Lahman v. Social Security Administration, Commissioner of
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 9/2/14. (mb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Case No. 13-1301-SAC
CAROLYN W. COLVIN,
Acting Commissioner of
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.
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
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
such evidence that a reasonable mind might accept to support the
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
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.
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
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.
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
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
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.”
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.
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
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
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).
Commissioner meets this burden if the decision is supported by
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).
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);
History of case
On November 10, 2011, administrative law judge (ALJ) James
Harty issued his decision (R. at 11-25).
Plaintiff alleges that
he had been disabled since May 15, 2008 (R. at 11).
is insured for disability insurance benefits through March 31,
2014 (R. at 13).
At step one, the ALJ found that plaintiff did
not engage in substantial gainful activity since the alleged
onset date (R. at 13).
At step two, the ALJ found that
plaintiff had the following severe impairments:
tunnel syndrome; degenerative disc disease of the cervical,
lumbar and thoracic spine; stress urinary incontinence; major
depressive disorder, severe, without psychotic features also
diagnosed as major depressive disorder, moderate, and major
depressive disorder, in remission; and generalized anxiety
disorder also diagnosed as generalized anxiety disorder, in
remission (R. at 13).
At step three, the ALJ determined that
plaintiff’s impairments do not meet or equal a listed impairment
(R. at 14).
After determining plaintiff’s RFC (R. at 16), the
ALJ determined at step four that plaintiff is unable to perform
any past relevant work (R. at 23).
At step five, the ALJ found
that plaintiff can perform jobs that exist in significant
numbers in the national economy (R. at 23-24).
ALJ concluded that plaintiff was not disabled (R. at 24).
Are the ALJ’s RFC findings supported by substantial
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
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 rulings are binding on an ALJ.
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.
Southard v. Barnhart, 72 Fed. Appx. 781, 784-785 (10th Cir. July
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).
insufficient for the ALJ to only generally discuss the evidence,
but fail to relate that evidence to his conclusions.
U.S. Dept. of Health & Human Services, 49 F.3d 614, 618 (10th
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 can perform medium work,
including lifting/carrying up to 50 pounds occasionally and 25
Plaintiff can stand/walk for 6 hours and sit
for 6 hours out of 8 hour workday.
Plaintiff can occasionally
kneel, crouch, crawl, and climb ladders, ropes or scaffolds.
can perform no more than frequent handling and fingering with
the right, dominant upper extremity.
Plaintiff must avoid
concentrated exposure to hot or cold temperature extremes and
Plaintiff can perform simple, routine, repetitive
tasks not performed in a fast-paced production environment
involving no more than occasional interaction with the general
Plaintiff is limited to occupations that can be
performed wearing an incontinence protection pad (R. at 16).1
The ALJ’s RFC findings mirror the opinions of Dr. Eades,
who performed a state agency RFC assessment on July 7, 2010 (R.
The ALJ accorded “significant” weight to this
opinion (R. at 21).
Unlike Fleetwood v. Barnhart, 211 Fed.
Appx. 736, 740 (10th Cir. Jan. 4, 2007), this is not a case in
which the ALJ only relied on a check-the-box form with little or
Plaintiff does not take issue with the mental RFC findings, but only with the physical RFC findings.
no explanation for the conclusions reached.
Dr. Eades included
a narrative discussion of the evidence in support of her
findings (R. at 399).
Plaintiff alleges error because Dr. Eades, in her narrative
discussion, does not expressly mention the severe impairments of
degenerative disc disease of the cervical and thoracic spine
(Doc. 11 at 11).
Thoracic and cervical issues were mentioned in
the medical records on January 12, 2010 (R. at 329, Doc. 11 at
Those records are part of Exhibit 13, which predates
the assessment of Dr. Eades.
Exhibit 13 was received by
Disability Determination Services on March 5, 2010, and thus was
part of the record before Dr. Eades prepared his assessment (R.
The ALJ indicated that the assessment was requested
based on a review of plaintiff’s records (R. at 21).
the medical records relating to plaintiff’s thoracic and
cervical issues should have been provided to Dr. Eades.
court is not aware of any regulation or case law that a medical
opinion has to mention each specific severe impairment or each
piece of medical evidence before the ALJ can rely on that
opinion in making his RFC findings.
Furthermore, plaintiff has failed to point to any evidence
in the record indicating that plaintiff’s degenerative disc
disease of the cervical and thoracic spine resulted in
limitations not included in the ALJ’s RFC findings.
In the case
of Arles v. Astrue, 438 Fed. Appx. 735, 737, 740 (10th Cir. Sept.
28, 2011), obesity was identified as one of plaintiff’s severe
The court noted that the claimant did not discuss
or cite to any evidence showing that obesity further limited his
ability to perform a restricted range of sedentary work.
court held that the ALJ’s decision provided an adequate
explanation of the effect of obesity on plaintiff’s RFC.
In the case before the court, the ALJ found that
plaintiff’s severe impairments included degenerative disc
disease of the cervical and thoracic spine.
The ALJ stated
that, in making his RFC findings, he should consider all of
plaintiff’s impairments (R. at 12).
There is no reason not to
believe the ALJ’s statement that the assessment of Dr. Eades was
based on a review of plaintiff’s records which were available at
the time of the assessment (R. at 21), including the records
pertaining to plaintiff’s thoracic and cervical issues.
Finally, plaintiff failed to cite to any medical or other
evidence showing that plaintiff’s degenerative disc disease of
the cervical and thoracic spine resulted in limitations not
contained in the ALJ’s RFC findings.
On these facts, the court
finds no error by the ALJ in his consideration of plaintiff’s
degenerative disc disease of the cervical or thoracic spine.
The ALJ’s RFC findings also state that plaintiff is limited
to occupations that can be performed wearing an incontinence
protection pad (R. at 16).
Plaintiff alleges that the RFC
findings do not account for plaintiff’s frequent need to
urinate, his incontinence and his diarrhea/fecal incontinence
(Doc. 11 at 13-17).
The ALJ noted that the treatment notes
indicate that he needs to wear two or more protective pads a day
to address his incontinence (R. at 17, R. at 430: “He does need
to wear at least two pads a day”).
Plaintiff testified that he
needs to urinate on an hourly basis, and that he uses 2-6 pads a
day (R. at 44, 46).
The ALJ found that, aside from his need for
incontinence pads, the degree of limitation alleged by the
plaintiff is not supported by objective evidence, examination
findings, or treatment notes (R. at 17).
Dr. Werth indicated on July 20, 2011 that plaintiff suffers
from stress incontinence, and has to wear at least two pads a
He also found that plaintiff has chronic diarrhea, which
is getting worse, and is having fecal incontinence.
that plaintiff soils himself and this has been a cause of great
consternation as well.
Dr. Werth indicated he would follow up
with Dr. Maurer regarding plaintiff’s worsening symptoms of
diarrhea and fecal incontinence (R. at 430).
registered nurse practitioner (ARNP) Inman opined on August 3,
2011 that plaintiff had “uncontrolled incontinent diarrhea,
limiting his ability to work” (R. at 470).
The undisputed medical opinions of plaintiff’s treatment
providers, Dr. Werth and ARNP Inman, is that, in 2011, plaintiff
suffered from stress incontinence and from chronic diarrhea,
which is getting worse, and fecal incontinence, in which
plaintiff soils himself, which could limit his ability to work.2
There is no evidence that a person with such limitations could
work, as these problems were not presented to the VE.
issue was not addressed by Dr. Eades.
The ALJ never mentioned
the medical evidence of worsening symptoms of diarrhea and fecal
incontinence in 2011 from his treatment providers.
In light of
the uncontradicted medical evidence of plaintiff’s condition in
2011, and the ALJ’s failure to address this evidence, the court
finds that substantial evidence does not support the ALJ’s RFC
findings, and the case shall be remanded for further hearing on
the issue of plaintiff’s urinary frequency, urinary
incontinence, diarrhea, and fecal incontinence, and their impact
on plaintiff’s ability to work.
Did the ALJ err in his credibility analysis?
Plaintiff also argues that the ALJ erred in his credibility
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 opinion
Plaintiff’s treatment records indicate that he was not having problems with diarrhea in June 2010 (R. at 372). In
August 2010, Dr. Schwartz noted that plaintiff had irritable bowel syndrome which plaintiff reported he can control
with over the counter medication (R. at 402).
evidence and makes new RFC findings, as set forth above.
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 2nd day of September 2014, Topeka, Kansas.
s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge
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