Johnson 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 2/13/2013. (bmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JESSICA JOHNSON,
Plaintiff,
vs.

Case No. 12-2147-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 and supplemental security income payments.
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

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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
3

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 23, 2010, administrative law judge (ALJ)

Christine A. Cooke issued her decision (R. at 9-16).

Plaintiff

alleges that she has been disabled since August 16, 2008 (R. at
9).

Plaintiff is insured for disability insurance benefits

through March 31, 2012 (R. at 11).
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At step one, the ALJ found

that plaintiff has not engaged in substantial gainful activity
since plaintiff’s alleged onset date (R. at 11).

At step two,

the ALJ found that plaintiff had the following severe
impairments: obesity and asthma (R. at 11).

At step three, the

ALJ determined that plaintiff’s impairments do not meet or equal
a listed impairment (R. at 13).

After determining plaintiff’s

RFC (R. at 13), the ALJ determined at step four that plaintiff
is unable to perform any past relevant work (R. at 15).

At step

five, the ALJ determined that plaintiff could perform other jobs
that exist in significant numbers in the national economy (R. at
15-16).

Therefore, the ALJ concluded that plaintiff was not

disabled (R. at 16).
III.

Did the ALJ err in her consideration of the opinions of

Dr. Fitzgibbon, plaintiff’s treating physician?
Dr. Fitzgibbon prepared a physical RFC questionnaire on May
9, 2010 (R. at 550-554).

She indicated that she had treated

plaintiff for approximately 4 months (R. at 550).

She opined

that standing and walking would be very difficult for the
plaintiff, and that her pain and other symptoms would frequently
interfere with attention and concentration needed to perform
even simple work tasks (R. at 551).

Dr. Fitzgibbon indicated

that plaintiff could sit for more than 2 hours at one time and
for 6 hours in an 8 hour workday, and could stand/walk for only
5 minutes at a time and for less than 2 hours in an 8 hour
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workday (R. at 551-552).

Dr. Fitzgibbon further indicated that

plaintiff would require unscheduled breaks while working (R. at
552); in addition, plaintiff can never twist, stoop (bend),
crouch/squat, or climb ladders or stairs (R. at 553).

She

opined that plaintiff can reach overhead less than 10% of the
time, and would miss work about 2 days per month because of her
impairments or treatment (R. at 553).
The ALJ discussed the report of Dr. Fitzgibbon as follows:
…This assessment is generally consistent
with claimant’s ability to perform limited
sedentary work but there are opinions
including symptoms, which would cause
frequent concentration deficits and require
daily unscheduled breaks, which, if
credible, would be consistent with the
finding of disabled.
However, this physician had only treated
claimant for a total of four months in 2010.
When compared to the record longitudinally
during the timeframe relevant to this appeal
beginning with an onset date of August 16,
2008, these opinions are not persuasive.
Claimant underwent a physical evaluation in
September 2007 and at that time, her motor
function, sensation and reflexes were all
within normal limits. She had full range of
motion. She had severe problems performing
orthopedic maneuvers but there was no
evidence of any pulmonary impairment and
accessory breathing muscles were not used.
This evidence is found in Exhibit 17F.
(R. at 14).

The ALJ then made the following RFC findings:

…the undersigned finds that claimant has the
residual functional capacity to sit for 6
out of 8 hours; and can stand or walk for 2
out of 8 hours for no more than 5 minutes at
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a time. She can lift or carry a maximum of
10 pounds occasionally and frequently.
Claimant is able to stoop occasionally. She
can never climb ladders, ropes, scaffolding,
stairs or ramps; balance; kneel; crouch; or
crawl. Claimant should avoid temperature
extremes of heat or cold, wetness, humidity,
fumes, odors, dust, and airborne
particulates. She cannot work around
hazards, such as dangerous machinery or
unprotected heights. Claimant cannot drive.
(R. at 13).
The only medical opinion in the case record regarding
plaintiff’s physical RFC which was discussed by the ALJ in her
decision is the above report by Dr. Fitzgibbon.

The ALJ’s RFC

findings incorporate some of the limitations set forth by Dr.
Fitzgibbon, including her opinion that plaintiff cannot stand or
walk for more than 5 minutes at a time.

However, the ALJ failed

to include in his RFC findings the opinions of Dr. Fitzgibbon
that plaintiff could stand/walk for less than 2 hours in an 8
hour workday, and would need to miss about 2 days a month
because of her impairments or treatment.

The vocational expert

(VE) testified that such limitations would preclude employment
(R. at 48).

However, the ALJ offered no explanation for not

including these limitations.

The ALJ did not cite to any

medical opinion or other evidence which disputed or contradicted
these opinions by Dr. Fitzgibbon.

When discussing the opinions

of Dr. Fitzgibbon, the ALJ referenced (R. at 14) a consultative
examination by Dr. Duncan on September 8, 2007 (R. at 462-466),
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and a consultative examination by Dr. Greiner on November 22,
2008 (R. at 379-382).

However, neither Dr. Duncan or Dr.

Greiner offered any opinions regarding plaintiff’s physical RFC,
and therefore did not dispute or contradict any of the opinions
of Dr. Fitzgibbon which were not included in the ALJ’s RFC
findings.1
An ALJ is not entitled to pick and choose from a medical
opinion, using only those parts that are favorable to a finding
of nondisability.

Chapo v. Astrue, 682 F.3d 1285, 1292 (10th

Cir. 2012); Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir.
2004).

As the court stated in Chapo, the ALJ provided no

explanation at all as to why one part of the medical source
opinion was creditable and the rest was not; this was found to
be error under this circuit’s case law.

366 F.3d at 1292.

This is the very situation in the case now before the court.
A treating physician opinion can be rejected outright only
on the basis of contradictory medical evidence and not due to an
ALJ’s own credibility judgments, speculation or lay opinion.
Robinson, 366 F.3d at 1082; McGoffin v. Barnhart, 288 F.3d 1248,
1252 (10th Cir. 2002).

However, the ALJ failed to cite to any

medical evidence that contradicted the opinions of Dr.

1

In fact, Dr. Duncan specifically found that plaintiff had severe difficulty with heel and toe walking, and severe
difficulty arising from the sitting position (R. at 464), while Dr. Greiner opined that plaintiff had moderate difficulty
with heel and toe walking (R. at 381). Such opinions do not contradict or dispute the opinion of Dr. Fitzgibbon that
plaintiff can only stand/walk for less than 2 hours in an 8 hour workday.

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Fitzgibbon which were not included in the ALJ’s RFC findings.
In fact, the ALJ failed to cite to any other medical evidence in
the record, other than Dr. Fitzgibbon, which addresses
plaintiff’s RFC.

Therefore, this case shall be remanded in

order for the ALJ to provide a legally sufficient explanation
for rejecting some of the limitations contained in the report of
Dr. Fitzgibbon.
The ALJ did state that recommendations for exercise are
inconsistent with disability (R. at 14).

That recommendation

was made by Dr. Fitzgibbon (R. at 536).

However, the ALJ did

not cite to any medical or other evidence, or to any regulation
or ruling in support of this assertion.

An ALJ is not entitled

to sua sponte render a medical judgment without some type of
support for this determination.

The ALJ’s duty is to weigh

conflicting evidence and make disability determinations; he is
not in a position to render a medical judgment.

Dannels v.

Astrue, Case No. 10-1416-SAC (D. Kan. Dec. 20, 2011; Doc. 19 at
10); Bolan v. Barnhart, 212 F. Supp.2d 1248, 1262 (D. Kan.
2002).

Furthermore, the adjudicator is not free to substitute

his own medical opinion for that of a disability claimant’s
treatment providers.
(10th Cir. 2004).

Hamlin v. Barnhart, 365 F.3d 1208, 1221

There is absolutely no basis in the evidence

to support the ALJ’s assertion that a recommendation for
exercise is inconsistent with disability or with the limitations
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set forth by Dr. Fitzgibbon which were not included in the ALJ’s
RFC findings.
IV.

Did the ALJ err at step two?
Plaintiff argues that the ALJ erred by failing to list

plaintiff’s depression, psoriasis, and hypertension as severe
impairments.
plaintiff.

The burden of proof at step two is on the

See Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th

Cir. 1993)(the claimant bears the burden of proof through step
four of the analysis).

A claimant’s showing at step two that he

or she has a severe impairment has been described as “de
minimis.”

Hawkins v. Chater, 113 F.3d 1162, 1169 (10th Cir.

1997); see Williams v. Bowen, 844 F.2d 748, 751 (10th Cir.
1988)(“de minimis showing of medical severity”).

A claimant

need only be able to show at this level that the impairment
would have more than a minimal effect on his or her ability to
do basic work activities.

Williams, 844 F.2d at 751.

However,

the claimant must show more than the mere presence of a
condition or ailment.

If the medical severity of a claimant’s

impairments is so slight that the impairments could not
interfere with or have a serious impact on the claimant’s
ability to do basic work activities, the impairments do not
prevent the claimant from engaging in substantial work activity.
Thus, at step two, the ALJ looks at the claimant’s impairment or
combination of impairments only and determines the impact the
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impairment would have on his or her ability to work.
Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997).

Hinkle v.

A claimant must

provide medical evidence that he or she had an impairment and
how severe it was during the time the claimant alleges they were
disabled.

20 C.F.R. § 404.1512(c), § 416.912(c).

In his report, Dr. Fitzgibbon stated that plaintiff’s pain
and other symptoms were severe enough to frequently interfere
with attention and concentration to perform even simple work
tasks (R. at 551).

In light of the failure of the ALJ to

properly evaluate the report of Dr. Fitzgibbon, on remand, the
ALJ shall make new findings at step two after giving proper
consideration to the opinions of Dr. Fitzgibbon on this issue.
In finding at step two that plaintiff had no severe mental
impairment, the ALJ relied on a psychiatric review technique
form prepared by Dr. Jessop on September 6, 2007 (R. at 12, 448460).

This report predates plaintiff’s alleged onset date of

August 16, 2008.

However, the ALJ failed to mention a

psychiatric review technique form and mental RFC assessment
prepared on December 9, 2008 by Dr. Schulman (R. at 361-373,
375-377).

Dr. Schulman found that that plaintiff had a severe

mental impairment, and also found moderate limitations in the
ability to understand, remember and carry out detailed
instructions (R. at 361, 375).

Those reports should be

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considered by the ALJ when the case is remanded.2
On the other two impairments, they were not specifically
addressed at step two by the ALJ.

Therefore, because this case

is being remanded, the ALJ shall address these impairments at
step two.

However, the court would note that plaintiff has

failed to cite to any evidence that either of these two
impairments interfere with or have a serious impact on the
claimant’s ability to do basic work activities.
V.

Did the ALJ err by failing to develop the medical record in

regards to plaintiff’s mental impairment?
Consultative medical examinations may be ordered by the ALJ
when the information needed is not readily available from
medical treatment sources.
404.1519a(a)(1).

20 C.F.R. §§ 404.1512(f),

The Commissioner has broad latitude in

ordering consultative examinations.

Nevertheless, it is clear

that, where there is a direct conflict in the medical evidence
requiring resolution, or where the medical evidence in the
record is inconclusive, a consultative examination is often
required for proper resolution of a disability claim.
Similarly, where additional tests are required to explain a
diagnosis already contained in the record, resort to a
consultative examination may be necessary.

There must be

present some objective evidence in the record suggesting the
2

The court would note that the VE testified that even with these limitations, plaintiff would still be able to perform
the jobs previously identified by the VE (R. at 47).
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existence of a condition which could have a material impact on
the disability decision requiring further investigation.

The

claimant has the burden to make sure there is, in the record,
evidence sufficient to suggest a reasonable possibility that a
severe impairment exists.

When the claimant has satisfied this

burden in that regard, it then becomes the responsibility of the
ALJ to order a consultative examination if such an examination
is necessary or helpful to resolve the issue of impairment.

In

a counseled case, the ALJ may ordinarily require counsel to
identify the issue or issues requiring further development.

In

the absence of such a request by counsel, the court will not
impose a duty on the ALJ to order a consultative examination
unless the need for one is clearly established in the record.
The ALJ should order a consultative exam when evidence in the
record establishes the reasonable possibility of the existence
of a disability and the result of the consultative exam could
reasonably be expected to be of material assistance in resolving
the issue of disability.

Hawkins v. Chater, 113 F.3d 1162,

1166-1168, 1169 (10th Cir. 1997; see Madrid v. Barnhart, 447
F.3d 788, 791-792 (10th Cir. 2006)(where additional tests are
required to explain a diagnosis already in the record, resort to
a consultative examination may be necessary).
Medical opinion evidence regarding plaintiff’s mental
impairments and limitations include a psychiatric review
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technique form prepared on September 6, 2007 (R. at 448-460), a
psychological evaluation prepared on November 18, 2008 (R. at
386-389), and a psychiatric review technique form and mental RFC
assessment prepared on December 9, 2008 (R. at 361-373, 375377).

Finally the record includes Dr. Fitzgibbon’s RFC

questionnaire dated May 9, 2010, which discussed plaintiff’s
limitations in regards to attention and concentration (R. at
551).
In light of the broad latitude accorded to an ALJ in
ordering a consultative examination, the court finds no clear
error by the ALJ in not ordering a consultative examination,
especially in light of the amount of medical opinion evidence
already in the record regarding plaintiff’s mental impairments
and limitations.

However, because this case is being remanded

for other reasons, on remand the ALJ should consider whether a
further consultative examination would be warranted after
considering the evidence already in the record.
VI.

Did the ALJ err in giving weight to plaintiff’s

noncompliance with treatment?
In her decision, the ALJ stated the following:
Further, the record shows that claimant has
been noncompliant with treatment in as much
as she failed to keep numerous scheduled
appointments. She has not provided any
valid excuse for her non-compliance with
scheduled treatment, which is prohibited in
the regulations at 20 CFR § 404.1530. She
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complains of severe pain, but she is not
taking any prescriptive pain medications.
(R. at 15).

Defendant discussed this argument by the ALJ in his

brief (Doc. 14 at 6).
At the hearing, plaintiff testified as follows:
Q (by ALJ): It looks to me like the last
mental health treatment you had was perhaps
in 2008? Is that correct?
A (by plaintiff): Yes. I stopped seeing my
psychiatrist after I lost my job. Because I
lost my insurance.
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
15

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.
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.
In her decision, the ALJ never mentioned plaintiff’s
testimony that she had stopped mental health treatment because
she lost her insurance.

Therefore, on remand, the ALJ shall

comply with SSR 96-7p and consider any explanations plaintiff
may provide for a lack of treatment.
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 13th day of February, 2013, Topeka, Kansas.

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

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