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Nerland v. Berryhill

United States District Court, D. Kansas

August 11, 2017

NANCY BERRYHILL, Acting Commissioner of Social Security,[1] Defendant.



         Plaintiff Michael Nerland seeks review of a final decision by Defendant, the Acting Commissioner of Social Security (“Commissioner”), denying his application for disability insurance benefits under Title II of the Social Security Act. Nerland contends that his claim must be remanded for rehearing because the Administrative Law Judge (“ALJ”) committed reversible error in making the residual functional capacity (“RFC”) determination. Finding that the Commissioner's decision was not supported by substantial evidence and did not comport with proper legal procedure, the Court reverses the decision of the Commissioner and remands for further consideration.

         I. Factual and Procedural Background

         Michael Nerland was born on March 24, 1977. He was 35 years old as of his alleged disability onset date. Nerland completed a master's degree in human resources, and one of eight terms necessary to complete a Ph.D. program. He served in the military as an Army Infantry Officer for nine years, and left the military as a Captain. On April 8, 2015, Nerland filed a Title II application for disability insurance benefits, alleging disability beginning July 7, 2012. Nerland alleged that he was unable to work due to irritable bowel syndrome, post-traumatic stress disorder (“PTSD”), and back pain. His application was denied initially and upon reconsideration. Nerland then asked for a hearing before an ALJ.

         ALJ Michael Shilling conducted an administrative hearing on February 3, 2016. Nerland was represented by counsel at the hearing, and he testified about his alleged disabilities and his employment history. The ALJ also heard from a vocation expert at the hearing.

         The ALJ issued a written decision on February 23, 2016. The ALJ found that Nerland met the insured status requirements of the Social Security Act through December 31, 2018, and that he had not engaged in substantial gainful activity since his alleged onset date. The ALJ found that Nerland suffered from the following severe impairments: degenerative disc disease of the lumbar spine; obesity; unspecified breathing disorder due to inhalation of titanium dust in Iraq; anxiety; PTSD; depression; and borderline personality disorder.

         The ALJ went on to find that Nerland did not have an impairment, or combination of impairments, that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Next, the ALJ found that Nerland had the RFC to:

[P]erform light work as that term is defined in 20 CFR 404.1567(b) and SSR 83-10, except that nonexertional limitations reduce the claimant's capacity for light work. Specifically, he is able to occasionally lift 20 pounds and frequently lift 10 pounds. He is able to walk or stand for 6 of 8 hours and sit for 6 of 8 hours. He can occasionally climb stairs but never climb ropes, scaffolds, or ladders. He can occasionally balance, stoop, crouch, kneel, and crawl. He should avoid prolonged exposure to chemicals, dust, fumes, noxious odors, and vibrating machinery. He needs to avoid unprotected heights and hazardous moving machinery. He is limited to simple work with occasional interaction with coworkers and the general public. For [these] purposes, he retains the ability to adapt to changes in the workplace on a basic level, and the ability to accept supervision on a basic level.

         Given Nerland's RFC, the ALJ found that he was unable to perfrom his past relevant work. But the ALJ determined that significant jobs existed in the national economy that Nerland could perform. Specifically, the vocational expert testified that an individual with Nerland's RFC was capable of working as a mail clerk, folding machine operator, or a shipping/receiving weigher. Accordingly, the ALJ concluded that Nerland had not been under a disability from July 7, 2012 through the date of his decision.

         Nerland then requested a review of the decision with the Appeals Council. That request was denied on May 23, 2016, and the ALJ's February 2016 decision became the final decision of the Commissioner. Nerland then filed a Complaint in this Court. Because Nerland has exhausted all administrative remedies available, this Court has jurisdiction to review the decision.

         II. Legal Standard

         Judicial review of the Commissioner's decision is guided by the Social Security Act which provides, in part, that the “findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive.”[2] The Court must therefore determine whether the factual findings of the Commissioner are supported by substantial evidence in the record and whether the ALJ applied the correct legal standard.[3] “Substantial evidence is more than a mere scintilla and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”[4] The Court may “neither reweigh the evidence nor substitute [its] judgment for that of the [Commissioner].”[5]

         An individual is under a disability only if he “can establish that she has a physical or mental impairment which prevents [him] from engaging in substantial gainful activity and is expected to . . . last for a continuous period of at least twelve months.”[6] This impairment “must be severe enough that [he] is unable to perform her past relevant work, and further cannot engage in other substantial gainful work existing in the national economy, considering [his] age, education, and work experience.”[7]

         Pursuant to the Act, the Social Security Administration has established a five-step sequential evaluation process for determining whether an individual is disabled.[8] The steps are designed to be followed in order. If it is determined, at any step of the evaluation process, that the claimant is or is not disabled, further evaluation under a subsequent step is unnecessary.[9]

         The first three steps of the sequential evaluation require the ALJ to assess: (1) whether the claimant has engaged in substantial gainful activity since the onset of the alleged disability; (2) whether the claimant has a severe, or combination of severe, impairments; and (3) whether the severity of those severe impairments meets or equals a designated list of impairments.[10] If the impairment does not meet or equal one of these designated impairments, the ALJ must then determine the claimant's RFC, which is the claimant's ability “to do physical and mental work activities on a sustained basis despite limitations from [his] impairments.”[11]

         Upon assessing the claimant's RFC, the ALJ moves on to steps four and five, which require the ALJ to determine whether the claimant can either perform his past relevant work or whether he can generally perform other work that exists in the national economy, respectively.[12]The claimant bears the burden in steps one through four to prove a disability that prevents performance of his past relevant work.[13] The burden then shifts to the Commissioner at step five to show that, despite his alleged impairments, the claimant can perform other work in the national economy.[14]

         III. Analysis

         Nerland contends that remand is necessary because the ALJ: (1) did not include in the RFC all of the limitations contained in the State agency opinions, to which he afforded substantial weight; (2) did not provide sufficient reasons for discounting the opinion of the treating psychologist; (3) did not weigh Nerland's VA disability rating; and (4) did not perform a proper credibility analysis. The Government counters that the mental limitations in the RFC assessment are consistent with the picture painted from the whole record and are supported by substantial evidence. The Government characterizes Nerland's numerous arguments as “focusing on a few trees and ignoring the forest.”[15]

         The Court will address each of Nerland's arguments in turn.

         A. Dr. Milne and Dr. Cottam

         Nerland first argues that the ALJ erred by affording “substantial weight” to the opinions of state agency psychologists Dr. Milne and Dr. Cottam, but choosing not to adopt all of the limitations set forth therein. Specifically, Nerland contends that the RFC assessment and the psychologists' opinions differ with regards to Nerland's “ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances.” Drs. Milne and Cottam both opined that Nerland was “moderately limited” in this category. Although the ALJ afforded “substantial weight” to these opinions, the ALJ did not include a corresponding limitation in the RFC assessment.

         In this case, Drs. Milne and Cottam both opined that Nerland was “moderately limited” with regards to his “ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances.” Dr. Milne based this limitation, in part, on his “findings of fact and analysis of evidence” (“FOFAE”). Under his FOFAE, Dr. Milne noted that Nerland had a history of “trying to get himself fired, ” skipping school and work, and missing some appointments, but he also noted that Nerland was “doing better at times with more structure in his life.” After noting that Nerland's past relevant work qualified as “skilled, ” he acknowledged that the job duties required of skilled work exceed Nerland's Mental RFC. But Dr. Milne concluded that Nerland's condition is not severe enough to keep him from performing unskilled work.

         Dr. Cottam's FOFAE did not provide a narrative regarding Nerland's ability to adhere to a schedule, maintain attendance, and be punctual. Dr. Cottam simply concluded that Nerland was “moderately limited” in this area. However, under a later category-ability to complete a normal workday and workweek without interruptions-Dr. Cottam did provide a narrative regarding Nerland's moderate limitations. In the narrative, Dr. Cottam wrote that Nerland “has missed some days at work-and would need some accommodations/flexibility.” In assessing the RFC, the ALJ seemingly dismissed Dr. Cottam's recommendation, writing that it “is not specific and is simply just a comment.” The ALJ then reiterated that the evidence “supports the specific opinions of the State agency psychological consultants regarding the claimant's mental functional capabilities and limitations.”

         Here, the ALJ committed reversible error by rejecting the limitations that Drs. Milne and Cottam included in their Mental RFCs without providing an explanation. SSR 96-8p specifically provides that “[t]he RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted.”[16] And an ALJ may not accept some moderate limitations in a Mental RFC form but reject the other limitations without discussion.[17]

         However, the ALJ did exactly that. The ALJ's RFC determination reflected restrictions consistent with some of the moderate limitations identified on the Mental RFCs, but not with all of them. The ALJ considered the moderate limitations in Nerland's ability to interact with coworkers and the public, adapt to changes in the workplace, and to accept supervision. He did not, however, consider the opinions of Drs. Milne and Cottam that Nerland had moderate limitations in his ability to adhere to a schedule, maintain regular attendance, and be punctual. The ALJ's error in this regard is especially significant considering the unanimous agreement that Nerland was limited in his ability to adhere to a schedule, maintain regular attendance, and be punctual.[18] In addition to Drs. Milne and Cottam, PA Rose and Dr. Bockoven also concluded that Nerland was limited in the ability to adhere to a schedule, maintain regular attendance, and be punctual.

         The Commissioner argues that the ALJ adequately explained why he did not incorporate into the RFC Dr. Cottam's statement that “[Nerland] has missed some days at work-and would need some accommodations/flexibility.” To make its point, the Commissioner asks the Court to draw a number of “inferences” from the record. The Court declines to do so, [19] especially when the ALJ unambiguously provided a reason: Dr. Cottam's opinion that Nerland needs some accommodations because of his attendance “is not specific and is simply just a comment.” Unfortunately for the Commissioner, the ALJ's explanation was wholly inadequate, because the ALJ was required to explain why he was rejecting the psychologists' conclusion regarding Nerland's limitation. The ALJ merely explained why he was rejecting Dr. Cottam's opinion that Nerland's job would need to provide ...

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