Taplin v. Social Security Administration, Commissioner of

Filing 18

MEMORANDUM AND ORDER. Pursuant to sentence four of 42 U.S.C. § 405(g), 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 07/22/2015. (aa)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

NUWZUD OMAR TAPLIN,

)
)
)
)
)
)
)
)
)
)
)

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

CIVIL ACTION
No.

14-1237-MLB

MEMORANDUM AND ORDER
This is an action reviewing a final decision of the Commissioner
of Social Security denying plaintiff disability insurance benefits.
I. General Legal Standards
The court’s standard of review is contained in 42 U.S.C. §
405(g),

which

provides

in

part

that

“[t]he

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. Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994).
Substantial evidence requires more than a scintilla, but less
than

a

preponderance,

and

is

satisfied

by

such

evidence

as

a

reasonable mind might accept as adequate to support the conclusion.
The determination is not simply a quantitative exercise, for evidence
is not substantial if it is overwhelmed by other evidence or if it
really constitutes a 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.
Graham v. Sullivan, 794 F.Supp. 1045, 1047 (D. Kan. 1992). 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 she has a physical or mental impairment expected to result in
death or last for a continuous period of twelve months which prevents
her

from

engaging

in

substantial

gainful

activity

(SGA).

The

claimant's physical or mental impairment or impairments must be of
such severity that she is not only unable to perform her previous work
but cannot, considering her age, education, and work experience,
engage in any other kind of substantial gainful work which exists in
the national economy.1 42 U.S.C. § 423(d).
Five-step

evaluation.

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
1

This standard applies regardless of whether such work exists
in the immediate area where the individual lives, or whether a
specific job vacancy exists for her, or whether she would be hired if
she applied for work. 42 U.S.C. § 423(d)(2)(A).
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agency will find non-disability unless the claimant can show that she
is not working at a “substantial gainful activity.” At step two, the
agency will find non-disability unless the claimant shows that 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
her previous work. Unless the claimant shows that she cannot perform
her previous work, she is determined not to be disabled. If the
claimant survives step four, the fifth and final step 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, 540 U.S. 20, 24-25 (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 claimant's
residual functional capacity (RFC). This RFC assessment is used to
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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 the case
Plaintiff initially alleged a disability beginning in July 1999,
but later amended her claim to allege an onset date of October 25,
2010. Following a hearing, Administrative Law Judge (ALJ) Judson Scott
denied her claim in a written decision issued January 28, 2013.
Plaintiff’s request for review was denied by the Appeals Council,
making the ALJ’s ruling the Commissioner’s final decision for purposes
of judicial review.
The ALJ found at step one that plaintiff was not currently
engaging in substantial gainful activity. At step two, he found
plaintiff

had

the

following

severe

impairments:

osteoarthritis;

lumbar degenerative disk disease; H. Pylori infection; and erosive
gastritis. At step three, the ALJ determined that none of plaintiff’s
impairments, alone or in combination, met or equaled any of the
impairments listed in the regulations.
The ALJ next found that plaintiff “has the residual functional
capacity to perform medium work as defined in 20 CFR 416.967(c) except
with no concentrated exposure to extreme heat, cold or humidity.” Doc.
9 at 21.
At step four, the ALJ found that plaintiff has no past relevant
work. At step five, he found that, considering plaintiff’s age,
education, work experience (together with the Medical-Vocational
Guidelines) and RFC, there are jobs that exist in significant numbers
in the national economy that plaintiff can perform.

-4-

III. Discussion.
Plaintiff’s arguments are not easy to decipher. Aside from being
opaque, the arguments are inexplicably laced with unsubstantiated
attacks on the integrity of the ALJ. These accusations are not only
a

distraction

from

the

merits

of

the

case,

they

are

wholly

inappropriate. Plaintiff’s counsel has engaged in such tactics on at
least one other occasion in this court.2 Accordingly, this court has
notified the Kansas Disciplinary Administrator of counsel’s conduct.
Sifting through the more coherent passages of plaintiff’s briefs,
the court gathers that plaintiff makes three claims of error. First,
plaintiff claims the ALJ failed to properly weigh Dr. West’s opinion
that plaintiff had a limited ability to bend or stoop. Doc. 12 at 2021.

Second,

plaintiff

contends

the

ALJ

erred

in

finding

plaintiff’s complaints of disabling pain were not credible.

that

Doc. 12

at 24. And third, plaintiff argues the ALJ’s finding that plaintiff

2

Largely in response to the ALJ’s hypothetical question to a
vocational expert, in which the ALJ asked the expert to assume a
person with various limitations including that the person’s “posturals
are essentially occasional,” but the ALJ failed to state specifically
that the person was limited to stooping occasionally or less,
plaintiff’s counsel has unleashed a torrent of accusations. These
include assertions that the ALJ engaged in “purposeful manipulation”;
he “salted the mine” but did so “with great craft” and “very
cleverly”; he “purposefully, or perhaps negligently, failed to mention
the detail”; his finding “is corrupt because [he] manipulated the
process in order to gain a specific result”; he “conveniently
‘modulated’ the weight afforded to Dr. West to conform to the
corrupted bifurcation process”; he found plaintiff could perform
medium work “possibly to frustrate a proper designation of benefits”;
and he engaged in an “application of pernicious procedure.” Doc. 12,
seriatim.
Judge Murguia recently advised plaintiff’s counsel that these
types of personal attacks “are unwarranted, distracting, and [do] not
aid counsel’s attempts to advocate on behalf of his client.” See
Williams v. Colvin, No. 14-1081, Doc. 19 at 4 (U.S. Dist. Ct., D.
Kan.).
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could perform medium work was not supported by substantial evidence.
Doc. 12 at 25.
Summary of medical evidence. As plaintiff concedes, there is
scant contemporaneous medical evidence supporting plaintiff’s claim
of disability on or after October 25, 2010. Nearly all of the medical
evidence pertains to plaintiff’s condition before that time. For
example, in 1999, based upon complaints of pain and swelling in her
hands, elbows, ankles and knees, plaintiff was diagnosed by her
physician as having inflammatory arthritis, most likely rheumatoid,
and was treated with Prednisone and Relafen. Although plaintiff was
“doing well” on this combination of medicines, she was a dancer at the
time

and

had

“great

concerns”

that

continued

use

of

steroids

(Prednisone) would affect her future as a dancer.
In the first half of 2010, plaintiff had numerous emergency room
and

doctor

visits,

largely

because

of

anxiety,

nausea,

gastric

problems, and hypertension. She was diagnosed with helicobacter pylori
disease

and

experienced

significant

weight

loss.

Her

physician

recommended a colonoscopy, but plaintiff was anxious about it and
cancelled a scheduled procedure at least five times. Other records
indicate

that

plaintiff

frequently

refused

to

take

prescribed

medications due to anxiety over their potential side effects. See
e.g., Doc. 9 at 366 (her physician reports that plaintiff “again has
multiple questions regarding what she is going to do if she gets
certain side effects from the medications. Again, we tried to strongly
reiterate that at this point, we are not getting anywhere with
treating any of her disorders because she refuses to take any of the
medications.”); Doc. 9 at 368 (assessment includes “severe anxiety and
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medication noncompliance”); Doc. 9 at 370 (plaintiff “has not taken
her Paxil. She is not taking her antihypertensives. She has not been
taking the Metronidazole or Clarithromycin for her H. Pylori. * * *
She is continuing to have anxiety and panic attacks but refuses to
take the medications as prescribed.”).3
In August 2010, plaintiff was diagnosed with a small hiatal
hernia

and

erosive

gastritis.

In

December

2010,

a

CT

scan

of

plaintiff’s head was taken based upon complaints of vertigo. The test
revealed no abnormalities. Plaintiff also complained of shortness of
breath, which led to another scan indicating that her heart was normal
and her lungs were clear, while she had a “very subtle rotoscoliotic
deformity.”
In

March

2011,

plaintiff

was

assessed

as

having

chronic

gastritis, rheumatoid arthritis, hypertension, and anxiety. Among
other things, the doctor’s report indicates that plaintiff stated she
had stiffness in her knees but she had gotten it under control through
yoga. She could sometimes walk a block and sometimes a mile, and
standing was not particularly affected. The report indicates plaintiff
was in no apparent distress and all of her joints appeared normal,
with no painful or swollen joints or sore muscles. The doctor assessed
that plaintiff “has good days and bad days for the sort of work she
is to do. It sounds like she can still do that being a counselor.
Probably cannot do a lot of manual labor with her arthritis.” Doc. 9

3

There is additional evidence in the record pertaining to
plaintiff’s apparent anxiety about taking medications. At the hearing
before the ALJ, however, plaintiff and her then-counsel conceded that
her disability claim was based on physical rather than mental
impairments.
-7-

at 634.
An x-ray of plaintiff’s knees and spine in June 2011 showed
“minimal/mild” degenerative changes in the knees, degenerative changes
in the lumbar spine with and mild left scoliotic curvature at the
thoracolumbar junction, and mild bilateral sacroiliac articulation
degenerative changes. Doc. 9 at 654, 689. The greatest change was at
L1-2, where there was some intradiscal gas density, disc space
narrowing, endplate sclerosis and spurring. The severity of the
degenerative change was not markedly different from her condition
shown by an April 2010 x-ray.
Plaintiff testified she had had only one prior job in the fifteen
years before the alleged onset of disability. She worked between 1995
and 2000 as a counselor, offering assistance via telephone to people
in crisis.

She testified that she tried to do the work part-time

after that, but she started having severe back and neck pain from
sitting too long. She curtailed the work, she said, as she was not
making much money at it. Plaintiff was 56 years old at the time of the
alleged onset.
ALJ’s consideration of Dr. West’s opinion. Dr. West is an
impartial medical expert who was present via telephone for the hearing
before the ALJ. From his examination of plaintiff’s records and
consideration of her testimony at the hearing, West offered the
following

opinions.

He

said

the

x-rays

support

a

diagnosis

of

osteoarthritis rather than rheumatoid arthritis, as shown in part by
the

fact

that

plaintiff

has

not

developed

joint

deformities

characteristic of the latter type. He said a spondyloarthropathy would
explain some of her back pain. He said plaintiff has a hiatal hernia
-8-

and an H. pylori infection that apparently manifested itself in
erosive

gastritis.

He

noted

that

plaintiff

has

an

aversion

to

medications likely stemming from an anxiety disorder.
West opined that plaintiff’s hernia would not impair her ability
to work. As for the osteoarthritis and spondyloarthropathy, West said
these conditions would “somewhat impact” plaintiff’s RFC because “she
would

have

some

difficulty

bending

over.”4

West

said

none

of

plaintiff’s severe impairments meet or equal a listing under the
regulations. As for plaintiff’s functional limitations, West said
plaintiff “would be capable of light activity” and could lift 10
pounds frequently and 20 pounds occasionally; she could stand 6 hours
in an 8-hour day with normal breaks; with a sit/stand option she could
sit for 6 hours in an 8-hour day; and walk a total of 2 hours. As for
postural limitations, West said plaintiff would not be limited on
pushing and pulling; she could climb stairs or ramps frequently but
never scaffolds or ladders; she could balance frequently; stooping is
limited “to occasional to never”; and she should never kneel, crouch
or crawl. He also said plaintiff should not be exposed to extreme cold
or extreme heat or dust, or to gases or fumes above street level
concentrations.
The ALJ in his written decision assigned “great weight” to West’s
opinion that plaintiff does not have rheumatoid arthritis. But West’s
opinion “concerning the claimant’s residual functional capacity is
only given some weight because he did not adequately consider the
4

Although West at first said he would characterize these
conditions as mild rather than severe, the ALJ explained to West that
under the regulations they would be considered severe because they
more than minimally impair plaintiff’s ability to work. Doc. 9 at 76.
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claimant’s activities, which indicate a greater level of functioning.”
Doc. 9 at 24. For reasons set forth below, the court concludes that
this latter analysis of West’s opinion was inadequate and amounts to
error under the regulations.
West opined on physical limitations resulting from plaintiff’s
impairments -- including specific limitations on lifting, stooping and
crouching. The ALJ failed to specifically address any of these
limitations apparently because he considered all of them inconsistent
with “claimant’s activities.” Elsewhere in his opinion, the ALJ
identified the following activities: a doctor’s note indicating
plaintiff was going to go to New Mexico “where she hopes to get a job
in the Theatre down there”; a note that plaintiff helps out in her
husband’s computer business; a note that she has “been active in
teaching dance to some people and active in her house”; and a note
that she intended to start her own dance studio.
The

ALJ

failed

to

address

how

or

why

these

activities

contradicted West’s limitations. To begin with, the first and last
item cited are not physical activities at all. Plaintiff’s hope of
obtaining a job in the theater5 and a plan to start a dance studio
were merely aspirations. It might be fair to say that such aspirations
are inconsistent with a claimed inability to do any type of work, but
standing alone they do not demonstrate an ability to do work at a
medium level of exertion as opposed to light work. For example, they
do

not

contradict

West’s

opinion

5

that

plaintiff’s

impairments

The record does not disclose whether plaintiff ever traveled
to New Mexico or what job she was interested in. The doctor’s note
mentioning her interest was dated September 2010, prior to plaintiff’s
alleged disability onset date.
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prevented her from crouching and limited her to stooping less than
occasionally. The same is true with respect to the fact that plaintiff
helped in her husband’s computer business, was “active in her house,”
or that she taught dance at some point. While the latter activity in
particular might imply a certain level of vigor, the statement by
itself does not show that plaintiff was capable of performing physical
activities in excess of West’s limitations. The ALJ’s opinion offers
no

detail

or

explanation

for

why

these

activities

refute

the

limitations indicated by West. Cf. Kepler v. Chater, 68 F.3d 387, 391
(10th Cir. 1995) (“Here, the ALJ gave his conclusion but not the
reason for his conclusion.”). “The RFC assessment must include a
narrative

discussion

describing

how

the

evidence

supports

each

conclusion, citing specific medical facts (e.g., laboratory findings)
and nonmedical evidence (e.g., daily activities, observations).”
Hendron v. Colvin, 767 F.3d 951, 954 (10th Cir. 2014) [citing Social
Security Ruling (SSR) 96-8p, 1996 WL 374184, at *7 (S.S.A. July 2,
1996)].

Cf. Diggdon v. Apfel, 189 F.3d 477 (10th Cir. 1999) (The ALJ

failed to indicate the evidence he relied upon in making his RFC
determination and failed to explain how he considered and resolved the
evidence in the record that was inconsistent with his assessment.).
The lack of explanation for plaintiff’s RFC in this case is
compounded by other oversights. First, the ALJ made no findings at all
concerning

plaintiff’s

various

physical

abilities

but

summarily

concluded that she “has the residual functional capacity to perform
medium work” except for environmental exposure. Doc. 9 at 21.

In

determining an RFC, the ALJ is required to consider and make specific
findings as to the claimant’s physical abilities. See SSR 96-8p, 1996
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WL 374184 (“The RFC assessment must first identify the individual’s
functional limitations or restrictions and assess his or her workrelated abilities on a function-by-function basis, including [physical
abilities].... Only after that may RFC be expressed in terms of the
exertional levels of work, sedentary, light, medium, heavy, and very
heavy.”);

20

C.F.R.

§404.1545(b)(“When

we

assess

your

physical

abilities, we first assess the nature and extent of your physical
limitations and then determine your residual functional capacity for
work activity on a regular and continuing basis.”). The ALJ did not
do so. Second, the ALJ’s related finding that plaintiff could perform
medium work is likewise unexplained and unsupported by findings. An
ability to do a full range of medium work implies an ability to
frequently bend or stoop, with the flexibility of the knees and the
torso usually being important for that activity. See Winfrey v.
Chater, 92 F.3d 1017, 1023 (10th Cir. 1996). West’s opinion was that
plaintiff was unable or significantly limited in doing that activity,
and the ALJ failed to adequately explain why that opinion was not
credited -- referring only generally to “claimant’s activities.” The
court cannot say that this unexplained finding is supported by
substantial evidence. See Spicer v. Barnhart, 64 Fed.Appx. 173, 178
(10th Cir. 2003) (where ALJ does not provide explanation, the court
is

left

to

speculate

and

cannot

meaningfully

review

the

determination); Murphy v. Colvin, 2015 WL 3869768, *4 (D. Kan. 2015)
(“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.”). Moreover,
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medium work involves occasionally lifting up to 50 pounds and frequent
lifting or carrying of objects weighing up to 25 pounds. 20 C.F.R.
§404.1567(c). West opined that plaintiff was capable of lifting 10
pounds frequently and 20 pounds occasionally. The ALJ’s opinion
contains no findings concerning plaintiff’s ability to lift and does
not address West’s opinion on that limitation.
Third, the ALJ went on to find that plaintiff had no past
relevant work, Doc. 9 at 24, despite evidence that plaintiff had
worked full time as a counselor until 2000. Perhaps there is some
valid reason for finding that plaintiff’s prior work did not qualify
as substantial gainful activity, but that finding is not explained in
the ALJ’s opinion and the reason is not apparent from the record.
Finally, the court cannot accept defendant’s suggestion that the
foregoing omissions amount to harmless error. Defendant asserts that
a vocational expert “testified that a hypothetical individual with the
limitations Dr. West opined could perform some of Plaintiff’s past
work, as well as other jobs that exist in significant numbers in the
national economy.” Doc. 13 at 6, n.3. Based on that premise, defendant
argues that “[e]ven if the ALJ had accepted Dr. West’s limitations,
Plaintiff would not be found disabled under the Act.” This argument
appears to be based largely on speculation. To begin with, the ALJ
made no predicate findings that would support such an argument. For
example, the ALJ found that plaintiff had no relevant past work, and
thus never considered whether plaintiff could still perform her past
work. Moreover, it is not entirely clear that the ALJ posited a
hypothetical to the vocational expert that accurately incorporated
West’s limitations. West opined among other things that plaintiff’s
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stooping should be limited “to occasional to never.” Doc. 9 at 81. The
ALJ’s hypothetical to the vocational expert stated that the “posturals
are essentially occasional,” without mentioning anything specific
about stooping or bending. Doc. 9 at 93. Assuming the ALJ was
attempting to reiterate West’s limitations, he did not do so with
complete accuracy, and the court cannot say how this might have
affected the testimony or the ALJ’s ultimate findings. Winfrey v.
Chater, 92 F.3d 1017, 1024, n.5 (10th Cir. 1996) (“[T]estimony
elicited by hypothetical questions that do not relate with precision
all of a claimant’s impairments cannot constitute substantial evidence
to support the Secretary’s decision.” [cited omitted]). The court also
notes that the ALJ determined at step five that plaintiff was not
disabled based in part on a conclusion that, with certain additional
limitations,6 plaintiff had the RFC to perform the full range of
medium work. Doc. 9 at 25. For reasons previously indicated, the
latter finding has not been adequately explained or supported in
accordance with the regulations.
In view of the foregoing findings, the court will not reach
plaintiff’s

argument

credibility,

because

challenging
that

issue

the
may

ALJ’s
be

assessment

affected

by

of

the

her
ALJ’s

resolution of the other issues on remand, including a determination
6

After noting that Medical-Vocational Rule 203.14 would direct
a finding of “not disabled” if the claimant has the RFC to perform the
full range of medium work, the ALJ stated that “the additional
limitations have little or no effect on the occupational base of
unskilled medium work. A finding of ‘not disabled’ is therefore
appropriate under the framework of this rule.” Doc. 9 at 25. It is not
clear from the ALJ’s opinion what “additional limitations” he was
referring to. It is clear, however, that the conclusion was premised
on a finding that plaintiff would otherwise perform the full range of
medium work.
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and explanation of plaintiff’s RFC. Upon remand, the ALJ may conduct
any further proceedings permitted by regulation and is not precluded
from reaching any particular result -- whether a finding of disabled
or non-disabled -- provided the ruling is supported by substantial
evidence and applies the correct legal standards. As noted by Judge
Murguia in Williams, this case is remanded because of the ALJ’s errors
as noted herein -- not because of counsel’s inappropriate accusations
or because of the quality of counsel’s briefs.
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 22nd

day of July 2015, at Wichita, Kansas.

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

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the