Bradley v. Commissioner of Social Security

Filing 26

MEMORANDUM OPINION AND ORDER -- The Court has 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. Based on the forgoing analysis, the Court REVERSES AND REMANDS the Commissioner's decision for further administrative development. Signed by Magistrate Judge Shon T. Erwin on 11/28/17. (mc)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DARRIN T. BRADLEY,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,
Defendant.

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Case No. CIV-16-1360-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 AND
REMANDS the Commissioner’s decision for further administrative development.
I.

PROCEDURAL BACKGROUND
Initially and on reconsideration, the Social Security Administration denied Plaintiff’s

application for disability insurance benefits. Following an administrative hearing, an
Administrative Law Judge (ALJ) issued an unfavorable decision. (TR. 149-165). The
Appeals Council granted Plaintiff’s request for review and remanded for further

administrative findings. (TR. 176-177). Following two more administrative hearings, the
ALJ issued a second unfavorable decision. (TR. 19-35). The Appeals Council denied
Plaintiff’s request for review. (TR. 1-3). 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 July 1, 2012, the alleged disability onset date. (TR. 21). At step two,
the ALJ determined Mr. Bradley had the following severe impairments:
osteoarthritis primarily affecting the cervical and lumbar spine, as well as
the right knee, wrist, and hand; shoulder tendonitis and bursitis; asthma
and chronic bronchitis; status-post traumatic brain injury; PTSD; sleep
apnea; major depressive disorder; and obesity.
(TR. 21). 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. 22).
At step four, the ALJ concluded that Mr. Bradley retained the residual functional
capacity (RFC) to:
[P]erform sedentary work as defined in 20 CFR 404.1567(a) except the
claimant is able to occasionally switch between sitting and standing at the
work station without a loss of productivity; occasionally push/pull with the
upper and lower extremities; occasionally climb ramps and stairs but never
climb ladders, ropes or scaffolding; occasionally balance, stoop, kneel, and
crouch but never crawl. He has no manipulative, visual, or communicative
limitations, but must not work at unprotected heights, around dangerous
moving equipment or machinery, or on uneven or unstable work surfaces.
He must not work around dust, fumes, odors, extremes of temperature, or
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other respiratory irritants. The claimant can understand, remember
comprehend, and carry out simple instructions and tasks; can work with coworkers and supervisors on a superficial work basis; can adapt to routine
work changes in the work environment; but cannot work with the general
public on more than a superficial or ancillary basis.
(TR. 24). With this RFC, the ALJ concluded that Plaintiff was not capable of performing
his past relevant work and proceeded to step five. (TR. 33).
At step five, the ALJ presented several limitations to a vocational expert (VE) to
determine whether there were other jobs in the national economy that Plaintiff could
perform. (TR. 89). Given the limitations, the VE identified three jobs from the Dictionary
of Occupational Titles (DOT). (TR. 90). The ALJ adopted the testimony of the VE and
concluded that Mr. Bradley was not disabled based on his ability to perform the identified
jobs. (TR. 34-35).
III.

ISSUES PRESENTED
On appeal, Plaintiff alleges the ALJ erred: (1) by failing to include certain physical

limitations in the RFC, (2) by failing to include certain mental limitations in the RFC, and
(3) by failing to consider the effects of various impairments and Plaintiff’s medications.
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.
2010). “Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Id. (quotation omitted).

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While the court considers whether the ALJ followed the applicable rules of law in
weighing particular types of evidence in disability cases, the court will “neither reweigh
the evidence nor substitute [its] judgment for that of the agency.” Vigil v. Colvin, 805
F.3d 1199, 1201 (10th Cir. 2015) (internal quotation marks omitted).
V.

ERROR IN THE CONSIDERATION OF PHYSICAL LIMITATIONS
The RFC allowed for “no manipulative limitations,” but Mr. Bradley contends that

evidence exists which would “mandate at a minimum an occasional limitation on handling
with his dominant right hand.” (ECF No. 23:6). The Court agrees.
A.

Evidence Concerning Plaintiff’s Ability to “Handle”

The record contains four opinions regarding Plaintiff’s ability to “handle.” Initially,
and on reconsideration of Mr. Bradley’s application for disability insurance benefits, two
agency physicians concluded that Mr. Bradley had “some difficulty grasping firmly with
[right] hand due to [osteoarthritis] and should avoid work situations with repetitive
grasping.” (TR. 128, 141); see Social Security Ruling 85–15, Titles II and XVI: Capability
to Do Other Work—The Medical-Vocational Rules as a Framework for Evaluating Solely
Nonexertional Impairments at *7 (1985) (defining the DOT ability of “handling” as
including “grasping”).
In 2012 and 2015, consultative physician Dr. S.A. Chaudry examined Plaintiff and
rendered two opinions. See TR. 859-866, 2075-2088. In the 2012 opinion, Dr. Chaudry
noted that Plaintiff’s right hand was “stiff,” with painful range of motion in the first digit,
and that x-rays revealed osteoarthritis in Plaintiff’s right hand. (TR. 861). Dr. Chaudry
also noted that Plaintiff was unable to effectively “grasp” objects in his right hand. (TR.

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861, 865). In the February 2015 opinion, Dr. Chaudry opined that Plaintiff could only
“occasionally” “handle” objects. (TR. 2077, 2020).
B.

Error in the ALJ’s Evaluation of the Evidence

The RFC for “no manipulative limitations” indicates a rejection of the four opinions
mentioned above. Error exists because: (1) the ALJ failed to explain his rejection of the
agency opinions and Dr. Chaudry’s 2012 opinion and (2) the ALJ’s rejection of Dr.
Chaudry’s 2015 opinion lacked substantial evidence.
The Agency Physicians’ Opinions
The ALJ discussed the agency physicians’ opinions, but gave them only “limited
weight,” noting only that “[t]hey concluded that the claimant would be able to perform
light work.” (TR. 30). The RFC for “light work” does not encompass manipulative
limitations, such as handling, and the ALJ erred by omitting any discussion of the agency
physicians’ opinions regarding Plaintiff’s ability to grasp. See Chapo v. Astrue, 682 F.3d
1285, 1292 (10th Cir. 2012) (“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.”); Clifton v. Chater, 79 F.3d 1007, 1010 (10th
Cir. 1996) (the ALJ must “discuss[ ] the evidence supporting [the] decision” and must
also “discuss the uncontroverted evidence he chooses not to rely upon, as well as
significantly probative evidence [the ALJ] rejects.”); Oldham v. Astrue, 509 F.3d 1254,
1258 (10th Cir. 2007) (noting that the ALJ’s reasons stated in evaluating medical opinions
must allow for meaningful appellate review).

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Dr. Chaudry’s Opinions
Regarding the 2012 opinion, the ALJ noted “5 of 5 grip strength” and that x-rays
revealed osteoarthritis of Mr. Bradley’s right hand.” (TR. 27). When evaluating the
opinion, the ALJ apparently gave it no weight, as he stated that it “set forth no
limitations.” (TR. 31). Two problems exist with the ALJ’s treatment of the 2012 opinion.
First, the ALJ’s statement that the opinion “set forth no limitations” was inaccurate, as
Dr. Chaudry clearly stated that Mr. Bradley had no ability to “grasp” objects due to his
osteoarthritis in his right hand which had been confirmed by x-rays. (TR. 865). Second,
the ALJ omitted any discussion of Dr. Chaudry’s opinion regarding Plaintiff’s inability to
“grasp” with his right hand. (TR. 27). As discussed, this type of omission constitutes legal
error. See supra.
Regarding the 2015 opinion, the ALJ stated “the claimant continued to manifest 5
of 5 grip strength and manipulative ability.” (TR. 28). Regarding specific limitations, the
ALJ stated: “The physical examination showed no new restrictions or observations.” (TR.
28). In discussing the opinion, the ALJ acknowledged that Dr. Chaudry had limited Mr.
Bradley to “occasional” use of his hands, but the ALJ also stated that Dr. Chaudry had
found that Plaintiff “would have no difficulty with . . . using his hands for things like
sorting, handling or using papers/files.” (TR. 31). Two problems exist with the ALJ’s
assessment of the 2015 opinion.
First, the statement suggesting an unlimited ability to “handle” was based on an
inaccurate reading of Dr. Chaudry’s actual opinion. During the 2015 examination, Dr.
Chaudry noted that Plaintiff could “pick up a piece of paper, and tear it up with no

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difficulty.” (TR. 2077). The ALJ apparently translated this finding into a conclusion that
Mr. Bradley could “sort[], handl[e], or us[e] paper files.”
Second, this translation creates an internal inconsistency in the ALJ’s opinion
regarding his evaluation of Dr. Chaudry’s opinion. While the ALJ acknowledged that Dr.
Chaudry had limited Plaintiff to only “occasional” handling, the ALJ, in the same
paragraph, stated that Dr. Chaudry’s opinion supported a finding that Plaintiff would have
an unlimited ability to handle. (TR. 31). The ALJ apparently adopted the latter finding, as
the RFC specifically found “no manipulative limitations.” (TR. 24). A problem exists,
however, with the resulting RFC.
The RFC for “no manipulative limitations” is a clear rejection of Dr. Chaudry’s
opinion that Plaintiff could “occasionally” handle. But the ALJ erred in failing to explain
this rejection. See Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007) (noting that
the ALJ’s reasons stated in evaluating medical opinions must allow for meaningful
appellate review). Although the ALJ only accorded Dr. Chaudry’s opinion “some weight,”
it is unclear from the opinion whether the lesser weight applied to Dr. Chaudry’s findings
regarding “occasional” “handling” or other findings which Dr. Chaudry had made. See TR.
31 (noting that “some weight” was given to Dr. Chaudry’s opinions because Plaintiff’s
asthma is “fairly well-controlled” and Mr. Bradley has admitted to building a patio, doing
yard work, and swimming). But even if the lesser weight meant that the ALJ was rejecting
Dr. Chaudry’s findings regarding the ability to only “occasionally” “handle,” the only
evidentiary support for the RFC for “no manipulative limitations” was the ALJ’s
misstatement of Dr. Chaudry’s opinion regarding Plaintiff’s abilities to “sort[], handl[e],

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or us[e] paper files.” This mischaracterization of the evidence, however, cannot provide
support for the RFC. See Talbot v. Heckler, 814 F.2d 1456 (10th Cir. 1987) (the
mischaracterization of the treating physician’s opinion rendered the RFC lacking in
substantial evidence).
The error is critical because the RFC for “no manipulative limitations” formed the
basis for the ALJ’s opinion at step five, that Mr. Bradley could perform three jobs which
required “frequent”1 “handling.” See TR. 34-35, 90, DOT #7130687-018 (final
assembler), DOT # 690.685-194 (grinding machine operator), 209.587-010 (addresser).
Summary
The agency physicians’ opinions and Dr. Chaudry’s opinions involve limitations on
Plaintiff’s ability to “handle.” The ALJ apparently rejected these opinions, and was entitled
to do so, but the ALJ gave no reason for rejecting the agency physician opinions or Dr.
Chaudry’s 2012 opinion and the ALJ’s rejection of Dr. Chaudry’s 2015 opinion was based
on a mischaracterization of Dr. Chaudry’s actual opinion. These errors warrant remand
for reconsideration of these opinions.
VI.

NO ERROR IN THE EVALUATION OF MENTAL LIMITATIONS
Mr. Bradley contends that the ALJ’s findings at step three regarding “moderate”

mental limitations, as well as opinions from two agency psychologists were not properly
incorporated in the RFC. The Court disagrees.

The Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational
Titles states that “constantly” involves an activity or condition that exists 2/3 or more of the time.
(U.S. Dept. of Labor 1993) at C–3.
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A.

Findings at Step Three

At step three, the ALJ concluded that Mr. Bradley suffered from “moderate”
limitations in the areas of “social functioning” and “concentration, persistence, and pace.”
(TR. 22-23). Plaintiff argues that these findings should have been reflected in the RFC,
and that “[s]ix circuits agree that impairments at steps 2 and 3 carry over to steps 4 and
5.” (ECF No. 23:7). But the Tenth Circuit Court of Appeals does not adopt this viewpoint.
Under this circuit’s law, because the ALJ’s findings were made at step three of sequential
analysis, the ALJ had no duty to express them as particular findings in the RFC. See Vigil v.

Colvin, 805 F.3d 1199, 1203 (10th Cir. 2015) (“The ALJ’s finding of a moderate limitation
in concentration, persistence, or pace at step three does not necessarily translate to a
work-related functional limitation for the purposes of the RFC assessment.”).
B.

Opinions from Agency Psychologists

When assessing Plaintiff’s mental residual functional capacity, two agency
psychologists found that Plaintiff was “moderately” limited in his abilities to “remember and
locations and work-like procedures” and “maintain concentration for extended periods.” (TR.
129, 142, 143). The psychologists translated these findings into work-related limitations
and provided the following narrative regarding Plaintiff’s mental RFC: “Claimant can
perform simple work under routine supervision. He can adapt to a work setting. He can
relate superficially to coworkers and supervisors adequately for work purposes. He can
handle incidental public contact.” (TR. 130, 143). The ALJ noted the psychologists’ opinions
and stated that they were “well supported and given significant weight.” (TR. 31). Indeed,

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the ALJ appeared to adopt the opinions as they are reflected in the RFC. Compare TR.
23-24 (RFC) with TR. 130, 143 (agency psychologists’ opinions).
Mr. Bradley contends that the agency psychologists’ opinions were not reflected in
the RFC which stated that Plaintiff could “understand, remember comprehend, and carry
out simple instructions and tasks; [could] work with co-workers and supervisors on a
superficial work basis; [could] adapt to routine work changes in the work environment;
but [could not] work with the general public on more than a superficial or ancillary basis.”
(ECF No. 23:7-10). According to Plaintiff, the ALJ erred by failing to include limitations in
the RFC related to the psychologists’ opinions that Plaintiff was “moderately” limited in
his abilities to “remember locations and work-like procedures” and that he had limitations
in “concentration and persistence for extended periods.” (ECF No. 23:7-10). This argument
is without merit.
The Tenth Circuit Court of Appeals has clarified that the “moderate” findings in the
“summary conclusion” portion of the MRFCA need not be included in the RFC assessment.
In Smith v. Colvin, 821 F.3d 1264 (10th Cir. 2016), a consultative physician had completed
a form similar to that which the agency psychologists completed in the instant case. In

Smith, the physician rated the plaintiff’s abilities in particular areas of function and opined
that the plaintiff was “moderately limited” in her ability to:


Maintain concentration, persistence, and pace,



Remain attentive and keep concentration for extended periods,



Work with others without getting distracted,



Complete a normal workday and workweek without interruption for
psychologically based symptoms,
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

Perform at a consistent pace without excessive rest periods,



Accept instructions and respond appropriately to criticism by supervisors,



Get along with coworkers or peers without distractive them or engaging in
behavioral extremes,



Respond appropriately to changes in the workplace, and



Set realistic goals or independently plan.

Smith, 821 F.3d at 1268. The form had explained that the questions, which had yielded
these findings, “provided only an aid” to assess the plaintiff’s RFC. Id. at 1268, n.1. The
form further instructed the psychologist to assess the actual RFC in a narrative. Id. In the
narrative, the psychologist stated that the plaintiff could: (1) engage in work that was
limited in complexity and (2) manage social interactions that were not frequent or
prolonged. Id. at 1268.
On appeal, the plaintiff questioned how the ALJ’s RFC had incorporated all of the
moderate limitations that the psychologist had listed. Id. at 1269, n.2. In response, the
Court stated, “this is the wrong question.” Id. According to the Court, “[The
psychologist’s] notations of moderate limitations served only as an aid to her assessment
of residual functional capacity. We compare the administrative law judge’s findings to
[the psychologist’s] opinion on residual functional capacity, not her notations of moderate
limitations.” Id. (emphasis added).
In rejecting the plaintiff’s challenge, the Court cited Lee v. Colvin, 631 F. App’x.
538 (10th Cir. 2015). In Lee, the plaintiff asserted a similar challenge, arguing that the
ALJ had not expressly incorporated specific moderate limitations into the RFC which had

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been given by a psychologist which the ALJ had accorded “great weight.” Lee, 631 F.
App’x. at 541. The Court rejected the challenge, citing the Social Security Administration’s
Program Operations Manual Systems (POMS) which stated that “adjudicators are to use
the . . . narrative as the RFC assessment” rather than the accompanying worksheet which
rated the degree of limitation in particular areas. Id. In Lee, the ALJ had adopted the
“narrative” section of the psychologist’s RFC which accounted for the moderate limitations
the psychologist had listed, even though the narrative was not a verbatim recitation of
the rated limitations. Id. at 541-42.
In Smith, the Court adopted the approach taken in Lee and concluded:
The administrative law judges in Lee and in our case did not repeat the
moderate limitations assessed by the doctor. But both administrative law
judges incorporated these limitations by stating how the claimant was
limited in the ability to perform work-related activities.

Smith, 821 F.3d at 1269.
Smith is controlling in the instant case. Here, the agency psychologists had
concluded that Plaintiff was “moderately” limited in his abilities to “remember locations
and work-like procedures” and “maintain concentration for extended periods.” (TR. 129,
142, 143). On that form, however, the psychologists were instructed to explain “in narrative
form,” the mental residual functional capacity. (TR. 130, 143). The explanations provided
by the psychologists were reflected in the RFC. Compare TR. 24 (RFC) with TR. 130, 143)
(agency psychologists’ opinions). Under Tenth Circuit law, no error stems from the ALJ’s
failure to include the agency psychologists’ particular “moderate” limitations, as those
limitations were reflected in the narrative, which the ALJ adopted.

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C.

Summary

The ALJ had no duty to: (1) incorporate his step three findings in the RFC, or (2)
incorporate the agency psychologists’ statements that Plaintiff was “moderately” limited in
his abilities to “remember locations and work-like procedures” and “maintain concentration
for extended periods.” Accordingly, the Court rejects Mr. Bradley’s challenge involving
mental limitations in the RFC.
VII.

PTSD, TRAUMATIC BRAIN INJURY, DEPRESSIVE DISORDER, AND
MEDICATIONS
Consultative physician Dr. Robert Danaher examined Plaintiff and diagnosed Mr.

Bradley with Major Depressive Disorder and PTSD. (TR. 1791). Dr. Danaher also noted that
by Plaintiff’s medical history, he had suffered a traumatic brain injury. (TR. 1791). Dr.
Danaher also stated that Plaintiff appeared “extremely fatigued,” even falling asleep at one
point during the examination. (TR. 1784). In his brief, Mr. Bradley cites Dr. Danaher’s
findings, as well as eight medications which Plaintiff takes to treat anxiety and pain. (ECF
No. 10). Mr. Bradley then makes the following argument:
The ALJ failed to determine they were severe impairments, but also failed to
determine if they were non-severe impairments. The ALJ acknowledges
Claimant has a traumatic brain injury as well as PTSD and major depressive
disorder. However, he failed to include any limitations of slowed pace, or
excessive side effects from medications in his hypothetical.
(ECF No. 23:10). Despite the lack of clarity in the argument, the Court assumes that Mr.
Bradley believes that the RFC should have included limitations related to his PTSD,
depression, brain, injury, and medications. The Court disagrees.
Regarding the PTSD, the depression, and the brain injury, the ALJ found these to be
severe impairments at step two. (TR. 21). However, the presence of an impairment, albeit
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severe, does not necessarily equate to corresponding limitations in the RFC. Cavalier v.

Colvin, 2014 WL 7408430, at *2 (N.D. Okla. 2014). The RFC need only include such
limitations as the medical record substantially supports. See Kirkpatrick v. Colvin, 663 F.
App’x. 646, 650 (10th Cir. 2016) (“Clearly, an ALJ doesn't commit error by omitting
limitations not supported by the record”). Here, Mr. Bradley does not cite to any evidence
in the record where any medical professional has opined specific work-related limitations
stemming from the PTSD, Depressive Disorder, or brain injury. Accordingly, the ALJ was
under no duty to find specific limitations in the RFC. See McNally v. Astrue, 241 F. App’x
515, 518 (10th Cir. 2007) (“with regard to [her severe impairments], the claimant has
shown no error by the ALJ because she does not identify any functional limitations that
should have been included in the RFC assessment or discuss any evidence that would
support the inclusion of any limitations”) (citation omitted).
Next, Mr. Bradley implies that his medications had side effects which involved
sleepiness or fatigue which should have been accounted for in the RFC. Plaintiff suggests
that this proposition finds evidentiary support in Dr. Danaher’s comments about Plaintiff
being fatigued and falling asleep at the examination. But this argument is misplaced, as Dr.
Danaher specifically stated “I do not know why [Mr. Bradley] was so tired or sleepy.” (TR.
1791). Without evidentiary support regarding specific limitations regarding sleepiness
resulting from his medications, the ALJ was under no duty to make specific allowances in
the RFC, as discussed above. Even so, the Court reminds the ALJ that on remand, when
assessing Plaintiff’s credibility, any side effects of medications should be considered. See

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Wilson v. Astrue, 602 F.3d 1136, 1144-45 (10th Cir. 2010); SSR 96-7p, 1996 WL 347186,
at *1 (July 2, 1996).
ORDER
The Court has 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.
Based on the forgoing analysis, the Court REVERSES AND REMANDS the
Commissioner’s decision for further administrative development.
ENTERED on November 28, 2017.

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