KIRK v. COLVIN

Filing 22

ORDER on Complaint for Judicial Review - Substantial evidence does not support the ALJ's determination that Ms. Kirk is not disabled. The Commissioner's decision must therefore be REVERSED and REMANDED to the Social Security Administration for further proceedings consistent with this opinion. Signed by Judge Sarah Evans Barker on 3/5/2014. (JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ROBIN KIRK,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security,
Administration,
Defendant.

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Order on Complaint for Judicial Review
Plaintiff Robin Kirk applied on January 7, 2011, for Disability Insurance
Benefits (DIB) under Title II of the Social Security Act, alleging that she has been
disabled since October 1, 2010. An administrative law judge (“ALJ”) held a hearing
on May 30, 2012, at which Ms. Kirk appeared and testified. On June 12, 2012,
acting for the Commissioner of the Social Security Administration, the ALJ denied
Ms. Kirk’s claim, and found that she is not disabled. The Appeals Council denied
review of the ALJ’s decision on November 19, 2012, rendering the ALJ’s decision for
the Commissioner final. Ms. Kirk timely filed this civil action under 42 U.S.C. §
405(g) for review of the Commissioner’s decision.
Ms. Kirk contends that the ALJ erred by failing to give controlling weight to
the opinion of her treating physician and issued an opinion that was not supported
by substantial evidence. As addressed below, the court finds that the ALJ’s decision
to discount the opinion of the treating physician is not supported by substantial

evidence in the record. Accordingly, the Commissioner’s decision is REVERSED
AND REMANDED.
Standard for Proving Disability
To prove disability, a claimant must show that she is unable to “engage in
any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than twelve months.” 42
U.S.C. § 423(d)(1)(A) (DIB benefits). Ms. Kirk is disabled if her impairments are of
such severity that she is not able to perform the work she previously engaged in
and, if based on her age, education, and work experience, she cannot engage in any
other kind of substantial gainful work that exists in significant numbers in the
national economy. 42 U.S.C. § 423(d)(2)(A). The Social Security Administration
(“SSA”) has implemented these statutory standards by, in part, prescribing a fivestep sequential evaluation process for determining disability. 20 C.F.R. § 404.1520.
Step one asks if the claimant is currently engaged in substantial gainful
activity; if she is, then she is not disabled, despite her current medical condition.
Step two asks whether the claimant’s impairments, singly or in combination, are
severe; if they are not, then she is not disabled. A severe impairment is one that
“significantly limits [a claimant’s] physical or mental ability to do basic work
activities.” 20 C.F.R. § 404.1520(c). The third step is an analysis of whether the
claimant’s impairments, either singly or in combination, meet or medically equal

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any impairment that appears in the Listing of Impairments, 20 C.F.R. Part 404,
Subpart P, Appendix 1.
If the claimant’s impairments do not satisfy a listing, then her residual
functional capacity (RFC) is determined for purposes of steps four and five. RFC is
a claimant’s ability to do work on a regular and continuing basis despite her
impairment-related physical and mental limitations. 20 C.F.R. § 404.1545. At the
fourth step, if the claimant has the RFC to perform her past relevant work, then she
is not disabled. The fifth step asks whether there is work in the relevant economy
that the claimant can perform, based on her age, work experience, education, and
RFC; if so, then she is not disabled.
The individual claiming disability bears the burden of proof at steps one
through four. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). If the claimant meets
that burden, then the Commissioner has the burden at step five to show that work
exists in significant numbers in the national economy that the claimant can
perform, given her age, education, work experience, and functional capacity. 20
C.F.R. § 404.1560(c)(2); Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004).
Standard for Review of the ALJ’s Decision
Judicial review of the Commissioner’s (or ALJ’s) factual findings is narrow
and deferential. They must be upheld “so long as substantial evidence supports
them and no error of law occurred.” Dixon v. Massanari, 270 F.3d 1171, 1176 (7th
Cir. 2001). Substantial evidence means evidence that a reasonable person would
accept as adequate to support a conclusion. Id. The standard demands more than a

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scintilla of evidentiary support, but does not demand a preponderance of the
evidence. Wood v. Thompson, 246 F.3d 1026, 1029 (7th Cir. 2001). The court will
“conduct a critical review of the evidence,” considering both the evidence that
supports, as well as the evidence that detracts from, the Commissioner's decision,
and “the decision cannot stand if it lacks evidentiary support or an adequate
discussion of the issues.” Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003). The
ALJ “need not evaluate in writing every piece of testimony and evidence submitted,”
Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir. 1993), but the ALJ must consider
“all the relevant evidence.” Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994). The
ALJ is required to articulate a minimal, but legitimate, justification for his decision
to accept or reject specific evidence of a disability. Scheck v. Barnhart, 357 F.3d
697, 700 (7th Cir. 2004). In addition, he must “build an accurate and logical bridge
from the evidence to [his] conclusion.” Dixon, 270 F.3d at 1176.
Analysis
Ms. Kirk’s treating physician, Dr. Robert C. Cater, provided an opinion
regarding Ms. Kirk’s functional capacity that, if credited and given controlling
weight, dictated a finding that Ms. Kirk was disabled – at least as of the date of Dr.
Cater’s opinion. The ALJ rejected Dr. Cater’s opinion on the ground that it was not
supported by the medical evidence. Ms. Kirk contends that the ALJ’s explanation
regarding the lack of medical support for Dr. Cater’s opinion is itself not supported
by substantial medical evidence. To address Ms. Kirk’s assertions, the court will
first summarize the medical evidence relied on by the ALJ.

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A.

The ALJ’s Sequential Findings
Ms. Kirk was born in 1959 and was 51 years old as of the alleged onset of her

disability in 2010. She had dropped out of high school after the eleventh grade to
take a job that paid “good money.” (R. 54). She had a lengthy work history and had
worked for the same employer from 1986 to 2010. (R. 57).
The ALJ determined at step one that Ms. Kirk had not engaged in
substantial gainful activity since October 1, 2010, the alleged onset date. At step
two, the ALJ identified the following severe impairments: degenerative disc disease
of the lumbar spine, right shoulder dysfunction, chronic obstructive pulmonary
disease (“COPD”), diabetes mellitus, and osteoarthritis (R. 31). At step three, the
ALJ evaluated Ms. Kirk’s severe impairments against the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1, and found “the claimant does not have an
impairment or combination of impairments that meets or medically equals the
severity of one of the listed impairments.”
For purposes of steps four and five, the ALJ adopted the following residual
functional capacity (RFC)1 to perform the full range of light work as defined in 20
C.F.R. § 404.1567(b), specifically:
The claimant can lift, carry, push and pull 20 pounds occasionally and 10
pounds frequently. She can sit, stand and walk for two hours at a time for a
total of six hours each in an 8-hour workday. She can occasionally bend,
stoop, crouch, crawl, kneel, squat, and climb stairs and ramps, but should
never climb ladders, ropes or scaffolds. There should be no overhead work
with the right upper extremity above the shoulder level. The claimant should
never use foot controls with either lower extremity. The claimant should
avoid unprotected heights and she should not engage in driving. She can
Residual functional capacity (RFC) represents what an individual can still do, despite his or her
limitations. 20 C.F.R. § 404.1545(a).
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have occasional exposure to fumes and other respiratory irritants. She
should avoid concentrated exposure to humidity and temperature extremes
(R. 35).
With this RFC, Ms. Kirk could not perform any past relevant work, but the
ALJ found that there are jobs that exist in significant numbers in the national
economy that she can perform. Accordingly, the ALJ found at step five that she is
not disabled (R. 40).
B.

Medical History and Diagnosis
Ms. Kirk had numerous emergency room visits prior to the alleged disability

onset date for a rash on her leg with some swelling, shortness of breath, and chest
pains (R. 210-11, 220-21, 237-46, 249, 310-13). On April 5, 2010, she was examined
by Dr. Dan K. Nordmann, who cited a previous MRI that showed multilevel
degenerative disc disease, spondylosis, and disk displacement at L3-4, 4-5, and L5S1 (R. 330). She underwent a bilateral L4-5, L5-S1 facet injection on June 4, 2010
(R. 328-329). On September 14, 2010, she was seen at the St. Francis Pain Center,
where she was diagnosed with low back pain and lumbar spondylosis (R. 323). Dr.
Robert C. Cater diagnosed her with lumbago (scatia due to lumbar disc
degeneration) as reflected on a December 17, 2010 document titled “Report of
Attending Physician.” On this document, Dr. Cater wrote that she “had a low back
injury and damage resulting in a pinch of one or more nerves in the back” (R. 461).
On January 5, 2011, she had a physical examination at St. Francis Pain Center
showing a diagnosis of chronic low back pain, lumbar spondylosis, and chronic pain
management (R. 321). On February 15, 2011, she went to the emergency room after

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falling and injuring her right shoulder. She was diagnosed with a right shoulder
contusion post fall, and pneumonia (R. 354).
On February 28, 2011, she underwent a consultative physical examination
with Dr. Audrey Wehr, M.D. who diagnosed arthritis, emphysema, depression, and
diabetes (R. 401). Dr. Cater’s March 21, 2011 treatment notes reflect she had neck
pain with limited neck mobility, and back pain with limited back mobility. His
diagnosis included occipital neuralgia with disabling headaches, cervical
osteoarthritis, lumbar disc degeneration at L5-S1 with chronic back pain, COPD
and cigarette abuse, type II diabetes, an affective disorder, and possible rheumatoid
arthritis. He noted a “permanent medical disability due to arthritis of the neck and
back,” while also a “permanent partial disability due to COPD and type II diabetes
and rheumatism” (R. 420). On March 23, 2011, Ms. Kirk visited St. Francis Pain
Center with complaints of low back pain, lumbar spondylosis, and right shoulder
pain. And on March 30, 2011, J. Sands, M.D., completed a physical residual
functional capacity assessment and diagnosed Ms. Kirk with arthritis and COPD
(R. 462).
On June 29, 2011, Ms. Kirk again saw Dr. Dan Nordmann for a yearly followup appointment regarding low back pain. His impression was “fairly stable with
regards to her chronic pain,” but noted there appears to be “venous insufficiency”
with regards to her lower extremities. He was also concerned about “arterial flow,”
and recommended she see Dr. Salvatore to evaluate her “lower extremity problem”
(R. 519, 543). She had treatment from St. Francis Pain Center between September

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2011 and November 2011, when a diagnosis of chronic low back and leg pain was
noted.
On February 5, 2012, Ms. Kirk visited the emergency room with a chief
complaint of abdominal pain. She had a CT scan of the abdomen and pelvis and
was diagnosed with upper abdominal pain, normocytic anemia, and probable
cirrhosis (R. 499). Progress notes from a visit with Dr. Cater on March 21, 2012,
show Ms. Kirk had concerns about her blood pressure. The notes reflect a diagnosis
of cirrhosis, ascites, COPD, and fatigue (R. 544). On May 7, 2012, Dr. Cater opined
that Ms. Kirk could stand/walk for 15 minutes at one time for a total of 60 minutes
in an 8 hour workday, sit for 60 minutes at a time and 4 hours total in an 8 hour
workday, and lift no more than 10 pounds on a frequent or occasional basis, and
bend, stoop, and balance occasionally. He further opined that she would need to
elevate her legs during an 8 hour workday, that her pain and other symptoms
would be severe enough to constantly interfere with attention and concentration,
and that on average, she would be absent from work more than 4 days per month as
a result of the impairments or treatment (R. 572).
C.

The Treating Physician Rule
The weight an ALJ gives to medical opinions is guided by factors

described in 20 C.F.R. § 404.1527(c). A medical opinion by a treating physician or
other acceptable treating medical source about the nature and severity of a
claimant’s impairments, including any resulting mental or physical restrictions, is
entitled to “controlling weight” if it is well-supported by objective medical evidence

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and is not inconsistent with other substantial evidence. Id. § 404.1527(d)(2). Punzio
v. Astrue, 630 F.3d 704, 710 (7th Cir.2011). (“[T]reating physician’s opinion is
entitled to controlling weight only if it is not inconsistent with other substantial
evidence in the record.”) An ALJ may discount a treating physician's opinion,
however, when it is “internally inconsistent” or is inconsistent with the opinion of a
consulting physician. Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir.2007). If a
treating physician’s opinion is not entitled to controlling weight, it still must be
evaluated using the same factors relevant to weighing other medical opinions. That
is, the ALJ decides the weight to accord it based on the degree to which a medical
opinion (a) is supported by relevant evidence and explanations; (b) considered all
evidence pertinent to the claimant’s claim; (c) is consistent with the record as a
whole; and (d) is supported or contradicted by any other factors. Id. §
404.1527(c)(3)-(6). The physician’s field of specialty and the nature and extent of
her treatment relationship with the claimant are also considered. Id.
404.1527(c)(2)(i), and (c)(2)(ii). In addition, SSR 96-2p provides that the ALJ must
give “specific reasons for the weight given to the treating source’s medical opinion,
supported by the evidence in the case record, and must be sufficiently specific to
make clear to any subsequent reviewers the weight the adjudicator gave to the
treating source’s medical opinion and the reasons for that weight” (emphasis added).
D.

The ALJ’s Evaluation of Dr. Cater’s Opinion
The ALJ gave little weight to Dr. Cater’s opinions in reaching the RFC

determination, and instead relied upon those of the state physicians. However, in

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doing so, he failed to articulate a minimal, but legitimate justification for his
decision.
The ALJ’s analysis of Dr. Cater’s opinion was perfunctory. He rejected all of
Dr. Cater’s opinions about Ms. Kirk’s functional abilities to stand, sit, and walk in
an 8-hour work day and engage in postural activities, the effect of her pain and
other symptoms on her ability to concentrate and work on a regular basis, and her
need to elevate her legs. He did so on the sole ground that Dr. Cater’s May 2012
opinion on Ms. Kirk’s ability to bend and stoop was contradicted by his earlier
statements in March 2011 about Ms. Kirk’s bending and stooping abilities. The
whole of the ALJ’s analysis of Dr. Cater’s opinion reads:
I have evaluated the medical opinions in making the residual functional
capacity determination. I give little weight to the opinions of Dr. Robert
Cater. In March 2011, he opined that the claimant had permanent medical
disability due to arthritis of the neck and back. He further opined that the
claimant would be unable to bend, climb, squat, or repeatedly lift overhead.
However, Dr. Cater opined on May 7, 2012 that the claimant would be
limited to occasional bending and stooping, which contradicts his earlier
statement (R. 38).
In effect, the ALJ determined that because Dr. Cater believed in March 2011
that Ms. Kirk could not “bend, climb, squat, [and] repeatedly lift overhead,” but
decided in May 2012 that Ms. Kirk “occasionally” could bend and stoop, that
nothing Dr. Cater said in May 2012 is entitled to weight. The court agrees with Ms.
Kirk that Dr. Cater’s opinions separated by a year’s time about Ms. Kirk’s
functional capacity to bend and stoop cannot be rejected out of hand simply because
the opinions are different, and that the ALJ failed to make sufficiently clear the
reasons why Dr. Cater’s opinions were given no weight.
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The ALJ also stated that Dr. Cater’s “opinions regarding the claimant’s
exertional limitations and the need to elevate her legs are not supported by the
objective medical evidence and are therefore given no weight.” However, less than a
year before, Ms. Kirk had seen her spine doctor, Dr. Dan Nordmann, who noted a
“venous insufficiency” with regards to her lower extremities and concerns about
“arterial flow” (R. 519, 543). Ms. Kirk also testified at the May 30, 2012, hearing
that Dr. Nordmann restricted her lifting to 15 pounds (R. 65). The record also
reflects treatment from St. Francis Pain Center between September 2011 and
November 2011, and a diagnosis of chronic low back and leg pain. The ALJ failed to
give specific reasons for giving no weight to Dr. Cater’s opinion that Ms. Kirk would
need to elevate her legs during an 8-hour workday, or otherwise explain why he
found that opinion unsupported by objective medical evidence.
Conclusion
For the aforementioned reasons, substantial evidence does not support the
ALJ’s determination that Ms. Kirk is not disabled. The Commissioner’s decision
must therefore be REVERSED and REMANDED to the Social Security
Administration for further proceedings consistent with this opinion.
So ORDERED.
03/05/2014
Date: _____________________

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

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