Mallory v. Social Security Administration, Commissioner of

Filing 17

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 3/17/15.(msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

RACHEAL MALLORY,
Plaintiff,
vs.

Case No. 13-1426-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
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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
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 June 21, 2013, administrative law judge (ALJ) Michael D.

Shilling issued his decision (R. at 12-22).

Plaintiff alleges

that she had been disabled since May 1, 2005 (R. at 12).
Plaintiff meets the insured status requirements for social
security disability benefits through December 31, 2009 (R. at
4

14).

At step one, the ALJ found that plaintiff did not engage

in substantial gainful activity after the alleged onset date (R.
at 14).

At step two, the ALJ found that plaintiff had severe

impairments of disorder of the back, obesity, bipolar disorder,
post-traumatic stress disorder/anxiety, and adjustment disorder
with depression (R. at 14).

At step three, the ALJ determined

that plaintiff’s impairments do not meet or equal a listed
impairment (R. at 15).

After determining plaintiff’s RFC (R. at

16), the ALJ determined at step four that plaintiff is unable to
perform past relevant work (R. at 20).

At step five, the ALJ

found that plaintiff could perform jobs that exist in
significant numbers in the national economy (R. at 21).
Therefore, the ALJ concluded that plaintiff was not disabled (R.
at 22).
III.

Are the ALJ’s physical 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
5

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 meaningful judicial review.

6

Brown v. Commissioner of the Social Security Administration, 245
F. Supp.2d 1175, 1187 (D. Kan. 2003).
The ALJ concluded that plaintiff could perform light work,
with the ability to lift/carry 20 pounds occasionally and 10
pounds frequently.

She can walk, stand and sit for up to 6

hours in an 8 hour workday.

Plaintiff may do simple jobs, and

is limited to jobs that do not demand attention to details or
complicated job tasks or instructions.

She may work in close

proximity to others, but is limited to jobs that do not require
close cooperation and interaction with co-workers, and would
work best in relative isolation.

Plaintiff is limited to no

interaction and cooperation with the public.

She retains the

ability to maintain attention and concentration for 2-hour
periods at a time, can adapt to changes in the workplace on a
basic level, and can accept supervision on a basic level (R. at
16).
As set forth above, “the RFC assessment must include a
narrative discussion describing how the evidence supports each
conclusion, citing specific medical facts and nonmedical
evidence.”

Wells v. Colvin, 727 F.3d 1061, 1065, 1069 (10th Cir.

2013)(emphasis in original at 1069).

The problem with the ALJ

decision is that his decision provides no explanation to support
his finding that plaintiff can perform light work, and can walk,
stand and sit for 6 hours in an 8 hour workday.
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The ALJ did not

cite to any medical facts or nonmedical evidence in support of
any of his physical RFC findings.

The ALJ summarized the

evidence, and then made a conclusory assertion that the RFC was
supported by the medical evidence, the state agency findings,
and the claimant’s testimony (R. at 20).

However, the ALJ did

not cite to any medical record or evidence, state agency
findings, or the claimant’s testimony in support of his physical
RFC findings.
In the case of Fleetwood v. Barnhart, 211 Fed. Appx. 736
(10th Cir. Jan. 4, 2007), the ALJ relied on a state agency
medical consultant who filled out a check-the-box evaluation
form, which, standing alone, the court found did not constitute
substantial evidence.

The court stated that no other medical

evidence in the record specifically addressed her ability to
work.

The court held as follows:
To the extent there is very little medical
evidence directly addressing Ms. Fleetwood's
RFC, the ALJ made unsupported findings
concerning her functional abilities. Without
evidence to support his findings, the ALJ
was not in a position to make an RFC
determination.
The ALJ's inability to make proper RFC
“findings may have sprung from his failure
to develop a sufficient record on which
those findings could be based.” Washington
v. Shalala, 37 F.3d 1437, 1442 (10th
Cir.1994). The ALJ must “make every
reasonable effort to ensure that the file
contains sufficient evidence to assess RFC.”
Soc. Sec. R. 96-8p, 1996 WL 374184, at *5.
8

Because the disability hearing is
nonadversarial, an ALJ is obligated to
develop the record even where, as here, the
claimant is represented by counsel. Thompson
v. Sullivan, 987 F.2d 1482, 1492 (10th
Cir.1993); accord Hawkins v. Chater, 113
F.3d 1162, 1164, 1168 (10th Cir.1997). Even
though Ms. Fleetwood's counsel did not
request any additional record development,
the need for additional evidence is so
clearly established in this record that the
ALJ was obliged to obtain more evidence
regarding her functional limitations. See
Hawkins, 113 F.3d at 1167-68.
Fleetwood, 211 Fed. Appx. at 740-741; see Martin v. Astrue, Case
No. 09-1235-SAC (June 28, 2010, Doc. 13-15, 16-18).
In the case before the court, there is absolutely no
medical evidence regarding plaintiff’s physical RFC.

The ALJ

decision is devoid of any identifiable discussion explaining how
the ALJ arrived at his physical RFC findings based on the
evidence, or how the evidence supported his physical RFC
findings.

The ALJ has failed to comply with SSR 96-8p.

The

ALJ, according to the agency’s own regulation, “must make every
reasonable effort to ensure that the file contains sufficient
evidence to assess RFC.”

SSR 96-8p, 1996 WL 374184 at *5.

This

record contains no medical opinion evidence regarding
plaintiff’s physical RFC.

Unlike Fleetwood, which had at least

one state agency assessment (which the court found, standing
alone, did not constitute substantial evidence), in the case
before the court there are no physical RFC assessments in the

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record.

Furthermore, the ALJ has offered no explanation of how

the evidence supports his physical RFC findings.

SSR 96-8p

states that the RFC assessment must include a narrative
discussion describing how the evidence supports his findings.
The ALJ does not describe how the evidence supports the ALJ’s
physical RFC findings.

The court has absolutely no idea of the

basis of the ALJ’s physical findings.
In the case of McHenry v. Colvin, Case No. 12-2512-SAC (D.
Kan. Sept. 11, 2013; Doc. 31 at 7-9), there was no medical
evidence regarding plaintiff’s RFC, and no explanation of how
the evidence supported the ALJ’s RFC findings.

The case was

remanded in order for the ALJ to comply with SSR 96-8p.

The

facts of this case are identical insofar as the ALJ’s physical
RFC findings.

Therefore, this case shall be remanded in order

for the ALJ to comply with the requirements of SSR 96-8p,
including a narrative discussion describing how the evidence
supports each conclusion in the RFC assessment, citing specific
medical facts and nonmedical evidence.1

1

Defendant’s brief cites to the case of Chapo v. Astrue, 682 F.3d 1285 (10th Cir. 2012), which states, in relevant
part:
…there is no requirement in the regulations for a direct correspondence between
an RFC finding and a specific medical opinion on the functional capacity in
question….
We have thus “rejected [the] argument that there must be specific, affirmative,
medical evidence on the record as to each requirement of an exertional work
level before an ALJ can determine RFC within that category.

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When this case is remanded, the ALJ shall develop a
sufficient record on which to make RFC findings.

The ALJ should

consider recontacting plaintiff’s treating medical sources,
request additional records, or order a consultative examination.
20 C.F.R. § 404.1520b(c); Fleetwood, 211 Fed. Appx. at 741; Lamb
v. Barnhart, 85 Fed. Appx. 52, 57 (10th Cir. Dec. 11, 2003).

The

ALJ could also consider having a medical expert testify at the
hearing regarding plaintiff’s RFC after reviewing the record.2
In the alternative, the ALJ could request a state agency
assessment by a physician who could review the record and
provide a written report setting forth their RFC findings and
providing a thorough written explanation for their RFC findings.
IV.

Are the ALJ’s mental RFC findings supported by substantial

evidence?

Chapo, 682 F.3d at 1288-1289. However, the court’s ruling in this case does not require that there be a direct
correspondence between an RFC finding and a specific medical opinion on the functional capacity in question, or
specific, affirmative, medical evidence on the record as to each requirement of an exertional work level before an
ALJ can determine plaintiff’s RFC. The holding in Chapo does not change the requirement in Fleetwood that to the
extent there is very little medical evidence directly addressing a claimant’s RFC, the ALJ’s findings may be found to
be unsupported by substantial evidence. The file must contain sufficient evidence to assess RFC. The record in the
case before the court has no medical evidence addressing plaintiff’s physical RFC, and the ALJ fails to cite to any
evidence in support of his physical RFC findings. By contrast, in Chapo, the record included two physical RFC
assessments (by Dr. Amin and Dr. Krause), Chapo, 682 F.3d at 1287. The court in Chapo reversed the decision of
the Commissioner and remanded the case for further hearing. On remand, even with two physical RFC assessments,
the court was troubled because of the staleness of one of those assessments, and encouraged the ALJ on remand to
obtain an updated exam or report. Chapo, 682 F.3d at 1293.
2

The U.S. Supreme Court has considered the use of medical advisors at administrative hearings and approved of the
concept. Richardson v. Perales, 402 U.S. 389, 408 (1971). Such opinions are competent evidence and in
appropriate circumstances may constitute substantial evidence supporting the ALJ’s decision. Lopez v. Apfel, 1997
WL 758831 at *2 (10th Cir. Dec. 9, 1997)(ALJ properly relied on opinions of medical advisor and consulting
physicians who disagreed with treating physician on issue of disability); Torres v. Secretary of HHS, 870 F.2d 742,
744 (1st Cir. 1989)(the testimony of a medical advisor who reviews the record, testifies and is subject to crossexamination may constitute substantial evidence depending on the circumstances, including the nature of the illness
and the information provided to the advisor).
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In making his mental RFC findings, the ALJ reviewed
numerous medical source opinions.

Raemona Webb, a treating

social worker, opined on October 7, 2011, that plaintiff had an
extreme impairment in 1 category, marked impairments in 10
categories, moderate impairments in 5 categories, and was not
significantly limited in 4 categories (R. at 295-296).

The ALJ

stated that the treatment records do not support these
limitations, and noted that she is not an acceptable medical
source.

Therefore, the ALJ accorded them no weight (R. at 20).

Andra Wischmeier, a LMLP (licensed master’s level
psychologist), and a treatment provider, prepared a psychiatric
medical source statement on May 13, 2013, finding that plaintiff
had a good ability to perform simple instructions, but only a
fair ability to perform in 7 other categories, and poor or no
ability to perform a task without interference from
psychologically based symptoms.

The statement indicates that

plaintiff has a marked impairment in social functioning (R. at
491-493).

The ALJ accorded her opinions some weight because the

assessment is supported by the medical evidence of record and
the claimant’s activities.

However, the ALJ determined that the

marked limitation in social functioning and occupational
adjustments is not supported by the record or information in her
mental status examination.

Therefore, little weight was

accorded to this part of the opinion (R. at 20).
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The ALJ also considered the opinions of two state agency
assessments, Dr. Burstin (February 27, 2012) and Dr. Stern (June
22, 2012) (R. at 57-67, 72-82).

As noted by the ALJ, they found

that plaintiff had moderate limitations in social interaction
and the ability to maintain attention for extended periods of
time (R. at 63-64, 78-80).

The ALJ gave significant weight to

their opinions, but also made RFC findings which took into
consideration some of plaintiff’s subjective complaints (R. at
20).
Finally, the ALJ considered a consultative examination by
Dr. Berg, performed on February 21, 2012 (R. at 300-302).
Berg concluded his report regarding plaintiff’s ability to
perform work related activities as follows:
The Claimant is able to attend to and
process simple information at an average
pace. She is accurate in her processing of
simple material. She does persist with
simple tasks for short periods of time, at
least. Her ability to learn and retain new
information is mildly compromised.
The Claimant is able to accommodate to the
demands of superficial interpersonal
interaction for short periods.
Nevertheless, she avoids all social contact,
except with her immediate family and her
psychotherapist. She has difficulty
initiating activities beyond the most basic
activities within the home.
(R. at 302).

The ALJ accorded significant weight to this

opinion (R. at 20).

13

Dr.

Although the ALJ accorded significant weight to this
opinion, the ALJ did not mention or include in his RFC findings
the opinion of Dr. Berg that plaintiff “has difficulty
initiating activities beyond the most basic activities within
the home” (R. at 302).

This opinion is similar to the opinion

of the treating psychologist that plaintiff has poor
concentration and avoidance behavior that may lead to failure to
engage or complete tasks (R. at 492).
In the case of Martinez v. Astrue, 422 Fed. Appx. 719, 724725 (10th Cir. Apr. 26, 2011), the court held that the ALJ erred
by failing to include all of the limitations found by Dr.
LaGrand without explaining why he rejected some of the
limitations, especially in light of the ALJ’s conclusion that
the medical source’s opinion was entitled to “great weight.”
The ALJ simply ignored certain limitations contained in the
medical report.

The court held that the ALJ may have had

reasons for giving great weight to some of the limitations set
forth by the medical source, while rejecting other limitations.
However, before rejecting some of the limitations, the ALJ was
required to discuss why he did not include those limitations.
An ALJ must explain why he rejected some limitations contained
in a RFC assessment from a medical source while appearing to
adopt other limitations contained in the assessment.

Haga v.

Astrue, 482 F.3d 1205, 1207-1208 (10th Cir. 2007); Frantz v.
14

Astrue, 509 F.3d 1299, 1302-1303 (10th Cir. 2007); Wilson v.
Colvin, 541 Fed. Appx. 869, 872-874 (10th Cir. Oct. 16, 2013).
Therefore, on remand, the ALJ should either include in his
RFC findings that plaintiff has difficulty initiating activities
beyond the most basic activities within the home, or provide a
legitimate basis for not including this limitation.

This

limitation should also be considered in light of the similar
limitation set forth by the psychologist Andra Wischmeier.

For

this reason, on remand, the ALJ shall reevaluate all of the
medical source opinions regarding plaintiff’s mental
limitations. When evaluating the opinions of psychologist Andra
Wischmeier, the ALJ must take into consideration that a LMLP is
an acceptable medical source.

Huiett v. Colvin, Case No. 12-

1350-SAC (D. Kan. March 19, 2014; Doc. 27 at 6-8); Dannels v.
Astrue, Case No. 10-1416-SAC (D. Kan. Dec. 20, 2011; Doc. 19 at
8-9).

When evaluating the opinions of social worker Webb, the

ALJ must consider her opinions as an “other” medical source as
set forth in SSR 06-03p.
V.

Did the ALJ err in its consideration of plaintiff’s

credibility?
Plaintiff argues that the ALJ erred in his 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 obtains
15

further evidence regarding plaintiff’s physical limitations and
reevaluates the medical source opinions regarding plaintiff’s
mental limitations.

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 17th day of March 2015, Topeka, Kansas.

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

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