score of 55 assigned by Dr.
Xu is inconsistent with his opinion that plaintiff had marked
limitations in 3 categories.

However, Dr. Xu also found that

plaintiff had moderate limitations in 10 categories and no
significant limitations in 7 categories).3

Furthermore, standing

alone, a GAF score, which can reflect social and/or occupational
functioning, does not necessarily evidence whether an impairment
seriously interferes with a claimant’s ability to work.

See Lee

3

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).
41-50: Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting),
OR any serious impairment in social, occupational, or school functioning (e.g., no friends,
unable to keep a job) (emphasis in original).
Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR) (4th ed., text revision, American Psychiatric
Association 2000 at 34) (emphasis in original).
16

v. Barnhart, 117 Fed. Appx. 674, 678 (10th Cir. Dec. 8, 2004).
Because a GAF score may not relate to a claimant’s ability to
work, the score, standing alone, without further explanation,
does not establish whether or not plaintiff’s impairment
severely interferes with an ability to perform basic work
activities.

See Eden v. Barnhart, 109 Fed. Appx. 311, 314 (10th

Cir. Sept. 15, 2004).

GAF scores are not considered absolute

determinants of whether or not a claimant is disabled.

Heinritz

v. Barnhart, 191 Fed. Appx. 718, 722 (10th Cir. Aug. 10, 2006).
In addition, there is no medical opinion evidence that the
GAF scores in the record do not correlate with the opinions of
Dr. Xu.

The adjudicator is not free to substitute his own

medical opinion for that of a disability claimant’s treatment
providers.
2004).

Hamlin v. Barnhart, 365 F.3d 1208, 1221 (10th Cir.

An ALJ is not entitled to sua sponte render a medical

judgment without some type of support for his determination.
The ALJ’s duty is to weigh conflicting evidence and make
disability determinations; he is not in a position to render a
medical judgment.
(D. Kan. 2002).

Bolan v. Barnhart, 212 F. Supp.2d 1248, 1262

In the absence of any medical opinion or other

evidence indicating that the GAF score of Dr. Xu is inconsistent
with his opinions, the ALJ overstepped his bounds into the
province of medicine.

Miller v. Chater, 99 F.3d 972, 977 (10th

17

Cir. 1996); McLeland v. Astrue, 2009 WL 348290 at *8 (D. Kan.
Feb. 11, 2009, Doc. 26 at 18).
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 26th day of March 2014, Topeka, Kansas.

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

18