Murphy v. Social Security Administration

Filing 16

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 Senior District Senior Judge Sam A. Crow on 6/23/15. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MARK MURPHY,
Plaintiff,
vs.

Case No. 14-1108-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.

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

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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
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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 December 6, 2012, administrative law judge (ALJ) Robert

J. Burbank issued his decision (R. at 11-25).

Plaintiff alleges

that he had been disabled since June 25, 2010 (R. at 11).
Plaintiff meets the insured status requirements for social
security disability benefits through December 31, 2010 (R. at
4

13).

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

in substantial gainful activity from the alleged onset date
through the date last insured (R. at 13).

At step two, the ALJ

found that plaintiff had severe physical and mental impairments
(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 was unable to perform past relevant
work (R. at 23).

At step five, the ALJ found that plaintiff can

perform other jobs that exist in significant numbers in the
national economy (R. at 24).

Therefore, the ALJ concluded that

plaintiff was not disabled (R. at 24-25).
III.

Did the ALJ err by failing to incorporate limitations in

plaintiff’s mental RFC?
In his RFC findings, the ALJ limited plaintiff to sedentary
work and “unskilled” work (R. at 16).

Dr. Jessop opined on

April 27, 2011 that that plaintiff was moderately limited in
interacting appropriately with the general public and stated
that it was likely that plaintiff would feel best in a setting
not requiring much interaction with the public (R. at 109-110).
On December 28, 2010, Dr. Biscardi opined that plaintiff
retained the capacity to perform less than 4 step tasks, and to
interact briefly/superficially with coworkers/supervisors (R. at
543).

The ALJ accorded “great weight” to their opinions (R. at
5

20).

However, the specific limitations noted by Dr. Jessop and

Dr. Biscardi regarding interacting with others were not included
in the ALJ’s RFC findings.

At step five, the ALJ found that

plaintiff’s additional nonexertional limitation of unskilled
work had no effect on the occupational base of unskilled
sedentary work; therefore, a finding of “not disabled” was made
under the framework of the Medical-Vocational Guidelines or the
“grids” (R. at 24).

The question before the court is whether

the ALJ erred by not including in his RFC findings the more
specific limitations of Dr. Jessop and Dr. Biscardi to which the
ALJ accorded great weight.
As a general rule, an ALJ should include in his RFC
findings physical or mental limitations which are included in a
report from a medical source accorded great or significant
weight by the ALJ, unless the ALJ provides a legitimate
explanation for not including that limitation in his/her RFC
findings.

The ALJ offered no explanation for not including in

his RFC findings the opinions of medical sources that plaintiff
was moderately limited in his ability to interact appropriately
with the general public, and was limited to brief or superficial
interaction with coworkers and supervisors.

As noted above, the

ALJ gave “great” weight to their opinions.
In the case of Mitchell v. Astrue, 498 Fed. Appx. 757, 759
(10th Cir. Oct. 1, 2012), the ALJ limited plaintiff to light
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work.

The ALJ further found that plaintiff can perform simple

tasks with routine supervision, can relate to supervisors and
peers on a superficial work basis, and cannot relate to the
general public.

The ALJ cited to SSR 85-15, which defines

unskilled work as the ability on a sustained basis to
understand, carry out, and remember simple instructions, to
respond appropriately to supervision, co-workers and usual work
situations, and to deal with changes in a routine work setting.
498 Fed. Appx. at 759-760; SSR 85-15, 1985 WL 56867 at *4.

The

ALJ, relying on the grids, found that the claimant could perform
substantially all of the work available in the unskilled light
work category even with his nonexertional limits.
affirmed the decision of the ALJ.

The court

498 Fed. Appx. at 760.

In the case of Redmond v. Colvin, 2015 WL 506571 at *3 (D.
Utah Feb. 6, 2015), plaintiff was limited to medium work,
simple, routine tasks in an environment involving no contact
with the general public, and no more than occasional and
superficial contact with supervisors and coworkers.

The ALJ

relied on the grids as a framework to find that plaintiff was
not disabled.

The ALJ, relying on SSR 85-15, found that

plaintiff’s additional nonexertional limitations had little or
no effect on the occupational base of unskilled medium work.
2015 WL 506371 at *4.

The court held that limitations to

simple, routine tasks, no contact with the general public, and
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no more than occasional and superficial contact with supervisors
and coworkers would not have a significant impact upon the
occupational base so as to preclude reliance upon the grids.
The court noted that SSR 85-15 states that unskilled jobs
ordinarily involve dealing primarily with objects, rather than
with data or people.

2015 WL 506571 at *4.

In the case before the court, the ALJ gave great weight to
opinions that plaintiff was moderately limited in his ability to
interact with the general public, and could only interact
briefly/superficially with coworkers/supervisors.

The ALJ cited

to SSR 96-9p, and its definition of unskilled work, to support
his finding that the framework of the grids indicates that a
limitation to unskilled work has no effect on the occupational
base of unskilled sedentary work.

Therefore, a finding of “not

disabled” is appropriate under the framework of the applicable
Rule (R. at 24).

The definition of unskilled work in SSR 96-9p

is identical to the definition of unskilled work found in SSR
85-15.

See 1996 WL 374185 at *9; 1985 WL 56857 at *4.

In both Mitchell and Redmond, the ALJ had included
limitations of no contact with the general public and only an
occasional or superficial contact with supervisors or coworkers.
In both cases, the court concluded that, even with these
limitations, the ALJ could rely on the grids as a framework to
find that these additional nonexertional limitations would not
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have a significant impact on the exertional occupational base so
as to preclude reliance on the grids.

Therefore, even had the

ALJ in the case before the court included the limitations that
plaintiff was moderately limited in interacting with the general
public, and could only interact briefly/superficially with
coworkers/supervisors, it is clear from Mitchell and Redmond
that the addition of such limitations in the ALJ’s RFC findings
would not have precluded the ALJ’s use of the grids as a
framework to find that those limitations would have no effect on
the occupational base of unskilled sedentary work.

Therefore,

the failure to include the limitations in question is harmless
error on the facts of this case.

The court finds that

substantial evidence support the ALJ’s mental RFC assessment.
IV.

Did the ALJ err in his consideration of the medical opinion

evidence regarding plaintiff’s physical RFC limitations?
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
ALJ must explain why the opinion was not adopted.
9

SSR 96-8p,

1996 WL 374184 at *7.

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.

Brown v. Commissioner of the Social

10

Security Administration, 245 F. Supp.2d 1175, 1187 (D. Kan.
2003).
The opinions of physicians, psychologists, or psychiatrists
who have seen a claimant over a period of time for purposes of
treatment are given more weight than the views of consulting
physicians or those who only review the medical records and
never examine the claimant.

The opinion of an examining

physician is generally entitled to less weight than that of a
treating physician, and the opinion of an agency physician who
has never seen the claimant is entitled to the least weight of
all.

Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004).

When a treating source opinion is inconsistent with the other
medical evidence, the ALJ’s task is to examine the other medical
source’s reports to see if they outweigh the treating source’s
reports, not the other way around.

Treating source opinions are

given particular weight because of their unique perspective to
the medical evidence that cannot be obtained from the objective
medical findings alone or from reports of individual
examinations, such as consultative examinations.

If an ALJ

intends to rely on a nontreating physician or examiner’s
opinion, he must explain the weight he is giving to it.
v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004).

Hamlin

The ALJ must

provide a legally sufficient explanation for rejecting the

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opinion of treating medical sources in favor of non-examining or
consulting medical sources.

Robinson, 366 F.3d at 1084.

A treating physician’s opinion about the nature and
severity of the claimant’s impairments should be given
controlling weight by the Commissioner if well supported by
clinical and laboratory diagnostic techniques and if it is not
inconsistent with other substantial evidence in the record.
Castellano v. Secretary of Health & Human Services, 26 F.3d
1027, 1029 (10th Cir. 1994); 20 C.F.R. §§ 404.1527(d)(2),
416.927(d)(2).

When a treating physician opinion is not given

controlling weight, the ALJ must nonetheless specify what lesser
weight he assigned the treating physician opinion.
Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004).

Robinson v.

A treating

source opinion not entitled to controlling weight is still
entitled to deference and must be weighed using all of the
following factors:
(1) the length of the treatment relationship and the frequency
of examination;
(2) the nature and extent of the treatment relationship,
including the treatment provided and the kind of examination or
testing performed;
(3) the degree to which the physician’s opinion is supported by
relevant evidence;
(4) consistency between the opinion and the record as a whole;
(5) whether or not the physician is a specialist in the area
upon which an opinion is rendered; and
(6) other factors brought to the ALJ’s attention which tend to
support or contradict the opinion.
Watkins v. Barnhart, 350 F.3d 1297, 1300-1301 (10th Cir. 2003).

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After considering the above factors, the ALJ must give good
reasons in his/her decision for the weight he/she ultimately
assigns the opinion.

If the ALJ rejects the opinion completely,

he/she must then give specific, legitimate reasons for doing so.
Watkins, 350 F.3d at 1301.
In his brief, plaintiff argued that the ALJ’s RFC regarding
his physical functioning is lacking support.

Plaintiff noted

that the ALJ gave little weight to any of the medical opinions,
and erred by giving no weight to the treating physician opinions
of Dr. Seymour (Doc. 11 at 14).

Plaintiff further noted that

two other medical opinions were consistent with Dr. Seymour’s
finding that plaintiff could not perform sedentary work (Doc. 11
at 17).
On October 19, 2010, Dr. Seymour opined that plaintiff
could stand/walk for less than 1 hour in an 8 hour workday, and
could sit for less than 1 hour in an 8 hour workday (R. at 518519).

He expressed a similar opinion on December 15, 2011 (R.

at 639-640).

He also wrote a letter dated May 31, 2011

discussing plaintiff’s impairments, and indicating that
plaintiff was disabled (R. at 602).

Dr. Seymour wrote another

letter dated February 1, 2011, which was submitted for the 1st
time to the Appeals Council (R. at 733).

The ALJ gave no weight

to Dr. Seymour’s opinions, stating that they are “grossly

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inconsistent” from his own treatment notes, in addition to being
inconsistent with the evidence of record as a whole (R. at 22).
The ALJ asserted that the opinions of Dr. Seymour are
inconsistent with the evidence of record as a whole.

The other

medical opinion evidence includes a physical RFC assessment from
a non-examining physician, Dr. Nimmagadda, who opined on
December 17, 2010 that plaintiff could perform light work,
including an ability to stand and/or walk for 6 hours in an 8
hour day (R. at 522-528).1

The ALJ made the conclusory statement

that his opinions appear to be generally understated when
compared to the evidence of record (R. at 21), but the ALJ fails
to cite to any evidence supporting a finding that plaintiff can
perform sedentary work consistent with the ALJ’s RFC findings.
The record also contains a physical RFC finding from
another non-examining physician, Dr. Siemsen, dated April 20,
2011 (R. at 106-108).

Dr. Siemsen opines that plaintiff can

stand/walk for 2 hours, and sit for 2 hours, which would
preclude full-time work.

The ALJ states that the opinions of

Dr. Siemsen are overstated compared to the evidence of record,
but again does not cite to any evidence supporting a finding
that plaintiff can perform sedentary work consistent with the
ALJ’s RFC findings.

1

The ALJ’s RFC findings limited plaintiff to sedentary work, and further indicated that plaintiff could only stand or
walk for 2 hours in an 8 hour workday (R. at 16).
14

Finally, the record contains a physical RFC assessment from
a treating source, Mark Wisner, a physician’s assistant, who
opined on January 17, 2012 that plaintiff can stand/walk for
less than 1 hour in an 8 hour workday, and sit for 1 hour in an
8 hour workday (R. at 649-650).

He also opined, consistent with

Dr. Seymour, that plaintiff would need to lie down periodically
during a workday (R. at 650, 519).

The ALJ noted that his

opinions were made a year after the date last insured, and noted
inconsistencies between plaintiff’s testimony and some of the
limitations set forth by Mr. Wisner (R. at 22-23).
The problem in this case is that the ALJ rejected or gave
little weight to all of the medical opinions regarding
plaintiff’s physical RFC.

The ALJ does not cite to any medical

opinion in support of his physical RFC findings.

However, an

exact correspondence between a medical opinion and the RFC is
not required.

In reaching his RFC determination, an ALJ is

permitted, and indeed required, to rely on all of the record
evidence, including but not limited to medical opinions in the
file.

That said, in cases in which the medical opinions appear

to conflict with the ALJ’s decision regarding the extent of a
plaintiff’s impairment(s) to the point of posing a serious
challenge to the ALJ’s RFC assessment, it may be inappropriate
for the ALJ to reach an RFC determination without expert medical
assistance.

Wells v. Colvin, 727 F.3d 1061, 1071-1072 (10th Cir.
15

2013) (in Wells, the ALJ rejected 3 medical opinions, finding
that they were inconsistent with the other evidence in the file;
the court directed the ALJ, on remand, to carefully reconsider
whether to adopt the restrictions on plaintiff’s RFC detailed in
the medical opinions, or determine whether further medical
evidence is needed on this issue).
The court will briefly comment on the other reason for
discounting the opinions of Dr. Seymour.

The ALJ failed to

state how the opinions of Dr. Seymour are grossly inconsistent
from Dr. Seymour’s treatment notes.

They are not inconsistent

with the opinions of Mr. Wisner, and the opinions of Dr. Siemsen
also indicate that plaintiff is unable to sit, stand or walk for
an 8 hour workday.
The ALJ asserted that, in rejecting all of the medical
opinion evidence regarding plaintiff’s physical limitations,
such evidence either overstated or understated the evidence of
record.

However, the ALJ failed to point to any evidence

establishing that plaintiff could perform sedentary work.
a finding must be supported by substantial evidence.
v. Sullivan, 987 F.2d 1482, 1491 (10th Cir. 1993).

Such

Thompson

In the

absence of any evidence supporting a finding that plaintiff can
perform sedentary work, and in light of the fact that the ALJ’s
physical RFC assessment conflicts with all of the medical
opinion evidence, the court finds that substantial evidence does
16

not support the ALJ’s physical RFC findings.

On remand, the ALJ

shall reexamine the relative weight to accord the medical
opinion evidence, and determine whether further medical evidence
is needed on the issue of plaintiff’s physical RFC.
V.

Did the ALJ err in his credibility analysis?
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, on remand,
reviews the medical opinion evidence, and determines whether
further medical evidence is needed.

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 23rd day of June 2015, Topeka, Kansas.

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

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