Eckert v. Social Security Administration, Commissioner of

Filing 16

MEMORANDUM AND ORDER. The judgment of the Commissioner is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this memorandum and order. See attached for more details. Signed by U.S. District Senior Judge Sam A. Crow on 2/7/2013. (bmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

LINDA GLASS ECKERT,
Plaintiff,
vs.

Case No. 12-2142-SAC

MICHAEL J. ASTRUE,
Commissioner of
Social Security,
Defendant.

MEMORANDUM AND ORDER
This is an action reviewing the final decision of the
Commissioner of Social Security denying the plaintiff disability
insurance benefits.

The matter has been fully briefed by the

parties.
I.

General legal standards
The court's standard of review is set forth in 42 U.S.C.

§ 405(g), which provides that "the findings of the Commissioner
as to any fact, if supported by substantial evidence, shall be
conclusive."

The court should review the Commissioner's

decision to determine only whether the decision was supported by
substantial evidence and whether the Commissioner applied the
correct legal standards.
(10th Cir. 1994).

Glenn v. Shalala, 21 F.3d 983, 984

Substantial evidence requires more than a

scintilla, but less than a preponderance, and is satisfied by

1

such evidence that a reasonable mind might accept to support the
conclusion.

The determination of 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 really constitutes mere
conclusion.

Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).

Although the court is not to reweigh the evidence, the findings
of the Commissioner will not be mechanically accepted.

Nor will

the findings be affirmed by isolating facts and labeling them
substantial evidence, as the court must scrutinize the entire
record in determining whether the Commissioner's conclusions are
rational.
1992).

Graham v. Sullivan, 794 F. Supp. 1045, 1047 (D. Kan.

The court should examine the record as a whole,

including whatever in the record fairly detracts from the weight
of the Commissioner's decision and, on that basis, determine if
the substantiality of the evidence test has been met.

Glenn, 21

F.3d at 984.
The Social Security Act provides that an individual shall
be determined to be under a disability only if the claimant can
establish that they have a physical or mental impairment
expected to result in death or last for a continuous period of
twelve months which prevents the claimant from engaging in
substantial gainful activity (SGA).

The claimant's physical or

mental impairment or impairments must be of such severity that
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they are not only unable to perform their previous work but
cannot, considering their age, education, and work experience,
engage in any other kind of substantial gainful work which
exists in the national economy.

42 U.S.C. § 423(d).

The Commissioner has established a five-step sequential
evaluation process to determine disability.

If at any step a

finding of disability or non-disability can be made, the
Commissioner will not review the claim further.

At step one,

the agency will find non-disability unless the claimant can show
that he or she is not working at a “substantial gainful
activity.”

At step two, the agency will find non-disability

unless the claimant shows that he or she has a “severe
impairment,” which is defined as any “impairment or combination
of impairments which significantly limits [the claimant’s]
physical or mental ability to do basic work activities.”

At

step three, the agency determines whether the impairment which
enabled the claimant to survive step two is on the list of
impairments presumed severe enough to render one disabled.

If

the claimant’s impairment does not meet or equal a listed
impairment, the inquiry proceeds to step four, at which the
agency assesses whether the claimant can do his or her previous
work; unless the claimant shows that he or she cannot perform
their previous work, they are determined not to be disabled.
the claimant survives step four, the fifth and final step
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If

requires the agency to consider vocational factors (the
claimant’s age, education, and past work experience) and to
determine whether the claimant is capable of performing other
jobs existing in significant numbers in the national economy.
Barnhart v. Thomas, 124 S. Ct. 376, 379-380 (2003).
The claimant bears the burden of proof through step four of
Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th

the analysis.
Cir. 1993).

At step five, the burden shifts to the

Commissioner to show that the claimant can perform other work
that exists in the national economy.

Nielson, 992 F.2d at 1120;

Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).

The

Commissioner meets this burden if the decision is supported by
substantial evidence.

Thompson, 987 F.2d at 1487.

Before going from step three to step four, the agency will
assess the claimant’s residual functional capacity (RFC).

This

RFC assessment is used to evaluate the claim at both step four
and step five.

20 C.F.R. §§ 404.1520(a)(4), 404.1520(e,f,g);

416.920(a)(4), 416.920(e,f,g).
II.

History of case
On August 27, 2010 administrative law judge (ALJ) Patricia

E. Hartman issued her decision (R. at 11-20).

Plaintiff alleges

that she has been disabled since May 12, 2008 (R. at 11).
Plaintiff is insured for disability insurance benefits through
December 31, 2013 (R. at 13).

At step one, the ALJ found that
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plaintiff has not engaged in substantial gainful activity since
the alleged onset date (R. at 13).

At step two, the ALJ found

that plaintiff had the following severe impairment: degenerative
disc disease (R. at 13).

At step three, the ALJ determined that

plaintiff’s impairments do not meet or equal a listed impairment
(R. at 15).

After determining plaintiff’s RFC (R. at 15), the

ALJ determined at step four that plaintiff is able to perform
past relevant work (R. at 18).

In the alternative, at step

five, the ALJ found that there are other jobs that exist in
significant numbers in the national economy that the plaintiff
can perform (R. at 18-20).

Therefore, the ALJ concluded that

plaintiff was not disabled (R. at 20).
III.

Did the ALJ err when evaluating the nature and extent of

plaintiff’s medical treatment?
In evaluating plaintiff’s credibility, the ALJ made the
following findings:
The course of medical treatment and the use
of medication in this case are not
consistent with disabling levels of pain.
The claimant has not generally received the
type of treatment one would expect for a
totally disabled individual. The record
reveals relatively infrequent trips to the
doctor for the allegedly disabling symptoms.
Moreover, the record reflects significant
gaps in the claimant’s history of treatment.
The claimant asserts disability due to back
pain. However, she did not seek physical
therapy in order to improve pain or range of
motion. Furthermore, she failed to follow
up on medical recommendations and
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infrequently received treatment. Had the
claimant’s pain and limited range of motion
risen to the disabling levels alleged, it is
likely the claimant would have sought
physical therapy for her back pain.
Therefore, the undersigned finds that the
course of treatment in this case does not
bolster the claimant’s credibility with
respect to the degree of her pain and other
subjective complaints.
(R. at 16).
The court finds a number of problem’s with this analysis by
the ALJ.

First, the ALJ clearly relied on the infrequency of

treatment by the ALJ to find her less credible.

However, the

10th Circuit, relying on the case of Thompson v. Sullivan, 987
F.2d 1482, 1489-90 (10th Cir. 1993), has repeatedly held that
the inability to pay may justify a claimant’s failure to pursue
or seek treatment.

Threet v. Barnhart, 353 F.3d 1185, 1190 n.7

(10th Cir. 2003); Norris v. Apfel, 215 F.3d 1337 (table), 2000
WL 504882 at *8 (10th Cir. Apr. 28, 2000); Smith v. Apfel, 149
F.3d 1191 (table), 1998 WL 321176 at *4 (10th Cir. June 8,
1998); Snead v. Callahan, 129 F.3d 131 (table), 1997 WL 687660
at *4 (10th Cir. Oct. 31, 1997); see also Eason v. Chater, 951
F. Supp. 1556, 1562 (D. N.M. 1996)(claimant should not be
penalized for failing to seek treatment that they cannot
afford); Hockenhull v. Bowen, 723 F. Supp. 555, 557 (D. Colo.
1989) (evidence of nontreatment is of little weight when

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claimant’s failure to seek medical treatment can be attributed
to their inability to pay for such treatment).
While failure to seek treatment may be probative of
severity, the ALJ has a basic duty of inquiry to ask the
plaintiff why he/she did not seek treatment, or why it was
sporadic.

Kratochvil v. Barnhart, 2003 WL 22176084 at *5 (D.

Kan. Sept. 17, 2003).

Similarly, SSR 96-7p states the

following:
On the other hand, the individual's
statements may be less credible if the level
or frequency of treatment is inconsistent
with the level of complaints, or if the
medical reports or records show that the
individual is not following the treatment as
prescribed and there are no good reasons for
this failure. However, the adjudicator must
not draw any inferences about an
individual's symptoms and their functional
effects from a failure to seek or pursue
regular medical treatment without first
considering any explanations that the
individual may provide, or other information
in the case record, that may explain
infrequent or irregular medical visits or
failure to seek medical treatment. The
adjudicator may need to recontact the
individual or question the individual at the
administrative proceeding in order to
determine whether there are good reasons the
individual does not seek medical treatment
or does not pursue treatment in a consistent
manner. The explanations provided by the
individual may provide insight into the
individual's credibility.

SSR 96-7p, 1996 WL 374186 at *7 (emphasis added); cited with
approval in Madron v. Astrue, 311 Fed. Appx. 170, 178 (10th Cir.
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Feb. 11, 2009).

The fact than an individual may be unable to

afford treatment and may not have access to free or low-cost
medical service is a legitimate excuse.

Madron, 311 Fed. Appx.

at 178; SSR 96-7p, 1995 WL 374186 at *8.
Plaintiff testified as follows at the hearing:
Q (by counsel):…Linda, I want to talk a
little bit about your medical treatment. Do
you remember the last time you went to see a
doctor?
A (by plaintiff): It’s been a while.
Q: About how long has it been?
A: I would say a year.
Q: And, why haven’t you been to see a doctor
since then?
A: I do not have the finances to go.
Q: Do you have any medical insurance?
A: No, I don’t.
Q: Do you have any State medical coverage?
A: No.
Q: You are also not taking any medications.
Why is that?
A: I don’t have the money for the
medications that the doctor gave me.
(R. at 43-44).

However, this testimony was never mentioned by

the ALJ in his decision.

As SSR 96-7p makes clear, the ALJ must

consider any explanation that a claimant may provide to explain
infrequent or irregular medical treatment.
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As the case law

makes clear, the inability to pay may justify a claimant’s
failure to pursue or seek treatment.

The ALJ clearly erred by

not considering the testimony of plaintiff that he lacked the
finances and medical insurance or coverage to seek medical
treatment or pay for medications.

Therefore, the case shall be

remanded in order for the ALJ to consider the reasons offered by
the plaintiff for not seeking treatment or obtaining
medications.
Second, the ALJ stated that plaintiff did not seek physical
therapy.

However, plaintiff testified as follows:
Q (by ALJ): Have you had physical therapy
for your back?
A (by plaintiff): Yes. And, it was very
painful. The doctor stopped it. I went
three times.

(R. at 36).

However, the ALJ failed to mention this testimony,

which directly contradicts the assertion of the ALJ that she did
not seek physical therapy.
Third, the ALJ asserted that plaintiff did not receive “the
type of treatment one would expect for a totally disabled
individual” and did not seek physical therapy (R. at 16).

In

the case of Morgan v. Astrue, Case No. 08-1392-JTM (April 29,
2010; Doc. 16 at 16-17), the court faced the same issue as is
before the court in this case.

The court held:

...the ALJ also relied on the fact that
plaintiff had not had surgery or inpatient
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hospitalization, and had not been referred
to physical therapy, when considering the
medical evidence relating to plaintiff’s
RFC, including the opinions of Dr.
Gillenwater (R. at 26; Doc. 13 at 7).
However, the ALJ did not cite to any
evidence regarding the relevance or
significance, if any, of the fact that
plaintiff had not had surgery, inpatient
hospitalization, or physical therapy. In
the case of Hamlin v. Barnhart, 365 F.3d
1208, 1221 (10th Cir. 2004), the ALJ noted
that the claimant did not require an
assistive device for his neck. The court
held that there is no evidence that any
physician recommended such a device or
suggested that one would have provided any
pain relief. The court stated that an ALJ
is not free to substitute his own medical
opinion for that of a disability claimant’s
treating doctors. As noted above, the ALJ’s
duty is to weigh conflicting evidence and
make disability determinations; he is not in
a position to render a medical judgment.
Bolan [v. Barnhart], 212 F. Supp.2d [1248,
1262 (D. Kan. 2002)].
In the absence of any medical evidence
indicating the relevance or significance of
the fact that plaintiff did not receive
certain treatments, the ALJ is in no
position to render a medical judgment
regarding the relevance or significance of
the fact that plaintiff did not receive
certain treatments. Park v. Astrue, Case
No. 07-1382-MLB, 2008 WL 4186871 at *5 (D.
Kan. Sept. 9, 2008, Doc. 17 at 11-12); see
Newman v. Astrue, Case No. 08-1391-JTM (D.
Kan. Feb. 2, 2010; Doc. 18 at 10-12)(ALJ
erred by failing to cite to any medical
evidence to support his assertion that
plaintiff had not received the type of
treatment one would expect for a totally
disabled individual); Burton v. Barnhart,
Case No. 06-1051-JTM (D. Kan. Nov. 1, 2006;
Doc. 12 at 15)(ALJ erred by relying on the
lack of certain types of treatment in the
absence of any evidence that such treatment
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was recommended, would have lessened the
claimant’s limitations, or provided pain
relief); Mazza v. Barnhart, Case No. 061018-JTM (D. Kan. Oct. 25, 2006; Doc. 13 at
20)(same). For this reason, the ALJ erred
by relying on the absence of surgery,
hospitalization, or physical therapy without
any medical evidence regarding the relevance
or significance of the lack of such
treatment.

(emphasis added); quoted with approval in Dannels v. Astrue,
Case No. 10-1416-SAC (D. Kan. Dec. 20, 2011; Doc. 19 at 911)(wherein the ALJ had stated that the claimant had not
generally received the type of medical treatment one would
expect for a totally disabled individual).
As in the above cases, the ALJ asserted that plaintiff had
not received the type of treatment one would expect for a
totally disabled individual and that a person with pain and a
limited range of motion that rose to disabling levels would have
likely sought physical therapy for their pain.

However, the ALJ

cited to no evidence or medical authority in support of these
assertions, and did not cite to any statute, regulation or
ruling in support of these assertions.

For the reasons set

forth above, the ALJ clearly erred by relying on these
statements as bases for discounting her credibility.
Fourth, in the case of Essman v. Astrue, Case No. 09-4001SAC (D. Kan. Dec. 16, 2009), the court held that:

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...before the ALJ may rely on a claimant’s
failure to pursue treatment or take
medication as support for his determination
of noncredibility, he or she should
consider: (1) whether the treatment at issue
would restore claimant’s ability to work;
(2) whether the treatment was prescribed;
(3) whether the treatment was refused; and
if so, (4) whether the refusal was without
justifiable excuse. Thompson v. Sullivan,
987 F.2d 1482, 1490 (10th Cir. 1993); Frey
v. Bowen, 816 F.2d 508, 517 (10th Cir.
1987). This analysis applies when
noncompliance with a physician’s
recommendation is used as part of the
credibility determination. Piatt v.
Barnhart, 231 F. Supp.2d 1128, 1129 (D. Kan.
Nov. 15, 2002)(Robinson, J.); Silverson v.
Barnhart, Case No. 01-1190-MLB (D. Kan. May
14, 2002)(Belot, J.); Goodwin v. Barnhart,
195 F. Supp. 2d 1293, 1294-1296 (D. Kan.
(April 15, 2002)(Crow, S.J.).
Defendant contends that the Frey test
is not applicable in this case. However,
the ALJ appears to have discounted
plaintiff’s credibility because he quit
taking prescription medications. Thus, this
is not a situation where the Frey test is
not required because the treatment or
medication had not been prescribed, and the
ALJ is simply considering what attempts the
claimant made to relieve their pain. See
McAfee v. Barnhart, 324 F. Supp.2d 1191,
1201 (D. Kan. 2004); Jesse v. Barnhart, 323
F. Supp.2d 1100, 1108 (D. Kan. 2004);
Billups v. Barnhart, 322 F. Supp.2d 1220,
1226 (D. Kan. 2004).

Essman, Doc. 23 at 20-21, emphasis added); quoted with approval
in Alfrey v. Astrue, Case No. 11-4117-SAC (D. Kan. Oct. 24,
2012; Doc. 15 at 17-18).

The ALJ clearly erred by relying on

the failure to pursue treatment (“she failed to follow up on
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medical recommendations and infrequently received treatment” (R.
at 16)) in support of her credibility determination without
undertaking the above analysis.
IV.

Did the ALJ err in his discussion of plaintiff’s daily

activities when evaluating her ability to work?
In his decision, the ALJ stated the following:
The claimant’s daily activities are
consistent with the above residual
functional capacity and are inconsistent
with the alleged symptoms of disability.
The claimant has described daily activities,
which are not limited to the extent one
would expect, given the allegations of
disability and limitations. The evidence of
record indicates that the claimant maintains
a rather independent lifestyle. She can
care for herself and her personal hygiene
with some limitations. She participates in
household chores and does her laundry once a
week. She enjoys going outside once day,
rides in a car, and can drive a car
independently. The claimant shops once a
month and can pay bills and count change
independently. She continues to participate
in her hobbies such as scrapbooking,
visiting friends, and talking on the phone.
She enjoys attending church on Sundays and
does so alone. Although the claimant does
in fact have numerous impairments that
affect her daily life, they have not reached
such severity to impair [her] activities
shopping and laundry.
(R. at 17).
According to the regulations, activities such as taking
care of yourself, household tasks, hobbies, therapy, school
attendance, club activities or social programs are generally not

13

considered to constitute substantial gainful activity.
C.F.R. § 404.1572(c) (2012 at 398).

20

Furthermore, although the

nature of daily activities is one of many factors to be
considered by the ALJ when determining the credibility of
testimony regarding pain or limitations, Thompson v. Sullivan,
987 F.2d 1482, 1489 (10th Cir. 1993), the ALJ must keep in mind
that the sporadic performance of household tasks or work does
not establish that a person is capable of engaging in
substantial gainful activity.

Krauser v. Astrue, 638 F.3d 1324,

1332-1333 (10th Cir. 2011); Thompson, 987 F.2d at 1490.
In the case of Draper v. Barnhart, 425 F.3d 1127, 1130-1131
(8th Cir. 2005), the ALJ noted that the claimant engaged in
household chores, including laundry, grocery shopping, mowing,
cooking, mopping and sweeping.

The ALJ concluded that

claimant’s allegations of disabling pain were inconsistent with
her reports of her normal daily activities and were therefore
not deemed credible.

The court found that substantial evidence

did not support this conclusion, holding as follows:
The fact that Draper tries to maintain her
home and does her best to engage in ordinary
life activities is not inconsistent with her
complaints of pain, and in no way directs a
finding that she is able to engage in light
work. As we said in McCoy v. Schweiker, 683
F.2d 1138, 1147 (8th Cir.1982) (en banc),
the test is whether the claimant has “the
ability to perform the requisite physical
acts day in and day out, in the sometimes
competitive and stressful conditions in
14

which real people work in the real world.”
In other words, evidence of performing
general housework does not preclude a
finding of disability. In Rainey v. Dep't
of Health & Human Servs., 48 F.3d 292, 203
(8th Cir.1995), the claimant washed dishes,
did light cooking, read, watched TV, visited
with his mother, and drove to shop for
groceries. We noted that these were
activities that were not substantial
evidence of the ability to do full-time,
competitive work. In Baumgarten v. Chater,
75 F.3d 366, 369 (8th Cir.1996), the ALJ
pointed to the claimant's daily activities,
which included making her bed, preparing
food, performing light housekeeping, grocery
shopping, and visiting friends. We found
this to be an unpersuasive reason to deny
benefits: “We have repeatedly held...that
‘the ability to do activities such as light
housework and visiting with friends provides
little or no support for the finding that a
claimant can perform full-time competitive
work.’” Id. (quoting Hogg v. Shalala, 45
F.3d 276, 278 (8th Cir.1995)). Moreover, we
have reminded the Commissioner
that to find a claimant has the
residual functional capacity to
perform a certain type of work,
the claimant must have the ability
to perform the requisite acts day
in and day out, in the sometimes
competitive and stressful
conditions in which real people
work in the real world...The
ability to do light housework with
assistance, attend church, or
visit with friends on the phone
does not qualify as the ability to
do substantial gainful activity.
Thomas v. Sullivan, 876 F.2d 666, 669 (8th
Cir.1989) (citations omitted).
Draper, 425 F.3d at 1131 (emphasis added).

15

According to the regulation, activities such as taking care
of yourself, household tasks, hobbies, or social programs are
generally not considered to constitute substantial gainful
activity.

As the case law makes clear, the ability to perform

light housework, visit with friends, or attend church provides
little or no support for a finding that a claimant can perform
full-time competitive work.

The daily activities, as described

by the ALJ, are not inconsistent with plaintiff’s alleged claims
of disability.
V.

Did the ALJ err by failing to discuss the weight attached to

the opinions of Dr. Fishman?
Dr. Fishman prepared a consultative examination of the
plaintiff on May 6, 2009 and offered opinions regarding
plaintiff’s RFC (R. at 319-321).

Some of his opinions regarding

plaintiff’s limitations do not appear in the ALJ’s RFC findings,
including his opinion that she would not be able to tolerate
prolonged sitting, standing, and walking (R. at 321, 15).
However, the ALJ, although she generally mentioned the opinions
of Dr. Fishman (R. at 16), never indicated what weight, if any,
she accorded to the opinions of Dr. Fishman.
According to SSR 96-8p:
The RFC assessment must always consider and
address medical source opinions. If the RFC
assessment conflicts with an opinion from a
medical source, the adjudicator must explain
why the opinion was not adopted.
16

1996 WL 374184 at *7.

Defendant concedes that the ALJ did not

explain why the all of the opinions of Dr. Fishman were not
included in the ALJ’s RFC findings, but argues that the omission
was harmless error (Doc. 15 at 6).

In light of the errors noted

above, the court will not address the issue of harmless error.
When this case is remanded, the ALJ shall evaluate all the
medical opinions regarding plaintiff’s RFC in accordance with
SSR 96-8p.
IT IS THEREFORE ORDERED that the judgment of the
Commissioner is reversed and remanded pursuant to sentence four
of 42 U.S.C. § 405(g) for further proceedings consistent with
this memorandum and order.
Dated this 7th day of February, 2013, at Topeka, Kansas.

s/ Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

17