Kiraly v. Social Security Administration, Commissioner of

Filing 23

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 9/2/14. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

PATRICIA AMY KIRALY,
Plaintiff,
vs.

Case No. 13-1222-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 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

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
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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 April 5, 2012, administrative law judge (ALJ) James

Harty issued his decision (R. at 14-24).

Plaintiff alleges that

she had been disabled since July 1, 2009 (R. at 14).

Plaintiff

is insured for disability insurance benefits through December
31, 2010 (R. at 16).

At step one, the ALJ found that plaintiff
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did not engage in substantial gainful activity since the alleged
onset date (R. at 16).

At step two, the ALJ found that

plaintiff had the following severe impairments:

fibromyalgia,

degenerative disease of the bilateral hips, degenerative disease
of the lumbar and thoracic spine, degenerative disease of the
right shoulder, right knee injury, bilateral lower extremity
sensory neuropathy and chronic fatigue syndrome (R. at 16).

At

step three, the ALJ determined that plaintiff’s impairments do
not meet or equal a listed impairment (R. at 17).

After

determining plaintiff’s RFC (R. at 17-18), the ALJ determined at
step four that plaintiff is able to perform past relevant work
as a secretary (R. at 23).

Therefore, the ALJ concluded that

plaintiff was not disabled (R. at 23).
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 limited plaintiff to lifting 40 pounds, with
occasional bending, stooping, and twisting.

Plaintiff must be

afforded the opportunity to sit or stand during the work day,
not less than 30 minutes sitting and 30 minutes standing.
Plaintiff can lift and carry at ground level work only;
plaintiff must avoid kneeling and climbing ladders, and can
occasionally squat (R. at 17-18).
In making his RFC findings, the ALJ gave “substantial”
weight to the opinions of Dr. Estivo (R. at 22), who performed a
physical examination on the plaintiff and reviewed various
medical records (R. at 616-627, 629-630).

Dr. Estivo

recommended a 40 pound weight restriction, with no repetitive
bending, stooping, or twisting; alternating sitting with
standing; as well as ground level work only with no kneeling or
ladder climbing, and limited squatting (R. at 630).
Dr. Foster prepared a state agency assessment (R. at 492498).

The ALJ gave it substantial weight to the extent it was

consistent with the RFC assessment (R. at 22).
The record also contains a RFC assessment from Wesley
Detrick, plaintiff’s treating chiropractor (R. at 499-500, 520524).

He opined that plaintiff has to change positions every

few minutes due to hip and back discomfort, and is unable to
work due to constant pain (R. at 500).

He opined that plaintiff

could only sit for 2 hours and stand/walk for 2 hours in an 8
7

hour workday (R. at 522).
this opinion.

The ALJ accorded “little” weight to

The ALJ discounted the chiropractor’s opinions

because he relied on x-rays which do not support the alleged
limitations, and because the chiropractor relied on plaintiff’s
subjective complaints rather than objective evidence.

The ALJ

also noted that a chiropractor’s opinion is not eligible to be
afforded controlling weight (R. at 22).
Acceptable medical sources includes physicians.

Other

medical sources who are not acceptable medical sources include
chiropractors.

SSR 06-03p, 2006 WL 2329939 at *1, 2.

An

opinion from an acceptable medical source is a factor that may
justify giving that opinion greater weight because such
acceptable medical sources are “the most qualified health care
professional.”

SSR 06-03p, 2006 WL 2329939 at *5.

Furthermore,

the opinion of an examining physician is generally entitled to
greater weight than physician who has never seen the claimant.
Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004).
The ALJ gave more weight to the opinions of the two
acceptable medical sources as compared to the opinion of a
chiropractor, and also gave greater weight to the opinion of an
examining physician (Dr. Estivo) as compared to the opinion of a
non-examining physician (Dr. Foster).

Giving greater weight to

acceptable medical sources, and giving more weight to an

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examining physician as compared to a non-examining physician is
in accordance with agency regulations and rulings.
The only change the ALJ made to the opinions of Dr. Estivo,
who opined that plaintiff should be able to alternate sitting
and standing, but did not specify in what durations, was to
state that plaintiff should be afforded the opportunity to sit
or stand, not less than 30 minutes sitting and 30 minutes
standing (R. at 18).

Plaintiff’s chiropractor had opined that

plaintiff needed to be able to shift positions at will from
sitting, standing or walking (R. at 523).

The ALJ rejected the

opinion of the chiropractor, giving it little weight, and gave
substantial weight to the opinions of Dr. Estivo.

The ALJ noted

that Dr. Estivo did not specify in what durations she needed to
alternate sitting and standing (R. at 22), and found that she be
allowed not less than 30 minutes sitting and 30 minutes
standing.

The ALJ had also previously noted that plaintiff had

testified on May 24, 2011 that she could sit for 30-45 minutes
as long as she could shift in the chair, and could stand for 15
minutes (R. at 18, 62-63).
There is no requirement for a direct correspondence between
an RFC finding and a specific medical opinion on the functional
capacity in question.
Cir. 2012).

Chapo v. Astrue, 682 F.3d 1285, 1288 (10th

Furthermore, the court will not reweigh the

evidence or substitute its judgment for that of the
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Commissioner.

Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th

Cir. 2005); White v. Barnhart, 287 F.3d 903, 905, 908, 909 (10th
Cir. 2002).

Although the court will not reweigh the evidence,

the conclusions reached by the ALJ must be reasonable and
consistent with the evidence.

See Glenn v. Shalala, 21 F.3d

983, 988 (10th Cir. 1994)(the court must affirm if, considering
the evidence as a whole, there is sufficient evidence which a
reasonable mind might accept as adequate to support a
conclusion).
evidence.

The court can only review the sufficiency of the

Although the evidence may support a contrary finding,

the court cannot displace the agency’s choice between two fairly
conflicting views, even though the court may have justifiably
made a different choice had the matter been before it de novo.
Oldham v. Astrue, 509 F.3d 1254, 1257-1258 (10th Cir. 2007).
Based on plaintiff’s testimony at the 1st hearing in 2011,
and the fact that the ALJ did not find plaintiff entirely
credible for the reasons set forth in his opinion (R. at 18-19,
21-22),1 the ALJ could reasonably conclude that plaintiff have
the opportunity to sit or stand during the work day, not less
than 30 minutes sitting and 30 minutes standing.

The court

finds that substantial evidence supports the ALJ’s RFC finding
on this point.

1

Plaintiff does not contest the ALJ’s credibility findings in her brief. Furthermore, it should be noted that the
physical RFC assessment by Dr. Foster stated that the file contains some inconsistencies which erode the credibility
of plaintiff’s allegations. Dr. Foster found plaintiff to be only partially credible (R. at 497).
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The second issue raised by plaintiff is regarding the
finding of Dr. Estivo that plaintiff be restricted to “no
repetitive bending, stooping, or twisting” (R. at 630).

In his

RFC findings, the ALJ limited plaintiff to “occasional bending,
stooping, twisting” (R. at 17-18).

Plaintiff argues that this

was an inaccurate adjustment of the findings of Dr. Estivo.
According to the Selected Characteristics of Occupations
Defined in the Revised Dictionary of Occupational Titles (SCO)
(U.S. Dept. of Labor, 1993 at C-3), “occasionally” involves an
activity existing up to 1/3 of the time, “frequently” involves
an activity existing from 1/3 to 2/3 of the time, and
“constantly” involves an activity or condition that exists 2/3
or more of the time.

In the case of Gallegos v. Barnhart, 99

Fed. Appx. 222, 224 (10th Cir. June 2, 2004), a vocational
expert (VE) expressly construed “repetitive” to mean the same
thing as “constant,” or 2/3 or more of the time.

Based on these

definitions, the ALJ’s RFC finding limiting plaintiff to
“occasional” bending, stooping and twisting is consistent with
the opinion of Dr. Estivo that plaintiff engage in no
“repetitive” bending, stooping or twisting.

In summary, the

court finds that substantial evidence supports the ALJ’s RFC
findings.

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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 2nd day of September 2014, Topeka, Kansas.

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

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