Error in assessing residual functional capacity

ALJ Errors in Assessing Residual Functional Capacity (RFC)

Case Study-The Alj Applied The Wrong Legal Standard In Assessing RFC because he Failed to Consider Severe and Non-Severe Impairments

The following is an excerpt from a brief I submitted to the federal district court:

“The ALJ must evaluate the claimant’s physical and mental RFC.” Farrill v. Astrue, 11-7075, 2012 WL 2443711, 1 (10th Cir. 2012) (Citing Winfrey v. Chater, 92 F.3d 1017, at 1023 (10th Cir.1996)). In doing so, the ALJ must “consider the limiting effects of all [the claimant’s] impairment(s), even those that are not severe.” 20 C.F.R. § 416.945(e); see also Salazar v. Barnhart, 468 F.3d 615, 621 (10th Cir.2006) (“[A]n ALJ is required to consider all of the claimant’s medically determinable impairments, singly and in combination; the statute and regulations require nothing less” and a failure to do so “is reversible error”). Also, “An ALJ is not entitled to pick through an uncontradicted medical opinion, taking only the parts that are favorable to a finding of nondisability.” Confere v. Astrue, 235 F. App’x 701 (10th Cir. 2007)

In formulating this claimant’s RFC at step four of the sequential evaluation, the ALJ did not take into consideration all medically determinable impairments that were manifest in the record and their resultant work related limitations. One most notable example of this error is that the ALJ did not offer any reaching limitations despite an MRI in the record at the time of the writing of his decision that demonstrated significant degenerative changes to the claimant’s shoulder. In dealing with this evidence, the ALJ wrote simply that he believed the shoulder condition would improve significantly within twelve months of the claimant’s onset and was therefore not severe. The problem with this reasoning, besides the fact that the ALJ had no reason for believing there would be significant improvement, was that the evidence in question was dated more than twelve months after the claimant’s onset. Importantly, an MRI dated in March 2012, showed that the claimant’s shoulder had “very little normal rotator cuff tissue remaining.”

The ALJ residual functional capacity assessment also did not account for the cognitive slowing or memory problems reported throughout the record. As discussed above, the claimant’s treating doctor stated several times in the record that the claimant suffered from cognitive slowing secondary to her Topamax use, which she needed to control her migraine headaches and sudo-seizure activity.

Pursuant to 20 C.F.R. § 404.1512(e)(1), if the evidence received for a medically determinable impairment is inadequate, the ALJ must re-contact the treating source for additional evidence or clarification. Inadequacy of evidence “triggers the duty” of the ALJ to re- contact the treating physician. White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2001). If the evidence cannot be obtained through the medical source after “every reasonable effort,” the ALJ may ask the claimant to attend a consultative examination under 20 C.F.R. 404.1512(f). “Despite the Commissioner’s broad latitude in deciding when to order a consultative examination, the agency has a responsibility to order such an examination when the claimant meets her burden of showing ‘evidence sufficient to suggest a reasonable possibility that a severe impairment exists’ and the ALJ finds that ‘such an examination [would be] necessary or helpful to resolve the issue of impairment.’” Vigil v. Astrue, 803 F. Supp. 2d 1271, 1276 (D. Colo. 2011); quoting Hawkins v. Chater, 113 F.3d 1162, 1166–67 (10th Cir.1997).

Because of the high complexity of the claimant’s past relevant work, it is unlikely she would have been able to continue performing the work, given the extent of her short term memory and concentration difficulties. Also, as discussed above, all three of the claimant’s past jobs required frequent reaching, which would have likely been precluded by her well documented shoulder injury. Even if the ALJ had held that the start of the shoulder impairment was July 2010, the first time in the present record the claimant complained of shoulder pain, reaching limitations should have been included in the RFC offered to the VE. This would have left open the possibility of a partially favorable decision, assuming the reaching limitations would have eliminated the claimant’s past work. Moreover  the ALJ should have offered some hypothetical limitations to the VE regarding the claimant’s well documented slowed thinking and memory impairments. These limitations might also have served to eliminate her past work and could have resulted in a finding of “disabled.” Because the memory, cognitive, and reaching limitations might have precluded the performance of the claimant’s past work, these errors are not harmless and the case should be remanded to fix these deficiencies.

 

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Created by Joe Whitcomb, Esq.

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