Kizys v. Commissioner of Social Security
Filing
24
Memorandum Opinion and Order that the decision of the Commissioner denying Kizys's application for supplemental security income is reversed and the case remanded for reconsideration of the residual functional capacity finding consistent w ith this opinion (Related Doc # 1 ). For purposes of any potential application for attorney's fees under the Equal Access to Justice Act, the Court concludes that the position of the Commissioner was substantially justified. Signed by Magistrate Judge William H. Baughman, Jr. on 10/21/2011. (S,G)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
WALTER KIZYS,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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)
)
CASE NO. 3:10 CV 25
MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.
MEMORANDUM OPINION AND
ORDER
Introduction
This is an action for judicial review of the final decision of the Commissioner of
Social Security denying the application of the plaintiff, Walter Kizys, for supplemental
security income. The parties have consented to magistrate judge’s jurisdiction.
The Administrative Law Judge (“ALJ”), whose decision became the final decision of
the Commissioner, found that Kizys had severe impairments consisting of diabetes mellitus,
bilateral edema, obesity, chronic obstructive pulmonary disease, nicotine dependence,
obstructive sleep apnea, hypertension, and osteoarthritis in the hip.1 The ALJ made the
following finding regarding Kizys’s residual functional capacity:
The claimant has the residual functional capacity to perform the full range of
sedentary work (i.e., lifting up to 10 pounds occasionally, sitting up to 6 hours
and standing/walking up to 2 hours in an 8-hour workday).2
1
Transcript (“Tr.”) at 13.
2
Id.
The ALJ decided that this residual functional capacity precluded Kizys from performing any
past relevant work.3
Applying the medical-vocational guidelines in Appendix 2 of the regulations, the ALJ
determined that a significant number of jobs existed locally and nationally that Kizys could
perform.4 The ALJ, therefore, found Kizys not under a disability.5
Kizys asks for reversal of the Commissioner’s decision on the ground that it does not
have the support of substantial evidence in the administrative record. Specifically, Kizys
argues that the ALJ erred by not including greater work-related limitations in the residual
functional capacity finding.
I conclude that the ALJ’s residual functional capacity finding is not supported by
substantial evidence and, therefore, the case must be remanded for reconsideration of that
finding.
Analysis
This is a case in which the ALJ found that Kizys had multiple severe impairments and
imposed an extremely restrictive residual functional capacity finding without the benefit of
any medical source opinion as to work-related limitations whatsoever.
3
Id. at 15.
4
Id. at 16.
5
Id.
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Counsel in their briefs made no reference to my opinion in Deskin v. Commissioner
of Social Security,6 which discusses in detail the circumstances under which an ALJ may
make a residual functional capacity finding without the benefit of medical source opinions.
At the oral argument, however, counsel for the Commissioner cited to the decision in
Henderson v. Commissioner of Social Security,7 which discusses and criticizes Deskin. This
case, therefore, presents a challenge to the rule established in Deskin and its application to
the record here.
Under Deskin, an ALJ may make a residual functional capacity finding without a
physician’s assessment “where the medical evidence shows relatively little physical
impairment.”8 In that case the record contained an evaluation of work-related limitations
done by a state agency reviewing physician that predated two years of treatment records from
the Cleveland Clinic.9 The ALJ did not obtain an updated evaluation but decided the case
based on the outdated evaluation.10 On those facts I concluded that substantial evidence did
6
Deskin v. Comm’r of Soc. Sec., 605 F. Supp. 2d 908 (N.D. Ohio 2008).
7
Henderson v. Comm’r of Soc. Sec., No. 1:08cv2080, 2010 WL 750222 (N.D. Ohio
March 2, 2010).
8
Deskin, 605 F. Supp. 2d at 912.
9
Id. at 910.
10
Id.
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not support the residual functional capacity finding, reasoning that the ALJ cannot assess a
claimant’s residual functional capacity based on “bare medical findings.”11
Properly understood, Deskin sets out a narrow rule that does not constitute a
bright-line test. It potentially applies only when an ALJ makes a finding of work-related
limitations based on no medical source opinion or an outdated source opinion that does not
include consideration of a critical body of objective medical evidence.12 The ALJ retains
discretion to impose work-related limitations without a proper source opinion where “the
medical evidence shows “relatively little physical impairment” and an ALJ “can render a
commonsense judgment about functional capacity.”13
The decision in Henderson criticizes Deskin as “not representative of the law
established by the legislature and interpreted by the Sixth Circuit.”14 In that case, the
administrative record contained at least three medical source opinions.15 The ALJ’s
limitations were less than those recommended by two doctors but more than that
recommended by the third.16 Because no medical source opinion supported the residual
11
Id. at 912, quoting Rohrberg v. Apfel, 26 F. Supp. 2d 303, 311 (D. Mass. 1998).
12
Id.
13
Id., quoting Manso-Pizarro v. Sec’y of Health & Human Servs., 76 F.3d 15, 17
(1st Cir. 1996).
14
Henderson, No. 1:08cv2080, 2010 WL 750222, at *2.
15
Id.
16
Id.
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functional capacity finding of the ALJ, the Magistrate Judge applied Deskin in concluding
that the ALJ’s residual functional capacity finding did not have the support of substantial
evidence.17 The District Judge thought this an inappropriate intrusion upon the proper
discretion of the ALJ to determine residual functional capacity based on the record.18
Henderson is not Deskin. In Henderson, the ALJ used the three medical source
opinions as a guide to peg a residual functional capacity finding. According to the case law
of this circuit, this is permissible under certain circumstances. In Hensley v. Astrue,19 the
court made clear that an ALJ may disregard a treating physician’s opinion as to limitations
in favor of that of another medical source, provided that the ALJ gives good reasons for
doing so as required by the regulations.
In Deskin, the ALJ relied upon an early state agency residual functional capacity
assessment that did not take into consideration a substantial body of medical evidence that
came into the record after that assessment. That an ALJ under those circumstances should
not make a residual functional capacity finding without an updated physician’s assessment
is consistent with the Sixth Circuit’s recent decision in Blakley v. Commissioner of Social
Security.20 In Blakley, the ALJ relied on the opinion of a state agency reviewing physician
17
Id.
18
Id.
19
Hensley v. Astrue, 573 F.3d 263, 266 (6th Cir. 2009).
20
Blakley v. Comm’r of Soc. Sec., 581 F.3d 399 (6th Cir. 2009).
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that pre-dated 300 pages of treatment notes by treating sources in the record.21 The Sixth
Circuit reversed the ALJ’s decision as a failure to follow agency procedural rules not excused
by harmless error.22 The court concluded “we require some indication that the ALJ at least
considered these facts [the later medical evidence] before giving greater weight to an opinion
that is not based on a review of a complete case record.”23 This holding is consistent with
the rule set out in Deskin.
Here Kizys had substantial physical impairment as evidenced by the very restrictive
residual functional capacity finding made by the ALJ. The record contains a body of medical
evidence from treating sources that no medical source reviewed or evaluated. Without the
benefit of such an opinion, the ALJ imposed work-related limitations. This is not a case in
which the claimant presents “relatively little physical impairment” and the ALJ could “render
a commonsense judgment about functional capacity.”24
Based on all the authorities cited above, and the total absence of a medical source
assessment in this case, this is a Deskin remand.
21
Id. at 409.
22
Id. at 409-10.
23
Id. at 409.
24
Deskin, 605 F. Supp. 2d at 912. Accord, Walker v. Astrue, No. 08cv828, 2010 WL
2629832, at *6 (W.D.N.Y. June 11, 2010).
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Conclusion
The decision of the Commissioner denying Kizys’s application for supplemental
security income is reversed and the case remanded for reconsideration of the residual
functional capacity finding consistent with this opinion.
For purposes of any potential application for attorney’s fees under the Equal Access
to Justice Act,25 the Court concludes that the position of the Commissioner was substantially
justified.
IT IS SO ORDERED.
Dated: October 21, 2011
25
s/ William H. Baughman, Jr.
United States Magistrate Judge
28 U.S.C. § 2412(d)(1)(A).
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