United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. Lungstrum United States District Judge.
seeks review of a decision of the Commissioner of Social
Security denying Disability Insurance Benefits (DIB) pursuant
to sections 216(i) and 223 of the Social Security Act. 42
U.S.C. §§ 416(i) and 423 (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 the Commissioner's final decision.
argues that the ALJ erroneously failed to address or consider
limitations related to Plaintiffs impairments which the ALJ
found not severe within the meaning of the Act and
regulations at step two of the sequential evaluation process;
failed properly to assess Plaintiff's residual functional
capacity (RFC) in numerous ways, including failing his duty
to develop the record and obtain a medical opinion regarding
Plaintiff's physical RFC, failing adequately to account
in the RFC assessed for the moderate mental limitations he
found Plaintiff has both in the broad mental functional area
of interacting with others and in the area of concentrating,
persisting, or maintaining pace, erroneously evaluating
Plaintiff's allegations of symptoms resulting from his
impairments, and erroneously weighing the medical opinions of
treating mental health professionals; and failed to sustain
the Commissioner's burden at step five of the sequential
evaluation process by failing to resolve the apparent
conflict between the Dictionary of Occupational
Titles (DOT) information regarding the representative
jobs allegedly available to an individual such as Plaintiff
and the vocational expert's testimony regarding those
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 injudicial 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" refers
to the weight of the evidence. 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; Gossert v.
Bowen, 862 F.2d 802, 804 (10th Cir. 1988).
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'v of Health & Human Servs.,
933 F.2d 799, 800 (10th Cir. 1991)); accord,
Hackert v. Barnhart, 395 F.3d 1168, 1172 (10th Cir.
2005); see also. Bowling v. Shalala, 36F.3d
431, 434 (5th Cir. 1994) (The court "may not reweigh the
evidence in the record, nor try the issues de novo,
nor substitute [the Court's] judgment for the
[Commissioner's], even if the evidence preponderates
against the [Commissioner's] decision.") (quoting
Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir.
1988)). Nonetheless, the determination whether substantial
evidence supports the Commissioner's decision is not a
quantitative exercise, for evidence is not substantial if it
is overwhelmed by other evidence or if it constitutes mere
conclusion. Gossert, 862 F.2d at 804-05; Ray v.
Bowen, 865 F.2d 222, 224 (10th Cir. 1989).
Commissioner uses the familiar five-step sequential process
to evaluate a claim for disability. 20 C.F.R. §
404.1520; 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). 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
process-determining at step four whether, considering 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, he 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 previously assessed. Id. Haddock v.
Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).
court considers the issues in the order they are reached when
applying the sequential evaluation process.
Step Two - Impairments That Are Not Severe
argues, "The ALJ ... did not address or consider any
limitations related to [Plaintiffs 'not severe']
impairments after finding them to be
'no[t]-severe.'" (Pl. Br. 30). He quotes
Soc. Sec. Ruling (SSR) 96-8p, "In assessing
RFC, the adjudicator must consider limitations and
restrictions imposed by all of an individual's
impairments, even those that are not 'severe.' While
a 'not severe' impairments) standing alone may not
significantly limit an individual's ability to do basic
work activities, it may-when considered with limitations or
restrictions due to other impairments-be critical to the
outcome of a claim." (Pl. Br. 30-31).
Commissioner argues two points. The ALJ stated he considered
"Plaintiffs 'medically determinable impairments'
and his 'medical impairments' in evaluating" his
RFC, and the court, as is the usual practice, should take him
at his word. (Comm'r Br. 7) (quoting R. 843). And,
Plaintiff has not only failed to show that the ALJ did not
consider all his impairments but does not point to any
functional limitation resulting from his "not
severe" impairments which were not assessed by the ALJ.
Reply Brief, Plaintiff argues, "Defendant references
boilerplate language found in every decision, and, the
reference is to the ALJ's credibility determination - not
the RFC. In fact, the ALJ pointedly and specifically
discusses only the 'severe' physical impairments in
assessing the RFC." (Reply 4) (citing R. 843-844).
Standard for Evaluating "Not Severe"
impairment is not considered severe if it does not
significantly limit a claimant's ability to do basic work
activities such as walking, standing, sitting, carrying,
understanding simple instructions, responding appropriately
to usual work situations, and dealing with changes in a
routine work setting. 20 C.F.R. § 404.1522. The Tenth
Circuit has interpreted the regulations and determined that
to establish a "severe" impairment or combination
of impairments at step two of the sequential evaluation
process, Plaintiff must make only a "de
minimis" showing. Hinkle v. Apfel, 132
F.3d 1349, 1352 (10th Cir. 1997). Plaintiff need only show
that an impairment would have more than a minimal effect on
his ability to do basic work activities. Williams,
844 F.2d at 751. However, he must show more than the mere
presence of a condition or ailment. Hinkle, 132 F.3d
at 1352 (citing Bowen v. Yuckert, 482 U.S. 137, 153
(1987)). Under the regulations, the Social Security
Administration (SSA) will consider the combined effect of a
claimant's impairments "without regard to whether
any such impairment, if considered separately, would be of
sufficient severity" to establish disability. 20 C.F.R.
§ 404.1523(c); see also 20 C.F.R. §
404.1545(a)(2), SSR 96-8p, West's Soc. Sec. Reporting
Serv., Rulings 147 (Supp. 2018).
argument conflates the regulatory requirement that an ALJ
consider all impairments when assessing RFC with a
non-existent requirement to discuss "not
severe" impairments when assessing RFC. The ALJ noted
the requirement that in assessing RFC he must "consider
all of the claimant's impairments, including impairments
that are not severe." (R 837, citing 20 C.F.R.
§§ 404.1520(e) and 404.1545; SSR 96-8p). He stated
that he made his RFC assessment "[a]fter careful
consideration of the entire record," Id. at
842, and as Plaintiff acknowledges, in summarizing his
analysis of Plaintiff s allegations of symptoms he based that
analysis on "claimant's medically determinable
impairments," and found that the "facts in the
record show that the claimant's medical impairments
caused some difficulties, but suggest that the claimant's
symptoms were not disabling prior to the date last
insured." Id. at 843 see also (Reply
Plaintiff is correct that the ALJ did not discuss
which RFC limitations relate to each of Plaintiff's
"not severe" impairments, the ALJ recognized his
duty to consider all of the "not severe"
impairments and specifically stated that he had considered
all the evidence and Plaintiffs medically determinable
impairments. As the Commissioner argues, the court's
general practice "is to take a lower tribunal at its
word when it declares that it has considered a matter."
Hackett 395 F.3d at 1173 (citing United States
v. Kelley, 359 F.3d 1302, 1304-05 (10th Cir. 2004), and
Andrews v. Deland, 943 F.2d 1162, 1170 (10th Cir.
1991). As in Hackett, the court sees no reason to
depart from that practice here, particularly since Plaintiff
cites to no record evidence of a functional limitation
resulting from a "not severe" impairment which was
not adequately accounted for in the RFC assessed.
Duty to Develop the Record
argues there are no medical opinions or medical evidence
stating functional limitations from his severe physical
impairments. (Pl. Br. 29). He argues, "The ALJ should
have fulfilled his duty to develop the record fully and
fairly and obtained some medical opinion as to
[Plaintiff]'s physical functional limitations." He
argues this is so because disability hearings are
non-adversarial, an ALJ must develop the arguments for and
against granting benefits and must make reasonable effort to
ensure the record contains sufficient evidence to assess RFC,
and an "ALJ is precluded from relying on his own
'medical expertise' in establishing the RFC."
Id. (citing Sims v. Apfel, 530 U.S. 103
(2000); Perales, 402 U.S. 389; Washington v.
Shalala, 37 F.3d 1437, 1442 (10th Cir. 1994);
Thompson v. Sullivan, 987 F.2d 1482, 1493 (10th Cir.
1993); Kemp v. Bowen, 816 F.2d 1469, 1476 (10th Cir
1987); Baker v. Barnhart, 84 Fed.Appx.
10, 14 (10th Cir. 2003)).
Commissioner implies, without citation to record evidence in
support, that Plaintiffs assertion that there is no medical
evidence stating functional limitations resulting from
Plaintiffs physical impairments is inaccurate. (Comm'r
Br. 6). He argues that an RFC assessment is an administrative
finding within the ALJ's duty and there is no requirement
for a direct correspondence between a medical opinion and the
RFC. Id. Finally, he argues that Plaintiff asserted
through his attorney at both hearings that the record was
complete, he did not request a consultative examination
regarding his physical functioning, and the court should not
remand in these circumstances. Id.
argues that the Commissioner ignored the case law cited in
Plaintiffs brief and his reliance on Chapo is
misplaced because that court was concerned about the
staleness of one medical opinion and ordered the ALJ to
obtain an updated medical opinion on remand whereas in the
record here, there is not even one medical opinion. (Reply
3). Quoting Whittle v. Colvin, No.
13-CV-0580-CVE-FHM, 2015 WL 630923, at *6 (N.D. Okla. Feb.
12, 2015), Plaintiff argues that an ALJ cannot simply invent
an RFC. (Reply 3). Plaintiff asserts that the
Commissioner's argument, that Plaintiff's attorney
confirmed at the hearing the record was complete, is an
improper post hoc argument and it relates to a new regulation
requiring a claimant to submit all evidence or notify the ALJ
of evidence requested but not received five days prior to the
hearing. (Reply 3). He reiterates his argument that Social
Security proceedings are not adversarial and argues that
"Defendant and/or the ALJ is responsible for arranging
for consultative examinations and for obtaining opinions from
treating sources." Id. (citing Sims,
530 U.S. 103; Perales, 402 U.S. 389; and 20 C.F.R
As Plaintiff suggests, the ALJ has a duty to develop the
The ALJ has a basic obligation in every social security case
to ensure that an adequate record is developed during the
disability hearing consistent with the issues raised. This is
true despite the presence of counsel, although the duty is
heightened when the claimant is unrepresented. The duty is
one of inquiry, ensuring that the ALJ is informed about facts
relevant to his decision and learns the claimant's own
version of those facts.
Henrie v. U.S. Dep't of Health & Human
Servs., 13 F.3d359, 360-61 (10th Cir. 1993) (citations,
quotations, and brackets omitted). The facts Plaintiff
alleges were missing but necessary were medical evidence and
a medical opinion regarding his physical
capabilities. However, the record contains medical
evidence regarding Plaintiffs physical impairments,
and the ALJ discussed that evidence. (R. 843-44). As the
Commissioner's brief suggests without specifically
citing, the record contains two medical opinions regarding
Plaintiffs physical abilities, one completed by Dr. Tawadros
on November 19, 2013 at the reconsideration level on
Plaintiffs first application (R. 187- 88), and the other by
Dr. Byrnes on September 19, 2017 at the reconsideration level
on the subsequent application. Id. at 961-62.
Although both physicians opined Plaintiffs physical
impairments are not severe and neither suggested physical
functional limitations, the ALJ considered the evidence and
found Plaintiff has physical impairments including severe
impairments of degenerative disc disease, degenerative joint
disease of the lumbar spine, and mild bilateral carpal tunnel
syndrome. (R. 838-39). He found that Plaintiffs physical
impairments, in part, limited him to light work and only
occasionally climbing stairs and ramps, and never climbing
ropes, ladders, or scaffolds; occasionally stooping,
kneeling, and crouching, but never crawling; occasionally
reaching overhead, frequently handling; and to avoid
concentrated exposure to extreme heat and cold, excessive
vibrations, hazardous machinery, and unprotected heights.
Id. at 842.
to Plaintiffs argument is that the ALJ should have ordered a
consultative examination and sought a current opinion
regarding Plaintiffs physical functional limitations. The
regulations effective when this case was decided require
"a consultative examination to try to resolve an
inconsistency in the evidence, or when the evidence as a
whole is insufficient to allow us to make a determination or
decision." 20 C.F.R. § 4O4.l5l9a(b) (2017)
(effective March 26, 2012). But Plaintiffs only argument in
this regard appears to be that (1) no doctor has provided
specific functional limitations, (2) no other medical
evidence specifically addresses Plaintiffs physical
functional limitations, and (3) an ALJ may not rely "on
his own 'medical expertise' in establishing the
RFC," therefore the evidence is insufficient to make a
decision and a medical examination is necessary. (Pl. Br.
each premise of Plaintiff s argument is correct, that does
not require the conclusion Plaintiff suggests. This is so
because there is no evidence the ALJ relied upon his own
"medical expertise" to assess the physical RFC in
this case. As the Commissioner suggests in his Brief,
"the ALJ, not a physician, is charged with determining a
claimant's RFC from the medical record." Howard
v. Barnhart, 379 F.3d 945, 949 (10th Cir. 2004).
"And the ALJ's RFC assessment is an administrative,
rather than a medical determination." McDonald v.
Astrue, 492 Fed.Appx. 875, 885 (10th Cir. 2012) (citing
SSR 96-05p, 1996 WL 374183, at *5 (July 1996)). Because RFC
assessment is made based on "all of the evidence in the
record, not only the medical evidence, [it is] well within
the province of the ALJ." Dixon v. Apfel, No.
98-5167, 1999 WL 651389, at **2 (10th Cir. Aug. 26, 1999); 20
C.F.R. § 404.1545(a). Moreover, the final responsibility
for determining RFC rests with the Commissioner, and in cases
before an ALJ he has assigned that responsibility to the ALJ.
20 C.F.R. § 404.1546(c).
attempts to discredit Howard by relying on an
unpublished opinion of the District Court for the Northern
District of Oklahoma. (Reply 3) (quoting Whittle,
2015 WL 630923, at *6). This court is aware of no
circumstance in this Circuit in which an unpublished decision
of a district court might be more persuasive than a (binding)
published decision of the Tenth Circuit. Moreover, Plaintiff
does not quote the first two sentences of the paragraph of
the Whittle opinion upon which he relies:
The Court acknowledges that "the ALJ, not a physician,
is charged with determining a claimant's RFC from the
medical record." Howard v. Barnhart, 379 F.3d
945, 949 (10th Cir. 2004). The Tenth Circuit has
"rejected [the] argument that there must be specific,
affirmative, medical evidence on the record as to each
requirement of an exertional work level before an ALJ can
determine RFC within that category." Id.
Whittle, 2015 WL 630923, at *6. To be sure, as the
Whittle court went on to note an "ALJ cannot
simply invent an RFC." Id. But, that is not
what happened here. Here, the ALJ performed his duty in
accordance with the regulations and SSR 96-8p. He considered
the evidence, medical and nonmedical, and assessed an RFC
based upon that evidence. More is not required.
court noted more than eight years ago, the narrative
discussion required by SSR 96-8p to be provided in an RFC
assessment does not require citation to a medical opinion, or
even to medical evidence in the administrative
record for each RFC limitation assessed. Castillo v.
Astrue, No. 10-1052, 2011 WL 13627, *11 (D. Kan. Jan. 4,
2011). "What is required is that the discussion describe
how the evidence supports the RFC conclusions, and cite
specific medical facts and nonmedical evidence supporting the
RFC assessment." Id. See also, Thongleuth
v. Astrue, No. 10-1101-JWL, 2011 WL 1303374, * 13 (D.
Kan. Apr. 4, 2011). There is no need in this case, or in any
other, for the Commissioner to base the limitations in his
RFC assessment upon specific statements in medical evidence
or medical opinions in the record. Therefore, in this case
the mere lack of a medical opinion suggesting specific
physical functional limitations or of other medical evidence
addressing specific physical functional limitations does not
make the evidence as a whole insufficient to allow the SSA to
make a decision and will not trigger a duty to order a
especially true since Plaintiff was represented by counsel
before the ALJ who did not even hint that a consultative
examination might be necessary:
In cases such as this one where the claimant was represented
by counsel, '"the ALJ should ordinarily be entitled
to rely on the claimant's counsel to structure and
present [the] claimant's case in a way that the
claimant's claims are adequately explored,' and the
ALJ 'may ordinarily require ...