United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. Lungstrum, United States District Judge
seeks review of a decision of the Acting Commissioner of
Social Security (hereinafter Commissioner) denying Disability
Insurance benefits (DIB) 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 Administrative
Law Judge's (ALJ) decision, the court ORDERS that
judgment shall be entered pursuant to the fourth sentence of
42 U.S.C. § 405(g) AFFIRMING that decision.
case comes before the court on Plaintiff's Complaint
seeking judicial review of a decision of the Commissioner
made after a previous remand by a court in this district.
Umbenhower v. Colvin, Case No. 13-1398-SAC, slip
op. (D. Kan. March 31, 2015) (R. 909-23).
Plaintiff's Social Security Brief claims six errors in
the ALJ's assessment of Plaintiff's residual
functional capacity (RFC). He claims that the ALJ violated
the court's order remanding this case, erroneously
determined that ulnar neuropathy is not a medically
determinable impairment in the circumstances of this case,
failed to list PTSD (PostTraumatic Stress Disorder) as a
severe impairment, stated that he included environmental
limitations to accommodate Plaintiff's hearing loss but
failed to demonstrate that the additional limitations
accommodate the hearing loss, erred in his credibility
determination in numerous respects, and erred in assessing
limitations resulting from Plaintiff's mental
impairments. (Pl. Br. 5-46). Also before the court is
Plaintiff's motion to remand pursuant to sentence six of
42 U.S.C. § 405(g).
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 relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971);
see also, Wall, 561 F.3d at 1052;
Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir.
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.
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
he has a severe impairment(s), and whether the severity of
his 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),
416.920(e). This assessment is used at both step four and
step five of the sequential evaluation process. Id.
Commissioner next evaluates steps four and five of the
sequential process--determining whether, in light of the RFC
assessed, claimant can perform his 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).
court addresses each of Plaintiff arguments in the order
presented and finds no error in the decision at issue and no
basis under sentence six for remand in this case.
Violation of the Court's Remand Order
points out that the district court in the earlier case found
error in the ALJ's failure in her RFC findings and in her
hypothetical questioning of the vocational expert to
adequately account for Plaintiff's deficits in
concentration, persistence, and pace. He argues that the ALJ
in this case repeated that error in the decision after remand
and thereby violated the court's remand order. The
Commissioner argues that the ALJ “reasonably complied
with the Court's [sic] remand order, ” and
subsequent case law clarifies how state agency
consultants' opinions regarding mental capabilities are
to be considered. (Comm'r Br. 5-6). She argues that not
all limitations listed in Section I of the agency's
Mental Residual Functional Capacity (MRFC) Assessment form
must be listed in an ALJ's RFC assessment, but that
Section III of the form explains the agency doctor's
opinion and that an ALJ's MRFC assessment is sufficient
if his decision explains how he accounted for the mental
limitations opined. Id. at 7. In his Reply Brief
Plaintiff argues that in the step three analysis the ALJ
found Plaintiff has moderate limitations in social
functioning and moderate difficulties with concentration,
persistence, or pace as did the state agency psychologists
whose opinions the ALJ accorded great weight. He argues that
the limitations in the ALJ's mental RFC assessment are
contrary to the moderate limitations found by him and the
agency psychologists at step three and violate the
court's remand order because the ALJ “did not
address the Section I moderate limitations at all that he had
been instructed to address.” (Reply 4).
court does not agree. In its remand order the court held that
the ALJ's mental RFC assessment “that plaintiff
[sic] can only perform simple, routine and repetitive tasks
fails to sufficiently relate, incorporate or accommodate the
opinion[s]” of Dr. Bergmann-Harms and of Dr. Barnett
and the ALJ's findings that Plaintiff has some difficulty
in sustaining focus, attention, and concentration
sufficiently long to complete tasks in a work setting. (R.
920). It therefore remanded the case “in order for the
ALJ to include plaintiff's [sic] limitations in attention
and concentration in her RFC findings and in the hypothetical
question to the VE [(vocational expert)], ”
id., and “for further proceedings consistent
with” the court's order. (R. 923).
did that. In the first paragraph of his decision, he
recognized that “[t]he District court remanded the case
in order for the Administrative Law Judge to include the
claimant's limitations in attention and concentration in
the residual functional capacity findings and in the
hypothetical question to the vocational expert.” (R.
772) (citing Ex. B12A/13 (R. 920)). Whereas the former ALJ
found that Plaintiff “has some difficulty in
sustaining focus, attention and concentration sufficiently
long enough to permit the timely and appropriate completion
of tasks commonly found in work settings” (R. 17)
(emphasis added), the ALJ whose decision is before this court
found that “the evidence in the record shows that the
claimant is capable of sustaining focus, attention
and concentration sufficiently long enough to permit the
timely and appropriate completion of simple, routine,
repetitive tasks commonly found in work settings.” (R.
777) (emphasis added).
mental RFC assessment also contained more depth and
Mentally, the claimant is able to understand, carry out and
remember only simple, routine, repetitive tasks involving
only simple, work related decisions, with few, if any,
workplace changes. The claimant should have no interaction
with the public. He can be around coworkers throughout the
day, but with only brief, incidental interaction with those
coworkers and no tandem job tasks that would require
cooperation with another coworker. He is limited to work with
no production rate or pace work, and work with no, or
limited, work in close proximity to others to minimize
the exception of the last sentence quoted above, the mental
limitations in the ALJ's second hypothetical at the
hearing were identical in every material respect to the
mental limitations in the RFC he assessed in the decision.
(R. 832-33). Thereafter, the ALJ provided a final
hypothetical to the VE in which he added to the second
hypothetical limitations to “work with no production
rate or pace work and work with no or limited work in close
proximity to others in order to minimize distractions.”
(R. 834). In response to that hypothetical, the VE testified
that such a hypothetical individual would be able to perform
the three representative jobs upon which the ALJ relied to
find a significant number of jobs in the economy that
Plaintiff can perform. (R. 835-36); see also (R.
787) (cleaner/housekeeper, folding machine operator, routing
the ALJ provided a detailed explanation how he evaluated the
state agency psychologists', and the psychological
consultant's (Dr. Barnett's) opinions:
Although the claimant's alleged psychiatric symptoms are
not entirely credible, I have considered his mental
impairments in the residual functional capacity assessment.
However, the record fails to show, by the preponderance of
the evidence, that the claimant's mental impairments
would cause disabling functional limitations. I have
accommodated the claimant's moderate difficulties in
social functioning by limiting the claimant to jobs that do
not require any interaction with public, and involve only
brief, incidental interaction with coworkers and no tandem
job tasks that would require cooperation with another
coworker. I have further reduced the claimant's mental
residual functional capacity, secondary to his moderate
difficulties in concentration, persistence or pace, by
finding that he is able to understand, remember and carry out
only simple, routine, repetitive tasks involving only simple,
work related decisions, with few, if any, workplace changes.
Additionally, I have limited the claimant to work with no
production rate or pace work, and work with no, or limited,
work in close proximity to others to minimize distractions.
In making this finding, I have given great weight to the
opinions of the State agency psychologists (Ex. B9A; B11A;
B16F; Bl 7F; B25F; B26F). These opinions are supported by the
findings and opinions of Dr. Barnett, which are given great
weight as well (Ex. B10F). Dr. Barnett noted that the
claimant had difficulty with both attention and concentration
during the interview, but nevertheless appeared cognitively
capable of simple, repetitive work tasks. As noted above, the
various inconsistencies throughout the record, and the
observations of the investigators during the cooperative
disability investigation, cast serious doubt on the veracity
of the claimant's subjective reports regarding his
symptoms. These opinions are not inconsistent with the
results of the prior neuropsychological examination (Ex.
B4F). Per the District Court's order, I note that State
psychologist's moderate restrictions in the
“paragraph B” criteria are not the findings to
which I give great weight, but rather I give more weight to
the consultants' final analyses and opinions that the
claimant has the capacity for simple, repetitive tasks with
limited social contact. However, I have also added
limitations to no production rate or pace work, and no, or
limited, work in close proximity to others, in order to
further minimize the claimant's exposure to potential
distractions in the workplace. Likewise, I emphasize that
these limitations in the residual functional capacity
specifically reflect the manifestation of the claimant's
“difficulty with both attention and concentration,
” as noted by Dr. Barnett.
did not violate the court's remand order. As noted above,
the decision before this court is not the same as the prior
decision in its assessment of mental limitations. Contrary to
Plaintiff's argument, the mental RFC assessment in the
decision at issue was far more specific, detailed, and
nuanced than a limitation “to simple, routine,
repetitive and unskilled tasks.” (Pl. Br. 7). Moreover,
Plaintiff's argument (that the finding that Plaintiff is
able be around coworkers throughout the day is inconsistent
with the finding that he must have no, or limited, work in
close proximity to others in order to minimize distraction)
ignores the totality of the ALJ's finding that Plaintiff
“can be around coworkers throughout the clay, but
with only brief, incidental interaction with those
coworkers and no tandem job tasks that would require
cooperation with another coworker. He is limited to work
with no production rate or pace work, and work with no, or
limited, work in close proximity to others to
minimize distractions.” (R. 778) (emphases added).
next argues that the ALJ erred in finding that ulnar
neuropathy is not a medically determinable impairment in the
circumstances of this case. (Pl. Br. 10-12). He points to the
opinion of state agency medical consultant, Dr. Tawadros,
that plaintiff is limited to occasional feeling with his
hands “possible [sic] due to ulnar neuropathy”
(R. 453), and to her statement that mild bilateral ulnar
neuropathy is a medically determinable impairment
“according to the NCT [(nerve conduction test)] ¶
3/06/07.” (R. 457). Plaintiff cites to a statement made
by another state agency medical consultant, Dr. Siemsen, that
“EMG [(electromyogram)] study prior file indicates
mildly slowed ulnar nerve conduction across elbows.”
(R. 467). Plaintiff also quotes from an ALJ decision dated 18
September, 2009, “A nerve conduction study/EMG of
claimant's upper extremities was taken in March 2007. The
impression was of mild bilateral ulnar neuropathy at the
elbows without axonotmesis.” (Pl. Br. 11) (quoting R.
85). Based upon this evidence, Plaintiff argues that the
ALJ's statement that the record does not contain a
specific diagnosis of ulnar neuropathy is “demonstrably
false.” Id. He concludes that the
“failure to include ulnar neuropathy limitations in the
RFC render [sic] the ALJ's determination without the
support of substantial evidence.” Id. at 12.
Commissioner argues that the ALJ reasonably considered the
evidence of ulnar neuropathy. She argues that the ALJ
correctly found no objective evidence of ulnar neuropathy in
the record. (Comm'r Br. 16). The Commissioner
acknowledges Dr. Tawadros's finding that ulnar neuropathy
is shown to be a medically determinable impairment according
to the March 6, 2007 NCT. Id. at 16. But, she also
points out Dr. Tawadros stated that the NCT evaluation on
March 6, 2007 “did not indicate any evidence of
neuropathy.” Id. at 17 (quoting R. 457).
Reply Brief, Plaintiff argues that Dr. Tawadros's finding
no evidence of neuropathy on March 6, 2007 was referring to
neuropathy of the cervical spine, not of the ulnar nerve.
(Reply 11). He argues that there was a difference of opinion
between Dr. Siemsen and Dr. Tawadros regarding limitations in
Plaintiff's hands, and that the Commissioner's
reliance on an NCT of the cervical spine does not constitute
sufficient evidence to prefer Dr. Siemsen's opinion over
that of Dr. Tawadros. Id. at 11-12.
resolution of this issue is much more straightforward than
either party suggests. The ALJ found that “the record
does not contain a specific diagnosis for ulnar
neuropathy” (R. 775) (emphasis added) and he is
correct. All of the evidence cited by Plaintiff tends to
suggest a diagnosis of ulnar neuropathy at some time
in the past, but there is no record evidence containing a
specific diagnosis during the period at issue here. Plaintiff
appeals to an NCT from March 6, 2007 to show that ulnar
neuropathy is a medically determinable impairment here, but
that report is from a time outside the period at issue here
and is not included in the administrative record. Although
Plaintiff argues based upon that report and implies
error because “the agency did not included [sic] it in
the present record” (Pl. Br. 11), he does not
specifically argue such an error or seek to have the report
included in the record.
Plaintiff's quote from a prior decision dated September
18, 2009 is unavailing, because here the ALJ found that
decision (which determined that Plaintiff was not disabled or
entitled to DIB or SSI benefits through the date of that
decision (R. 91)) is administratively final. (R. 772). He
applied the principal of res judicata and determined
the period at issue in this case began on September 19, 2009.
Id. Plaintiff does not argue error in that
determination or seek to reopen that decision.
long been the rule in the Tenth Circuit that the court may
not consider evidence outside the administrative record in
making its review of a Social Security Administration
decision. Ohler v. Sec'y of H.E.W., 593 F.2d
501, 505 (10th Cir. 1978). The case at issue illustrates one
reason for that rule. Evidence in this record
suggests that the 2007 NCT found ulnar neuropathy to
be a medically determinable impairment of Plaintiff at that
time. But, that evidence is, at best, equivocal. The
September 18, 2009 decision states that “mild bilateral
ulnar neuropathy” was the “impression”
given on the March 2007 NCT report, but it does not reveal
that such a diagnosis was made. (R. 85). It noted
that the physician told Plaintiff that he should follow up if
he noticed worsening, but Plaintiff never followed up before
the 2009 decision and there were “no further upper
extremity complaints for which a physician of record has
suggested other form of treatment, including surgical
intervention.” Id. It noted that Plaintiff
later saw his primary physician who reviewed the report of
the NCT, and provided his own “impression” of
“cervical strain with radicular symptoms.”
Id. None of this constitutes a diagnosis or requires
finding that ulnar neuropathy is a medically determinable
impairment at the present time.
report in this case, Dr. Siemsen apparently had access to the
NCT report and noted, “EMG study prior file indicates
mildly slow ulnar nerve conduction across elbows.” (R.
467). Once again, this statement does not contain a diagnosis
of ulnar neuropathy, and tends to confirm the equivocal
nature of the prior record. As Plaintiff argues, Dr. Tawadros
reviewed the report of the NCT and found Plaintiff's
feeling ability limited “possible [sic] due to ulnar
neuropathy.” (R. 453). Later, Dr. Tawadros provided
additional explanation of her opinion. Id. at 457.
She found a medically determinable impairment (MDI) of
degenerative disc disease of the cervical spine according to
an MRI in December 2006. Id. She then stated that an
“EMG & NCT evaluation in 03/06/07 did not indicate
any evidence of neuropathy.” Id. In the very
next sentence, Dr. Tawadros stated, “MDI is established
for mild bilateral ulnar neuropathy at the elbows according
to the NCT in 03/06/07.” Id. To be sure Dr.
Tawadros's report might be read to understand the March
6, 2007 NCT as indicating both no neuropathy of the
cervical spine and mild ulnar neuropathy, but it
does not require that understanding. Again, this evidence
does not require a finding that ulnar neuropathy is a
medically determinable impairment during the period at issue
in this case.
noted, the 2009 decision and the medical consultants'
reports refer to the report of the March 2007 NCT testing,
but they are equivocal and do not definitively establish what
is the substance of the report--which is not in the record.
Therefore the ALJ did, and this court must, consider only the
evidence which is in the administrative record in this case.
The ALJ relied on an EMG in the record dated March 15, 2012
(Ex. B34F/39-41 (R. 688-91)) which showed no evidence of
neuropathy or radiculopathy, and found that the record
evidence “does not establish a medically determinable
impairment [of] bilateral ulnar neuropathy.” (R. 775).
The ALJ also stated that he did “not adopt Dr.
Tawadros's finding that the claimant can only
occasionally feel with the hands, as the MRIs and EMG testing
have not revealed any evidence of neuropathy or radiculopathy
to support this limitation.” (R. 783). All of
Plaintiff's contrary assertions notwithstanding, the
record evidence supports both of the ALJ's findings.
PTSD and Hearing Loss
acknowledges that the ALJ found that his PTSD does not meet
or medically equal Listing 12.06 for anxiety at step three,
but argues error because the ALJ did not include PTSD as a
“severe” impairment at step two, and
“suggests” error because the ALJ did not
specifically discuss PTSD in his RFC assessment. (Pl. Br.
11). He acknowledges that the ALJ recognized Plaintiff's
hearing loss and stated that he had accounted for that
hearing loss by adding additional environmental limitations.
Id. at 12 (citing R. 780). But, he argues that
“the ALJ's ‘additional environmental
limitations' are not shown to accommodate this
Commissioner points out that PTSD is an “anxiety
related disorder” under Listing 12.06, and that both
the ALJ and Dr. Wilkinson, the state agency psychological
consultant upon whom the ALJ relied, considered PTSD in
assessing RFC. (Comm'r. Br. 15). She points out that the
ALJ also considered Plaintiff's hearing impairment, and
argues that Plaintiff “has offered absolutely no