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Kitzman v. Asture

United States District Court, Tenth Circuit

August 20, 2013

COLIN M. KITZMAN, Plaintiff,



Plaintiff Colin M. Kitzman seeks review of a final decision by the Commissioner of Social Security (“Commissioner”) denying his application for disability and disability insurance benefits under Title II of the Social Security Act. Plaintiff claims that the Commissioner’s decision should be reversed because the administrative law judge (“ALJ”) failed to consider third-party statements, the ALJ’s credibility and residual functioning capacity determinations were not supported by substantial evidence, and the ALJ failed to properly assess whether work existed in the national economy within Plaintiff’s residual functioning capacity. Because the Court finds that the ALJ erred as described below, the Court orders that the decision of the Commissioner is reversed and remanded.

I. Factual and Procedural Background

Kitzman was an employee at Lansing Correctional Facility when he suffered a work-related injury. While testing the integrity of cell bars, Kitzman heard his wrist pop. He was originally diagnosed with a severe sprain and was prescribed physical therapy to help treat the injury. After Kitzman developed hand swelling and pain radiating up his right arm, he underwent an MRI. The results of the MRI indicated faint joint effusion due to minimal inflammatory synovitis.

Kitzman then went to Dr. Brett Miller, M.D., who diagnosed Kitzman with a partial tear of his triangular fibrocartilage complex and scapholunate ligament. Dr. Miller performed an arthroscopy on Kitzman’s wrist. Following the arthroscopy, Kitzman underwent occupational therapy and was thought to have mild reflex sympathetic dystrophy syndrome. Kitzman reported continuing problems with his wrist and sought a second opinion from Dr. Brian Divelbiss, M.D., in November 2007.

Dr. Divelbiss diagnosed Kitzman with clinical cubital tunnel syndrome along with probable complex regional pain syndrome. Kitzman subsequently underwent two stellate ganglion blocks. Dr. Divelbiss performed a neuroplasty of Kitzman’s right ulnar nerve at the elbow and later performed a right wrist arthroscopy and debridement. In August 2008, Dr. Divelbiss determined that Kitzman had reached maximum medical improvement and imposed work restrictions. Dr. Divelbiss recommended Kitzman follow up with his family physician for pain medications necessitated by his on-the-job injury and the resultant care of the injury.

Kitzman began seeing Dr. Chad Johanning for help with pain management in November 2008. In January 2009, Dr. John Moore IV, M.D., diagnosed Kitzman with complex regional maintained pain syndrome and recommended Kitzman undergo pain management and avoid further surgeries. Kitzman continued to see Dr. Johanning for pain management.

Kitzman’s application for disability benefits was initially denied on September 2, 2008, and again denied after reconsideration on January 27, 2009. Kitzman requested a hearing and appeared before an administrative law judge (“ALJ”). The ALJ denied Kitzman’s request for benefits, and the Social Security Administration’s Appeals Council denied Kitzman’s request for review on August 5, 2011. Because Kitzman has exhausted all administrative remedies available to him, the Commissioner’s decision denying Kitzman’s application for benefits is now final and this Court has jurisdiction to review the decision.[1]

II. Legal Standard

Pursuant to 42 U.S.C. § 405(g), “[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive.” Upon review, the Court must determine whether substantial evidence supports the factual findings and whether the ALJ applied the correct legal standard.[2] “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance.”[3] The Court is not to reweigh the evidence or substitute its opinion for the ALJ.[4] The Court must examine the record as a whole, including whatever in the record detracts from the ALJ’s findings, to determine if the ALJ’s decision is supported by substantial evidence.[5] Evidence is not substantial if it is overwhelmed by other evidence or if it is a mere conclusion.[6]

To establish a disability, a claimant must demonstrate a physical or mental impairment that has lasted, or can be expected to last, for a continuous period of twelve months and an inability to engage in any substantial gainful work existing in the national economy due to the impairment.[7] The ALJ uses a five-step sequential process to evaluate whether a claimant is disabled.[8] The claimant bears the burden during the first four steps.[9]

In steps one and two, the claimant must demonstrate that he is not presently engaged in substantial gainful activity and he has a medically severe impairment or combination of impairments.[10] “At step three, if a claimant can show that the impairment is equivalent to a listed impairment, he is presumed to be disabled and entitled to benefits.”[11] If, however, the claimant does not establish an impairment at step three, the process continues. The ALJ assesses the claimant’s residual functioning capacity (RFC), and at step four, the claimant must demonstrate that his impairment prevents him from performing his past work.[12] The Commissioner has the burden at the fifth step to demonstrate that work exists in the national economy within the claimant’s RFC.[13] The RFC assessment is used to evaluate the claim at both step four and step five.[14]

III. Analysis

The ALJ determined that Kitzman satisfied steps one and two of the sequential process, finding Kitzman was not presently engaged in substantial gainful activity and that he had a medically severe impairment. The ALJ then determined Kitzman did not satisfy step three because his impairments did not meet or equal a listed impairment. After formulating Kitzman’s RFC, the ALJ found that under step four, Kitzman was unable to perform any past relevant work. At step five, the ALJ determined that Kitzman could perform the requirements of ...

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