Zwygart v. Social Security Administration, Commissioner of
Filing
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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 8/19/14. (mb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LYNN ZWYGART,
Plaintiff,
vs.
Case No. 13-1265-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 June 26, 2012, administrative law judge (ALJ) Christina
Young Mein issued her decision (R. at 14-21).
Plaintiff alleges
that he had been disabled since May 5, 2003 (R. at 14).
At step
one, the ALJ found that plaintiff did not engage in substantial
gainful activity since the alleged onset date (R. at 16).
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At
step two, the ALJ found that plaintiff had the following severe
impairments:
obesity, sleep apnea, diabetes, aortic valve
replacement in 2001 and gout (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), the ALJ determined at step four that plaintiff is
unable to perform past relevant work (R. at 19).
At step five,
the ALJ found that plaintiff could perform work that exists in
significant numbers in the national economy (R. at 19-20).
Therefore, the ALJ concluded that plaintiff was not disabled (R.
at 20-21).
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.
1996 WL 374184 at *7.
SSR 96-8p,
SSR rulings are binding on an ALJ.
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C.F.R. § 402.35(b)(1); Sullivan v. Zebley, 493 U.S. 521, 530
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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).
The ALJ found that plaintiff is limited to sedentary work,
except that the plaintiff cannot climb ladders, ropes or
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scaffolds.
He can frequently balance.
He can occasionally
climb ramps and stairs, stoop, kneel, crouch, and crawl.
He
needs to avoid concentrated exposure to extreme cold, extreme
heat, pulmonary irritants (such as fumes, dusts, and poorly
ventilated areas), unprotected heights, and hazardous machinery
(R. at 17).
The record contains a physical RFC assessment by Dr.
Colmey, a non-examining physician.
Dr. Colmey’s opinions match
those of the ALJ in her RFC findings (R. at 619-624).1
However,
the ALJ never mentioned the opinions of Dr. Colmey, and never
explained why he made RFC findings that match the opinions of
Dr. Colmey.
The record also contains a physical RFC assessment by Dr.
Harris (R. at 675-676).
The ALJ gave it “little” weight
because, according to the ALJ, her opinions were inconsistent
with the evidence and treatment records.
The ALJ noted that
plaintiff had been stable with yearly exams and that his most
current ejection fraction testing was well within the normal
range (R. at 19).
The opinions of physicians, psychologists, or psychiatrists
who have seen a claimant over a period of time for purposes of
treatment are given more weight than the views of consulting
physicians or those who only review the medical records and
1
On July 14, 2011, Dr. Coleman affirmed the RFC findings of Dr. Colmey (R. at 653).
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never examine the claimant.
The opinion of an examining
physician is generally entitled to less weight than that of a
treating physician, and the opinion of an agency physician who
has never seen the claimant is entitled to the least weight of
all.
Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004).
When a treating source opinion is inconsistent with the other
medical evidence, the ALJ’s task is to examine the other medical
source’s reports to see if they outweigh the treating source’s
reports, not the other way around.
Treating source opinions are
given particular weight because of their unique perspective to
the medical evidence that cannot be obtained from the objective
medical findings alone or from reports of individual
examinations, such as consultative examinations.
If an ALJ
intends to rely on a nontreating physician or examiner’s
opinion, he must explain the weight he is giving to it.
v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004).
Hamlin
The ALJ must
provide a legally sufficient explanation for rejecting the
opinion of treating medical sources in favor of non-examining or
consulting medical sources.
Robinson, 366 F.3d at 1084.
A treating physician’s opinion about the nature and
severity of the claimant’s impairments should be given
controlling weight by the Commissioner if well supported by
clinical and laboratory diagnostic techniques and if it is not
inconsistent with other substantial evidence in the record.
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Castellano v. Secretary of Health & Human Services, 26 F.3d
1027, 1029 (10th Cir. 1994); 20 C.F.R. §§ 404.1527(d)(2),
416.927(d)(2).
When a treating physician opinion is not given
controlling weight, the ALJ must nonetheless specify what lesser
weight he assigned the treating physician opinion.
Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004).
Robinson v.
A treating
source opinion not entitled to controlling weight is still
entitled to deference and must be weighed using all of the
following factors:
(1) the length of the treatment relationship and the frequency
of examination;
(2) the nature and extent of the treatment relationship,
including the treatment provided and the kind of examination or
testing performed;
(3) the degree to which the physician’s opinion is supported by
relevant evidence;
(4) consistency between the opinion and the record as a whole;
(5) whether or not the physician is a specialist in the area
upon which an opinion is rendered; and
(6) other factors brought to the ALJ’s attention which tend to
support or contradict the opinion.
Watkins v. Barnhart, 350 F.3d 1297, 1300-1301 (10th Cir. 2003).
After considering the above factors, the ALJ must give good
reasons in his/her decision for the weight he/she ultimately
assigns the opinion.
If the ALJ rejects the opinion completely,
he/she must then give specific, legitimate reasons for doing so.
Watkins, 350 F.3d at 1301.
It is not clear from the record whether Dr. Harris was a
treating or an examining physician.
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Plaintiff’s brief asserts
that Dr. Harris was an examining physician.
Defendant’s brief
asserts that there is no evidence that Dr. Harris actually
examined the plaintiff.
The form filled out by Dr. Harris would
indicate that she is a treating physician (R. at 675).
However,
the nature and extent of that treatment, if any, is not clear
from the record.
The ALJ failed to identify the status of Dr.
Harris in her decision.
The ALJ should have ascertained the
status of Dr. Harris in order to determine the relative weight
that should have been accorded to her opinions.
The ALJ also stated that the opinions of Dr. Harris were
inconsistent with the evidence and the treatment records,
specifically mentioning that she was stable and that the most
current ejection fraction testing was well within the normal
range.2
However, the ALJ failed to explain how this evidence
does not support the opinions of Dr. Harris, and the ALJ failed
to cite to any medical opinions indicating that these findings
do not support the opinions of Dr. Harris.3
The fact that
someone is stable does not address the severity of one’s
2
Defendant, in his brief, advanced other arguments for discounting the opinions of Dr. Harris (Doc. 18 at 11).
However, these arguments, and the evidence cited by defendant in support of these arguments, were not mentioned
by the ALJ as a basis for discounting the opinions of Dr. Harris. An ALJ=s decision should be evaluated based
solely on the reasons stated in the decision. Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004). A decision
cannot be affirmed on the basis of appellate counsel=s post hoc rationalizations for agency action. Knipe v. Heckler,
755 F.2d 141, 149 n.16 (10th Cir. 1985). A reviewing court may not create post hoc rationalizations to explain the
Commissioner=s treatment of evidence when that treatment is not apparent from the Commissioner=s decision.
Grogan v. Barnhart, 399 F.3d 1257, 1263 (10th Cir. 2005). By considering legal or evidentiary matters not
considered by the ALJ, a court risks violating the general rule against post hoc justification of administrative action.
Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004).
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Dr. Colmey, in his RFC assessment, failed to mention either factor in his narrative discussion.
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impairments.
The ALJ fails to cite to anything in the record
regarding the significance, if any, of the fact that ejection
fraction testing is within a normal range.
The adjudicator is
not free to substitute his own medical opinion for that of a
medical source.
Cir. 2004).
Hamlin v. Barnhart, 365 F.3d 1208, 1221 (10th
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.
Bolan v. Barnhart, 212 F. Supp.2d
1248, 1262 (D. Kan. 2002).
In the absence of any medical
opinion or other evidence indicating that the findings noted by
the ALJ are inconsistent with the opinions of Dr. Harris, the
ALJ overstepped his bounds into the province of medicine.
Miller v. Chater, 99 F.3d 972, 977 (10th Cir. 1996).
As noted above, an ALJ must evaluate every medical opinion
in the record.
The ALJ clearly failed to discuss the opinions
of Dr. Colmey and Dr. Coleman, even though it appears that she
may have given great weight to their opinions since her RFC
findings match the opinions of Dr. Colmey and Dr. Coleman.
The ALJ also failed to explain why she was giving greater
weight to the opinions of Dr. Colmey and Dr. Coleman as compared
to the opinions of Dr. Harris.
When there are conflicting
medical opinions, the ALJ must explain the basis for adopting
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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).
The ALJ clearly erred
by failing to even mention the opinions of Dr. Colmey and Dr.
Coleman, and by failing to explain why she apparently was giving
greater weight to their opinions as compared to the opinions of
Dr. Harris.
This error is compounded by the failure to
ascertain whether Dr. Harris was a treating or examining source,
and the ALJ’s failure to provide a legally sufficient rationale
for discounting the opinions of Dr. Harris, as noted above.
In
light of these errors, the court finds that substantial evidence
does not support the ALJ’s RFC findings.
The ALJ did cite to evidence in the record stating that
plaintiffs “Hauls away unwanted items” (R. at 420) and that
plaintiff “Farms” (R. at 630) and contends that this evidence
implies that plaintiff could perform more than sedentary work
(R. at 19).
However, neither piece of evidence indicates the
nature or extent of such work, and clearly do not demonstrate an
ability to engage in sedentary work or more than sedentary work
for 8 hours a day, 5 days a week.
Furthermore, the ALJ had
previously found that plaintiff had not engaged in substantial
gainful activity since May 5, 2003, and that he had one
unsuccessful work attempt in which the employer indicated that
plaintiff had problems completing his work (R. at 16).
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IV.
Did the ALJ err in his credibility analysis?
Plaintiff also argues that the ALJ erred in his credibility
analysis.
The court will not address this issue in detail
because it may be affected by the ALJ’s resolution of the case
on remand after the ALJ further considers the medical source
opinion evidence and makes new RFC findings, as 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 19th day of August 2014, Topeka, Kansas.
s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge
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