Schmitt v. Social Security Administration, Commissioner of

Filing 20

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 7/16/14. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JOHN SCHMITT,
Plaintiff,
vs.

Case No. 13-1129-SAC

CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
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

scintilla, but less than a preponderance, and is satisfied by
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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).

The claimant's physical or

mental impairment or impairments must be of such severity that
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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.
the claimant survives step four, the fifth and final step
3

If

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 May 8, 2011, administrative law judge (ALJ) Robert J.

Burbank issued his decision (R. at 16-28).

Plaintiff alleges

that he had been disabled since December 7, 2007 (R. at 16).

At

step one, the ALJ found that plaintiff did not engage in
substantial gainful activity since the September 18, 2009, the
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application date (R. at 18).

At step two, the ALJ found that

plaintiff had the following severe impairments:

degenerative

disc disease of the lumbar spine, drug and alcohol abuse,
antisocial personality disorder, and a mood disorder (R. at 18).
At step three, the ALJ determined that plaintiff’s impairments
do not meet or equal a listed impairment (R. at 19).

After

determining plaintiff’s RFC (R. at 20), the ALJ determined at
step four that plaintiff is unable to perform any past relevant
work (R. at 26).

At step five, the ALJ determined that

plaintiff could perform other jobs that exist in significant
numbers in the national economy (R. at 26-27).

Therefore, the

ALJ concluded that plaintiff was not disabled (R. at 27-28).
III.

Did the ALJ give proper consideration to the medical

source opinions?
Plaintiff alleges error by the ALJ in failing to include
certain limitation in the treating source opinions.

The court

will therefore review the three medical opinions regarding
plaintiff’s physical limitations.
On December 22, 2008, Dr. Brewster examined plaintiff and
prepared an assessment of plaintiff’s physical limitations (R.
at 234-241).

Dr. Brewster opined that plaintiff could

walk/stand for 6 hours in an 8 hour day with 15 minute breaks
every two hours.

Plaintiff had no limitation on sitting or

lifting/carrying, and occasional restrictions on stooping (R. at
5

241).

The ALJ gave “significant” weight to Dr. Brewster’s

opinions regarding plaintiff’s ability to stand/walk and the
lack of manipulative limitations (R. at 22).
A physical RFC assessment was prepared and dated April 15,
2010 by Dr. Siemsen, a non-examining physician (R. at 323-330).
Dr. Siemsen opined that plaintiff could lift 50 pounds
occasionally and 25 pound frequently, could sit for 6 hours in
an 8 hour workday, and could stand/walk for 6 hours in an 8 hour
workday (R. at 324).

Plaintiff could occasionally climb

ladders/ropes/scaffolds, and should avoid concentrated exposure
to extreme cold and vibration (R. at 325, 327).

The ALJ gave

“significant” weight to the opinions of Dr. Siemsen, noting that
they are consistent with the evidence of record and are
generally supported by the opinions of Dr. Brewster (R. at 24).
Dr. Hinken, who performed surgery on plaintiff’s left
wrist, opined on March 1, 2011 that plaintiff could never
finger, reach or handle with his left hand, should avoid any
exposure to vibrations or hazards with his left hand, and cannot
lift and/or carry with the left hand.

He also opined that if

the wrist was painful, plaintiff would need to elevate it above
his heart for 10-15 minutes per hour (R. at 444-445).

The ALJ

gave little weight to his opinions because they were made
approximately two months after the wrist injury, and the ALJ
stated that these limitations would not be expected to be
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similarly limiting for 12 months following the injury (R. at
25).
The ALJ opined that plaintiff could perform light work,
should avoid concentrated exposure to extreme cold and
vibrations, and is limited to simple work with no more than
occasional public contact (R. at 20).

As such, the ALJ’s RFC

findings clearly gave significant weight to the opinions of Dr.
Brewster and Dr. Siemsen.
Plaintiff noted that the ALJ failed to assess restrictions
on only occasional climbing of ladders/ropes/scaffolds as opined
by Dr. Siemsen.

However, SSR 96-9p states that postural

limitations on climbing ladders/ropes/scaffolds would not
usually erode the occupational base for a full range of
unskilled sedentary work.

1996 WL 374185 at *7.

SSR 83-14

states that relatively few jobs in the national economy require
ascending or descending ladders and scaffolding.
at *2.

1983 WL 31254

Therefore, the failure to include this limitation in the

RFC findings is, at best, harmless error.
Plaintiff also noted that the ALJ failed to assess a
restriction for occasional restrictions on stooping, as opined
by Dr. Brewster.

However, SSR 83-14 states that to perform

substantially all of the exertional requirements of most
sedentary and light jobs, a person would need to stoop only
occasionally.

1983 WL 31254 at *2; see SSR 96-9p (the ability
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to stoop occasionally is required in most unskilled sedentary
occupations), 1996 WL 374185 at *8.

Therefore, the failure to

include this limitation in the RFC findings is also, at best,
harmless error.
Dr. Brewster also opined that plaintiff could walk/stand
for 6 hours in an 8 hour day, but would need 15 minute breaks
every 2 hours (R. at 241).

Although the ALJ noted this opinion

by Dr. Brewster (R. at 22), the ALJ, without explanation, did
not include this limitation in his RFC findings.
SSR 96-9p explains the Social Security Administration’s
policies regarding the impact of a RFC assessment for less than
a full range of sedentary work.

On the issue of alternating

sitting and standing, it states the following:
An individual may need to alternate the
required sitting of sedentary work by
standing (and, possibly, walking)
periodically. Where this need cannot be
accommodated by scheduled breaks and a lunch
period, the occupational base for a full
range of unskilled sedentary work will be
eroded. The extent of the erosion will
depend on the facts in the case record, such
as the frequency of the need to alternate
sitting and standing and the length of time
needed to stand. The RFC assessment must be
specific as to the frequency of the
individual's need to alternate sitting and
standing. It may be especially useful in
these situations to consult a vocational
resource in order to determine whether the
individual is able to make an adjustment to
other work.
SSR 96-9p, 1996 WL 374185 at *7 (emphasis added).
8

SSR 83-12 discusses the use of the medical-vocational rules
as a framework for adjudicating claims in which an individual
has only exertional limitations within a range of work or
between ranges of work.

One special situation covered in SSR

83-12 is the need to alternate between sitting and standing.
states as follows:
In some disability claims, the medical
facts lead to an assessment of RFC which is
compatible with the performance of either
sedentary or light work except that the
person must alternate periods of sitting and
standing. The individual may be able to sit
for a time, but must then get up and stand
or walk for awhile before returning to
sitting. Such an individual is not
functionally capable of doing either the
prolonged sitting contemplated in the
definition of sedentary work (and for the
relatively few light jobs which are
performed primarily in a seated position) or
the prolonged standing or walking
contemplated for most light work. (Persons
who can adjust to any need to vary sitting
and standing by doing so at breaks, lunch
periods, etc., would still be able to
perform a defined range of work.)
There are some jobs in the national
economy--typically professional and
managerial ones--in which a person can sit
or stand with a degree of choice. If an
individual had such a job and is still
capable of performing it, or is capable of
transferring work skills to such jobs, he or
she would not be found disabled. However,
most jobs have ongoing work processes which
demand that a worker be in a certain place
or posture for at least a certain length of
time to accomplish a certain task. Unskilled
types of jobs are particularly structured so
that a person cannot ordinarily sit or stand
at will. In cases of unusual limitation of
9

It

ability to sit or stand, a VS [vocational
specialist] should be consulted to clarify
the implications for the occupational base.
SSR 83-12, 1983 WL 31253 at *4 (emphasis added).
In the case of Armer v. Apfel, 216 F.3d 1086 (table), 2000
WL 743680 (10th Cir. June 9, 2000), the ALJ found that the
claimant was limited to unskilled sedentary work that would
allow him to “change positions from time to time.”
743680 at *2.

2000 WL

The court cited to the language quoted above in

SSR 96-9p and held that the ALJ’s finding that the claimant
would have to change positions from time to time was vague and
did not comply with SSR 96-9p.

The court held that the RFC

assessment must be specific as to the frequency of the
individual’s need to alternate sitting and standing because the
extent of the erosion of the occupational base will depend on
the facts in the case record, such as the frequency of the need
to alternate sitting and standing and the length of time needed
to stand.

The ALJ’s findings also must be specific because the

hypothetical questions submitted to the vocational expert (VE)
must state the claimant’s impairments with precision.

Id. at

*2-3.
In the case of Vail v. Barnhart, 84 Fed. Appx. 1, 2-3 (10th
Cir. Nov. 26, 2003), the ALJ had made RFC findings limiting
plaintiff to light work which included a limitation to allow

10

plaintiff brief changes of position (alternating sitting and
standing).

The court stated as follows:
Furthermore, if an ALJ finds that a claimant
cannot perform the full range of work in a
particular exertional category, an ALJ's
description of his findings in his
hypothetical and in his written decision
must be particularly precise. For example,
according to one of the agency's own rulings
on sedentary labor, the description of an
RFC in cases in which a claimant can perform
less than the full range of work “must be
specific as to the frequency of the
individual's need to alternate sitting and
standing.” Social Security Ruling 96-9P,
1996 WL 374185 (S.S.A.) at *7. Precisely how
long a claimant can sit without a change in
position is also relevant to assumptions
whether he can perform light work. 20 C.F.R.
§ 404.1567(b).

84 Fed. Appx. at **4-5 (emphasis added).

The court then held

that the ALJ made a critical omission in his analysis by not
properly defining how often the claimant would need to change
positions.

84 Fed. Appx. at *5.

Finally, in Maynard v. Astrue, 276 Fed. Appx. 726, 731
(10th Cir. Feb. 16, 2007), the ALJ indicated to the VE that the
claimant needed a sit/stand option.

After quoting the language

of SSR 96-9p, the court held:
The ALJ's hypothetical does not comply with
the emphasized language in the foregoing
quotation because it provided no specifics
to the VE concerning the frequency of any
need Mr. Maynard may have to alternate
sitting and standing and the length of time
needed to stand. The RFC in the ALJ's
hypothetical is therefore flawed as it
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pertains to a sit-stand option, and the VE's
response is not a reliable basis for
analyzing the erosion of the unskilled
sedentary occupational base or the total
number of jobs Mr. Maynard can perform... .
In the case of Gutierrez v. Barnhart, 109 Fed. Appx. 321,
326-327 (10th Cir. Sept. 21, 2004), Dr. Sun opined that plaintiff
could walk and/or stand for 2 hours at a time up to a total of 6
hours in a workday, and the ALJ accepted that opinion in making
his own RFC determination.1

The court then stated:

Light work requires the ability to stand
and/or walk for up to six hours a day, with
intermittent sitting during the remaining
time, yet plaintiff can neither stand nor
walk for longer than two hours at a time
before he must switch to another activity.
An individual who must vary his standing and
sitting more frequently than at scheduled
breaks “is not functionally capable of doing
either the prolonged sitting contemplated in
the definition of sedentary work (and for
the relatively few light jobs which are
[performed primarily in a seated position])
or the prolonged standing or walking
contemplated for most light work.” Soc. Sec.
Rul. 83–12, 1983 WL 31253, at *4 (1983). We
cannot say as a matter of law that a person
with plaintiff's restrictions has the
ability to perform substantially all the
occupations existing at the light exertional
level or to do so on a sustained and regular
basis. See Soc. Sec. Rul. 83–10, *328 1983
WL 31251, at *2; Channel v. Heckler, 747
F.2d 577, 579–80 (10th Cir.1984) (per
curiam).
109 Fed. Appx. 321, 327-328.

1

The court noted that the evidence did not reflect how long plaintiff must perform an alternate activity before he
may return to standing or walking. 109 Fed. Appx. 321, 327-328 n.5.
12

Based on the social security rulings and case law set forth
above, the court cannot say as a matter of law that a person
who, as opined by Dr. Brewster, can walk/stand for 6 hours in an
8 hour day with 15 minute breaks every 2 hours is able to
perform the light jobs identified by the VE.

The VE was not

given this limitation before he testified regarding what jobs
plaintiff could perform.

In light of the fact that the ALJ gave

“significant” weight to the opinions of Dr. Brewster, the ALJ
should have either included this limitation in his RFC findings,
or provided a legally sufficient basis for not including this
limitation in his RFC findings.2

Therefore, this case shall be

remanded in order to address this issue.
Plaintiff also asserts error by the ALJ in not including
the limitations of Dr. Hinken regarding plaintiff’s use of his
left hand.

The ALJ attached little weight to these opinions

because they were made approximately 2 months after the left
wrist injury, and would not be expected to last for 12
consecutive months (R. at 25).
Plaintiff bears the burden of proof through step four of
the five step evaluation process.

At step five, the burden

shifts to the Commissioner to show that the claimant can perform

2

If the RFC assessment conflicts with an opinion from a medical source, the ALJ must explain why the opinion was
not adopted. SSR 96-8p, 1996 WLL 374184 at *7. Furthermore, when there are conflicting medical opinions, the
ALJ must explain the basis for adopting one and rejecting another. Quintero v. Colvin, 2014 WL 2523705 at *4
(10th Cir. June 5, 2014); Reveteriano v. Astrue, 490 Fed. Appx. 945, 947 (10th Cir. July 27, 2012).
13

work that exists in the national economy.
992 F.2d 1118, 1120 (1993).

Nielson v. Sullivan,

Plaintiff bears the burden of

establishing that he met the duration requirement.

Plaintiff

must provide medical evidence that his/her left hand limitations
would be expected to last for 12 months.

See Roberts v.

Shalala, 66 F.3d 179, 182 (9th Cir. 1995); Corona v. Colvin, 2014
WL 2772404 at *4 (C.D. Cal. June 19, 2014).

In the absence of

any medical evidence from plaintiff that his left hand
limitations would be expected to last for 12 months, the court
finds no error in the ALJ’s conclusion that these limitations
would not be expected to last for 12 months.

However, on

remand, the duration of these limitations may be further
addressed.
In light of the fact that this case is being remanded for
the reasons set forth above, the court will note one issue not
raised by the parties in the hope of forestalling the repetition
of avoidable error.
Cir. 2012).

Chapo v. Astrue, 682 F.3d 1285, 1292 (10th

Dr. Stern opined that plaintiff had moderate

limitations in six areas:
The ability to understand and remember
detailed instructions.
The ability to carry out detailed
instructions.
The ability to work in coordination with or
proximity to others without being distracted
by them.
14

The ability to interact appropriately with
the general public.
The ability to get along with coworkers or
peers without distracting them or exhibiting
behavioral extremes.
The ability to set realistic goals or make
plans independently of others.
(R. at 347-348).

The ALJ limited plaintiff in his RFC findings

to simple work with no more than occasional public contact (R.
at 20).
The ALJ gave “significant” weight to the opinions of Dr.
Stern (R. at 25).

However, the ALJ failed to explain why his

RFC findings included only some of the moderate limitations set
forth in Dr. Stern’s report.

On remand, the ALJ must explain

why he adopted some of the moderate limitations contained in Dr.
Stern’s report, but not others.

Haga v. Astrue, 482 F.3d 1205,

1207-1208 (10th Cir. 2007); Frantz v. Astrue, 509 F.3d 1299,
1302-1303 (10th Cir. 2007); Wilson v. Colvin, 541 Fed. Appx. 869,
872-874 (10th Cir. Oct. 16, 2013).
IV.

Are the ALJ’s credibility findings supported by

substantial evidence?
Plaintiff also asserts error by the ALJ in his credibility
findings.

The court will not address this issue because it may

be affected by the ALJ’s resolution of the case on remand after
giving further consideration to the medical source opinions, as
15

set forth 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 16th day of July 2014, Topeka, Kansas.

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

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