Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Umbenhower v. Berryhill

United States District Court, D. Kansas

August 14, 2017

TIMOTHY UMBENHOWER, Plaintiff,
v.
NANCY A. BERRYHILL, [1]Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          John W. Lungstrum, United States District Judge

         Plaintiff 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.

         I. Background

         This 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).[2] Also before the court is Plaintiff's motion to remand pursuant to sentence six of 42 U.S.C. § 405(g).

         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 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. 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 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.

         The 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).

         The 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.

         II. Violation of the Court's Remand Order

         Plaintiff 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).

         The 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).

         The ALJ 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).

         His mental RFC assessment also contained more depth and explanation:

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 distractions.

(R. 778).

         With 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 clerk).

         Finally, 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.

(R. 784-85).

         The ALJ 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).

         III. Ulnar Neuropathy

         Plaintiff 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.

         The 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).

         In his 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.

         The 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.

         Moreover, 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.

         It has 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.

         In his 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.

         As 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.

         IV. PTSD and Hearing Loss

         Plaintiff 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 impairment.” Id.

         The 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 support ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.