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Waltemire v. Colvin

United States District Court, D. Kansas

August 1, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant.


DANIEL D. CRABTREE, District Judge.

Pursuant to 42 U.S.C. ยง 405(g), plaintiff seeks judicial review of the final decision of the Commissioner of Social Security Administration ("Commissioner") denying his application for disability insurance benefits under Title II of the Social Security Act, as amended. Plaintiff has filed a brief (Doc. 14) seeking judicial review of the Commissioner's decision. The Commis-sioner has filed a brief in opposition (Doc. 19) and submitted the administrative record (Doc. 10) contemporaneously with her Answer (Doc. 9). Upon the filing of plaintiff's reply brief (Doc. 22), this matter became ripe for determination. Having reviewed the administrative record and the briefs of the parties, the Court reverses the decision of the Commissioner and remands the case for further proceedings consistent with this order.


Plaintiff was born in 1970 and completed the 10th Grade of high school through a special education program.[2] He applied for disability insurance benefits on July 30, 2010, claiming an inability to work due to his disabling condition beginning August 28, 2009.[3] He identified numerous medical conditions that limit his ability to work: (1) dyslexia; (2) diabetes; (3) low back pain; (4) arthritis; (5) depression; (6) chronic asthma; (7) high blood pressure; (8) sleep apnea; (9) high cholesterol; (10) knee pain; and (11) bad shoulder.[4] During the fifteen years before the alleged onset of disability, he worked as a carpet and floor installer, custodial floor technician, donation door attendant, and lot attendant.[5]

After the Social Security Administration denied his application initially and on reconsid-eration, [6] he requested a hearing before an Administrative Law Judge ("ALJ").[7] On November 8, 2011, the ALJ conducted a hearing at which plaintiff appeared personally and through counsel.[8] The ALJ also heard testimony from a vocational expert ("VE").[9] The VE testified that a hypo-thetical person with limitations described by the ALJ would not be capable of performing any of plaintiff's former jobs.[10] But the VE identified two jobs (arcade attendant and parking lot attend-ant) that existed in significant numbers in the national and local economies that such a hypotheti-cal person could perform.[11] When the ALJ limited the hypothetical person to sedentary work, the VE testified that several jobs exist that such a person could perform, including clerical mailer or addresser and semi-conductor assembler.[12] The VE also testified that a sit/stand option would not affect the hypothetical person's ability to perform the identified jobs at either exertional level or vary the number of such jobs existing in the national or local economies.[13] More particularly, the following exchange occurred between the ALJ and the VE:

Q If the hypothetical individual required a sit/stand option? Would that have any impact on the jobs you've identified at the light or sedentary levels?
A No, Your Honor, it would not. Those are sit/stand options and at the light level, they fit well within the criteria. The sedentary, those are sit/stand option so there is not an issue.[14]

On November 21, 2011, the ALJ issued a written decision finding plaintiff not disabled.[15] On June 15, 2013, the Appeals Council found no reason to review the ALJ's decision and denied plaintiff's request for review.[16] Consequently, the ALJ's decision is the final decision of the Commissioner.[17] Plaintiff appealed the decision to this Court on July 26, 2013.


The administrative record contains (1) treatment records from Bruce Barclay, M.D., (Exs. 1F, 4F, and 10F); (2) state agency consultative examinations by Shawn R. Morrow, D.O., (Ex. 2F) and Gregory B. Smith, Ph.D., (Ex. 3F); (3) medical records from Via Christi Health System (Ex. 9F); (4) two administrative requests for medical advice (Exs. 5F and 7F); and (5) two ad-ministrative case analyses following a review of the record on reconsideration (Exs. 6F and 8F). Having reviewed the issues raised in this action and the administrative record, including the list-ed exhibits, the Court finds no need to recite the medical record with any greater specificity.


The ALJ found that plaintiff has not engaged in substantial gainful activity since the alleged onset of his disability and that he suffers from the following severe impairments: (1) de-generative disc disease, (2) asthma, (3) knee pain, (4) hypertension, (5) depression, and (6) bor-derline intellectual functioning.[18] But the ALJ did not find that plaintiff suffers from an impair-ment or combination of impairments that meets or medically equals any listed impairment that would qualify him as presumptively disabled without regard to his residual functional capacity ("RFC").[19]

The ALJ then determined that plaintiff has the RFC to perform a range of light work with the following additional limitations: (1) postural activities only occasionally; (2) no rope, ladder, or scaffold climbing; (3) avoid concentrated exposure to respiratory irritants in addition to temp-erature extremes and humidity; (4) simple, routine tasks with only occasional changes to work setting; (5) no more than superficial contact with others; (6) no writing; and (7) "requires a sit/stand option and is precluded from overhead reaching with the left, non-dominant upper ex-tremity."[20] The ALJ stated that in making his RFC determination, he "considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence based on the requirements of 20 CFR 404.1529 and SSRs 96-4p and 96-7p" and he "also considered opinion evidence in accordance with the re-quirements of 20 CFR 404.1527 and SSRs 96-2p, 96-5p, 96-6p, and 06-3p."[21] The ALJ also stated that he carefully considered "the entire record."[22]

The ALJ followed a two-step process for considering plaintiff's symptoms.[23] In doing so, he stated:

The claimant previously reported difficulties lifting greater than 20 pounds. He also reported problems squatting, bending, standing, reaching, walking, sitting, kneeling, hearing, climbing stairs, seeing, remembering, completing tasks, con-centrating, understanding, following instructions, and using his hands (Exhibit 9E). Additional evidence suggests the claimant was unable to walk further than the distance between the living room and the bedroom (Exhibit 13E). At the hear-ing, the claimant reported limitations to sitting 45 minutes, difficulties standing secondary to balance issues, and an inability to stand longer than 20 feet [sic].[24] He further testified to lifting only 5-10 pounds.
After careful consideration of the evidence, I find that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persist-ence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment.
The claimant's statements concerning his impairments and their impact on his ability to work are not entirely credible in light of the medical history, the reports of treating and examining practitioners, the degree of medical treatment required and the claimant's own descriptions of his activities and lifestyle.[25]

The ALJ then noted that plaintiff has undergone no invasive treatment for his back or neck problems, no one has recommended such treatment, and plaintiff's activities are consistent with an ability to perform light work as limited by the ALJ's RFC determination.[26] The ALJ next noted that plaintiff took asthma medications inconsistently and continued to smoke cigar-ettes, which adversely affected his credibility as it pertains to the severity of his asthma.[27] The ALJ discounted plaintiff's symptoms of depression because (1) his primary physician had not recommended that plaintiff see a specialist for treatment or medication management; (2) sparse treatment notes about the condition suggested that plaintiff was "not alleging multiple symptoms or significant complications from depression"; and (3) although a consultative examination showed issues with borderline intellectual functioning, plaintiff's activities support finding that he retains the RFC for light work as limited by the ALJ.[28] Finally, the ALJ listed reported activities that he viewed as consistent with limitations about social functioning, activities of daily living, and maintaining concentration, before discussing consultative examinations and reviews that support limitations equal to or less than those within the RFC determination.[29]

Given the determined RFC and VE testimony, the ALJ found that plaintiff could not per-form his past relevant work.[30] But considering plaintiff's RFC, age, education, and work experi-ence, the ALJ identified jobs existing in significant numbers in the national economy that plain-tiff could perform ...

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