Davis v. Social Security Administration, Commissioner of

Filing 26

MEMORANDUM AND ORDER. The Commissioner's decision is reversed and remanded for further proceedings consistent with this Memorandum and Order. Signed by District Judge Monti L. Belot on 8/4/2015. (sz)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BRENDA SHIRLEE DAVIS,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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CIVIL ACTION
No.

14-1221-MLB

MEMORANDUM AND ORDER
This

is

an

action

reviewing

the

final

decision

of

the

Commissioner of Social Security denying plaintiff disability insurance
benefits and supplemental security income payments.

The matter has

been fully briefed by the parties and the court is prepared to rule.
(Docs. 18, 23, 24).
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

Shalala, 21 F.3d 983, 984 (10th Cir. 1994).

standards.

Glenn

v.

Substantial evidence

requires more than a scintilla, but less than a preponderance, and is
satisfied by such evidence that a reasonable mind might accept to
support the 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.
F. Supp. 1045, 1047 (D. Kan. 1992).

Graham v. Sullivan, 794

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 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

evaluation process to determine disability.

five-step

sequential

If at any step a finding

of disability or non-disability can be made, the Commissioner will not
review

the

claim

further.

At

step

-2-

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.
step

If the claimant survives step four, the fifth and final

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 the
analysis.

Nielson v. Sullivan, 992 F.2d 1118, 1120 (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
-3-

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(f, g).
II.

History of Case
On December 20, 2012, administrative law judge (ALJ) Rhonda

Greenberg issued her decision.

(R. at 8-25).

her disability began November 1, 2009.

Plaintiff alleged that

(R. at 11).

At step one, the

ALJ determined that plaintiff had not engaged in substantial gainful
activity since her alleged onset date (R. at 13).
ALJ

found

that

plaintiff

had

the

following

epilepsy, depression and anxiety (R. at 13).

At step two, the

severe

impairments:

At step three, the ALJ

found that plaintiff’s impairments do not meet or equal a listed
impairment (R. at 13-14). After establishing plaintiff’s RFC, the ALJ
found at step four that plaintiff could perform past relevant work and
therefore concluded that plaintiff was not disabled at any time.

(R.

at 19-20).
III. Analysis
A.

Plaintiff’s Credibility

Plaintiff argues that the ALJ failed to properly weigh her
credibility.

The ALJ discussed plaintiff’s credibility as follows:

After careful consideration of the evidence, the
undersigned
finds
that
the
claimant’s
medically
determinable impairments could reasonably be expected to
cause the alleged symptoms; however, the claimant’s
statements concerning the intensity, persistence and
limiting effects of these symptoms are not entirely
credible for the reasons explained in this decision.
In terms of the claimant's alleged [sic] [symptoms] An
EEG confirmed that the claimant has idiopathic generalized
seizures (Exhibit 10F). The record contains conflicting
information. The claimant testified that since 2008, her
grand mal seizures have gotten progressively more frequent
-4-

and more violent causing physical injuries, most recently
in August 2012. However, the medical record contradicts
much of this testimony. The claimant told Janet Hawthorne
in December 2010 that she has not had a grand mal seizure
in two years (Exhibit 1 F). She told her primary care
doctor that her grand mal seizures are controlled on
medications, and that the last such seizure occurred
several years earlier (Exhibit 2F). At another appointment,
she told this source that she is doing well on medication
and has had no seizures (Exhibit 2F). While the record does
support the possibility of an injury in August 20 11, this
denotes one grand mal seizure in a several year span.
The claimant testified to thirty petit mal seizures a
day and the undersigned observed that the claimant's head
frequently jerked during the hearing. However, the medical
record contains conflicting information. The claimant told
Dr. Hawthorne she has petit mal seizures on a regular basis
without defining what that basis was since the age of five
(Exhibit 1 F). She told her treating source on one occasion
that she gets absence seizures on and off throughout the
day (Exhibit 2F), however, at another appointment she said
that she has no seizures on the medication, but that the
medication was making her drowsy. She was told to reduce
the medication until she adjusted to the side effects, and
then restore the medication to its effective level (Exhibit
2F). More recently, she told her treating source that she
can go months without the petit mal seizures and described
the absence seizures as "rare" (Exhibits 6F and llF). Thus,
once an effective combination of medication was prescribed,
the claimant's petit mal seizures occurred with a lot less
frequency than the claimant portrayed at the hearing.
(R. at 17).
Plaintiff contends that the ALJ’s credibility determination was
improperly evaluated and based on plaintiff’s ability to perform
activities of daily living.

(Doc. 24 at 5).

The ALJ, as the finder

of fact, is ideally suited to assess credibility, and the Court will
not disturb an ALJ’s credibility findings if they are supported by
substantial evidence.
Cir. 2010).

Wilson v. Astrue, 602 F.3d 1136, 1144 (10th

Generally, an ALJ’s credibility determinations are

treated as binding on review, recognizing that symptoms are sometimes
exaggerated

when

applying

for

government

-5-

benefits.

Talley

v.

Sullivan, 908 F.2d 585, 587 (10th Cir. 1990).
The court finds that the ALJ adequately explained her decision
that plaintiff’s testimony was not entirely credible.

The medical

records do contradict plaintiff’s testimony concerning the frequency
of her seizures.

Therefore, the ALJ’s finding is supported by

substantial evidence.
B.

Wilson, 602 F.3d at 1144.

Ability to Stoop

Plaintiff contends that the ALJ’s finding that plaintiff could
bend or stoop “occasionally” was error because it is not supported by
the evidence.

In support of her argument, plaintiff cites to her

testimony in which she states that stooping is hard for her and she
has to have someone help her up after she gets down.

(R. at 47).

ALJ, however, cited Dr. Hitchcock’s opinion in her decision.
Hitchcock

opined

limitations.

that

plaintiff

(R. at 19).

did

not

have

any

The
Dr.

exertional

The ALJ found Dr. Hitchcock’s opinion

persuasive and accorded it great probative value.
Therefore, the court finds that substantial evidence supported
the

ALJ’s

determination

that

plaintiff

could

bend

or

stoop

occasionally.
C.

Step 4 Determination

At step four, the ALJ is required by social security ruling
(82–62) to make findings of fact regarding: 1) the individual's
residual functional capacity, 2) the physical and mental demands of
prior jobs or occupations, and 3) the ability of the individual to
return to the past occupation given her residual functional capacity.
Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996).
these three phases, the ALJ must make specific findings.
-6-

At each of
Id.

When

the ALJ essentially skips the second phase of the step four analysis
by not making any findings regarding the physical and mental demands
of claimant's past work, either as performed or as it is generally
performed in the national economy, then the case shall be remanded in
order for the ALJ to make the specific factual findings regarding the
demands of claimant's past relevant work.

Banks v. Colvin, 547 Fed.

Appx. 899, 904 (10th Cir. Dec. 10, 2013); Clardy v. Barnhart, 2004 WL
737486 at *6 (D. Kan. Apr. 5, 2004).
Here, after determining plaintiff’s RFC, the ALJ essentially
ignored the second and third phase of the analysis.1

(R. at 19).

More importantly, the ALJ failed to inquire into the mental demands
of plaintiff’s past work.

See Winfrey, at 1024 (holding that when a

claimant has a mental impairment, the ALJ must “obtain a precise
description of the particular job duties which are likely to produce
tension and anxiety . . . in order to determine if the claimant's
mental impairment is compatible with the performance of such work.”).
Moreover, the ALJ determined that plaintiff could do all her past work
even though the vocational expert opined that plaintiff could only
work as a cleaner and dietary aide.2
The ALJ in this case did not make the necessary findings

1

Defendant argues that the ALJ’s decision was supported by
substantial evidence because the vocational expert issued a written
analysis of plaintiff’s past jobs which was contained in the record.
(Doc. 23 at 7). Defendant’s own regulations, however, require the ALJ
to make findings of fact in the decision concerning the mental and
physical demands of the past work and plaintiff’s ability to perform
those demands. This was not done.
2

Defendant asserts that this was merely a technical error. The
court, however, cannot conclude that this was a technical error in
light of the fact that the ALJ failed to comply with S.S.R. 82–62.
-7-

regarding the physical and mental demands of plaintiff's past work.
Unlike Doyal v. Barnhart, 331 F.3d 758 (10th Cir. 2003), cited by
defendant, the ALJ did not quote the VE's testimony with approval in
support of her own findings regarding the physical and mental demands
of plaintiff's past work. Given the fact that plaintiff's limitations
included postural, environmental and mental limitations, it was
critical

for

the

ALJ

to

make

findings

as

to

the

postural,

environmental and mental demands of the cleaner and dietary aide
positions. The ALJ did not do so.

Furthermore, it would have been

impossible for the ALJ to quote the VE's testimony with approval in
support

of

her

findings

at

phase

two

regarding

the

postural,

environmental and mental demands of the cleaner and dietary aide
positions

since

the

VE

never

testified

regarding

environmental or mental demands of those positions.

the

postural,

The VE simply

testified that a person with the RFC limitations set forth by the ALJ
could perform her past relevant work.
The social security ruling, SSR 82–62, and the case law set forth
above clearly state that the ALJ must make specific findings of fact
as to the physical and mental demands of the past job.

In Winfrey,

the 10th Circuit held that the VE may supply information to the ALJ
at step four concerning plaintiff's past relevant work, and the ALJ
may rely on that information, but the ALJ must make the required
findings on the record.

Winfrey, 92 F.3d at 1025.

In this case, the

VE did not testify regarding the postural, environmental or mental
demands of the cleaner and dietary aide positions, and the ALJ did not
make any findings as to the physical and mental demands of the
positions.

When, as in this case, the ALJ makes findings only about
-8-

plaintiff's limitations, and the remainder of the step four assessment
takes place in the VE's head, the court is left with nothing to
review.

Winfrey, 92 F.3d at 1025.

It may well be that upon remand, the ALJ will reach the same
conclusion after making the findings required by SSR 82–62. However,
SSR

82–62

is

defendant's

requirement,

and

the

ALJs

have

the

responsibility to know and follow defendant's requirements.
Therefore, this case will be remanded to the ALJ to make findings
about both the physical and mental demands of plaintiff’s past work,
and to reassess her ability to perform such work in light of those
findings.
IV.

Conclusion
Pursuant

Commissioner’s

to

sentence

decision

is

four

of

reversed

42
and

U.S.C.

§

remanded

405(g),
for

further

proceedings consistent with this memorandum and order.

IT IS SO ORDERED.
Dated this

4th

day of August 2015, at Wichita, Kansas.

s/ Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE

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the