Bagby v. Social Security Administration, Commissioner of
MEMORANDUM AND ORDER-IT IS THEREFORE ORDERED that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) REVERSING the Commissioner's decision and REMANDING for further proceedings in accordance with this memorandum and order. Signed by District Judge Kathryn H. Vratil on 3/13/2017. (ydm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
MEMORANDUM AND ORDER
Zachary Bagby appeals the final decision of the Commissioner of Social Security to deny
disability insurance benefits under Title II of the Social Security Act (“SSA”), 42 U.S.C. §§ 401,
et seq. For the reasons set forth below, the Court finds that the final decision of the Commissioner
should be reversed and remanded for further proceedings.
On November 15, 2011, plaintiff filed an application for disability insurance benefits,
claiming disability from April 1, 2010 to December 31, 2011, the last date plaintiff was insured for
disability insurance benefits. Initially and on reconsideration his claim was denied. At plaintiff’s
request an administrative law judge (“ALJ”) held a hearing on October 25, 2013. On November 5,
2013, the ALJ determined that plaintiff was not disabled before December 31, 2011. Plaintiff
requested Appeals Council review. The Appeals Council denied plaintiff’s request. Plaintiff now
appeals to this Court.
Standard of Review
The Court reviews the Commissioner’s decision to determine whether it is “free from legal
error and supported by substantial evidence.” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009);
see 42 U.S.C. § 405(g). Substantial evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Wall, 561 F.3d at 1052 (quoting Lax v. Astrue, 489
F.3d 1080, 1084 (10th Cir. 2007)). It requires “more than a scintilla, but less than a preponderance.”
Id. Whether the Commissioner’s decision is supported by substantial evidence is based on the
record taken as a whole. Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994). “Evidence is
not substantial if it is overwhelmed by other evidence in the record or constitutes mere conclusion.”
Grogan v. Barnhart, 399 F.3d 1257, 1261-62 (10th Cir. 2005). To determine if the decision is
supported by substantial evidence, the Court will not reweigh the evidence or retry the case, but will
examine the record as a whole, including anything that may undercut or detract from the
Commissioner’s findings. Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007).
The following is a brief summary of the record.
Plaintiff was born August 9, 1983. He claims disability beginning on April 1, 2010 because
of Post Traumatic Stress Disorder (“PTSD”), knee pain, migraines, tinnitus, degenerative joint
disease and traumatic brain injury. Plaintiff did not engage in substantial gainful activity from April
1, 2010 to December 31, 2011.
Plaintiff is 5’8” tall and weighed between 215 and 330 pounds during the relevant period.
Tr. 62-63. In December of 2006, plaintiff was diagnosed with PTSD, depression, panic disorder and
From December of 2006 throughout the rest of the relevant period, plaintiff continued to
report symptoms of PTSD. Tr. 538-39, 704, 707, 709, 892, 1149. He reported trouble sleeping,
nightmares, panic attacks, intrusive thoughts and depression. Tr. 910, 928, 1086, 1097-98, 1100-01.
He also reported difficulty concentrating. Tr. 535, 664. He cut himself on a number of occasions.
Tr. 609, 889, 1109-10. He abused alcohol, but has been sober since April of 2010. Tr. 62, 76, 53940, 1129, 1194. He sought treatment for intractable headaches. Tr. 1870, 1848. He twice sought
treatment for lateral meniscus tears to his right knee and once sought treatment for a fractured right
ankle. Tr. 671-72, 1445, 2030. On March 5, 2008, plaintiff was diagnosed with traumatic brain
injury. Tr. 699. He was assessed again later that year and found to have deficits in higher-level
cognitive processing. Tr. 655.
Plaintiff testified that he takes care of his personal grooming, prepares his own meals, does
his own dishes, cleans his own house, takes out his own garbage and performs his own yard work.
Tr. 81-82. Plaintiff spends up to four hours per day on the computer. Tr. 82. He exercises about
two-and-a-half hours each day and has lost nearly 100 pounds through diet and exercise. Tr. 63.
Plaintiff has difficulty sleeping and has nightmares several times a month. Tr. 88. He has
anxiety around others, struggles with anger and has flashbacks. Tr. 87, 88, 90. Plaintiff also has
trouble with memory, concentration and completing tasks. Tr. 87-90.
Plaintiff experiences constant and bothersome right knee pain, but he is able to stand for two
hours at a time, walk a few miles and sit for 30 minutes at a time. He has no problems with his
hands. Tr. 79-81.
Plaintiff testified that he has been attending college to gain exposure to other people. Tr. 6364. At the time of the hearing before the ALJ, he had cut his course load from seven or eight classes
to just one, a Latin course. Tr. 64-65. Plaintiff was struggling with the Latin course; he testified that
it took him eight to nine hours to do his homework. Tr. 65.
Plaintiff testified that he sees his brother three to four times a week and sees a friend about
once a month. Tr. 83. Plaintiff attends church every day, sees movies occasionally and goes out to
eat once or twice a month. Tr. 83-84. He drives 50 to 100 miles each week and has traveled to
Oklahoma and the Ozarks several times. Tr. 81; 84; 86.
His finances are handled by a fiduciary because Veterans Affairs has found him incompetent
to handle his own affairs. Tr. 55.
III. Medical Expert Opinion
In March of 2012, two state agency psychologists, Dr. Robert Blum and Dr. Stanley Hutson,
evaluated plaintiff’s limitations. Tr. 97-109, 2011. Dr. Hutson found moderate limitations in eight
areas of mental functioning, including interacting with the public and concentration and persistence.
Tr. 2011-12. Dr. Blum opined that plaintiff had moderate limitations in his ability to maintain
attention and concentration for extended periods. Tr. 107.
Plaintiff’s treating psychologist, Dr. Thomas Demark, opined that plaintiff had moderate
limitations in ten areas of mental functioning, including understanding, remembering and carrying
out very short and simple instructions. Tr. 2179-80. Dr. Demark also found marked limitations in
ten areas of mental functioning, including plaintiff’s ability to interact appropriately with the general
public, to work with others without being distracted and to maintain attention and concentration for
extended periods. Tr. 2179-80.
IV. Vocational Expert Testimony
The ALJ asked the vocational expert about the work opportunities for a person who can
perform limited to medium work; can occasionally climb ramps or stairs; who can never climb
ladders, ropes or scaffolds; can frequently balance; who can frequently stoop; who can occasionally
kneel; can frequently crouch; can never crawl; is limited to simple, routine and repetitive tasks; can
use judgment consistent with simple work-related decisions; can deal with simple work-related
decisions; can deal with changes in a work setting; can have no more than occasional interaction
with supervisors or coworkers; and can never work with the public. Tr. 90-91. The vocational
expert testified that someone with that residual functional capacity and plaintiff’s age, education and
work experience could work as a laundry room attendant, a hand packager or a manufacturing
helper. Tr. 90-92.
The vocational expert also testified that a person who would be consistently off task for 20
per cent or more of the day and who would consistently miss two or more days of work per month,
would be unable to work. Tr. 92.
The ALJ denied benefits at step five, finding that plaintiff was capable of performing work in
the national economy. Tr. 29.
The ALJ made the following findings:
The claimant last met the insured status requirements of the Social Security Act on
December 31, 2011.
The claimant did not engage in substantial gainful activity during the period from his
amended onset date of April 1, 2010 through his date last insured of December 31, 2011. (20
CFR 404.1571 et seq).
Through the date last insured, the claimant had the following severe impairments: (1)
Obesity, with a weight range of 215 to 330, on a 5’10” frame, with related aggravation of
degenerative joint disease of the right knee and right ankle fracture in March 2010; and (2) A
mental impairment variously diagnosed to include post-traumatic stress disorder, a traumatic
brain injury, borderline personality disorder, alcohol abuse and dependence, in remission
since April 1, 2010 (20 CFR 404.1520(c)). * * *
Through the date last insured, the claimant did not have an impairment or
combination of impairments that met or medically equaled the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and
404.1526). * * *
After careful consideration of the entire record, the undersigned finds that, through
the date last insured, the claimant had the residual functional capacity to perform medium
work as defined in 20 CFR 404.1567(c) except the claimant should no more than
occasionally climb ramps and stairs; but should never climb ladders, ropes, and scaffolds; the
claimant should no more than frequently balance, stoop, crouch; should no more than
occasionally kneel and should never crawl; the claimant is limited to perform simple, routine
and repetitive tasks; the claimant is limited to judgment decisions and work place changes
that are consistent with simple, routine and repetitive tasks; and the claimant should have no
more than occasional interaction with coworkers and supervisors but should never interact
with the general public. * * *
Through the last date insured, the claimant was unable to perform any past relevant
work (20 CFR 404.1565). * * *
The claimant was born on August 9, 1983 and was 28 years old, which is defined as a
younger individual age 18-49, on the date last insured (20 CFR 404.1563).
The claimant has at least a high school education and is able to communicate in
English. (20 CFR 404.1564).
Transferability of job skills is not material to the determination of disability because
using the Medical-Vocational Rules as a framework supports a finding that the claimant is
“not disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20
CFR Part 404, Subpart P, Appendix 2).
Through the date last insured, considering the claimant’s age, education, work
experience, and residual functional capacity, there were jobs that existed in significant
numbers in the national economy that the claimant could have performed (20 CFR 404.1569
The claimant was not under a disability, as defined in the Social Security Act, at any
time from April 1, 2010, the amended onset date, through December 31, 2011, the date last
insured (20 CFR 404.1520(g)). * * *
Plaintiff bears the burden of proving disability under the SSA. Wall, 561 F.3d at 1062 (citing
Flaherty, 515 F.3d at 1071). Plaintiff is under a disability if he has a severe physical or mental
impairment which prevents him from engaging in any substantial gainful activity, and which is
expected to result in death or to last for a continuous period of at least 12 months. Thompson v.
Sullivan, 987 F.2d 1482, 1486 (10th Cir. 1993) (citing 42 U.S.C. § 423(d)(1)(A)).
Commissioner uses a five-step sequential process to evaluate disability. 20 C.F.R § 404.1520;
Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010) (citing Williams v. Bowen, 844 F.2d 748,
750 (10th Cir. 1988)). In the first three steps, the Commissioner determines whether (1) plaintiff has
engaged in substantial gainful activity since the alleged onset, (2) plaintiff has a severe impairment
or combination of impairments and (3) the severity of any impairment is equivalent to one of the
listed impairments that are so severe as to preclude substantial gainful activity.
20 C.F.R. §
404.1520(a)(4)(i)–(iii); see Williams, 844 F.2d at 750-51. If plaintiff satisfies steps one, two and
three, the Commissioner will automatically find him disabled. If plaintiff satisfies steps one and two
but not three, the analysis proceeds to step four.
At step four, the ALJ must make specific factual findings regarding plaintiff’s abilities in
three phases. See Winfrey v. Chater, 92 F.3d 1017, 1023-25 (10th Cir. 1996). First, the ALJ
determines plaintiff’s physical and mental residual functioning capacity (“RFC”). Id. at 1023.
Second, the ALJ determines the physical and mental demands of plaintiff’s past relevant work. Id.
Third, the ALJ determines whether despite the mental and/or physical limitations found in phase
one, plaintiff has the ability to meet the job demands found in phase two. Id.; Henrie v. U.S. Dep’t
of HHS, 13 F.3d 359, 361 (10th Cir. 1993). If plaintiff satisfies step four, i.e., if plaintiff shows that
he is not capable of performing past relevant work, the burden shifts to the Commissioner to
establish at step five that plaintiff is capable of performing other work in the national economy.
Williams, 844 F.2d at 751.
Plaintiff first asserts that the ALJ erred in formulating the RFC (1) because the ALJ found
moderate difficulties with concentration, persistence and pace but did not include those limitations in
the RFC; and (2) because – although the ALJ gave “significant weight” to the state agency doctors’
opinions – the RFC did not reflect the doctors’ opinions that plaintiff had moderate limitations in
maintaining attention and concentration for extended periods. Plaintiff’s Social Security Brief
(Doc. #12) filed October 7, 2015 at 14. Plaintiff also asserts that the ALJ erroneously failed to
consider the VA determination that he is disabled. Id. at 19. Finally, plaintiff contends that the ALJ
erred in providing little weight to the treating doctor’s opinion. Id. Because the Court agrees with
plaintiff in part, the case must be remanded for further proceedings.
Residual Functional Capacity
Plaintiff argues that (1) the ALJ did not include her findings of moderate limitations in
concentration, persistence and pace in the RFC finding; and (2) although the ALJ gave Dr. Blum’s
and Dr. Hutson’s opinions significant weight, she did not explain why she did not include all of the
doctors’ limitations in the RFC. Plaintiff’s Social Security Brief (Doc. #12) at 14. The Court finds
no reversible error on these arguments.
Plaintiff argues that the ALJ does not explain how she harmonized the findings regarding
plaintiff’s limited abilities in concentration, persistence and pace with the RFC, which included no
specific limitation for concentration, persistence or pace. Id. at 14. Defendant responds that the ALJ
translated the impairment findings into work-related limitations.
Brief Of The Commissioner
(Doc. #15) filed December 4, 2015 at 4.
It is not always necessary for the ALJ to make specific limitations in the RFC for
concentration, persistence and pace. Vigil v. Colvin, 805 F.3d 1199, 1203-04 (10th Cir. 2015).
Moderate limitations, such as plaintiff’s, may not require specific functional work-related limitations
in the RFC. Id. Therefore, the appropriate question is whether the RFC adequately accounts for
difficulties in concentration, persistence and pace. Id. at 1204.
In Vigil, the Tenth Circuit Court of Appeals found that the ALJ adequately accounted for
moderate limitations in concentration, persistence and pace by limiting the plaintiff to unskilled
work. Id. It noted that unskilled work generally requires only the following: (1) understanding,
remembering, and carrying out simple instructions; (2) making judgments that are commensurate
with the functions of unskilled work – i.e., simple work-related decisions; (3) responding
appropriately to supervision, co-workers and usual work situations; and (4) dealing with changes in a
routine work setting. Id. (quoting SSR 96-9p, 1996 WL 374185, at *9 (July 2, 1996)). Similarly,
here, the ALJ’s limitation to simple, routine and repetitive tasks and to judgment and work changes
consistent with simple, routine and repetitive tasks, adequately accounts for plaintiff’s limitations.
The ALJ did not err by failing to explicitly include limitations in concentration, persistence and
Plaintiff also asserts that in formulating plaintiff’s RFC, the ALJ improperly ignored state
agency doctors’ opinions that plaintiff had limited ability to maintain attention and concentration.
Plaintiff’s Social Security Brief (Doc. #12) at 14. Defendant responds that because Dr. Blum’s and
Dr. Hutson’s moderate limitations were contained in Section I of the Mental Residual Functional
Capacity Assessment (“MRFCA”) form and not in Section III of the form, the ALJ was not required
to include the limitation in the RFC assessment. Brief Of The Commissioner (Doc. #15) at 5-6.
Defendant acknowledges, however, that when Section III does not describe the effect of Section I
limitations, the Section III narrative may not provide substantial evidence to support the RFC. Id. at
The Tenth Circuit has held that Section I limitations must be described in narrative format in
Section III of the MRFCA. Carver v. Colvin, No. 14-5056, 600 F. App’x 616, 619–20 (10th Cir.
Jan. 20, 2015) (citing POMS DI § 24510.063 B.2). When a consultant’s Section III narrative fails to
describe the effect that each of the moderate limitations in Section I would have on claimant’s
ability, or if the Section III narrative contradicts limitations marked in Section I, the Court cannot
properly consider the MRFCA as part of the substantial evidence supporting the RFC finding. Id.
Here, the ALJ cannot rely on the Section III narratives because those narratives did not address the
Section I moderate limitations in ability to maintain attention and concentration. See Haga v.
Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007).
Therefore, because the narrative failures preclude use of those findings as substantial
evidence, the ALJ erred in providing substantial weight to the doctors’ RFC findings. Despite this
error, the ALJ’s own findings and other record evidence could support the RFC. Consequently this
error, standing alone, does not require remand for reassessment of the RFC.
VA Disability Determination
Disability findings by other agencies are not binding on the Commissioner but they are
entitled to weight and must be considered. See Baca v. Dep’t of HHS, 5 F.3d 476, 480 (10th Cir.
1993) (quoting Fowler v. Califano, 596 F.2d 600, 603 (3d Cir. 1979)). Although the Tenth Circuit
has not articulated what evidentiary weight an ALJ should give another agency's disability findings,
it is “beyond dispute” that the ALJ must consider such findings and give them some weight. Richter
v. Chater, 900 F. Supp. 1531, 1539 (D. Kan. 1995). A passing reference to another agency’s
disability finding or a perfunctory rejection of it will not suffice. Id. at 1539. Rather, the ALJ
should consider the disability determination in her evaluation of the evidence and explain what
weight she gave to this “important fact.” Id.
Plaintiff argues that the ALJ erred by failing to consider his disability rating from the VA.
Plaintiff’s Social Security Brief, (Doc. #12) at 19. Defendant responds that the ALJ mentioned the
VA rating more than once. Brief Of The Commissioner (Doc. #15) at 8. But the ALJ only
mentioned the zero per cent migraine disability rating and noted that plaintiff receives veterans’
disability benefits. Tr. 21, 25. She never mentioned plaintiff’s total disability rating or his PTSD
disability rating. The record contains no indication that the ALJ considered the VA disability
Remand is required when an ALJ fails to consider the VA disability rating. Grogan, 399
F.3d at 1262. The Court may not create post hoc rationalizations to explain the ALJ’s treatment of
the VA disability determination when that treatment is not apparent from the decision itself. See
Grogan, 399 F.3d at 1263. On remand, the Commissioner shall obtain and address findings by the
VA with respect to any disability ratings received by plaintiff and determine the effect, if any, that
those findings have on plaintiff’s application for social security disability benefits. See Zevely v.
Barnhart, 94 Fed. Appx. 722, 724; Burroughs v. Astrue, 487 F. Supp. 2d at 1266-67. The Court
expresses no opinion whether any VA disability findings should change the result in this case.
III. Opinion Of Treating Psychologist
Unless she has good cause do to otherwise, an ALJ must give substantial weight to a treating
physician’s opinion. Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987). “[T]he opinions of
physicians who have seen a claimant over a period of time for purposes of treatment are given more
weight over the views of consulting physicians or those who only review the medical records and
never examine the claimant.” Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004) (quoting
Williams, 844 F.2d at 757). The ALJ must provide specific, legitimate reasons to disregard a
treating physician’s opinion. Id.
Plaintiff argues that if the ALJ does not give substantial weight to the treating physician’s
opinion, she must weigh the six factors in 20 C.F.R. § 404.1527 to determine what weight is
appropriate. The ALJ is not required, however, to expressly weigh all six factors. Oldham v.
Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007). The ALJ must merely provide good reasons for the
weight given. Id.
The ALJ gave little weight to the opinion of plaintiff’s treating psychologist, Dr. Demark,
because she found that his opinion was “not consistent with underlying treatment notes” and because
more than a year had passed between plaintiff’s last appointment with Dr. Demark and Dr. Demark’s
written opinion. Tr. 11.
Dr. Demark’s opinion of plaintiff’s limitations is consistent with the treatment records. In
fact, the ALJ’s assessment of the notes is at times inconsistent with the record. The ALJ stated that
plaintiff had reported sleeping well. Tr. at 29. But on two occasions plaintiff stated that he was
getting as little as four hours of sleep a night. Tr. at 1376, 2024. According to treatment notes,
plaintiff characterized his sleep on those occasions as “pretty good” and “sporadic.” Tr. at 1376,
2024. Although he had occasional panic attacks, the ALJ noted that plaintiff reported that Klonopin
controlled his anxiety. Tr. at 29. In fact, in March of 2012, plaintiff reported increased anxiety and
panic attacks. Tr. at 2024. Further, while the ALJ noted that plaintiff’s medications “helped” his
concentration and that he was “getting better” at managing his PTSD, the fact that plaintiff showed
improvement does not necessarily mean plaintiff had improved to the point that he did not have
marked limitations. Id. Dr. Demark could reasonably note improvement but still believe that
plaintiff showed marked limitations. Because the ALJ did not provide good reasons for the little
weight which she assigned to Dr. Demark’s opinion, remand is required.
On remand, the ALJ should fully consider the impact of the VA disability rating on
plaintiff’s application; reevaluate the weight afforded to Dr. Demark’s opinion and provide reasons
for the weight given; and consider at that point whether changes to the RFC are warranted.
IT IS THEREFORE ORDERED that judgment shall be entered pursuant to the fourth
sentence of 42 U.S.C. § 405(g) REVERSING the Commissioner’s decision and REMANDING for
further proceedings in accordance with this memorandum and order.
Dated this 13th day of March, 2017 at Kansas City, Kansas.
s/ Kathryn H. Vratil
KATHRYN H. VRATIL
United States District Judge
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