Umbenhower v. Social Security Administration, Commissioner of

Filing 41

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. 38 Motion to Supplement and 31 Motion to Compel are denied. Signed by U.S. District Senior Judge Sam A. Crow on 3/31/15. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

TIMOTHY UMBENHOWER,
Plaintiff,
vs.

Case No. 13-1398-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 August 1, 2012, administrative law judge (ALJ) Christina

Young Mein issued her decision (R. at 12-27).

Plaintiff alleges

that he had been disabled since October 12, 2006 (R. at 12).
However, because of the denial of a prior application on
September 18, 2009, the ALJ only considered plaintiff’s
4

disability from September 19, 2009 through the date of the
decision (R. at 12).

Plaintiff meets the insured status

requirements for social security disability benefits through
December 31, 2011 (R. at 13, 14).

At step one, the ALJ found

that plaintiff did not engage in substantial gainful activity
since September 19, 2009 (R. at 15).

At step two, the ALJ found

that plaintiff had numerous severe impairments (R. at 15).

At

step three, the ALJ determined that plaintiff’s impairments do
not meet or equal a listed impairment (R. at 16).

After

determining plaintiff’s RFC (R. at 17-18), the ALJ determined at
step four that plaintiff was unable to perform past relevant
work (R. at 25).

At step five, the ALJ found that plaintiff can

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

Therefore, the ALJ concluded that

plaintiff was not disabled (R. at 27).
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.
5

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.

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
6

meaningful judicial review.

Brown v. Commissioner of the Social

Security Administration, 245 F. Supp.2d 1175, 1187 (D. Kan.
2003).
The court will first review the mental limitations included
in the ALJ’s RFC findings.

The ALJ limited plaintiff to simple,

routine, and repetitive tasks involving only occasional decision
making and occasional changes in the work setting.

Plaintiff

was found to be unable to perform work that involves interaction
with the public.

However, he was found to remain able to

tolerate occasional interaction with supervisors and coworkers
(R. at 18).
In making these findings, the ALJ gave “significant” weight
to the opinions of the state agency psychologists, Dr. Cohen and
Dr. Bergmann-Harms (R. at 25).

Both indicated in their

functional capacity assessment (Section III of the mental RFC
assessment form) that plaintiff can understand and remember
simple instructions, and can carry out simple tasks that do not
involve speed or quick mental processing.

They indicate that

plaintiff may have difficulty working in close proximity to the
public and coworkers due to irritability.

They both concluded

that plaintiff maintains the mental RFC for simple, repetitive
tasks that do not involve much interpersonal contact (R. at 446,
488).

In the summary conclusions of that form (Section I), Dr.

Bergmann-Harms indicated that plaintiff had moderate limitations
7

in the ability to maintain attention and concentration for
extended periods and in the ability to perform activities within
a schedule, maintain regular attendance, and be punctual within
customary tolerances (R. at 444).

Dr. Cohen did not include

these limitations in her summary conclusions (R. at 486).1
The record also contains a mental status examination
performed by Dr. Barnett, a psychologist, on February 26, 2010
(R. at 416-418).

His conclusions included the following:

…He had difficulty with both attention and
concentration during the interview and at
times would lose the thread of the
conversation. He appears cognitively
capable of simple, repetitive work tasks,
but would probably have difficulty with
complex tasks….
(R. at 418, emphasis added).

In fact, the ALJ stated the

following in her decision:
The evidence in the record, including the
testimony of the claimant at the hearing,
shows that the claimant has some difficulty
in sustaining focus, attention and
concentration sufficiently long enough to
permit the timely and appropriate completion
of tasks commonly found in work settings.

1

The narrative in the mental RFC assessment in Section III is what ALJs are to use as the assessment of RFC; the
purpose of Section I is chiefly to have a worksheet to ensure that the medical source has considered each of the
pertinent mental activities and the claimant’s degree of limitation. However, this does not mean that an ALJ can
turn a blind eye to moderate Section I limitations. If the Section III narrative fails to describe the effect that each of
the Section I moderate limitations would have on the claimant’s ability, or if it contradicts limitations marked in
Section I, the mental RFC assessment cannot properly be considered part of the substantial evidence supporting and
ALJ’s RFC findings. Carver v. Colvin, __ Fed. Appx. __, 2015 WLL 307084 at *2-3 (10th Cir. Jan. 20, 2015).
8

(R. at 17).

The ALJ stated that he gave “significant” weight to

Dr. Barnett’s opinion that the plaintiff could perform simple
and repetitive tasks (R. at 25).
However, despite the moderate limitations in attention and
concentration for extended periods found by Dr. Bergmann-Harms,
the opinion of Dr. Barnett that plaintiff had difficulty with
both attention and concentration during the interview and at
times would lose the thread of the conversation, opinions to
which the ALJ accorded “significant” weight, and the ALJ’s own
finding that plaintiff has some difficulty in sustaining focus,
attention and concentration sufficiently long enough to permit
the timely and appropriate completion of tasks commonly found in
work settings, the ALJ’s RFC findings and the hypothetical
question to the vocational expert (VE) do not include any
limitations in concentration and attention.

The ALJ’s RFC

mental limitations only limit plaintiff to simple, routine and
repetitive tasks involving only occasional decision making and
occasional changes in the work setting, and limiting his contact
with the public, coworkers, and supervisors (R. at 17-18, 63).
In the case of Jaramillo v. Colvin, 576 Fed. Appx. 870 (10th
Cir. Aug. 27, 2014), the ALJ expressly gave great weight to a
medical opinion (Dr. Mellon) that plaintiff had three moderate
mental limitations, including a moderate limitation in the
ability to attend and concentrate.
9

Id. at 872, 873, 876.

On

the basis of the opinions of Dr. Mellon and Dr. Wynne, the ALJ,
in his RFC findings, limited plaintiff to simple, routine,
repetitive, unskilled tasks.

Id. at 873.

The court held that

the limitation to simple, routine, repetitive, and unskilled
tasks does not clearly relate the moderate impairments found by
Dr. Mellon, and given great weight by the ALJ.

Those moderate

impairments must be accounted for in an RFC finding and,
consequently, in a dispositive hypothetical to the VE.

As a

result of this failure, the ALJ’s reliance on the jobs the VE
identified in response to the hypothetical was not supported by
substantial evidence.

Id. at 876.

Even simple work can be ruled out by a vocational expert on
the basis of a serious impairment in concentration and
attention.

Moderate impairments may also decrease a claimant’s

ability to perform simple work.

Bowers v. Astrue, 271 Fed.

Appx. 731, 733 (10th Cir. March 26, 2008); see Brosnahan v.
Barnhart, 336 F.3d 671, 675 (8th Cir. 2003); Newton v. Chater, 92
F.3d 688, 695 (8th Cir. 1996)(two medical opinions indicated that
that claimant had moderate limitations in his ability to
maintain attention and concentration for extended periods; the
vocational expert testified that a moderate deficiency in
concentration and persistence would cause problems on an ongoing
daily basis regardless of what the job required from a physical
or skill standpoint; the court rejected the Commissioner’s
10

contention that deficiencies in attention and concentration,
along with other mental limitations, did not have to be included
in the hypothetical question because the question limited the
claimant’s capabilities to simple jobs).
In Wiederholt v. Barnhart, 121 Fed. Appx. 833, 839 (10th
Cir. Feb. 8, 2005), the ALJ posed a hypothetical question that
limited plaintiff to simple, unskilled work, and omitted from
the hypothetical the ALJ’s earlier and more specific findings
that she had various mild and moderate restrictions.

The court

held that the relatively broad, unspecified nature of the
description “simple” and “unskilled” did not adequately
incorporate additional, more specific findings regarding a
claimant’s mental impairments (including moderate difficulty in
maintaining concentration, persistence, or pace), and therefore
the hypothetical question was flawed.

Because of the flawed

hypothetical, the court found that the VE’s opinion that the
claimant could perform other work was therefore not substantial
evidence to support the ALJ’s decision.
The case law is clear that when the ALJ finds a moderate
difficulty in maintaining, concentration, persistence and pace,
or gives great weight to a medical opinion with that limitation,
a limitation in the RFC to simple, routine, repetitive and
unskilled tasks fails to clearly relate or incorporate the
moderate impairment.

The court therefore finds that the mental
11

limitations in the ALJ’s RFC findings that plaintiff can only
perform simple, routine and repetitive tasks fails to
sufficiently relate, incorporate or accommodate the opinion of
Dr. Bergmann-Harms that plaintiff has moderate limitations in
the ability to maintain attention and concentration for extended
periods and in the ability to perform activities within a
schedule, the opinion of Dr. Barnett that plaintiff has
difficulty with both attention and concentration such that at
times he would lose the thread of the conversation, and the
ALJ’s own finding that plaintiff has some difficulty in
sustaining focus, attention and concentration sufficiently long
enough to permit the timely and appropriate completion of tasks
commonly found in work settings.

This case shall therefore be

remanded in order for the ALJ to include plaintiff’s limitations
in attention and concentration in her RFC findings and in the
hypothetical question to the VE.2
The court will next examine the ALJ’s consideration of the
opinions of Dr. Ramberg.

In a form dated July 2, 2009, Dr.

Ramberg opined that plaintiff had a number of limitations,
including a finding that plaintiff could sit for less than 2
hours, and stand/walk for less than 2 hours in an 8 hour workday
2

On remand, the ALJ should also consider and discuss the opinion of Dr. LaFrance, a treating psychologist, that
plaintiff’s depression and anxiety symptoms have been severe and prevent him from seeking or sustaining any
gainful employment (R. at 666). Furthermore, plaintiff could seek to include in the record a mental RFC assessment
from Dr. LaFrance which was not in the record before either the ALJ or the Appeals Council. Plaintiff sought to add
this to the record (Doc. 31, 38), but it was not considered by the court because it was not part of the record before
the agency.
12

(R. at 396-400).

Dr. Ramberg also signed a form on January 22,

2008 that plaintiff cannot walk without the use of assistance
from an assistive device and was severely limited in the ability
to walk at least 100 feet (R. at 374).

The ALJ gave no weight

to his opinions, stating that Dr. Ramberg had not examined or
treated the plaintiff during the relevant period and these
opinions pertain to the period previously adjudicated by the
prior ALJ.

Furthermore, the ALJ found his opinions inconsistent

with the evidence, including the results of a disability
investigation in which plaintiff was observed driving to a
Dillon’s store and walking into the store without any assistive
device, walked at a normal and steady pace, did not use a
shopping cart or basket, carried items in the store, and walked
30 yards from the store to his vehicle carrying a gallon of milk
in his hand.

Plaintiff was observed for 4 hours during the

surveillance walking, lifting, bending, standing, reaching and
sitting (R. at 22, 629-630).
The medical records indicate that plaintiff was seen by Dr.
Ramberg on April 2 and July 2, 2009 (R. at 402-404).

As the ALJ

noted, the previous denial of disability was made on September
18, 2009, and the ALJ considered the relevant period under
adjudication was September 19, 2009 through August 1, 2012, the
date of the ALJ decision.

Thus, the ALJ correctly states that

Dr. Ramberg’s opinions and his treatment records for the
13

plaintiff are from the previously adjudicated period, which the
ALJ did not reopen.

Finally, the disability investigation

provided evidence from which a factfinder could reasonably
conclude that plaintiff was not as limited as indicated by Dr.
Ramberg.

The court finds that substantial evidence supports the

decision of the ALJ not to accord any weight to the opinions of
Dr. Ramberg.
IV.

Did the ALJ err in her credibility analysis?
Plaintiff argues that the ALJ erred in her credibility

findings regarding plaintiff’s allegations.

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 considers
the impact of plaintiff’s difficulty in sustaining focus,
attention, and concentration sufficiently long enough to permit
the timely and appropriate completion of tasks commonly found in
work settings.

See Robinson v. Barnhart, 366 F.3d 1078, 1085

(10th Cir. 2004).

However, the court does not find any clear

error in the ALJ’s credibility analysis, which included a
disability investigation which would indicate that plaintiff was
not as limited as he alleged.

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).

Although the court will not reweigh the evidence,
14

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).
Plaintiff has also filed a motion to compel (Doc. 31) and a
motion to complete the record (Doc. 38).

Both motions are

denied because there is no evidence that the document in
question was a part of the record or considered by the ALJ or
the Appeals Council.
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.
IT IS FURTHER ORDERED that the motion to compel (Doc. 31)
and the motion to complete the record (Doc. 38) are denied.
Dated this 31st day of March 2015, Topeka, Kansas.

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

15