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Lee M. v. Saul

United States District Court, D. Kansas

July 15, 2019


v.
ANDREW M. SAUL, [2]Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          John W. Lungstrum United States District Judge.

         Plaintiff 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.

         I. Background

         Plaintiff 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 jobs.

         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 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).

         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'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).

         The 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.

         The 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).

         The court considers the issues in the order they are reached when applying the sequential evaluation process.

         II. Step Two - Impairments That Are Not Severe

         Plaintiff 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).

         The 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. Id.

         In his 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).

         A. Standard for Evaluating "Not Severe" Impairments

         An 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).

         B. Analysis

         Plaintiffs 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 4).

         While 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.

         III. RFC Assessment

         A. Duty to Develop the Record

         Plaintiff 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);[3] Baker v. Barnhart, 84 Fed.Appx. 10, 14 (10th Cir. 2003)).

         The 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.

         Plaintiff 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 § 404.1454(a)(3)).

As Plaintiff suggests, the ALJ has a duty to develop the record:
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.

         Central 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. 29-30).

         While 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).

         Plaintiff 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.

         As this 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 consultative examination.

         This is 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 ...

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