Frick v. Social Security Administration, Commissioner of

Filing 19

MEMORANDUM AND ORDER: The judgment of the Commissioner is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this memorandum and order. Signed by U.S. District Senior Judge Sam A. Crow on 7/19/17. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ALLISON R. FRICK,
Plaintiff,
vs.

Case No. 16-1271-SAC

NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,1
Defendant.

MEMORANDUM AND ORDER
This is an action reviewing the final decision of the
Commissioner of Social Security denying the plaintiff disability
insurance benefits.

The matter has been fully briefed by the

parties.
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 standards.

1

Glenn v. Shalala, 21 F.3d 983, 984

On January 20, 2017, Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of Social Security.
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(10th Cir. 1994).

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.
1992).

Graham v. Sullivan, 794 F. Supp. 1045, 1047 (D. Kan.

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
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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 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 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
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their previous work, they are 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, 124 S. Ct. 376, 379-380 (2003).
The claimant bears the burden of proof through step four of
Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th

the analysis.
Cir. 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 evaluate the claim at both step four
and step five.

20 C.F.R. §§ 404.1520(a)(4), 404.1520(e,f,g);

416.920(a)(4), 416.920(e,f,g).
II.

History of case
On September 12, 2014, administrative law judge (ALJ) Susan

W. Conyers issued her decision (R. at 21-36).

Plaintiff alleges

that she has been disabled since February 4, 2011 (R. at 21).
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Plaintiff is insured for disability insurance benefits through
December 31, 2014 (R. at 23).

At step one, the ALJ found that

plaintiff has not engaged in substantial gainful activity since
the alleged onset date (R. at 23).

At step two, the ALJ found

that plaintiff had severe impairments (R. at 23).

At step

three, the ALJ determined that plaintiff’s impairments do not
meet or equal a listed impairment (R. at 24).

After determining

plaintiff’s RFC (R. at 27), the ALJ found at step four that
plaintiff is unable to perform any past relevant work (R. at
35).

At step five, the ALJ found that plaintiff could perform

other jobs that exist in significant numbers in the national
economy (R. at 35-36).

Therefore, the ALJ concluded that

plaintiff was not disabled (R. at 36).
III.

Are the ALJ’s mental RFC findings supported by substantial

evidence?
In her decision, the ALJ found that plaintiff’s mental RFC
limited her to performing simple and routine tasks consistent
with unskilled work, involving no more than occasional
superficial interaction with the general public and co-workers
(R. at 27).

In making these mental RFC findings, the ALJ gave

significant weight to the opinions of two non-examining medical
sources (Dr. Cohen [8/5/2013] and Dr. Bergmann-Harms [6/4/2013])
who reviewed the record and set out mental RFC findings for the
plaintiff (R. at 33, 96-97, 100-102, 111-112, 116-117).
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Also in the record was a mental RFC form, dated June 2014,
and signed by Stefanie Griggs, LSCSW, and Dr. Mittal, a
psychiatrist, who were plaintiff’s treatment providers.

They

opined that plaintiff was seriously limited in 1 category, was
unable to meet competitive standards in 10 categories, and that
plaintiff had no useful ability to function in 7 categories (R.
at 737-738).
The ALJ considered this report, but gave it “very little
weight” (R. at 34).

Although the ALJ noted that it was co-

signed by Ms. Griggs’ supervising physician, the ALJ stated
that:
…there is no evidence that this source ever
treated or examined the claimant, no
indication this source provided any opinions
or insight into this opinion, and no
indication this opinion actually reflects
the opinion of anyone other than Ms. Griggs,
despite the second signature. As a result,
this opinion was not treated as a medical
source opinion from a treating source, and
controlling weight was not considered.
(R. at 34).
As a preliminary matter, defendant contends that this issue
(the ALJ’s finding that this opinion would not be treated as an
opinion from Dr. Mittal, a medical source opinion from a
treating source) was not directly raised by the plaintiff, and
is therefore waived.

Plaintiff, in her brief, stated that the

ALJ failed to properly consider all of plaintiff’s mental

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impairments in determining her RFC.

Plaintiff further argued

that the ALJ erred by failing to include limitations as
expressed by plaintiff’s treating therapists in establishing her
RFC (Doc. 17 at 7), and that the ALJ did not give appropriate
weight to the medical evidence provided (Doc. 17 at 8).
Admittedly, plaintiff’s brief did not discuss the specific
reasons given by the ALJ for discounting the opinions of LSCSW
Griggs and Mr. Mittal.

Nonetheless, based on the issue raised

by plaintiff (did the ALJ err by failing to include limitations
as expressed by plaintiff’s treating therapists in establishing
her mental RFC), the question before the court is whether the
ALJ’s reasons for not including the limitations of LSCSW Griggs
and Dr. Mittal are supported by substantial evidence.

This

would include all the reasons the ALJ gave for discounting the
opinion, including the ALJ’s finding that the opinion does not
represent a medical source opinion from a treating source, i.e.,
Dr. Mittal.
In a letter dated November 12, 2014, signed by LSCSW Griggs
and Dr. Mittal, and submitted to the Appeals Council after the
ALJ decision (R. at 1-5, 761), they indicate that Dr. Mittal is
plaintiff’s attending psychiatrist, and that plaintiff began her
treatment with Dr. Mittal on March 28, 2014.

The letter

indicates that LSCSW Griggs and Dr. Mittal have observed severe
level depression, anxiety, and anxious behaviors in plaintiff
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(R. at 761).

The court must consider the qualifying new

evidence submitted to the Appeals Council when evaluating the
Commissioner’s denial of benefits under the substantial evidence
standard.

Threet v. Barnhart, 353 F.3d 1185, 1191 (10th Cir.

2003); O’Dell v. Shalala, 44 F.3d 855, 859 (10th Cir. 1994).
The court will examine both the ALJ’s decision and the
additional findings of the Appeals Council.

This is not to

dispute that the ALJ’s decision is the Commissioner’s final
decision, but rather to recognize that the Commissioner’s “final
decision” includes the Appeals Council’s conclusion that the
ALJ’s findings remained correct despite the new evidence.
O’Dell, 44 F.3d at 859.

The district court’s very task is to

determine whether the qualifying new evidence upsets the ALJ’s
disability determination, Martinez v. Astrue, 389 Fed. Appx.
866, 869 (10th Cir. Aug. 3, 2010), or whether the new evidence
submitted to the Appeals Council provides a basis for changing
the ALJ’s decision.

Hardman v. Barnhart, 362 F.3d 676, 681

(10th Cir. 2004).
In fact, the treatment records, which were in the record at
the time of the ALJ decision, include a March 28, 2014
medication evaluation signed by Dr. Mittal (R. at 688-695).

Dr.

Mittal’s mental health assessment included findings that
plaintiff had racing and obsessive thoughts, was depressed, sad
and anxious, displayed a loss of interest, and showed signs of
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being helpless, sullen, withdrawn and anxious (R. at 692).
gave her a GAF of 40 (R. at 694).

He

This GAF score indicates some

impairment in reality testing or communication, or a major
impairment in several areas, which could include being unable to
work2.

Thus, based on evidence that was before the ALJ at the

time of her decision, there was evidence that Dr. Mittal treated
and examined plaintiff, and in fact did provide opinions and
insights regarding plaintiff’s mental impairments and
limitations.

The letter of November 12, 2014 confirms that Dr.

Mittal was plaintiff’s treating psychiatrist, and that the
opinions expressed in June 2014 and November 2014 are those of
both LSCSW Griggs and Dr. Mittal.

The ALJ clearly erred by not

treating the June 2014 opinions as a medical source opinion from
a treating source.

The case should therefore be remanded in

order for the ALJ to consider the June 2014 opinions in light of
the fact that Dr. Mittal was a treating psychiatrist and to
further examine the medical record, including the March 28, 2014
medication evaluation.

2

GAF (global assessment of functioning) scores can be found in the Diagnostic and Statistical Manual of Mental
Disorders. The scores in this case represent the following:
31-40: Some impairment in reality testing or communication (e.g., speech is at times illogical,
obscure, or irrelevant) OR major impairment in several areas, such as work or school, family
relations, judgment, thinking, or mood (e.g., depressed man avoid friends, neglects family, and
is unable to work…).
Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR) (4th ed., text revision, American Psychiatric
Association 2000 at 34) (emphasis in original).

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The ALJ also discounted the June 2014 mental RFC report
because it offered opinions regarding plaintiff’s ability to
work at a consistent pace without an unreasonable number and
length of rest periods.

Inexplicably, the ALJ stated that the

only possible basis for such a limitation is plaintiff’s alleged
physical impairments, and that evaluation of such impairments is
outside Ms. Griggs’ area of expertise and outside the scope of
her treatment of the plaintiff (R. at 34).

However, the court

will take judicial notice of the fact that such a limitation has
appeared on mental RFC forms in social security cases for over
20 years.

In fact, this very question appeared on the forms

filled out by Dr. Cohen and Dr. Bergmann-Harms (R. at 101, 117).
Furthermore, the Social Security mental RFC form includes this
very question in Question # 11.
tfiles/SSA-4734-F4-SUP.pdf.

See http://ssaconnect.com/

This form is included in the Social

Security Administration’s Program Operations Manual System
(POMS).

See https://secure.ssa.gov/poms.nsf/lnx/0424510000.

There is no basis for asserting that evaluation of this
limitation is outside the scope of expertise or outside the
scope of her treatment of the plaintiff by Dr. Mittal or LSCSW
Griggs.

In fact, such a question is specifically asked by the

defendant on its own mental RFC forms.
is clearly erroneous.

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This finding by the ALJ

On the facts of this case, these errors cannot be deemed
harmless error.

Courts should apply the harmless error analysis

cautiously in the administrative review setting.

Fischer-Ross

v. Barnhart, 431 F.3d 729, 733 (10th Cir. 2005).

However, it

may be appropriate to supply a missing dispositive finding under
the rubric of harmless error in the right exceptional
circumstance where, based on material the ALJ did at least
consider (just not properly), the court could confidently say
that no reasonable factfinder, following the correct analysis,
could have resolved the factual matter in any other way.
Fischer-Ross, 431 F.3d at 733-734; Allen v. Barnhart, 357 F.3d
1140, 1145 (10th Cir. 2004).

Had the ALJ properly considered

this opinion evidence from Dr. Mittal and LSCSW Griggs, the
court cannot confidently say that no reasonable factfinder could
have resolved the factual matter in any other way.

See Winick

v. Colvin, 674 Fed. Appx. 816, 820 (10th Cir. Jan. 4, 2017; had
the ALJ properly analyzed Dr. Ganzell’s opinion as a treating
rather than an examining physician’s opinion, he would have been
obligated to follow the procedure for weighing a treating
physician opinion.

The court cannot treat this error as

harmless because to do so would ignore the ALJ’s duties not only
to determine whether to assign a treating physician’s opinion
controlling weight, but to give deference to a treating
physician’s opinion even if he does not assign it controlling
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weight.

The exercise of such deference might have changed the

relative weight assigned to all the medical opinions, including
the non-examining consultants to whose opinions the ALJ assigned
great weight.)
IV.

Did the ALJ err in finding that plaintiff required a

sit/stand option allowing plaintiff to change position every 30
to 60 minutes?
The ALJ’s physical RFC findings stated that she would
require a sit/stand option that would allow her to change
positions every 30 to 60 minutes (R. at 27).

Dr. Hart had

indicated in a letter dated March 14, 2014 that plaintiff would
be unable to sit for prolonged periods of time as required in
jury duty (R. at 760).

Although the ALJ only gave little weight

to this opinion by Dr. Hart, the ALJ did credit some of
plaintiff’s allegations of pain, as she has a pain-causing
impairment, and therefore included this limitation in the RFC
findings (R. at 31).

No medical evidence in the record

indicates that plaintiff requires a greater limitation in this
area.

It is not even, on its face, inconsistent with the

opinion of Dr. Hart that she cannot sit for prolonged periods of
time.

The court finds no clear error by the ALJ in this RFC

limitation.
IT IS THEREFORE ORDERED that the judgment of the
Commissioner is reversed and remanded pursuant to sentence four
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of 42 U.S.C. § 405(g) for further proceedings consistent with
this memorandum and order.
Dated this 19th day of July 2017, Topeka, Kansas.

s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

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