Kesinger v. Social Security Administration, Commissioner of

Filing 16

MEMORANDUM AND ORDER - It is ordered that that the Commissioner's decision shall be REVERSED and that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) REMANDING the case for further proceedings consistent herewith. Signed by District Judge John W. Lungstrum on 02/04/2015. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

SUSAN KESINGER,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security,
)
)
Defendant.
)
________________________________________ )

CIVIL ACTION
No. 14-1030-JWL

MEMORANDUM AND ORDER

Plaintiff seeks review of a decision of the Commissioner of Social Security
(hereinafter Commissioner) denying Social Security Disability (SSD) benefits and
Supplemental Security Income (SSI) benefits under sections 216(i), 223, 1602, and
1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 416(i), 423, 1381a, and
1382c(a)(3)(A) (hereinafter the Act). Finding error in the Commissioner’s step three
evaluation of Listing 8.04, the court ORDERS that the decision shall be REVERSED and
that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g)
REMANDING the case for further proceedings consistent with this opinion.
I.

Background
Plaintiff applied for SSD and SSI, alleging disability beginning April 4, 2011. (R.

12, 177-92). She exhausted proceedings before the Commissioner, and now seeks

judicial review of the final decision denying benefits. She alleges the Administrative Law
Judge (ALJ) erred in evaluating her skin impairments at step three of the Commissioner’s
five-step sequential evaluation process; that the residual functional capacity (RFC)
assessment is not supported by substantial evidence; and that the credibility determination
was improper and is unsupported by the evidence.
The Act guides the court’s review. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir.
2009). In judicial review “[t]he findings of the Commissioner as to any fact, if supported
by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). The court must
determine whether the ALJ’s factual findings are supported by substantial evidence in the
record and whether he applied the correct legal standard. Lax v. Astrue, 489 F.3d 1080,
1084 (10th Cir. 2007); accord, White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001).
Substantial evidence is more than a scintilla, but it is less than a preponderance; it is
“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); see also, Wall, 561 F.3d at
1052; Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir. 1988).
The court may “neither reweigh the evidence nor substitute [its] judgment for that
of the agency.” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting
Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)); accord,
Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). Nonetheless, the
determination whether substantial evidence supports the Commissioner’s decision is not
simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by
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other evidence or if it constitutes mere conclusion. Gossett, 862 F.2d at 804-05; Ray v.
Bowen, 865 F.2d 222, 224 (10th Cir. 1989).
The Commissioner uses the familiar five-step sequential process to evaluate a
claim for disability. 20 C.F.R. §§ 404.1520, 416.920; Wilson v. Astrue, 602 F.3d 1136,
1139 (10th Cir. 2010) (citing Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)).
“If a determination can be made at any of the steps that a claimant is or is not disabled,
evaluation under a subsequent step is not necessary.” Wilson, 602 F.3d at 1139 (quoting
Lax, 489 F.3d at 1084). In the first three steps, the Commissioner determines whether
claimant has engaged in substantial gainful activity since the alleged onset, whether she
has a severe impairment(s), and whether the severity of her impairment(s) meets or equals
the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt.
P, App. 1). Williams, 844 F.2d at 750-51. After evaluating step three, the Commissioner
assesses claimant’s RFC. 20 C.F.R. § 404.1520(e). This assessment is used at both step
four and step five of the sequential evaluation process. Id.
The Commissioner determines at step four whether, in light of the RFC assessed,
claimant can perform her past relevant work; and at step five whether, when also
considering the vocational factors of age, education, and work experience, claimant is
able to perform other work in the economy. Wilson, 602 F.3d at 1139 (quoting Lax, 489
F.3d at 1084). In steps one through four the burden is on Plaintiff to prove a disability
that prevents performance of past relevant work. Blea v. Barnhart, 466 F.3d 903, 907
(10th Cir. 2006); accord, Dikeman v. Halter, 245 F.3d 1182, 1184 (10th Cir. 2001);
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Williams, 844 F.2d at 751 n.2. At step five, the burden shifts to the Commissioner to
show that there are jobs in the economy which are within the RFC assessed. Id.; Haddock
v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).
For reasons explained below, the court finds that remand is necessary because the
ALJ failed to properly explain his consideration of Listing 8.04 at step three of the
evaluation process. Because the credibility determination and RFC assessment must take
place after step three of the process, proper consideration and explanation of Listing 8.04
will potentially affect the credibility determination and the RFC assessment. Therefore, it
would be merely an impermissible advisory opinion for the court to consider those issues
at this time. Plaintiff may make her arguments in that regard on remand.
II.

Consideration of Listing 8.04
Plaintiff claims that the ALJ “failed to consider [Ms.] Kesinger’s condition under

the criteria for listing 8.04 or even indicate what listing and/or impairments he considered
at step three.” (Pl. Br. 7). Citing this court’s decisions in Whitmer v. Astrue, No. 111390-JWL, 2012 WL 5471256 (D. Kan. Nov. 9, 2012); Love v. Astrue, No. 10-1278JWL, 2011 WL 2670095, *6-7 (D. Kan. July 7, 2011); Fisher v. Astrue, No. 11-2068JWL, 2012 WL 33200 (D. Kan. Jan. 6, 2012); and Weber v. Astrue, 2010 WL 5137543
(D. Kan. Dec. 9, 2010); she argues that the ALJ did not meaningfully address Listing 8.04
sufficiently to allow the court to determine whether substantial evidence supports the
ALJs’ step three finding. (Pl. Br. 7-8). Plaintiff then argues that the “evidence supports a
finding that [Ms.] Kesinger meets or equals listing 8.04.” Id. at 10. The Commissioner
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argues that the ALJ’s step three determination was proper because the medical expert, Dr.
Houser, testified that he had considered the skin Listings at 8.00, and that in his opinion
Plaintiff’s condition does not meet or equal a listed impairment. (Comm’r. Br. 3-4).
Moreover, she argues that the ALJ’s step four and step five determinations that Plaintiff is
not disabled render any lack of specificity at step three harmless. Id. at 4.
A.

Standard for the Step Three Evaluation

The Commissioner has provided a “Listing of Impairments” which describes
certain impairments that she considers disabling. 20 C.F.R. §§ 404.1525(a), 416.925(a);
see also, Pt. 404, Subpt. P, App. 1 (Listing of Impairments). If plaintiff’s condition meets
or equals the severity of a listed impairment, that impairment is conclusively presumed
disabling. Williams, 844 F.2d at 751; see Bowen v. Yuckert, 482 U.S. 137, 141 (1987) (if
claimant’s impairment “meets or equals one of the listed impairments, the claimant is
conclusively presumed to be disabled”). However, plaintiff “has the burden at step three
of demonstrating, through medical evidence, that h[er] impairments ‘meet all of the
specified medical criteria’ contained in a particular listing.” Riddle v. Halter, No. 007043, 2001 WL 282344 at *1 (10th Cir. Mar. 22, 2001) (quoting Sullivan v. Zebley, 493
U.S. 521, 530 (1990) (emphasis in Zebley)). “An impairment that manifests only some of
[the listing] criteria, no matter how severely, does not qualify” to meet or equal the
listing. Zebley, 493 U.S. at 530.
“The [Commissioner] explicitly has set the medical criteria defining the listed
impairments at a higher level of severity than the statutory standard. The listings define
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impairments that would prevent an adult, regardless of his age, education, or work
experience, from performing any gainful activity, not just ‘substantial gainful activity.’”
Zebley, 493 U.S. at 532-33 (emphasis in original) (citing 20 C.F.R. § 416.925(a) (1989)).
The listings “streamlin[e] the decision process by identifying those claimants whose
medical impairments are so severe that it is likely they would be found disabled
regardless of their vocational background.” Yuckert, 482 U.S. at 153. “Because the
Listings, if met, operate to cut off further detailed inquiry, they should not be read
expansively.” Caviness v. Apfel, 4 F. Supp. 2d 813, 818 (S.D. Ind. 1998).
Listing 8.04 requires “[c]hronic infections of the skin or mucous membranes, with
extensive fungating or extensive ulcerating skin lesions that persist for at least 3 months
despite continuing treatment as prescribed.” 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 8.04
(emphasis in original). The regulations define “extensive skin lesions:”
1. Extensive skin lesions. Extensive skin lesions are those that involve
multiple body sites or critical body areas, and result in a very serious
limitation. Examples of extensive skin lesions that result in a very serious
limitation include but are not limited to:
a. Skin lesions that interfere with the motion of your joints and that very
seriously limit your use of more than one extremity; that is, two upper
extremities, two lower extremities, or one upper and one lower extremity.
b. Skin lesions on the palms of both hands that very seriously limit your
ability to do fine and gross motor movements.
c. Skin lesions on the soles of both feet, the perineum, or both inguinal
areas that very seriously limit your ability to ambulate.
Id. § 8.00(C)(1)(a)-(c) (emphasis in original).
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B.

Analysis

Plaintiff is correct that the ALJ found at step two of the evaluation process that
Plaintiff has “chronic skin lesions in the skin folds” which is a severe impairment in this
case. (R. 14). As Plaintiff points out, at step three the ALJ found that the evidence does
not support a finding that the severity of Plaintiff’s impairments meet or equal a Listing.
(R. 16). The ALJ noted that obesity is no longer a listed impairment and he specifically
explained his evaluation of Plaintiff’s obesity in accordance with Social Security Ruling
(SSR) 02-1p. Id. But, he did not point to any specific Listed impairment which he had
considered and did not identify any particular criterion of any Listing which he found was
not met or equaled. Moreover, despite finding that Plaintiff has “chronic skin lesions,”
and despite that the regulations require that the Commissioner will base her assessment of
the severity of skin disorders on (among other factors) “the extent of [a claimant’s] skin
lesions,” 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 8.00(C), the ALJ did not mention any of
the criteria of any skin disorder Listing in his step three evaluation.
After his step three analysis, in the narrative discussion of his RFC assessment, the
ALJ discussed Plaintiff’s allegations, her husband’s testimony, the record evidence, and
the medical opinions regarding her chronic skin lesions:
The claimant alleges her morbid obesity and history of skin lesions prevent
her from working. As a result of her weight, the claimant states she is
unable to walk short distances without experiencing extreme shortness of
breath and significant sweating (Exhibit 10E:4). Her skin lesions are so
severe the claimant indicates it is painful for her to move her body at all,
even when she is sitting (Exhibit 10E:4 ). Specifically, the claimant states
she has significant pain in her infected skin folds on her torso and inner
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thigh/pelvic area (Exhibit 10E:1). Due to her impairments, the claimant
reports having difficulty using the restroom, difficulty cooking, and doing
activities other than lying in bed or in her recliner (Exhibit 10E:5).
The claimant’s husband, Chris Kesinger, states in his April 2011 third party
function report that the claimant sits, watches television, and sleeps
throughout the day (Exhibit 7E:3). Mr. Kesinger states he has to help the
claimant get dressed, he helps her use the toilet, and he helps clean and tend
to the claimant’s skin wounds (Exhibit 7E:4). While I have considered Mr.
Kesinger’s observations, these statements are not from a medically
acceptable source and he is an interested party in this matter. Accordingly,
I give Mr. Kesinger’s statements partial weight.
(R. 17).
In addition to limitations on her ability to move, the claimant’s obesity has
also caused the claimant to have chronic skin lesions in the skin folds from
her large body mass. The claimant’s skin condition consists of rashes that
form between the folds in multiple areas of her body (Exhibit 8F:2).
Specifically, she states these rashes cause her problems due to odor,
infection and irritation (Exhibit 8F:2). The claimant endorses having rashes
all over her body, especially on the mid-back region, abdomen, thighs and
under her breasts (Exhibit 8F:2). She states her most problematic areas
have been her left groin (Exhibit 8F:2).
In 2009, the claimant was treated for cutaneous vasculitis and skin lesions
(Exhibit 2F:5). Her symptoms included a petechial rash that evolved into a
purpura, causing burning pain throughout her belly, and her upper and
lower extremities (Exhibit 1F:10). These conditions resolved through the
use of prednisone and antibiotics and the claimant was advised not to use
over-the-counter medications to treat these conditions in the future (Exhibit
2F:5). While the claimant initially stopped working due to this condition,
the claimant’s treating physician authorized the claimant to return to work
with no restrictions in November 2009 (Exhibit 2F:5).
During the claimant’s August 2011 consultative examination, the examiner
noted that the claimant exhibits evidence of intertrigo in her obese skin
folds in the mid-back region, under both of her breasts, and in the
intertriginous regions of the groin and thighs (Exhibit 8F:5). Examination
records also document significant odor about the region and she has

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hyperpigmentation in the affected regions suggesting chronic inflammation
(Exhibit 8F:5).
In an attempt to treat her rashes, the claimant has used over-the-counter
medications and drying solutions, though she states she continues to be
limited in her ability to work due to odor and her limited range of motion
(Exhibit 8F:2).
As for the opinion evidence, in [sic] the claimant’s internal medicine
consultative examiner, Dr. Henderson, notes the claimant has a limited
range of motion due to her obesity and she has moderate to severe difficulty
with her orthopedic maneuvers which are described above, although she
was able to complete a number of them adequately (Exhibit 5F:4). I give
Dr. Henderson’s opinions significant weight because they are consistent
with the claimant’s overall record and the opinions are consistent with the
limitations contained in the claimant’s residual functional capacity.
The medical expert, Dr. Houser, testified that the claimant’s obesity and
skin problems do not meet or equal a listing, though he does note these
conditions are severe. Dr. Houser further testified that the claimant can
likely perform work at the sedentary exertional level. I give Dr. Houser’s
opinions great weight because they are consistent with the claimant’s
overall record, including the fact that the claimant’s condition was
previously controlled with medications.
(R. 18-19) (emphases in original).
From the evidence discussed by the ALJ, it is possible to find that all of the criteria
of Listing 8.04 are met. Plaintiff’s skin lesions might be found to involve multiple body
sites or critical body areas and to result in very serious limitations. Even if one just
considered example (c) provided in the regulations, it might be determined based on this
evidence that Plaintiff has skin lesions in the perineum, or both inguinal areas that very
seriously limit Plaintiff’s ability to ambulate. From this evidence, it might be found that
Plaintiff’s lesions have persisted for at least three months.

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And, it might be determined that this persistence is in spite of continuing treatment
as prescribed. The ALJ’s decision can be read to imply a finding that Plaintiff did not
follow treatment as prescribed because she used over-the-counter remedies to treat her
skin lesions despite her physician’s instructions that she not use over-the-counter
remedies to treat “these conditions” in the future. (R. 18). However, Plaintiff notes that
there are two different skin disorders considered in the record--vasculitis, and lesions in
her skin folds. She argues that it was her vasculitis which resolved with use of
prednisone in 2009, and that her physician instructed her to avoid over-the-counter
medications which could induce her vasculitis. (Pl. Br. 9) (citing R. 322). Record
evidence tends to support Plaintiff’s argument, and it is necessary for the Commissioner
on remand to consider both skin disorders, to determine whether Plaintiff has been
improperly using over-the-counter medications, and to explain her determination.
And, the ALJ said nothing regarding his findings with respect to any of the criteria
of Listing 8.04. This failure cannot be said to be the result of surprise regarding the
Listing, because the ALJ specifically noted Dr. Houser’s testimony that Plaintiff’s “skin
problems do not meet or equal a listing.” (R. 18). It might also be argued that the ALJ
discounted the credibility of Plaintiff’s testimony, only accorded “partial weight” to her
husband’s opinions, and gave “significant weight” and “great weight” to Dr. Henderson’s
opinion and Dr. Houser’s opinion, respectively. Yet, at step three of the evaluation the
ALJ said nothing regarding the criteria of any skin disorder Listing, and did not explain
why those criteria are not met or equaled. Thus, it is impossible for the court to know
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why the criteria of the Listing are not met and which criteria are not met, even if it
accepts the ALJ’s credibility determination and his evaluation of the opinion evidence.
The degree of severity which might potentially meet or equal the criteria of Listing
8.04 are not intuitively obvious to a judicial reviewer such as this court, and the
Commissioner has the expertise to explain the degree of severity which is required by that
Listing. But, the court may not merely affirm the Commissioner’s decision because the
Commissioner is the expert. The court must evaluate the decision and determine whether
the Commissioner applied the correct legal standard, and whether the record evidence
supports the decision reached. Where, as in this case, the ALJ both did not explain the
legal standard which was applied and did not explain how the evidence supports his
decision, the court is unable to perform a meaningful judicial review. Remand is
necessary for the Commissioner to properly explain the legal standard which is applicable
to Listing 8.04, and to explain how the evidence supports a determination that the severity
of that Listing is or is not met or equaled.
The Commissioner argues that any insufficiency in the ALJ’s consideration of
Listing 8.04 is harmless because the ALJ proceeded past step three and determined at step
four that Plaintiff is able to perform past relevant work, and at step five that there is other
work available for an individual with the RFC of which Plaintiff is capable. (Comm’r Br.
4) (citing Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008)). The court’s
determination in this regard is dictated by the holding in Carpenter. As the Commissioner
points out, the Carpenter court acknowledged that an ALJ’s failure to consider a Listing
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would be harmless error “if findings he made elsewhere conclusively negated” the claim
under that Listing. Id. However, that court determined the error was not harmless
because the ALJ’s findings elsewhere in his decision did not “unambiguously negat[e]”
the claim to satisfy the elements of the Listing. Id. 537 F.3d at 1268. The same is true
here. Nothing in the decision at issue conclusively demonstrates that the criteria of
Listing 8.04 are not satisfied. Therefore remand is necessary for the Commissioner to
properly consider whether the criteria of Listing 8.04 are met or equaled.
IT IS THEREFORE ORDERED that the Commissioner’s decision shall be
REVERSED and that judgment shall be entered pursuant to the fourth sentence of 42
U.S.C. § 405(g) REMANDING the case for further proceedings consistent herewith.
Dated this 4th day of February 2015, at Kansas City, Kansas.

s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge

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