Kraft v. Colvin

Filing 25

MEMORANDUM OPINION AND ORDER -- Having reviewed the medical evidence of record, the transcript of the administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties, the undersigned magistrate judge REVERSES the Commissioner's decision and REMANDS the matter for further administrative development. Signed by Magistrate Judge Shon T. Erwin on 8/5/16. (mc)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
VERONICA KRAFT,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.

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Case No. CIV-15-739-STE

MEMORANDUM OPINION AND ORDER
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of
the final decision of the Commissioner of the Social Security Administration denying
Plaintiff’s application for benefits under the Social Security Act. The Commissioner has
answered and filed a transcript of the administrative record (hereinafter TR. ____). The
parties have consented to jurisdiction over this matter by a United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c).
The parties have briefed their positions, and the matter is now at issue. Based on
the Court’s review of the record and the issues presented, the Court REVERSES the
Commissioner’s decision and REMANDS the matter to the Commissioner for further
administrative development.
I.

PROCEDURAL BACKGROUND
Plaintiff’s application for disability insurance benefits was denied initially and on

reconsideration. Following a hearing, an Administrative Law Judge (ALJ) issued an
unfavorable decision. (TR. 138-46). On appeal, the Appeals Council ordered remand for

further administrative findings. (TR. 154-55). Following a second hearing, the ALJ
issued another unfavorable decision. (TR. 40-51). The Appeals Council denied Plaintiff’s
request for review. (TR. 11-13). Thus, the decision of the ALJ became the final decision
of the Commissioner.
II.

THE ADMINISTRATIVE DECISION
The ALJ followed the five-step sequential evaluation process required by agency

regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R.
§ 404.1520. At step one, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity since March 1, 2006, the alleged onset date. (TR. 40). At
step two, the ALJ determined that Ms. Kraft had the severe impairments of
“tardikinesia, congestive heart failure, psychogenic movement disorder, and essential
tremor. . .” (TR. 43). At step three, the ALJ found that Plaintiff’s impairments did not
meet or medically equal any of the presumptively disabling impairments listed at 20
C.F.R. Part 404, Subpart P, Appendix 1. (TR. 44-45).
At step four, the ALJ found that Plaintiff was able to perform her past relevant
work as an office helper. (TR. 49). In doing so, the ALJ concluded that Plaintiff’s past
relevant work was not precluded by her residual functional capacity (RFC) to:
[P]erform light work as defined in 20 CFR 404.1567(b) except that she
can reach overhead with the right shoulder only occasionally [and] [s]he
cannot climb stairs or scaffolding.
(TR. 45).
Even though the ALJ concluded that Ms. Kraft could perform her past relevant
work, the ALJ proceeded to step five. There, he presented the limitations from the RFC

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in a question to a vocational expert (VE) to determine if there were other jobs Plaintiff
could perform. (TR. 88). Given the limitations, the VE testified that Plaintiff could
perform three light/semi-skilled jobs. (TR. 89). The ALJ adopted the testimony of the VE
and concluded alternatively that Ms. Kraft was not disabled based on her ability to
perform the identified jobs. (TR. 50).
III.

ISSUES PRESENTED
On appeal, Ms. Kraft challenges the RFC as deficient, arguing that the ALJ: (1)

improperly characterized Plaintiff’s psychogenic disorder to presume that Plaintiff was
“malingering” and could control her symptoms, (2) failed to consider Plaintiff’s anxiety
when assessing the RFC, (3) ignored a portion of consultative physician’s opinion, and
(4) failed to include particular limitations in the RFC. 1
IV.

STANDARD OF REVIEW
This Court reviews the Commissioner’s final “decision to determin[e] whether the

factual findings are supported by substantial evidence in the record and whether the
correct legal standards were applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir.

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At the end of her brief, Plaintiff states: “The basis for the ALJ’s failure to include any stress
and concentration limitations in his assessment of Kraft’s RFC was not the medical evidence,
but finding Kraft capable of semi-skilled work. If the ALJ had, as he did in his previous decision,
included limitations that limited Kraft to unskilled work, the grids would direct a finding of
disability when she turned 55 on May 11, 2011.” (ECF No. 18:16). Plaintiff has neither provided
support for her allegation that the ALJ’s RFC determination was based on a finding that Ms.
Kraft could perform semi-skilled work nor has she otherwise developed argument that the
evidence supports a finding of unskilled work and a presumptive finding of disability based on
the grids. As a result, the Court concludes that Ms. Kraft has waived any argument in this
regard. See Murrell v. Shalala, 43 F.3d 1388, 1390 (10th Cir. 1994) (reasoning, in the Social
Security context, that “perfunctory complaints [that] fail to frame and develop an issue
sufficient to invoke appellate review” are forfeited); Keyes–Zachary v. Astrue, 695 F.3d 1156,
1161 (10th Cir. 2012) (“We will consider and discuss only those contentions that have been
adequately briefed for review.”)

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2010). “Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. (quotation omitted).
While the court considers whether the ALJ followed the applicable rules of law in
weighing particular types of evidence in disability cases, the court does not reweigh the
evidence or substitute its own judgment for that of the Commissioner. Bowman v.

Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quotations and citations omitted).
V.

ANALYSIS
As noted by the ALJ, Ms. Kraft has been seen by a variety of physicians for

complaints relating to difficulty speaking and involuntary facial and body movements.
(TR. 43). As a result, at step two, the ALJ found that Ms. Kraft suffered from severe
Psychogenic Movement Disorder (PMD). (TR. 43). PMD is characterized by unwanted
movements, such as spasms, shaking, or jerks involving any part of the face, neck,
trunk or limbs.2 In addition, some patients may have problems with their speech,
bizarre gait, or difficulties with balance that are caused by underlying stress or some
psychological condition. 3 There is no physical cause underlying PMD and most
psychogenic movements are considered involuntary and act as a manifestation of how
an afflicted individual’s body responds to stress. 4 Ms. Kraft’s various arguments involve
allegations surrounding this condition.

2

https://www.bcm.edu/healthcare/care-centers/parkinsons/conditions/psychogenic-movementdisorders
3

https://www.bcm.edu/healthcare/care-centers/parkinsons/conditions/psychogenic-movementdisorders
4

https://www.bcm.edu/healthcare/care-centers/parkinsons/conditions/psychogenic-movementdisorders

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First, Plaintiff alleges the ALJ improperly concluded that “psychogenic”: (1) was
synonymous with “malingering,” and (2) presumed that Ms. Kraft was able to control
her symptoms. Second, Plaintiff argues that the ALJ failed to consider her anxiety when
formulating the RFC. Third, Ms. Kraft argues that the ALJ ignored a portion of an
opinion from a consultative physician which involved functional limitations resulting
from the PMD. And fourth, Ms. Kraft argues that the ALJ erred by failing to include
limitations from the PMD in the RFC. The Court rejects the first and second points of
error, but finds merit in Plaintiff’s third argument that the ALJ improperly ignored
evidence involving functional limitations owing to the PMD. The Court need not address
Plaintiff’s fourth allegation of error, as it will be addressed on remand following the
ALJ’s re-consideration of the omitted evidence.
A.

The ALJ’s Consideration of “Psychogenic”

Citing the ALJ’s reliance on three opinions, Ms. Kraft argues that the ALJ
improperly concluded that “psychogenic”: (1) was synonymous with “malingering” and
(2) presumed that Ms. Kraft was able to control her symptoms. Ms. Kraft challenges the
ALJ’s reliance on opinions from Dr. Kersi Bharucha, Dr. Joseph Jankovic, and Dr. Steven
Grill. Specifically, Plaintiff argues that the ALJ: (1) improperly characterized Dr.
Bharucha’s opinion to conclude that Plaintiff was malingering and could control her
symptoms, (2) improperly relied on Dr. Jankovic’s opinion to find that Plaintiff was
malingering, and (3) Dr. Grill’s opinion provided support that Plaintiff’s symptoms were
involuntary.

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1.

Dr. Bharucha

Following a July 12, 2010 examination, Dr. Bharucha opined that Ms. Kraft could
have a mild form of tardive akathisis, but that “[Plaintiff] has significant features of
embellishment, and [Dr. Bharucha] would consider the possibility of a somatization
disorder.” (TR. 906). Plaintiff argues that the ALJ mischaracterized Dr. Bharucha’s
opinion and improperly relied on it to conclude that Plaintiff was malingering and could
control her symptoms. The Court rejects Plaintiff’s arguments.
In the decision, the ALJ mentions Dr. Bharucha’s opinion twice. First, while rating
the severity of mental impairments at steps 2 and 3 of the sequential evaluation process,
the ALJ stated: “At the claimant’s July 12, 2010 neurological examination, Ms. Kraft . . .
was noted to have significant features of embellishment, and the doctor noted the
possibility of a somatization disorder.” (TR. 44). The ALJ again cited Dr. Bharucha’s
opinion when discussing Plaintiff’s credibility. In doing so, the ALJ noted that “[t]he
findings regarding the claimant’s allegations of abnormal movements and pain are
inconsistent and vary greatly among doctors.” (TR. 46). The ALJ then discussed five
different opinions, including the one given by Dr. Bharucha. (TR. 46). According to Ms.
Kraft, the ALJ mischaracterized Dr. Bharucha’s opinion and improperly relied on it,
because “Dr. Bharucha did not question the sincerity of Kraft’s symptoms; he only
observed they were psychologically based.” (ECF No. 18:15).
Plaintiff correctly notes that Dr. Bharucha found that Plaintiff’s symptoms might
be psychologically based, as the physician left open the possibility that Plaintiff was

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suffering from a somatization disorder. 5 Citing the DSM-IV-TR, Ms. Kraft states that
“[s]omatic complaints are not intentional or under the person’s voluntary control[ ]
[and] [i]t would be improper to characterize a claimant’s somatic complaint as a form of
malingering.” (ECF No. 18:15). Through this argument, it appears as though Ms. Kraft
believes that the ALJ had misinterpreted Dr. Bharucha’s opinion to conclude: (1)
Plaintiff was “malingering” and (2) Dr. Bharucha’s opinion supported a finding that Ms.
Kraft could control her movements. The Court rejects Ms. Kraft’s argument for three
reasons.
First, there is no evidence that the ALJ had rejected the portion of Dr. Bharucha’s
opinion which stated that Plaintiff’s symptoms could be psychologically based. Indeed,
in the decision, the ALJ remarked that “many of Plaintiff’s evaluations have noted that
the claimant’s symptomology is psychogenic.” (TR. 44). The ALJ noted that Plaintiff’s
“abnormal movements are worsened during times of stress and anxiety, and lessened
at other times.” (TR. 44). Thus, the ALJ appeared to believe that Ms. Kraft’s disorder
had a psychological component which was aggravated with stress. Second, the ALJ did
not mischaracterize Dr. Bharucha’s opinion to conclude that Ms. Kraft could control her
movements, he simply gave an accurate recitation of the doctor’s findings. (TR. 44, 46).
Finally, and most importantly, Dr. Bharucha’s opinion did provide support to discount
Plaintiff’s credibility, despite her allegations otherwise.6

5

Somatization disorder is a psychiatric condition marked by multiple medically unexplained
physical, or somatic, symptoms which interfere significantly with a person's ability to perform
important activities, and lead the person experiencing the symptoms to seek medical treatment.
http://www.minddisorders.com/Py-Z/Somatization-disorder.html
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Although the ALJ relied on Dr. Bharucha’s opinion to discount Plaintiff’s credibility, the ALJ
never made an affirmative finding that Plaintiff was “malingering.” (TR. 40-51).

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Plaintiff’s argument is solely based on Dr. Bharucha’s opinion which stated that
Ms. Kraft had “possible somatization disorder.” (ECF No. 18:14-15). But Ms. Kraft
ignores the fact that Dr. Bharucha also opined that Plaintiff “ha[d] significant features
of embellishment.” (TR. 906). Based on that statement, the ALJ was entitled to discount
Plaintiff’s credibility with Dr. Bharucha’s opinion providing evidentiary support. The ALJ
did so, and his finding was not improper, based on Dr. Bharucha’s clear opinion. Based
on the forgoing, the Court rejects Plaintiff’s arguments as they relate to Dr. Bharucha.
2.

Dr. Jankovic

Plaintiff also alleges that the ALJ “equated psychogenic with malingering” when
he relied on Dr. Jankovic’s opinion. According to Ms. Kraft:
[T]he ALJ cited to a physician’s findings from July 2011, where the
physician noted Kraft as having significant problems with involuntary
movements. The ALJ followed by noting the ‘same doctor’ stated that
Kraft’s statements where ‘clearly psychogenic.’
(ECF No. 18:15). Plaintiff accurately represents the ALJ’s recitation of Dr. Jankovic’s
findings in the administrative decision. (TR. 47). But a plain reading of the decision fails
to disclose that the ALJ had equated Dr. Janovic’s opinion with a finding that Plaintiff
was malingering. The ALJ’s findings on Dr. Janovic’s opinions were made during a
recitation of the medical evidence. The ALJ does not affirmatively state whether he had
adopted the opinion of Dr. Jankovic, and the ALJ never states that he had equated Dr.
Janovic’s opinion to mean that Plaintiff had been malingering. Accordingly, the Court
rejects Plaintiff’s challenge involving Dr. Jankovic’s opinion.

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3.

Dr. Grill

Finally, Ms. Kraft points to an opinion from Dr. Grill as support for a finding that
Plaintiff’s symptoms were involuntary. As noted by Plaintiff, the ALJ gave “great weight”
to Dr. Grill’s findings that Ms. Kraft’s movements were psychogenic and involuntary. See
TR. 47-48 (“Dr. Grill concluded that the claimant suffered from a psychogenic
movement disorder, and her involuntary movements do not conform to a physiological
pattern. . . . Dr. Grill’s findings have been given great weight. They are detailed,
supported, and consistent with the other substantial evidence in the record.”). As part
of her argument that the ALJ improperly equated “psychogenic” with “voluntary,”
Plaintiff offers Dr. Grill’s opinion as support for her claim that her movements, although
psychogenically based, are involuntary. But the ALJ’s reliance on Dr. Grill’s opinion
solidifies the fact that the ALJ does not equate “psychogenic” with “voluntary,” based
on the ALJ’s adoption of Dr. Grill’s opinion which stated that Ms. Kraft’s movements
were involuntary and affording it “great weight.”
4.

Summary

Plaintiff believes that the ALJ had equated various physicians’ findings that
Plaintiff’s symptoms were “psychogenic” with a conclusion that Plaintiff was malingering
and could control her symptoms. As discussed, the ALJ had a valid basis to discount
Plaintiff’s credibility based on Dr. Bharucha’s opinion that Ms. Kraft had “significant
features of embellishment.” Additionally, the record is absent of any findings that the
ALJ had interpreted Dr. Janovic’s findings that Plaintiff’s symptoms were “psychogenic”
to mean that Plaintiff had been malingering. And finally, the ALJ’s affirmative reliance

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on Dr. Grill’s findings discount Plaintiff’s argument that the ALJ had equated
“psychogenic” to mean that Plaintiff’s movements were voluntary. The ALJ clearly
believed that Ms. Kraft’s symptoms were psychogenic in nature and that she could not
control her movements. However, the ALJ had a valid basis on which to discount the
Plaintiff’s allegations, as discussed.
B.

The ALJ’s Consideration of Plaintiff’s Anxiety in the RFC

At step two, the ALJ concluded that Plaintiff’s medically determinable impairment
of anxiety disorder did not cause more that minimal limitation in the claimant’s ability to
perform basic mental work activities, and was therefore, not a “severe” impairment.
(TR. 43). In a somewhat cursory argument, Plaintiff states: Regardless of whether
Kraft’s anxiety was severe or nonsevere, the ALJ was still required to consider Kraft’s
anxiety when determining the RFC assessment.” (ECF No. 18:12). The Court concurs
with Plaintiff’s statement and concludes that the ALJ satisfied this requirement.
For example, when discussing the medical evidence, the ALJ noted that one
physician concluded that claimant’s symptoms may be anxiety related, and another
doctor stated that Plaintiff’s tic became worse when she “became excited.” (TR. 46).
The ALJ also discussed an opinion from Dr. Bassam Saliba who noted that Ms. Kraft
became dystonic when nervous, and “settled down” when she became comfortable.
(TR. 49). Thus the Court rejects the Plaintiff’s argument regarding a failure to consider
her anxiety when assessing the RFC.

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C.

The ALJ’s Consideration of Dr. Fuchs’ Opinion

On December 6, 2010, Dr. Raymond Fuchs performed a consultative
psychological examination of Ms. Kraft. (TR. 931-38). In his decision, the ALJ discussed
portions of Dr. Fuchs’ opinion, but the ALJ’s selective review was improper as he should
have discussed Dr. Fuchs’ opinions concerning Plaintiff’s various functional limitations.
For example, at steps two and three, in assessing Plaintiff’s level of mental
functioning, the ALJ gave the following summary of Dr. Fuchs’ examination and
findings:
She was found to be cooperative and oriented times four. She displayed
strong intellectual powers and spoke with very lisping voice. The
psychologist observed that the claimant had spasmodic, tic-like behaviors
and reflexive actions that appeared to derive from her neurological
condition. Her recent and long-term memory were intact, but she had
some impairment in repetitive recall phonetically. Her affect was
expressive with congruent mood and a mildly depressed appearance.
There was no indication of audiovisual hallucinations, and judgment and
insight were intact. The diagnoses were anxiety disorder with primary
focus somatic concerns and dysthymic disorder, both of these conditions
were indicated to mildly to moderately interfere with functioning.
(TR. 44). In doing so, the ALJ relied, in part, on Dr. Fuchs’ opinion that Ms. Kraft
suffered from only “mild” levels of mental functioning. (TR. 44).
And during his recitation of the medical evidence in evaluating the RFC, the ALJ
noted that Dr. Fuchs’ noted “somatic concerns” as a primary focus and:
During the examination, it was observed that the claimant displayed
pervasive symptoms of an individual with pronounced speech impediment
and facial movements and expression resembling reflexive actions similar
to either the tardive dyskinesia or possibly neurological incident, etiology
unknown. The psychologist found that the claimant displayed high
cognitive capability of thought despite this outward appearance of
impediment. The doctor noted that Ms. Kraft has proceeded with

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obtaining a nursing degree and counseling license despite other handicaps
and setbacks.
(TR. 46-47). The ALJ relied, in part, on Dr. Fuchs’ opinion in formulating the RFC which
allowed for light work, as defined in 20 C.F.R. § 404.1567(b) with the additional
limitations of only being allowed to reach overhead with her right shoulder occasionally
and no climbing stairs or scaffolding. (TR. 45). According to Plaintiff, the ALJ ignored
two critical portions of Dr. Fuchs’ opinion without explanation. Ms. Kraft is correct.
First, Dr. Fuchs rendered an opinion regarding Plaintiff’s “sustained concentration
and persistence.” According to the doctor, Ms. Kraft had a “serious” impairment in this
area “as a result of her physical pain, strength and stamina limitations, and depressive
elements as a result of her discomfort and impairments.” (TR. 937). This opinion is
clearly inconsistent with the ALJ’s finding that Ms. Kraft suffered from “mild” difficulties
in the area of concentration, persistence, and pace and the ALJ did not explain the
inconsistency or otherwise acknowledge Dr. Fuchs’ opinion. (TR. 44). Second, Dr. Fuchs
rendered an opinion regarding Ms. Kraft’s ability to adapt in the workplace, considering
her limitations. Dr. Fuchs stated, in part:
Presently, primarily by virtue of her strong muscular skeletal stamina and
strength limitations[,] to be unable to adapt to frequent changes of
complexity which demand physical exertion. She has limitations of time
she is able to stand on her feet and move about.
(TR. 937). As alleged by Ms. Kraft, the ALJ did not mention this portion of Dr. Fuchs’
opinion regarding Ms. Kraft’s ability to adapt to certain situations in the workplace
which might demand physical exertion or involve limitations on standing and walking.

See TR. 40-51. Defendant attempts to excuse the omission, arguing: (1) “the record as
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a whole indicated that although Plaintiff presented with abnormal movements, those
movements generally did not affect her mental status, or her ability to walk normally”
and (2) “there is no requirement in the regulations for a direct correspondence between
a [residual functional capacity] finding and a specific medical opinion on the functional
capacity in question.” (ECF No. 24:17). The Court is not persuaded by Ms. Colvin’s
arguments.
First, Plaintiff is not challenging the sufficiency of the evidence to support the
RFC, rather she is alleging that the ALJ committed legal error in his consideration of Dr.
Fuchs’ opinion. Thus, Plaintiff’s first argument is without merit.
Second, regarding the need for “direct correspondence” between the RFC and a
specific medical opinion, Defendant cites Chapo v. Astrue, 682 F.3d 1285, 1288 (10th
Cir. 2012). While Defendant’s quote is accurate, the error here was not in a failure to
line up an RFC with a verbatim recitation from the medical opinion. Instead, the ALJ
relied on a portion of physician’s opinion, while ignoring a portion of the same opinion
regarding specific functional effects. The Tenth Circuit Court of Appeals has repeatedly
held that this type of selective review is improper, and in fact repeated the warning in

Chapo, stating:
[T]he ALJ fully discounted the bulk of [a physician’s] mental RFC
limitations with no explanation at all as to why one part of his opinion was
creditable and the rest was not. That is error under this circuit's case law.
We have repeatedly held that [a]n ALJ is not entitled to pick and choose
through an uncontradicted medical opinion, taking only the parts that are
favorable to a finding of nondisability.

Chapo v. Astrue, 682 F.3d 1285, 1292 (10th Cir. 2012) (citing Haga v. Astrue, 482 F.3d
1205, 1208 (10th Cir. 2007); Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir.
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2004), and Hamlin v. Barnhart, 365 F.3d 1208, 1219 (10th Cir. 2004)) (internal
quotation marks omitted).
Here, the ALJ did precisely what the Tenth Circuit has cautioned against—
although the ALJ did cite some of Dr. Fuchs’ opinion, he completely ignored critical
portions of the opinion which concerned functional limitations and Plaintiff’s ability to
adapt in the workplace. The omission was critical, as the findings could have affected
the RFC determination regarding Ms. Kraft’s ability to walk and stand. As a result, the
Court reverses and remands for further consideration of Dr. Fuchs’ entire opinion. See

Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007) (reversing and remanding
because the ALJ should have explained why he had rejected some of the consulting
doctor’s restrictions in the RFC, “while appearing to adopt the others.”).
D.

The ALJ’s Failure to Include Limitations in the RFC

Finally, Ms. Kraft argues that the ALJ failed to include any limitations in the RFC
owing to her psychogenic disorder, despite the ALJ’s finding of a “severe” psychogenic
disorder at step two and Dr. Fuchs’ opinions concerning limitations in concentration. But
the Court need not address these allegations, as the RFC will be affected on remand
following further review of Dr. Fuchs’ opinion. See Robinson v. Barnhart, 366 F.3d 1078,
1085 (10th Cir. 2004) (“We will not reach the remaining issues raised by claimant
because they may be affected by the ALJ’s resolution of this case on remand.”).
ORDER
Having reviewed the medical evidence of record, the transcript of the
administrative hearing, the decision of the ALJ, and the pleadings and briefs of the

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parties, the undersigned magistrate judge REVERSES the Commissioner’s decision and
REMANDS the matter for further administrative development.
ENTERED on August 5, 2016.

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