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ALJ Assessment Must be Based on Material Evidence

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Following is an argument I made in a federal district court case I won: "The Administrative Law Judge's (ALJ) Residual Functional Capacity Assessment Was Not Based on Material Evidence." Put in the simplest terms, the ALJ’s residual functional capacity assessment was not based on any medical opinion in the record. 

ALJ rejected all medical opinions

In fact, the ALJ systematically rejected all of the medical opinions in the record regarding the claimant's ability to perform work and prescribed his own set of limitations, based largely on the claimant's testimony.  However, he rejected the parts of the claimant's testimony relating to mental limitations and his need to walk around for 15 minutes every hour.   In rejecting both the claimant's account of mental limitations and the medical evidence supporting those claims, the ALJ resorted to simply referring back to the claimant’s testimony that he could perform his past positions.  The ALJ did not discuss the reasons the claimant was removed from both of those positions.  Instead, he found the claimant’s statement that he was capable of performing work, which was specially crafted to accommodate his limitations and from which he was terminated, dispositive on the issue of disability.

Physician's call, not the ALJ

While “there is no requirement in the regulations for a direct correspondence between an [residual functional capacity] finding and a specific medical opinion on the [residual] functional capacity in question (T]he ALJ, not a physician, is charged with determining a claimant's RFC from the medical record.)  Chapo v. Astrue, 682 F.3d 1285 (10th Cir. 2012); in the present case, the ALJ dismissed all of the available medical opinions and formulated a residual functional capacity assessment based on part of the claimant’s testimony.  Moreover, most of the claimant’s testimony regarding his abilities was consistent with his doctor’s residual functional capacity assessment.  The ALJ, in finding that the claimant could work, rejected the one limitation, the need for 15 minute walking breaks every hour, that would have likely precluded all work in the national economy.  “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)

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About the AuthorJoe Whitcomb

Joe Whitcomb is the founder and president of Whitcomb, Selinsky, PC (WSM). In addition, he manages the firm and heads up the Government Procurement and International Business Transactions Law sections. As a result of his military service as a U.S. Army Ranger and as a non-commissioned officer in the Air Force, he learned mission accomplishment. While serving in the Air Force, he earned his Bachelor’s in Social Sciences and a Master’s in International Relations. His Master’s emphasis was on National Security and International Political Economics. After his military career, Joe attended law school at the University of Denver Sturm College of Law.

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