Schlein v. Social Security Administration, Commissioner of

Filing 14

MEMORANDUM AND ORDER - It is ordered that the Commissioner's final decision shall be REVERSED and that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) REMANDING the case for further proceedings consistent herewith. Signed by District Judge John W Lungstrum on 11/19/2018. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

LUCINDA SCHLEIN,

)
)
Plaintiff,
)
)
v.
)
)
NANCY A. BERRYHILL,
)
Acting Commissioner of Social Security,
)
)
Defendant.
)
______________________________________)

CIVIL ACTION
No. 18-1050-JWL

MEMORANDUM AND ORDER

Plaintiff seeks review of a decision of the Acting Commissioner of Social Security
(hereinafter Commissioner) denying Disability Insurance Benefits (DIB) pursuant to
sections 216(i) and 223 of the Social Security Act, 42 U.S.C. §§ 416(i) and 423
(hereinafter the Act). Finding error in the Administrative Law Judge’s (ALJ) evaluation
of the state agency psychologist’s and psychiatrist’s opinions, the court ORDERS that the
Commissioner’s final decision shall be REVERSED and that judgment shall be entered
pursuant to the fourth sentence of 42 U.S.C. § 405(g) REMANDING the case for further
proceedings consistent with this decision.
I.

Background
Plaintiff argues that the ALJ erred when he afforded “considerable weight” to the

opinions of the state agency consultants, Dr. Smith, PsyD., and Dr. Martin, M.D., but did

not include their prohibition of frequent changes in routine in the residual functional
capacity (RFC) assessed and did not explain why he did not include that limitation. (Pl.
Br. 12).
The court’s review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052
(10th Cir. 2009). Section 405(g) of the Act 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 in the record 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); see also, Bowling v. Shalala,
36 F.3d 431, 434 (5th Cir. 1994) (The court “may not reweigh the evidence in the record,
nor try the issues de novo, nor substitute [the Court’s] judgment for the
[Commissioner’s], even if the evidence preponderates against the [Commissioner’s]
decision.”) (quoting Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988)). Nonetheless,
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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).
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 she
has a severe impairment(s), and whether the severity of her 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 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, considering the RFC assessed, claimant can perform
her 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
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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
economy which are within the RFC assessed. Id.; Haddock v. Apfel, 196 F.3d 1084,
1088 (10th Cir. 1999).
The court considers the issue of the state agency consultants’ opinions as
presented in Plaintiff’s Brief. The court notes that Plaintiff also claimed “[t]he ALJ did
not adequately evaluate [Ms.] Schlein’s symptoms in this case” (Pl. Br. 21), but the
Commissioner argues this discussion was “entirely to support her argument that the ALJ
erred by not incorporating an adaptation limitation from the State agency psychologists’
[sic] opinions.” (Comm’r Br. 4, n.5). Because the decision must be remanded, the court
need not consider this additional issue. Plaintiff may make any argument she desires in
this regard to the Commissioner on remand.
II.

Discussion
Plaintiff argues the ALJ erred by affording considerable weight to Dr. Smith’s and

Dr. Martin’s opinions but failing to resolve the conflict between those opinions and the
mental RFC assessed. She argues, “the ALJ’s mental RFC differed from the opinions in
the ability to adapt, and the ALJ failed to explain why he omitted” that limitation. (Pl.
Br. 13). Plaintiff argues that although the ALJ failed to explain three differences between
the doctor’s opinions and the RFC assessed, the failure was harmless as to two of the
differences but not as to the ability to adapt because the ability to deal with changes in a
routine work setting is a basic work activity necessary even in unskilled work. Id. at 154

17. Plaintiff also points out that her treating physician, Dr. Davis, opined that she is
markedly limited in the ability to respond appropriately to changes in the work setting,
and her treating psychologist, Dr. Rosenak, opined that she is extremely limited in this
ability. (Pl. Br. 19).
The Commissioner argues that even if an explicit adaptation limitation is
necessary in this case, the error would be harmless because the representative jobs of
which the ALJ found Plaintiff is capable are unskilled jobs, involving only repetitive or
short-cycle work, and would not require frequent changes in routine. (Comm’r Br. 4-6).
She asserts that “Plaintiff acknowledges that the jobs identified at step five can
‘accommodate’ alleged problems with the RFC.” Id. at 4 (citing Pl. Br. at 15). She
argues that the ALJ’s narrative discussion was sufficient in the circumstances. Id. at 7.
In her Reply Brief, Plaintiff argues that she conceded harmless error as to certain
of the differences between the state agency consultants’ opinions and the RFC assessed,
but not as to the inability to adapt to frequent changes in routine. (Reply 2). She argues
that the Commissioner’s Brief relies only on her unsupported interpretation of the job
descriptions at issue and provides no support for her assertions that unskilled, repetitive,
or short-cycle work never involves frequent changes in routine.
A.

Standard for Assessing RFC

An administrative agency must give reasons for its decisions. Kepler v. Chater, 68
F.3d 387, 391 (10th Cir. 1995) (quoting Reyes v. Bowen, 845 F.2d 242, 244 (10th Cir.
1988)). RFC is an assessment of the most a claimant can do on a regular and continuing
basis despite her limitations. 20 C.F.R. ' 404.1545(a); see also, White, 287 F.3d at 906
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n.2. It is an administrative assessment, based on all the evidence, of how plaintiff’s
impairments and related symptoms affect her ability to perform work related activities.
Id.; see also Soc. Sec. Ruling SSR 96-5p, West’s Soc. Sec. Reporting Serv., Rulings 126
(Supp. 2018) (“The term ‘residual functional capacity assessment’ describes an
adjudicator’s findings about the ability of an individual to perform work-related
activities.”); SSR 96-8p, West’s Soc. Sec. Reporting Serv., 144 (Supp. 2018) (“RFC is an
administrative assessment of the extent to which an individual’s medically determinable
impairment(s) ... may cause physical or mental limitations or restrictions that may affect
his or her capacity to do work-related physical and mental activities.”).
The Commissioner issued SSR 96-8p “[t]o state the Social Security
Administration’s policies and policy interpretations regarding the assessment of residual
functional capacity (RFC) in initial claims for disability benefits.” West’s Soc. Sec.
Reporting Serv., Rulings 143 (Supp. 2018). The ruling includes narrative discussion
requirements for the RFC assessment. Id. at 149. The discussion is to cite specific
medical facts and nonmedical evidence to describe how the evidence supports the
conclusions, discuss how the plaintiff is able to perform sustained work activities, and
describe the maximum amount of each work activity the plaintiff can perform. Id. The
discussion must include an explanation how any ambiguities and material inconsistencies
in the evidence were considered and resolved. Id. If the ALJ’s RFC assessment conflicts
with a medical source opinion, the ALJ must explain why he did not adopt that opinion.
Id. at 150.
B.

The ALJ’s Findings
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As relevant here, the ALJ recognized Dr. Davis opined that Plaintiff “is markedly
limited in her ability to respond appropriately to changes in the work setting,” and
accorded no weight to her opinions because they were inconsistent with the objective
evidence, including her own treatment notes. (R. 33-34). The ALJ did not specifically
recognize Dr. Rosenak’s opinion that Plaintiff is extremely limited in the ability to
respond appropriately to changes in the work setting, but he accorded no weight to her
opinions because they are inconsistent with the mental health treatment records and
because she is not medically qualified to offer an opinion regarding Plaintiff’s physical
condition or limitations. Id. at 34. The ALJ found Plaintiff has the mental RFC to
understand, remember, and carry out work instructions and tasks at a SVP
[(specific vocational preparation)] 5 level. The claimant should not work
with the general public as a face-to-face job duty. The claimant can have
occasional contact with co-workers, supervisors, and the general public.
The claimant should not do teamwork types of job duties.
Id. at 28 (bolding omitted). He explained the basis for his assessment of this mental
RFC:
the objective medical evidence of record documents that claimant’s mental
impairments of depression and anxiety exacerbated by work-related stress
were stable with mental health treatment compliance, and eventually
resolved once the claimant stopped working. Additionally, the claimant’s
mental status never deteriorated to such an extent that she required inpatient
psychiatric hospitalization at any time since her alleged onset date of
disability, while mental status exams demonstrated that the claimant was
fully oriented with intact memory, insight, and judgment, and without
symptoms of psychosis or suicidal ideations.
Id. at 34. He recognized that Dr. Smith and Dr. Martin “indicated that the
claimant’s mental impairments impose mild to moderate mental limitations while
the claimant is capable of performing simple routine tasks in a setting that would
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not require frequent changes in routine and limited social interaction.” (R. 34).
He accorded considerable weight to these opinions because the consultants are
familiar with and knowledgeable of medical issues in Social Security disability
cases and because their opinions are supported by and consistent with the record
medical evidence. Id. at 34-35.
C.

Analysis

Plaintiff is correct that the ALJ erred in affording considerable weight to the
opinions of Dr. Smith and Dr. Martin without explaining his treatment of the consultants’
opinion regarding Plaintiff’s ability to adapt. The consultants opined that Plaintiff could
work in “settings that would not require frequent changes in routine.” (R. 98, 133). The
RFC assessed says nothing regarding Plaintiff’s ability to adapt to changes in routine.
The ALJ said nothing to the vocational expert (VE) regarding work requiring a particular
ability to adapt to changes in routine, and when the VE responded she said nothing
regarding the changes in routine required of the representative jobs she provided.
The Commissioner argues that the jobs provided by the VE are unskilled jobs,
involving only repetitive or short-cycle work, and would not require frequent changes in
routine. (Comm’r Br. 4-6). But, as Plaintiff suggests, the Commissioner cites no
persuasive authority for that proposition. The Commissioner cites to the Occupational
Definition of each representative job and points out that each job has an SVP (specific
vocational preparation) level of two, does not involve significant interaction with others,
and involves only repetitive or short-cycle work. Id. at 4 (citing 1991 WL 671745

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(Photocopying-Machine Operator, DOT No. 207.685-014); 1991 WL 671802 (Marker,
DOT No. 209.587-034); and 1991 WL 672232 (Office Helper, DOT No. 239.567-010)).
To be sure, the Occupational Definitions to which the Commissioner cites provide
that the jobs at issue are SVP level 2 and their “People” function is “Not significant.” Id.
However, there is nothing in the definition providing that that the jobs are “repetitive or
short-cycle,” or that they “do not involve frequent adaptation changes.” Rather, the
Commissioner seems to arrive at these conclusions based on her reading of the “Body of
the Definition” of a Photocopying-Machine Operator, DOT No. 207.685-014. (Comm’r
Br. 5) (quoting 1991 WL 671745 (Photocopying-Machine Operator, DOT No. 207.685014) (see DOT Parts of the Occupational Definition, available online at:
https://www.oalj.dol.gov/PUBLIC/DOT/REFERENCES/DOTPARTS.HTM). She then
extends her reasoning to the two other representative jobs by arguing “[t]he job of marker
is as rote as the photocopy operator job, and the office helper job also involves only level
two reasoning.” The “Body of the Definition” of a Photocopying-Machine Operator,
DOT No. 207.685-014 does not say that the work is “repetitive or short-cycle,” or that it
“do[es] not involve frequent adaptation changes.” But, the Commissioner relies on the
fact that operation of such a machine requires only placing an original, placing paper in
the machine, setting the number of copies, and pressing a button to start the copying.
While the job might be “repetitive or short-cycle,” the Commissioner does not consider
that the job might require operating several different kinds of machines, and different
kinds and sizes of paper, that the operator may be subject to various priorities, that she
might be required to change jobs frequently in order to meet the demands of her
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workplace, or other (perhaps unknown) types of changes in routine. Moreover, the other
representative jobs cited do not have definitions which are so superficially simple as that
of the photocopying-machine operator, and the Commissioner ignores the fact that these
are only representative jobs, suggesting other jobs in the economy of which Plaintiff is
presumably capable, and about which no one can know the requirements for changes in
routine because that fact was not even suggested by the ALJ or explained by the VE.
The problem is that the Commissioner is providing a post-hoc rationalization for a
limitation opined by the state agency consultants which was neither included in the RFC
nor explained by the ALJ. Neither the Commissioner nor this court is an expert in
vocational considerations affecting disability determinations. That is why VEs are often
used in Social Security Disability hearings. The court may not rely upon such an attempt
to save a faulty decision. Knipe v. Heckler, 755 F.2d 141, 149 n.16 (10th Cir. 1985);
Grogan v. Barnhart, 399 F.3d 1257, 1263 (10th Cir. 2005).
IT IS THEREFORE ORDERED that the Commissioner’s final decision shall be
REVERSED and that judgment shall be entered pursuant to the fourth sentence of 42
U.S.C. § 405(g) REMANDING the case for further proceedings consistent herewith.
Dated November 19, 2018, at Kansas City, Kansas.

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

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