Brown v. Social Security Administration, Commissioner of

Filing 11

MEMORANDUM AND ORDER - It is ordered that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner's final decision. Signed by District Judge John W. Lungstrum on 01/04/2017. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JAY BROWN,

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

CIVIL ACTION
No. 15-1314-JWL

MEMORANDUM AND ORDER

Plaintiff seeks review of a decision of the Acting Commissioner of Social Security
(hereinafter Commissioner) denying Disability Insurance benefits (DIB) under sections
216(i) and 223 of the Social Security Act. 42 U.S.C. §§ 416(i) and 423 (hereinafter the
Act). Finding no error, the court ORDERS that judgment shall be entered pursuant to the
fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner’s final decision.
I.

Background
Plaintiff applied for DIB, alleging disability beginning November 21, 2010. (R.

15, 147). Plaintiff exhausted proceedings before the Commissioner, and now seeks
judicial review of the final decision denying benefits. He argues that although the
Administrative Law Judge (ALJ) found at step two of his sequential evaluation that
Plaintiff has a severe cognitive disorder imposing moderate difficulties in concentration,

persistence, or pace, the only mental limitation assessed was for unskilled work, a
limitation which he argues cannot as a matter of law adequately account for moderate
difficulties in concentration, persistence, or pace.
The court’s review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052
(10th Cir. 2009). Section 405(g) provides that 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 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
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).
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The Commissioner uses the familiar five-step sequential process to evaluate a
claim for 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)). “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 he
has a severe impairment(s), and whether the severity of his 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 residual functional capacity (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 next evaluates steps four and five of the sequential process-determining at step four whether, in light of the RFC assessed, claimant can perform his
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); 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
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economy which are within the RFC assessed. Id.; Haddock v. Apfel, 196 F.3d 1084,
1088 (10th Cir. 1999).
The court finds the ALJ properly explained Plaintiff’s difficulties of concentration,
persistence, and pace, and why he found Plaintiff’s cognitive disorder limited him to
unskilled work. Accordingly, the court finds no error in the ALJ’s decision.
II.

Discussion
Plaintiff claims the ALJ failed to account for all of Plaintiff’s severe impairments

because “Tenth Circuit and District of Kansas1 law indicate that a finding of ‘unskilled
work’ is insufficient to account for moderate limitations in concentration, persistence, or
pace.” (Pl. Br. 7-9) (citing Chapo v. Astrue, 682 F.3d 1285, 1290 n.3 (10th Cir. 2012);
Jaramillo v. Colvin, 576 F. App’x 870 (10th Cir. 2014) (without pinpoint citation);
Wiederholt v. Barnhart, 121 F. App’x 833, 839 (10th Cir. 2005); and Keel v. Colvin, No.
13-1458-SAC, 2015 WL 1034419, *4 (D. Kan. Mar.10 2015)). He argues that the ALJ
here did not identify specific work-related limitations, or explain how Plaintiff’s cognitive
disorder affected his ability to perform basic mental work activities such as the abilities to
understand, carry out, and remember instructions; use judgment in making work-related
decisions; respond appropriately to supervision, co-workers and work situations; and deal

1

Strictly speaking, there is no “District of Kansas law” equivalent to “Tenth Circuit
law” in the sense that it might constitute precedent binding upon this court. Cases from
the District of Kansas are considered by the court for their persuasive value much as are
cases from other district courts, Circuit Courts other than the Tenth Circuit, and
unpublished opinions of the Tenth Circuit Court of Appeals. Thus, in the string citation
above Plaintiff has cited one case constituting precedent binding upon this court–Chapo.
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with changes in a routine work setting, and that the record does not contain a medical
opinion suggesting Plaintiff’s specific work-related mental limitations. (Pl. Br. 9). He
acknowledges Dr. Wang characterized Plaintiff’s overall cognitive impairment as mild,
but argues that the ALJ did not account for Dr. Wang’s specific limitations. Id. at 9-10.
The Commissioner argues that the ALJ properly considered the record evidence in
determining that Plaintiff was mentally able to perform unskilled work before his date last
insured on December 31, 2012. (Comm’r Br. 7-15). She argues that the ALJ’s
determination was supported by the record evidence, and notes that the regulations and
rulings distinguish between rating the severity of the four broad mental functional areas in
applying the Commissioner’s Psychiatric Review Technique at step two and three of the
sequential evaluation process and in evaluating mental limitations when assessing an RFC
between step three and step four of the sequential process. Id. at 11. She argues that an
ALJ is not required to base mental RFC limitations on his step two and three findings in
evaluating the four broad mental functional areas, but upon his evaluation of all of the
relevant evidence in the record. Id. at 12. She argues that an RFC assessment that is
conducted pursuant to the regulations and is supported by the record evidence is legally
sufficient. Id. Finally, she argues that the cases relied upon by Plaintiff relate to different
facts not present or compelling in this case. Id.
The court agrees with the Commissioner. Contrary to Plaintiff’s argument, the
ALJ here explained how Plaintiff’s cognitive disorder affected his ability to perform basic
mental work activities, and identified specific work-related limitations. (R. 18, 21). In
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discussing Plaintiff’s difficulties with concentration, persistence, or pace, the ALJ
specifically noted Dr. Wang’s neuropsychological testing in September 2013, and noted
that Plaintiff had not reported difficulty concentrating and completing tasks, or with
memory problems before his date last insured:
In September 2013, neuropsychological testing revealed, overall, mild
cerebral functional impairment; with severe impairment in attention, but
only mild impairment in memory (Ex. 13F/6 [(R. 455)]). As discussed
below, the evidence seems to suggest that this impairment was the result of
the myocardial infarction in November 2010. Nevertheless, between the
results showing only mild impairment in overall cognitive functioning, and
the claimant’s extensive activities of daily living, the evidence in the record
shows that the claimant is capable of sustaining focus, attention and
concentration sufficiently long enough to permit the timely and appropriate
completion of tasks commonly found in unskilled work.
(R. 18). Later in the decision, the ALJ expressly related this to his RFC assessment:
The claimant also alleges significant problems with concentration and
memory (Ex. 3E/11; 4E/8 [(R. 198, 207)]). However, there are no records
of any complaints of cognitive difficulties prior to his date last insured. In
September 2013, the claimant underwent a neuropsychological evaluation
with Lizhao Wang, Ph.D. (Ex. 13F [(R.450-57)]). He reported that he had
experienced cognitive problems since his heart attack in November 2010.
He endorsed memory loss, forgetting what he was told to do, difficulty with
concentration and staying on task and difficulty handling multiple tasks
(Ex. 13F/4 [(R. 453)]). Based on the test results, his premorbid cognitive
functions were estimated to be in the low average range. He demonstrated
severe impairment in sustained attention, mild impairment in verbal
memory and learning, mild to moderate impairment in executive functions
and mild impairment in fine motor control of the left hand (Ex. 13F/5 [(R.
454)]). Dr. Wang concluded that the claimant’s neuropsychological profile
indicated mild cerebral functional impairment and noted that the etiology of
his cognitive impairments was unclear. Dr. Wang did note that, given his
medical history, it is likely that the claimant suffered from hypoxicischemic brain injury when he had the heart attack (Ex. 13F/6 [(R. 455)]).

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The undersigned notes that there is no evidence of the claimant reporting
any of these symptoms or cognitive difficulties to his treatment providers
prior to December 31, 2012. None of his providers noted that the claimant
had any difficulty understanding his prescribed treatment, or that he
exhibited any memory loss or difficulty concentrating. Furthermore, during
the evaluation, he was oriented times four, and was able to follow test
instructions and stay on task throughout the testing period (Ex. 13F/5 [(R.
454)]). The lack of documentation and evidence prior to December 2012
severely detracts from the credibility of his allegations. Nevertheless, as
there have been no intervening events that might explain his cognitive
difficulties since his date last insured, the undersigned has given the
claimant considerable benefit of the doubt and finds that his mild cognitive
impairment is most likely associated with the myocardial infarction on
November 21, 2010. This is consistent with a note from his treating
physician indicating that the claimant has some cognitive deficits, which
most likely stem from his previous myocardial infarction and anoxic event
at that time (Ex. 11F/17 [(R. 437)]). While the evidence of a mild cognitive
disorder does not support the degree of limitation alleged by the claimant,
the undersigned has restricted the claimant to unskilled work only.
(R. 21) (emphasis in the ALJ decision).
As quoted above, the ALJ explained the bases for his determination that Plaintiff’s
mild cognitive disorder required a limitation only to unskilled work. The court finds
those bases reasonable and supported by the record evidence. Plaintiff has not shown
error. Moreover, the cases cited by Plaintiff do not require a different finding. In Chapo,
the court noted that a doctor, Dr. Vega, had performed a mental status exam on the
claimant and provided a six-page narrative report of that examination along with a
detailed mental RFC form. Chapo, 682 F.3d at 1289. The court listed eighteen moderate,
marked, or extreme limitations opined in Dr. Vega’s mental RFC assessment. Id. at
1298-90. The court noted that the ALJ included only one of Dr. Vega’s mental
restrictions in the hypothetical questioning of the vocational expert (VE), that the
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claimant was restricted to occasionally dealing with the general public. Id. at 1290. In a
footnote, the court noted that the ALJ’s hypothetical did not even include the restriction
he assessed--to simple, unskilled work at best--and stated that mental functions “are not
skills but, rather, general prerequisites for most work at any skill level.” Id. at 1290 n.3
(quoting Wayland v. Chater, Nos. 95-7029 and 95-7059, 1996 WL 50459, at *2 (10th Cir.
Feb. 7, 1996)). Here, unlike the ALJ in Chapo, the ALJ provided a fair summary of Dr.
Wang’s report, and explained how he had applied that report. And, his explanation is
supported by the evidence. Moreover, even the Wayland case upon which the footnote in
Chapo relies, acknowledged that “there may be circumstances in which a particular
mental limitation could be so obviously accommodated by a reduction in skill level that
particularized vocational evidence addressing that limitation might be dispensed with.”
Wayland, 1996 WL 50459, at *2. This case provides such circumstances.
Each of the other cases cited may be similarly distinguished. In Jaramillo, Dr.
Mellon opined that the claimant had moderate limitations in three mental activities, and
the ALJ accorded great weight to Dr. Mellon’s opinion, mentally limiting Plaintiff to
simple, routing, repetitive, unskilled tasks. Jaramillo, 576 F. App’x at 874. The court
noted that Soc. Sec. Ruling (SSR) 85-15 defines the basic mental demands of unskilled
work as “the abilities (on a sustained basis) to understand, carry out, and remember
simple instructions; to respond appropriately to supervision, coworkers, and usual work
situations; and to deal with changes in a routing work setting,” and recognized a
limitation to unskilled work as shorthand for these particular abilities. Id. at 875 (quoting
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SSR 85-15, 1985 WL 56857, at *4 (1985)). The court acknowledged that a mild
limitation in the ability to concentrate and persist at simple tasks and the ability to
concentrate for two-hour periods fits within the basic mental demands of unskilled work,
and found no error in the ALJ’s evaluation of the medical opinions of two sources. Id., at
875-76. However, because the ALJ accorded great weight to Dr. Mellon’s opinion, and
because the basic mental demands of unskilled work do not encompass the moderate
limitations opined by Dr. Mellon, the court found remand was necessary because the
hypothetical in that case did not include those limitations. Id. at 876-77. Here, the ALJ’s
explanation places Plaintiff’s mild mental functional limitations squarely within the basic
mental demands of unskilled work. Similarly to Chapo and Jaramillo, in Wiederholt, the
limitation to simple unskilled work did not adequately account for moderate mental
limitations. 121 F. App’x at 839. Keel is to the same effect. 2015 WL 1034419, at *4.
Plaintiff has shown no error here where the ALJ found only mild cognitive
functional limitations and explained his bases for doing so.
IT IS THEREFORE ORDERED that judgment shall be entered pursuant to the
fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner’s final decision.
Dated this 4th day of January 2017, at Kansas City, Kansas.

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

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