Delfrate v. Social Security Administration, Commissioner of

Filing 16

MEMORANDUM AND ORDER. Pursuant to sentence four of 42 U.S.C. § 405(g), the decision of the Commissioner is reversed and the case is remanded to the Commissioner for further proceedings consistent with this opinion. Signed by Chief Judge J. Thomas Marten on 3/3/2017. (mam)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JEFFREY ALAN DELFRATE,
Plaintiff,
v.

Case No. 6:16-cv-01235-JTM

NANCY A. BERRYHILL1,
Acting Commissioner of Social Security,
Defendant.

MEMORANDUM AND ORDER
Plaintiff Jeffrey Delfrate seeks review of a final decision by the Commissioner of
Social Security denying his application for disability insurance benefits under Title II of
the Social Security Act. Plaintiff contends an Administrative Law Judge (ALJ) erred in
determining plaintiff’s residual functional capacity (RFC) because the ALJ failed to
include certain limitations and failed to explain why they were excluded. He also
contends the ALJ erred in evaluating his credibility. For the reasons set forth herein, the
court concludes that the matter should be remanded to the ALJ for further
consideration.
I. Factual and Procedural Background
On September 30, 2014, plaintiff protectively filed an application for disability
insurance benefits, claiming a disability beginning April 23, 2013. The Commissioner
denied his claim upon initial review and upon reconsideration. Plaintiff then requested
Nancy A. Berryhill became the Acting Commissioner on January 20, 2017, and is substituted for Carolyn
W. Colvin as the defendant in this case.
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an evidentiary hearing, and on December 1, 2015, he appeared by video and testified
before ALJ Alison K. Brookins. The ALJ issued a written decision on February 2, 2016,
denying plaintiff’s application. The ALJ found that although plaintiff suffered from
severe impairments including degenerative disc and joint disease, depression, and posttraumatic stress disorder, he could still perform light work, subject to certain limitations
such as avoiding concentration to extreme cold, vibration, and hazardous machinery,
and not working with the general public. Relying on the testimony of a vocational
expert, the ALJ found that with these limitations, and taking into account plaintiff’s age
(41 at the time of the application) and experience, plaintiff was capable of performing
jobs that exist in significant numbers in the national economy, including small product
assembler, electronics assembler, and plastic products assembler. The ALJ thus
concluded plaintiff was not disabled within the meaning of the Act. Plaintiff timely filed
this appeal pursuant to 42 U.S.C. § 405(g).
II. Legal Standard
Under the Act, the court takes as conclusive the factual findings of the
Commissioner so long as they are supported by substantial evidence. 42 U.S.C. § 405(g).
The court accordingly looks to whether the factual findings are supported by
substantial evidence and whether the ALJ applied the correct legal standard. Lax v.
Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). “Substantial evidence” means “more than a
scintilla, but less than a preponderance; in short, it is such evidence as a reasonable
mind might accept to support the conclusion.” Barkley v. Astrue, 2010 WL 3001753, *1 (D.
Kan. July 28, 2010) (citing Castellano v. Sec'y of Health & Human Servs., 26 F.3d 1027, 1028
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(10th Cir. 1994)). In making this determination, the court must “neither reweigh the
evidence nor substitute [its] judgment for that of the [Commissioner].” Bowman v.
Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting Casias v. Sec'y of Health & Human
Servs., 933 F.3d 799, 800 (10th Cir. 1991)).
A claimant is disabled if he suffers from a physical or mental impairment which
stops the claimant “from engaging in substantial gainful activity and is expected to
result in death or to last for a continuous period of at least twelve months.” Brennan v.
Astrue, 501 F.Supp.2d 1303, 1306-07 (D. Kan. 2007) (citing 42 U.S.C. § 423(d)). This
impairment “must be severe enough that she is unable to perform her past relevant
work, and further cannot engage in other substantial gainful work existing in the
national economy, considering her age, education, and work experience.” Barkley, 2010
WL 3001753, *2 (citing Barnhart v. Walton, 535 U.S. 212, 217-22 (2002)).
Pursuant to the Act, the Social Security Administration has established a fivestep sequential evaluation process for determining whether an individual is disabled.
Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010); see also 20 C.F.R. § 404.1520(a). The
steps are designed to be followed in order. If it is determined at any step of the
evaluation process that the claimant is or is not disabled, further evaluation is
unnecessary. Barkley, 2010 WL 3001753, at *2.
The first three steps require the Commissioner to assess: (1) whether the claimant
has engaged in substantial gainful activity since the onset of the alleged disability;
(2) whether the claimant has a severe, or combination of severe, impairments; and
(3) whether the severity of those impairments meets or equals a designated list of
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impairments. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); see also Barkley, 2010 WL
3001753, *2 (citing Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988)). If the
impairment does not meet or equal a designated impairment, the ALJ must then
determine the claimant's residual functional capacity, which is the claimant's ability “to
do physical and mental work activities on a sustained basis despite limitations from her
impairments.” Barkley, 2010 WL 3001753, *2; see also 20 C.F.R. §§ 404.1520(e), 404.1545.
Upon assessing the claimant's residual functional capacity, the Commissioner
moves on to steps four and five, which require the Commissioner to determine whether
the claimant can either perform his past relevant work or can generally perform other
work that exists in the national economy. Barkley, 2010 WL 3001753, *2 (citing Williams,
844 F.2d at 751). The claimant bears the burden in steps one through four to prove a
disability that prevents performance of his past relevant work. Lax, 489 F.3d at 1084. The
burden then shifts to the Commissioner at step five to show that, despite the
impairments, the claimant can perform other work in the national economy. Id. See also
Boham v. Colvin, No. 15-1085-JTM, 2016 WL 1298094, at *2 (D. Kan. Mar. 31, 2016).
III. Analysis
Plaintiff contends a remand is required because the ALJ gave “some weight” to a
May 2015 functional capacity evaluation (FCE) prepared by Dr. Jay Kennedy but failed
to adopt certain limitations indicated in the report and failed to explain why they were
rejected. In particular, the evaluation found that plaintiff could occasionally stand or
walk at work and recommended that he use frequent position changes, job rotation, and
stretch breaks when performing tasks that required prolonged standing or walking.
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Dkt. 8, Tr. at 1428. It additionally found that plaintiff had decreased grip strength and
below average coordination in his left hand and recommended similar accommodations
for this impairment. Id. at 1429.
At the outset of the evidentiary hearing before the ALJ, plaintiff’s counsel made
only one argument. He did not dispute that plaintiff could perform a restricted range of
light work, but he noted that the May 2015 FCE said plaintiff would need to frequently
alternate positions and take rest breaks, and that “in order to perform work with his
hands he would need frequent rest breaks, as well as he would need to alternate which
hand he’s using on a regular basis to perform the job. When you combine those, the
need for frequent rest breaks, frequent alternation, and the changing in which hand he
needs to use [sic] throughout the day to perform the job, in addition to the solitary
environment, I believe that those limitations would preclude all work at step 5.” Dkt. 8
at 52.
Although the ALJ gave “some weight” to this FCE and explained that some of its
“occasional” limitations on postural maneuvers were changed to “frequent” because
plaintiff’s pain complaints were “less credible” than the report indicated (Dkt. 8 at 35),
the ALJ did not otherwise address the report’s findings. The FCE reported that plaintiff
has “limitations in strength: grip/pinch strength” and below average coordination in
his left hand, and it recommended he be allowed to use a variety of positions, alternate
hands, rotate job tasks, and take frequent rest breaks when using his hands. The
significance of these deficits and recommendations is not entirely clear, but they could
be important given the ALJ’s finding that plaintiff could perform various assembly jobs.
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The court notes there was some additional evidence of plaintiff’s limited ability to use
his left hand, including “radiculopathy … indicated in the left arm” (Dkt. 8 at 32),
“’mild’ ulnar neuropathy at the left elbow” (Id. at 33), and subjective complaints of “loss
of dexterity and strength in the left hand” (Id.). Under the circumstances, the ALJ was
obligated to at least address the FCE’s findings concerning plaintiff’s use of his hands,
in connection with evidence of his other impairments, and to give some explanation
why those findings were not adopted or were not significant enough to be included in
the RFC. The same is true with respect to the FCE’s finding that plaintiff was limited to
occasional standing and/or walking, which the opinion did not address. Of course, the
ALJ was not obligated to accept the findings, but they should at least be addressed. See
Doyal v. Barnhart, 331 F.3d 758, 764 (10th Cir. 2003) (ALJ required to consider every
medical opinion and to give specific, legitimate reasons for rejecting them); 20 C.F.R.
§ 416.927(c) (“Regardless of its source, we will evaluate every medical opinion we
receive”).
The Commissioner argues that the ALJ adequately addressed these matters
elsewhere in the opinion and that the decision should be affirmed “even if technically
imperfect.” Dkt. 14 at 9. It is true that the ALJ elsewhere rejected plaintiff’s “subjective
allegations, such as difficulty even using silverware” because they did not correspond
to objective findings. Dkt. 14 at 8. The ALJ also found that an EMG in November 2015,
which showed a “mildly reduced” left ulnar signal, was “so limited that the claimant’s
allegations of problems with the use of his hands, including problems using silverware,
do not appear particularly credible.” But the ALJ never addressed the findings on hand
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function in the FCE, which were not based upon plaintiff’s subjective complaints of
pain. Nor did the ALJ address the FCE finding that plaintiff was limited to occasional
standing or walking. Moreover, the ALJ found the FCE to be “generally consistent with
exam findings.”
Plaintiff correctly points out that in such circumstances, regardless of whether it
might be possible to cobble together support for the result from other parts of the ALJ’s
opinion, the matter is best left for the ALJ to clarify upon remand by addressing the
findings of the FCE. Krauser v. Astrue, 638 F.3d 1324, 1331 (10th Cir. 2011). In so finding,
the court rejects the Commissioner’s invitation to dismiss the ALJ’s oversight as
harmless error by determining whether the jobs identified by the ALJ would be
precluded by the limitations indicated in the FCE. That sort of fact finding is a task best
suited for the ALJ upon remand. See Allen v. Barnhart, 357 F.3d 1140, 1142 (10th
Cir.2004) (“Affirming this post hoc effort to salvage the ALJ's decision would require us
to overstep our institutional role and usurp essential functions committed in the first
instance to the administrative process.”).
Because the court finds that a remand is required to allow the ALJ to address the
FCE’s findings, the court need not address plaintiff’s additional argument concerning
evaluation of plaintiff’s credibility. The ALJ will have to reassess plaintiff’s credibility in
light of the additional findings made upon remand.
The court expresses no opinion here on the merits of plaintiff’s disability claim.
The matter is remanded only to assure that the correct legal standards are applied in

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reaching a decision on the claim. See Angel v. Barnhart, 329 F.3d 1208, 1214 (10th Cir.
2003).
IT IS THEREFORE ORDERED this 3rd day of March, 2017, that pursuant to
sentence four of 42 U.S.C. § 405(g), the decision of the Commissioner is reversed and the
case is remanded to the Commissioner for further proceedings consistent with this
opinion.

s/ J. Thomas Marten
Chief United States District Judge

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