Brown v. Social Security Administration, Commissioner of

Filing 15

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 1/23/18. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MARIAN BROWN,
Plaintiff,
vs.

Case No. 16-1392-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 July 27, 2015, administrative law judge (ALJ) Michael D.

Mance issued his decision (R. at 15-22).

Plaintiff alleges that

she has been disabled since June 23, 2013 (R. at 15).
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Plaintiff

is insured for disability insurance benefits through December
31, 2017 (R. at 17).

At step one, the ALJ found that plaintiff

has not engaged in substantial gainful activity since the
alleged onset date (R. at 17).

At step two, the ALJ found that

plaintiff has severe impairments (R. at 17).

At step three, the

ALJ determined that plaintiff’s impairments do not meet or equal
a listed impairment (R. at 18).

After determining plaintiff’s

RFC (R. at 18), the ALJ found at step four that plaintiff is
able to perform past relevant work as a lead cashier (R. at 21).
Therefore, the ALJ concluded that plaintiff was not disabled (R.
at 21-22).
III.

Did the ALJ err in his consideration of the medical

opinion evidence by finding that plaintiff could perform light
work?
The ALJ limited plaintiff to a range of light work, as
defined in 20 C.F.R. § 404.1567(b).

The regulation states that:

Light work involves lifting no more than 20
pounds at a time with frequent lifting or
carrying of objects weighing up to 10
pounds…a job is in this category when it
requires a good deal of walking or standing,
or when it involves sitting most of the time
with some pushing and pulling of arm or leg
controls. To be considered capable of
performing a full or wide range of light
work, you must have the ability to do
substantially all of these activities.
20 C.F.R. § 404.1567(b) (2017).

With a limitation to light

work, and other limitations as set forth in the ALJ decision (R.
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at 18), the ALJ concluded that plaintiff could perform past
relevant work as a lead cashier, defined by the ALJ as work
performed at the light exertional level (R. at 21, 47-48).
Plaintiff’s treating physician, Dr. Cooke, opined on
November 18, 2013 that plaintiff was limited to standing and
walking for 4 hours, and sitting for 4 hours in an 8 hour
workday.
one time.

She can sit for 30 minutes and stand for 30 minutes at
He further indicated that plaintiff would have to

take unscheduled breaks every 30 minutes, and would have to rest
for 30 minutes before returning to work (R. at 307-310).

On May

15, 2015, Dr. Cooke opined that plaintiff can stand for only 4
hours in an 8 hour workday, but could sit for 6 hours in an 8
hour workday.

She can sit for 15 minutes and stand for 30

minutes at one time.

He further opined that plaintiff would

need to take unscheduled breaks every 15-30 minutes, and would
have to rest for 20-30 minutes before returning to work (R. at
411-413).
On March 12, 2014, Dr. Trowbridge, a non-examining
consultative physician, reviewed the records in this case.

She

opined that plaintiff can stand/walk for 4 hours in an 8 hour
workday.

Dr. Trowbridge gave strong consideration to the

opinions of Dr. Cooke, and stated that plaintiff’s allegations
are generally supported by the medical evidence of record in the
file, even though noting that the structural deformity on the
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film is mild.

Dr. Trowbridge stated that plaintiff’s chronic

pain symptoms are well documented.

She concluded by stating

that the combination of her impairments would limit plaintiff
from a full pace of standing and walking for 6 hours in a shift
(R. at 59-62).
On May 6, 2014, Dr. Mays, a non-examining consultative
physician, also reviewed the records in this case.

He opined

that plaintiff could only stand/walk for 2 hours in an 8 hour
workday.

Dr. Mays also gave strong consideration to the

opinions of Dr. Cooke, and stated that plaintiff’s allegations
are generally supported by the medical evidence of record in the
file, even though noting that the structural deformity on the
film is mild.

Dr. Mays also stated that plaintiff’s chronic

pain symptoms are well documented.

He concluded by stating that

the combination of her impairments would limit plaintiff from a
full pace of standing and walking for 6 hours in a shift.
The ALJ considered the opinions of Dr. Trowbridge and Dr.
May.

However, the ALJ gave little weight to their opinion that

plaintiff would not be able to stand/walk for a total of 6 hours
in an 8 hour day.

The ALJ indicated that neither the imaging

nor the clinical findings demonstrate any evidence of
radiculopathy or decreased motor or sensory function, and that
plaintiff can walk normally without an assistive device and has
good motor strength (R. at 20).

The ALJ also considered the
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opinions of Dr. Cooke, but also gave them little weight, as they
are not supported by the objective evidence, including his own
exam findings, and the MRI findings which showed only mild
degenerative changes, with no nerve impingement (R. at 20-21).
Thus, the ALJ rejected all of the medical opinion evidence which
limited plaintiff to no more than 4 hours of standing/walking in
an 8 hour day (Dr. May limited plaintiff to only 2 hours of
standing/walking in an 8 hour day; Dr. Trowbridge and Dr. Cooke
limited plaintiff to 4 hours of standing/walking in an 8 hour
day).
An ALJ may reject a treating physician’s opinion outright
only on the basis of contradictory medical evidence and not due
to his or her own credibility judgments, speculations, or lay
opinions.
2002).

McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir.

The adjudicator is not free to substitute his own

medical opinion for that of a disability claimant’s treatment
providers and other medical sources.

Hamlin v. Barnhart, 365

F.3d 1208, 1221 (10th Cir. 2004).
The ALJ gave little weight to the opinions of Dr.
Trowbridge and Dr. May because neither the imaging nor the
clinical findings demonstrated any evidence of radiculopathy or
decreased motor or sensory function.

The ALJ gave little weight

to the opinions of Dr. Cooke, the treating physician, because,
according to the ALJ, his opinions are not supported by the
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objective evidence, including his exam findings, and
specifically the MRI findings which showed only mild
degenerative changes, with no nerve impairment.
However, both Dr. Trowbridge and Dr. May gave strong
consideration to the opinions of Dr. Cooke.

Both of them stated

that plaintiff’s allegations are generally supported by the
medical evidence of record in the file.

They noted that

although the degree of structural deformity on film is mild,
plaintiff’s chronic pain syndrome is well documented (R. at 6263, 73).

Dr. Cooke also identified plaintiff’s clinical

findings and objective signs, and then set forth plaintiff’s
limitations which resulted from her impairments or conditions
(R. at 307-310, 411-413).
The ALJ is not a medical expert on identifying the clinical
signs typically associated with degenerative disc disease of the
lumber and cervical spine, COPD, or osteoporosis (the severe
impairments identified by the ALJ, R. at 17).

An ALJ is not

entitled to sua sponte render a medical judgment without some
type of support for his determination.

The ALJ’s duty is to

weigh conflicting evidence and make disability determinations;
he is not in a position to render a medical judgment.

Bolan v.

Barnhart, 212 F. Supp.2d 1248, 1262 (D. Kan. 2002).
The ALJ in this case made the very same error as the court
found in Bolan.

The ALJ is not a medical expert on identifying
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clinical signs typically associated with degenerative disc
disease of the lumbar or cervical spine, COPD, or osteoporosis.
Although the ALJ relied on the imaging tests to discount all 3
medical opinions, Dr. Trowbridge and Dr. May specifically found
that although the structural deformity on the film is mild, they
found that plaintiff’s chronic pain syndrome is well documented.
Dr. Cooke also noted mild test results, but all three physicians
found that plaintiff was limited to no more than 4 hours a day
of standing or walking.

The ALJ cited to no authority in

support of his proposition that the mild test results provide a
legitimate basis for discounting the opinions of all 3 medical
sources.

The ALJ cannot sua sponte render a medical judgment

without some type of support for this determination.

On the

facts of this case, the court finds that the ALJ overstepped his
bounds into the province of medicine.

Miller v. Chater, 99 F.3d

972, 977 (10th Cir. 1996).
The ALJ did not cite to any medical opinion in support of
his determination that plaintiff was not limited to
standing/walking for only 4 hours in an 8 hour workday, but in
allowing her to perform a range of light work.

To be considered

capable of performing a full or wide range of light work, you
must have the ability to engage in a good deal of walking or
standing.

However, an exact correspondence between a medical

opinion and the RFC is not required.
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In reaching his RFC

determination, an ALJ is permitted, and indeed required, to rely
on all of the record evidence, including but not limited to
medical opinions in the file.

That said, in cases in which the

medical opinions appear to conflict with the ALJ’s decision
regarding the extent of a plaintiff’s impairment(s) to the point
of posing a serious challenge to the ALJ’s RFC assessment, it
may be inappropriate for the ALJ to reach an RFC determination
without expert medical assistance.

Wells v. Colvin, 727 F.3d

1061, 1071-1072 (10th Cir. 2013) (in Wells, the ALJ rejected 3
medical opinions, finding that they were inconsistent with the
other evidence in the file; the court directed the ALJ, on
remand, to carefully reconsider whether to adopt the
restrictions on plaintiff’s RFC detailed in the medical
opinions, or determine whether further medical evidence is
needed on this issue).
The court finds, on the facts of this case, that the
medical opinions of Dr. Cooke, a treating physician, and Dr.
Trowbridge and Dr. May clearly conflict with the ALJ’s decision
to the point of posing a serious challenge to the ALJ’s RFC
assessment.

An ALJ may reject a treating or examining

physician’s opinion outright only on the basis of contradictory
medical evidence.

The ALJ cannot substitute his own medical

opinion for that of Dr. Cooke, Dr. Trowbridge and Dr. May and
conclude that the medical or clinical signs do not support the
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functional limitations, particularly in regards to limitations
on the ability to stand/walk, found by all 3 physicians.

Other

than offering his own opinions, the ALJ offered no evidentiary
support for his determination that plaintiff could perform light
work and was not limited to standing/walking for only 4 hours in
a workday.
The court therefore finds that substantial evidence does
not support the ALJ’s RFC findings.

This case shall be remanded

in order for the ALJ to give further consideration to the
opinions of Dr. Cooke, Dr. Trowbridge and Dr. May.

The ALJ

should also ascertain whether additional medical evidence should
be obtained on this issue.
IT IS THEREFORE ORDERED that 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.
Dated this 23rd day of January 2018, Topeka, Kansas.

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

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