United States District Court, D. Kansas
FRANCISCO C. HERNANDEZ, JR., Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
SAM A. CROW, Senior District Judge.
This is an action reviewing the final decision of the defendant Commissioner of Social Security ("Commissioner") that denied the claimant Francisco C. Hernandez, Jr.'s ("Hernandez") Title II application for disability insurance benefits and Title XVI application for supplemental security income under the Social Security Act ("Act"). He filed his applications in 2008 and 2007 respectively, and on January 28, 2010, the administrative law judge ("ALJ") found Hernandez was not disabled. (Tr. 20). Hernandez appealed this matter, and on the Commissioner's motion, this court filed an agreed order on January 16, 2013, that remanded the case for further proceedings. The order directed the Appeals Council to forward the case to an ALJ who would provide the plaintiff with a new hearing, obtain more evidence, evaluate the severity of the plaintiff's impairments, address the opinions of record stating the weight given them and reasons for such weight, and consider "the credibility of Plaintiff's subjective complaints; evaluate Plaintiff's residual functional capacity; and address third party reports in the record." (Tr. 479-80).
The case was assigned to a new ALJ who obtained additional evidence and conducted a new video hearing. The ALJ filed his 14-page decision on July 23, 2013, finding that Hernandez was not under a disability from the alleged onset date of March 15, 2002, through the date of his decision. (Tr. 424-437). With the Appeals Council's denial of the claimant's request for review, the ALJ's 2013 decision stands as the Commissioner's final decision. The administrative record (Dk. 9) and the parties' briefs are on file pursuant to D. Kan. Rule 83.7.1 (Dks. 10, 15 and 16), the case is ripe for review and decision.
Born in 1966 and having past employment as a warehouse worker, groundskeeper and truck washer, Hernandez alleges a disability onset date of March 15, 2002, based on a number of conditions including, cervical spine disc disease, vertigo, sleep apnea, hypertension, morbid obesity, chronic obstructive pulmonary disease, osteoarthritis and daytime somnolence. Hernandez appeals the Commissioner's decision denying benefits. He argues the ALJ failed to identify the weight given all the medical opinions of record, made an RFC decision that is not supported by substantial evidence, and failed to account for the plaintiff's limited RFC in finding him capable to perform the jobs of document preparer and addresser.
STANDARD OF REVIEW
The court's standard of review is set forth in 42 U.S.C. § 405(g), which provides that the Commissioner's finding "as to any fact, if supported by substantial evidence, shall be conclusive." The court also reviews "whether the correct legal standards were applied." Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). Substantial evidence is that which "a reasonable mind might accept as adequate to support a conclusion." Richardson v. Persales, 402 U.S. 389, 401 (1971) (quotation and citation omitted). "It requires more than a scintilla, but less than a preponderance." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citation omitted). The review for substantial evidence "must be based upon the record taken as a whole" while keeping in mind "evidence is not substantial if it is overwhelmed by other evidence in the record." Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (internal quotation marks and citations omitted). In its review of "whether the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases, ... [the court] will not reweigh the evidence or substitute... [its] judgment for the Commissioner's." Lax, 489 F.3d at 1084 (internal quotation marks and citation omitted).
The court's duty to assess whether substantial evidence exists: "is not merely a quantitative exercise. Evidence is not substantial if it is overwhelmed by other evidence-particularly certain types of evidence (e.g., that offered by treating physicians)-or if it really constitutes not evidence but mere conclusion.'" Gossett v. Bowen, 862 F.2d 802, 805 (10th Cir. 1988) (quoting Fulton v. Heckler, 760 F.2d 1052, 1055 (10th Cir. 1985)). At the same time, the court "may not displace the agency's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo." Lax v. Astrue, 489 F.3d at 1084 (internal quotation marks and citation omitted). The court will "meticulously examine the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been made." Wall v. Astrue, 561 F.3d at 1052 (internal quotation marks and citation omitted).
By statute, a disability is the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to... last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). An individual "shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy...." 42 U.S.C. § 423(d)(2)(A).
A five-step sequential process is used in evaluating a claim of disability. Bowen v. Yuckert, 482 U.S. 137, 140 (1987). The first step entails determining whether the "claimant is presently engaged in substantial gainful activity." Wall v. Astrue, 561 F.3d at 1052 (internal quotation marks and citation omitted). The second step requires the claimant to show he suffers from a "severe impairment, " that is, any "impairment or combination of impairments which limits [the claimant's] physical or mental ability to do basic work activities." Barnhart v. Thomas, 540 U.S. 20, 24 (2003) (internal quotation marks and regulatory citations omitted). At step three, the claimant is to show his impairment is equivalent in severity to a listed impairment. Lax, 489 F.3d at 1084. "If a claimant cannot meet a listing at step three, he continues to step four, which requires the claimant to show that the impairment or combination of impairments prevents him from performing his past work." Id. Should the claimant meet his burden at step four, the Commissioner then assumes the burden at step five of showing "that the claimant retains sufficient RFC [residual functional capacity] to perform work in the national economy" considering the claimant's age, education, and work experience. Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010) (internal quotation marks and citation omitted). Substantial evidence must support the Commissioner's showing at step five. Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
At step one, the ALJ found Hernandez to have not engaged in substantial gainful activity since March 15, 2002. At step two, the ALJ found Hernandez to have the following severe impairments: "mild degenerative disc disease of the cervical spine; sleep apnea; morbid obesity; chronic obstructive pulmonary disease; and hypertension." (Dk. 427). At step three, the ALJ found that Hernandez's impairments, individually or in combination, did not equal the severity of the Listing of Impairments. (Tr. 427-28).
Before moving to steps four and five, the ALJ determined that Hernandez had the residual functional capacity ("RFC") to perform:
sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a). He can push and pull bilaterally, can stand/walk for up to four hours in an eight-hour workday, and can sit for up to four hours in an eight-hour workday. However, he must be able sit/stand at will and change or adjust position and can only occasionally walk on uneven surfaces. He can occasionally climb ramps and stairs, can never climb ladders, ropes, or scaffolds, and can occasionally balance, stoop, crouch, kneel, crawl, bend, and squat. Finally, he must avoid concentrated exposure to atmospheric contaminants and vibrations and must never work at unprotected heights or in the presence of hazardous machinery.
(Tr. 428). At step four, the ALJ found that Hernandez was unable to perform his past relevant work, all of which had been medium unskilled work. (Tr. 435). The ALJ next determined that, "[c]onsidering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform." (Tr. 436). Based on all of the above findings and conclusions, the ALJ entered his order deciding that Hernandez has not been under a disability from the date of application filings through the date of his decision. (Tr. 437). It is from this order that Hernandez appeals.
FAILURE TO IDENTIFY WEIGHT GIVEN TO CERTAIN MEDICAL OPINIONS
Hernandez argues the ALJ failed to address and to state the weight, if any, given to the following medical opinions of Dr. Gosalia, Dr. Siemsen, and Dr. Henderson. The ALJ's duties include evaluating all medical opinions in the record, assigning weight to each opinion, and discussing the weight given to each. See 20 C.F.R. §§ 416.927(c), 416.927(e)(2)(ii); Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012). This is a "well-known and overarching requirement." Martinez v. Astrue, 422 Fed. 719, 724 (10th Cir. Apr. 26, 2011). "It is clear legal error to ignore a medical opinion." Lopez v. Astrue, 2012 WL 1934056 at "4 (D. Kan. May 29, 2012)(citing Victory v. Barnhart, 121 Fed.Appx. 819, 825 (10th Cir. Feb. 4, 2005)(citing in turn SSR 96-5P, 1996 WL 374183, at *1)). The Tenth Circuit has explained this rule's operation in these terms:
"It is the ALJ's duty to give consideration to all the medical opinions in the record. He must also discuss the weight he assigns to such opinions, " including the opinions of state agency medical consultants. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (citations omitted). But the need for express analysis is weakened "[w]hen the ALJ does not need to reject or weigh evidence unfavorably in order to determine a claimant's RFC." Id. at 1162. And an ALJ's failure to weigh a medical opinion involves harmless error if there is no inconsistency between the opinion and the ALJ's assessment of residual functional capacity. See id. at 1162-63. In that case, the claimant is not prejudiced "because giving greater weight to [the opinion] would not have helped her." Id. at 1163.
Mays v. Colvin, 739 F.3d 569, 578-79 (10th Cir. 2014).
Hernandez argues the ALJ failed to consider Dr. Siemsen's opinion "that he could only stand and/or walk 2 hours in an 8 hour workday" and failed to resolve this conflict with the RFC. (Dk. 10, p. 36). The record does not sustain his argument. Dr. Siemsen's opinion affirms the RFC assessment written for Hernandez in June of 2008. (Tr. 329). The ALJ did identify and discuss this same June 2008 RFC assessment, affording it "some weight to the extent" it was "consistent with the preponderance of the evidentiary record, but place[d] more weight on other opinions as indicated previously." (Tr. 435). Nor are there inherent inconsistencies between the June 2008 RFC assessment/Dr. Siemsen's opinon and the ALJ's RFC finding. On the stand/walk option, the assessment offered choices between "at least 2 hours" and "about 6 hours, " so a finding of 4 hours would not necessarily be inconsistent with a response of " at least 2 hours." (Tr. 336) (italics added). Nor does the plaintiff show that even assuming additional limitations of 2 hours of standing/walking and no concentrated exposure to extreme cold and heat, this would preclude him from performing a range of sedentary work and the particular occupations listed by the vocational expert.
Hernandez next cites the medical source statement prepared by Dr. Henderson as part of a consultative examination report resulting from Hernandez's visit on December 15, 2012, to Central Medical Consultants in Shawnee, Kansas. (Dk. 9-3, p. 5); (Tr. 40F, 959, 963-968). The ALJ did discuss Exhibit 40F identifying both the consultative physical evaluation and the medical source statement. (Tr. 432). The ALJ erroneously presumed that Dr. Rupp who performed the consultative evaluation (Tr. 959-962) to Exhibit 40F was also the physician who completed the medical source statement (Tr. 963-968) to Exhibit 40F. The ALJ assigned the following weight to the medical opinions found in Exhibit 40F:
Although Dr. Rupp is not a treating physician, the undersigned gives his opinion great weight because it is based on and well supported by an objective physical examination that includes mechanical orthopedic measurements, including range of motion studies, gait, deep tendon reflexes, and motor and sensory studies, as well as clinical observations of the claimant's capacity to perform various orthopedic activities. Additionally, Dr. Rupp's findings and conclusions are generally consistent ...