Lewis v. Social Security Administration, Commissioner of

Filing 18

MEMORANDUM AND ORDER ENTERED: 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 9/23/14. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CHAD E. LEWIS,
Plaintiff,
vs.

Case No. 13-1266-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

1

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
2

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 January 27, 2012, administrative law judge (ALJ) Timothy

J. Christensen issued his decision (R. at 14-23).

Plaintiff

alleges that he had been disabled since February 26, 2010 (R. at
14).

Plaintiff meets the insured status requirements for social

security disability benefits through March 31, 2010 (R. at 16).
4

At step one, the ALJ found that plaintiff 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:

congestive heart failure,

coronary artery disease, hypertension, asthma, status postsurgery for a left ankle fracture, and right knee disorder (R.
at 16).

At step three, the ALJ determined that plaintiff’s

impairments do not meet or equal a listed impairment (R. at 1719).

After determining plaintiff’s RFC (R. at 19), the ALJ

determined at step four that plaintiff is unable to perform past
relevant work (R. at 21).

At step five, the ALJ found that

plaintiff can perform 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 22-23).
III.

Did the ALJ err in his RFC findings, including his

assessment of the medical opinion evidence?
The ALJ found that plaintiff can perform sedentary work.
Plaintiff must be able to “exercise a sit/stand option,” he
cannot be required to operate foot controls, he must avoid
concentrated exposure to extreme temperatures, wetness,
humidity, and respiratory irritants, he cannot climb ladders,
ropes or scaffolds, and he can only occasionally climb ramps and
stairs (R. at 19).

5

Dr. Shaheen, a treating physician, wrote in September 2011
that plaintiff has severe congestive heart failure, class III,
and can’t do physical work (R. at 311).

The ALJ found that Dr.

Shaheen’s statement did not provide sufficient explanation for a
determination that plaintiff cannot perform sedentary work, and
that his medical notes do not support such a finding.

The ALJ

noted that his only opinion was regarding the ultimate issue of
disability, a matter which is reserved to the Commissioner (R.
at 20).
The only opinion of Dr. Shaheen is on the ultimate issue of
whether plaintiff is disabled, i.e., whether plaintiff can work.
Dr. Shaheen provided no opinion regarding any physical or mental
limitations for the plaintiff.

The court finds no error by the

ALJ in giving little weight to a conclusory opinion on the
ultimate issue of disability.

Treating source opinions on

issues that are reserved to the Commissioner, including whether
a claimant is disabled, should be carefully considered and must
never be ignored, but they are never entitled to controlling
weight or special significance.
*2-3.

SSR 96-5p, 1996 WL 374183 at

See Franklin v. Astrue, 450 Fed. Appx. 782, 785 (10th Cir.

Dec. 16, 2011)(court held that other than conclusory statement
of total disability, the doctor did not express any opinion
concerning claimant’s physical or mental capabilities; ALJ
discounted opinion because it was unsupported by medical records
6

and invaded the ultimate issue of disability which is reserved
to Commissioner; the court concluded that the ALJ decision to
give medical opinion little weight was supported by substantial
evidence).
Plaintiff argues that the ALJ should have recontacted Dr.
Shaheen for clarification (Doc. 11 at 10).

However, under the

regulations, effective March 26, 2012, it states that when the
evidence is insufficient to determine if a claimant is disabled,
the ALJ may take a number of options, one of which is that the
ALJ “may” recontact the treating source.
404.1520b(c); 77 FR 10651.

20 C.F.R.

The ALJ did not find the evidence to

be insufficient to determine disability, but relied on other
opinions, including those of Dr. Warren and Dr. Rosch, to
determine plaintiff’s RFC (R. at 20-21).

On the facts of this

case, the court finds that the ALJ did not err by failing to
recontact Dr. Shaheen.
Plaintiff also alleges the ALJ erred by failing to consider
the opinion of Dr. Henderson that plaintiff had mild difficulty
with heel and toe walking and mild difficulty squatting and
arising from the sitting position, and a limited range of motion
in the right knee and left ankle (R. at 298-299).

Plaintiff

alleges that these findings should have been reflected in
postural or other functional limitations (Doc. 11 at 12).

7

As plaintiff concedes, Dr. Henderson did not offer any
specific functional limitations (Doc. 11 at 12).

The ALJ

discussed the opinions of Dr. Henderson and accorded “partial”
weight to his opinions (R. at 20).

The ALJ also considered the

physical RFC assessment of Dr. Rosch, who reviewed and discussed
the consultative evaluation by Dr. Henderson (R. at 306).

The

ALJ gave the opinion of Dr. Rosch some weight, but found that
plaintiff was more limited than indicated by Dr. Rosch (R. at
20-21).
The ALJ also gave some weight to the opinion of Dr. Warren,
who also prepared a state agency RFC assessment (R. at 69-71).
Dr. Warren reviewed the opinion of Dr. Klaumann, who opined that
plaintiff is able to walk without a limp, has pain-free range of
motion, and may return to all regular activities (R. at 283).
Dr. Warren also reviewed the evaluation by Dr. Henderson (R. at
71).

The ALJ found that plaintiff was more limited than Dr.

Warren indicated (R. at 20-21).
Thus, the ALJ’s RFC findings relied on assessments by Dr.
Warren and Dr. Rosch.

These two physicians reviewed the

examination findings by Dr. Klaumann and Dr. Henderson in
formulating their RFC findings.

Dr. Rosch opined that plaintiff

had postural limitations related to climbing (R. at 303),
limitations which were included in the ALJ’s RFC findings (R. at
19).

There is no medical opinion evidence that plaintiff has
8

postural or other functional limitations not reflected in the
ALJ’s RFC findings.

On these facts, the court finds no error in

the ALJ’s consideration of the assessment by Dr. Henderson in
making his RFC findings.
Dr. Rosch opined that plaintiff should avoid concentrated
exposure to hazards (R. at 304).
in the ALJ’s RFC findings.

This finding was not included

However, few occupations in the

unskilled sedentary base require work in environments with
hazards.

Even a need to avoid all exposure to these conditions

would not, by itself, result in a significant erosion of the
occupational base.

SSR 96-9p, 1996 WL 374185 at *9.

Therefore,

the court finds that the failure to include this limitation is
harmless error.
In his RFC findings, the ALJ also limited plaintiff as
follows:

“claimant must be able to exercise a sit/stand option”

(R. at 19).

This sit/stand option was presented to the

vocational expert (VE), who testified:
…as long as the sit/stand option did not
interfere with his ability to stay on task,
then these jobs would still exist in these
numbers.”
(R. at 48).

Plaintiff argues that the ALJ erred by failing to

specify with what frequency plaintiff would need to alternate
sitting and standing (Doc. 11 at 15).

9

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).
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
10

It

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
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
11

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
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
12

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
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... .
As the above cases indicate, language to change position
from time to time (Armer), or brief changes of position
(alternating sitting and standing) (Vail), or a sit/stand option
(Maynard) fail to specifically indicate the frequency of the
claimant’s need to alternate sitting and standing.

The

regulations and case law clearly indicate that a limitation of a
sit/stand option is not specific as to the frequency of an
13

individual’s need to alternate sitting and standing.

The VE

testified that the jobs identified would still exist as long as
the sit/stand option did not interfere with the ability to stay
on task.

However, because the ALJ failed to identify the

frequency of plaintiff’s need to alternate sitting and standing,
it cannot be determined if the sit/stand option would interfere
with the ability to stay on task.

This case shall therefore be

remanded in order for the ALJ to be specific as to the frequency
of the individual’s need to alternate sitting and standing.
IV.

Did the ALJ err in his step three findings regarding listed

impairment 4.02?
Plaintiff has the burden to present evidence establishing
that his impairments meet or equal a listed impairment.
Fischer-Ross v. Barnhart, 431 F.3d 729, 733 (10th Cir. 2005).
In order for the plaintiff to show that his impairments match a
listing, plaintiff must meet “all” of the criteria of the listed
impairment.

An impairment that manifests only some of those

criteria, no matter how severely, does not qualify.

Sullivan v.

Zebley, 493 U.S. 521, 530, 110 S. Ct. 885, 891 (1990)(emphasis
in original).
Listed impairment 4.02 (chronic heart failure) requires the
medically documented presence of an ejection fraction of 30
percent or less.

It must also result in persistent symptoms of

heart failure which very seriously limit the ability to
14

independently initiate, sustain, or complete activities of daily
living.

20 C.F.R. Pt. 404, Subpt. P, App. 1 (2013 at 486).

The ALJ found that plaintiff had ejection fraction levels
between 40-60% (R. at 18).

However, plaintiff has provided a

statement from Dr. Shaheen that his ejection fraction levels
were between 20-30% in 2011 (R. at 452).

On remand, the ALJ

shall reconsider the medical evidence regarding the fraction
levels.
The ALJ also found that plaintiff’s activity levels were
above the listing requirements (R. at 18).

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).

However, the court would note that the ALJ did not

mention that Dr. Shaheen classified plaintiff as having class
III congestive heart failure (R. at 311).

Plaintiff, in his

brief, provides a definition for class III indicating a marked
limitation of daily activity (Doc. 11 at 9, n.2).

Because this

case is being remanded, on remand, the ALJ will review the
evidence pertaining to the listed impairment 4.02, including
fraction levels, and activities of daily living.

The ALJ shall

consider the implications of a diagnosis of class III congestive
heart failure.

15

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 23rd day of September 2014, Topeka, Kansas.

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

16