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Morphew v. Colvin

United States District Court, D. Kansas

April 8, 2014

CAROLYN W. COLVIN, [1] Acting Commissioner of Social Security, Defendant.


JOHN W. LUNGSTRUM, District Judge.

Plaintiff seeks review of a decision of the Commissioner of Social Security (hereinafter Commissioner) denying Social Security Disability (SSD) benefits and Supplemental Security Income (SSI) benefits under sections 216(i), 223, 1602, and 1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 416(i), 423, 1381a, and 1382c(a)(3)(A) (hereinafter the Act). Finding no error in the Commissioner's decision, the court ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING that decision.

I. Background

Plaintiff applied for SSD and SSI, alleging disability beginning August 31, 2008. (R. 14, 141-55). In due course, Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the decision denying benefits. In her Social Security Amended Brief (Doc. 16) (hereinafter Pl. Br.), [2] Plaintiff claims the Administrative Law Judge (ALJ) erred in assessing residual functional capacity (RFC) by failing to link the evidence with the RFC limitations, by erroneously weighing the opinions of her treating nurse-practitioner Ms. Kocher, by failing to fully consider the evidence regarding Plaintiff's need to use a cane, by failing to provide an adequate narrative discussion, by failing to provide a function-by-function assessment of Plaintiff's RFC before describing it in exertional terms, and by providing an inadequate credibility determination. She also claims that at step five of the sequential evaluation process the ALJ erred in relying on the vocational expert's testimony regarding work available to an individual such as Plaintiff.

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 evidence as a reasonable mind might accept to support a conclusion. Richardson v. Perales , 402 U.S. 389, 401 (1971); 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). Nonetheless, 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, 416.920; 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, in light of 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 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).

II. Assessment of RFC

In response to Plaintiff's allegations of error in the ALJ's RFC assessment, the Commissioner argues that the ALJ properly evaluated the credibility of Plaintiff's allegations of symptoms, and that substantial evidence in the record supports his determination. In making her credibility arguments, the Commissioner also argues that the ALJ assessed Plaintiff's alleged need for a cane and properly found no evidence in the record that use of a cane was medically necessary. She argues that the ALJ properly weighed the opinions of the various medical sources including nurse-practitioner Kocher, and supported his findings in that regard. The Commissioner agrees with Plaintiff that the ALJ did not perform a function-by-function assessment of Plaintiff's RFC, but argues this is not reversible error because the ALJ provided a detailed narrative discussion explaining the basis for his RFC assessment. Finally, she also argues that the ALJ properly relied upon the vocational expert testimony regarding other work in the economy available to an individual such as Plaintiff.

A. Standard for Assessing RFC

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), 416.945(a); see also, White , 287 F.3d at 906 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. 2013) ("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. 2013) ("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 provided eleven examples of the types of evidence to be considered in making an RFC assessment, including: medical history, medical signs and laboratory findings, effects of treatment, reports of daily activities, lay evidence, recorded observations, medical source statements, effects of symptoms, attempts to work, need for a structured living environment, and work evaluations. SSR 96-8p, West's Soc. Sec. Reporting Serv., Rulings 147 (Supp. 2013).

Although an ALJ is not an acceptable medical source qualified to render a medical opinion, "the ALJ, not a physician, is charged with determining a claimant's RFC from the medical record." Howard v. Barnhart , 379 F.3d 945, 949 (10th Cir. 2004). "And the ALJ's RFC assessment is an administrative, rather than a medical determination." McDonald v. Astrue , 492 F.Appx. 875, 885 (10th Cir. 2012) (citing SSR 96-5p). Because RFC assessment is made based on "all of the evidence in the record, not only the medical evidence, [it is] well within the province of the ALJ." Dixon v. Apfel, No. 98-5167 , 1999 WL 651389, at *2 (10th Cir. Aug. 26, 1999). Moreover, the final responsibility for determining RFC rests with the Commissioner. 20 C.F.R. §§ 404.1527(e)(2), 404.1546, 416.927(e)(2), 416.946.

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. 2013). 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 each conclusion, 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 . The narrative discussion must include consideration of the credibility of plaintiff's allegations of symptoms and consideration of medical source opinions regarding plaintiff's capabilities. Id. at 149-50. If the ALJ's RFC assessment conflicts with a medical source opinion, the ALJ must explain why he did not adopt the opinion. Id. at 150.

B. Discussion Regarding the Standard for Assessing RFC

Much of Plaintiff's RFC argument rests upon the apparent assumption that an RFC assessment requires the ALJ to search the record (primarily medical records), find limitations in the record ascribed to the claimant which are related to each of the physical and mental functional areas (exertional, postural, environmental, concentration and persistence, adaptation, etc.), and to assess those limitations which are best supported by the record (apparently by according more weight to particular information based upon the source of that information). Plaintiff argues that the ALJ erred because he "appears to base his findings regarding the physical RFC in part on his own assumptions and interpretation of the medical records." (Pl. Br. 10).[3] Except that an RFC should be based in no part upon the ALJ's personal assumptions, it is precisely the ALJ's duty to assess RFC (both physical and mental) based upon his interpretation of the record evidence- medical and otherwise. See, Howard , 379 F.3d at 949; McDonald , 492 F.Appx. at 885; Dixon , 1999 WL 651389, at *2; 20 C.F.R. §§ 404.1527(e)(2), 404.1546, 416.927(e)(2), 416.946; SSR 96-8p.

Moreover, Plaintiff appears to assert that an ALJ must cite to record evidence for each and every functional limitation assessed, for twice in her brief, and once in her reply, she cites SSR 96-8p for the proposition that an "ALJ is required to link the evidence with the limitations in the RFC." (Pl. Br. 10, 11; Reply 2). Plaintiff is correct to the extent that SSR 96-8p requires "a narrative discussion describing how the evidence supports each [RFC] conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations)." West's Soc. Sec. Reporting Serv., Rulings 149 (Supp. 2013). However, "there is no requirement in the regulations for a direct correspondence between an RFC finding and a specific medical opinion." Chapo v. Astrue , 682 F.3d 1285, 1288 (10th Cir. 2012) (citing Howard , 379 F.3d at 949; Wall , 561 F.3d at 1068-69). The narrative discussion required by SSR 96-8p does not necessitate citation to a medical opinion, or even to medical evidence in the administrative record for each RFC limitation assessed. Castillo v. Astrue, No. 10-1052 , 2011 WL 13627, *11 (D. Kan. Jan. 4, 2011). "What is required is that the discussion describe how the evidence supports the RFC conclusions, and cite specific medical facts and nonmedical evidence supporting the RFC assessment." Id . See also, Thongleuth v. Astrue, No. 10-1101-JWL , 2011 WL 1303374, *13 (D. Kan. Apr. 4, 2011). There is no need in this case, or any other, for the Commissioner to base the limitations in his RFC assessment upon citation to specific statements in the evidence or opinions in the administrative record.

In this case, the ALJ did a remarkable job of describing how the evidence supports each RFC conclusion. The ALJ's summary, discussion, and evaluation of the record evidence occupies approximately fifteen pages of the eighteen-page opinion. (R. 16-29). His specific RFC assessment appears at pages 20 through 29 of the record. The ALJ discussed specific findings in detail throughout his decision, i.e., credibility (R. 21-22); Dr. Allen's opinion and Ms. Ahrens's opinion (R. 23-24); Ms. Kocher's opinion (R. 27); and the state agency consultants' opinions. (R. 28). Each of these discussions included reference and citation to record evidence, and explanation of the bases for the ALJ's specific findings. Id.

Moreover, at certain points in the decision the ALJ took the time to integrate his findings and explain how he arrived at his RFC conclusions. For example, after explaining why he had accorded Dr. Allen's opinion "significant weight" and Ms. Ahrens's opinion "little weight, " the ALJ explained the bases for his findings regarding mental limitations:

As discussed above under the "paragraph B" criteria, there is some limited support for difficulty with concentration, persistence, or pace; however, Dr. Allen's opinion persuasively indicates that the claimant is capable of performing at least simple, unskilled work, with accordingly simple decision making, as described in ...

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