United States District Court, D. Kansas
TODD K. M., Plaintiff,
ANDREW M. SAUL, Commissioner of Social Security, Defendant.
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.
claims the ALJ accorded some weight to the opinion Dr.
McNeley-Phelps expressed in the report of her consultative
examination, but erroneously failed to include the
limitations Dr. McNeley-Phelps opined regarding
Plaintiff's ability to respond to stress and to adapt to
changes in the workplace. (Pl. Br. 11).
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”
refers to the weight of the evidence. It requires more than a
scintilla, but 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).
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); see also, Bowling v. Shalala, 36
F.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
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; 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 assessed. Id.; Haddock v. Apfel,
196 F.3d 1084, 1088 (10th Cir. 1999).
notes that the ALJ afforded Dr. McNeley-Phelps's opinion
some weight and “added limitations with
public-interaction” to account for Dr.
McNeley-Phelps's opinion that Plaintiff's
“history of problematic interactions with supervisors,
and his uncooperativeness at times during the examination
would affect his ability to deal with co-workers and the
general-public.” (R. 18) (citing Ex. 7F) (quoted at Pl.
Br. 10). He argues that although the ALJ accounted for Dr.
McNeley-Phelps's opinion regarding social interaction he
did not asses any “limitations regarding adapting to
changes or responding to a work environment in the RFC”
to account for the psychologist's opinion that
Plaintiff's “ability to respond to stress and to
adapt to changes in the workplace is likely compromised as
well.” Id. at 11 (quoting R. 395). He argues
“the ALJ did not even acknowledge that his RFC
assessment conflicted with Dr. McNeley-Phelps's opinion,
” and remand is required. Id.
Commissioner argues that “the ALJ did account for
issues Plaintiff may have in dealing with stress or changes
in the workplace by limiting Plaintiff to only simple,
routine, and repetitive work, and reducing stressors by
limiting contact with others.” (Comm'r Br. 8)
(citing R. 14). He cites Smith v. Colvin, 821 F.3d
1264, 1269 (10th Cir. 2016) for the proposition that an ALJ
need not include Dr. McNeley-Phelps's opinion verbatim.
Id. He argues that Dr. McNeley-Phelps's opinion
did not offer concrete functional limitations because she
“did not state how compromised Plaintiff's
ability was to respond to stress or adapt to changes in the
workplace.” Id. (emphasis in original).
Commissioner cites a Ninth Circuit case for the proposition
that where a consultative examination report does not contain
specific restrictions an ALJ may translate the claimant's
condition “into the only concrete restrictions
available to him- [the state agency psychologist's]
recommended restriction[s]” and that fact does not
constitute a rejection of the consultative examiner's
opinion. Id. at 9 (quoting Stubbs-Danielson v.
Astrue, 539 F.3d 1169, 1173-74 (9th Cir. 2008)). He then
explains how the ALJ accorded significant weight to the
opinions of the state agency psychologists “but
provided greater restriction commensurate with Dr.
McNeley-Phelps's opinion by limiting Plaintiff to no
contact with the public and limiting him to only routine
work.” Id. at 9-10 (citing R. 17). He argues
that “both the ALJ's residual functional capacity
assessment and the jobs he ultimately found Plaintiff was
capable of accounted for any credible limitations Plaintiff
might have in his ability to adapt.” Id. at
10. He argues that “because the ALJ explicitly provided
Dr. McNeley-Phelps's opinion some weight and because the
reasons for that weight are ascertainable from the decision,
the ALJ's analysis of the opinion was sufficiently
specific.” Id. at 12 (citing Oceguera v.
Colvin, 658 Fed.Appx. 370, 374 (10th Cir. 2016);
Payton v. Astrue, 480 Fed.Appx. 465, 469 (10th Cir.
court generally agrees with Plaintiff's statement of the
legal standard applicable here.
The RFC assessment is based on all of the evidence of record
and is an administrative assessment. SSR 96-8p, 1996 WL
374184 (Soc. Sec. Admin July 2, 1996). It is the
Commissioner's final responsibility to determine the RFC.
20 C.F.R. § 404.1546. However, the ALJ's RFC must be
supported by the substantial evidence of record and the ALJ
must have applied the correct legal standards. Cowan v.
Astrue, 552 F.3d 1182, 1184-85 (10th Cir. 2008).
Further, Social Security Ruling 96-8p requires that the RFC
assessment “must include a narrative discussion
describing how the evidence supports each conclusion, citing
specific medical facts…and nonmedical evidence.”
1996 WL 374184, *7. When an ALJ fails to provide a narrative
discussion as required by SSR 96-8p, then the court will
conclude that the RFC conclusions are not supported by
substantial evidence. See Southard v. Barnhart, 72
Fed.Appx. 781, 784-785 (10th Cir. July 28, 2003). When the