Penninger v. Social Security Administration, Commissioner of
Filing
15
MEMORANDUM AND ORDER. The judgment of the Commissioner is reversed and the case is 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 7/23/2013. (bmw)
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF KANSAS
CHARLES R. PENNINGER,
Plaintiff,
Vs.
No. 12-2302-SAC
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
MEMORANDUM AND ORDER
This is an action reviewing the final decision of the defendant
Commissioner of Social Security ("Commissioner") that denied the claimant
Charles R. Penninger’s (“Penninger”) application for disability insurance
benefits (“DIB”) under Title II of the Social Security Act (AAct@). With the
administrative record (Dk. 3) and the parties= briefs on file pursuant to D. Kan.
Rule 83.7.1 (Dks. 4, 11, and 12), the case is ripe for review and decision.
STANDARD OF REVIEW
The court's standard of review is set forth in 42 U.S.C. ' 405(g),
which provides that the commissioner=s finding "as to any fact, if supported by
substantial evidence, shall be conclusive." The court also reviews Awhether the
correct legal standards were applied.@ Hackett v. Barnhart, 395 F.3d 1168,
1172 (10th Cir. 2005). Substantial evidence is that which Aa reasonable mind
might accept as adequate to support a conclusion.@ Richardson v. Persales,
402 U.S. 389, 401 (1971) (quotation and citation omitted). AIt requires more
than a scintilla, but less than a preponderance.@ Lax v. Astrue, 489 F.3d 1080,
1084 (10th Cir. 2007) (citation omitted). The review for substantial evidence
Amust be based upon the record taken as a whole@ while keeping in mind
Aevidence is not substantial if it is overwhelmed by other evidence in the
record.@ Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (internal
quotation marks and citations omitted). In its review of Awhether the ALJ
followed the specific rules of law that must be followed in weighing particular
types of evidence in disability cases, . . . [the court] will not reweigh the
evidence or substitute . . . [its] judgment for the Commissioner=s.@ Lax, 489
F.3d at 1084 (internal quotation marks and citation omitted).
The court's duty to assess whether substantial evidence exists:
"is not merely a quantitative exercise. Evidence is not substantial 'if it is
overwhelmed by other evidence--particularly certain types of evidence (e.g.,
that offered by treating physicians)--or if it really constitutes not evidence but
mere conclusion.'" Gossett v. Bowen, 862 F.2d 802, 805 (10th Cir. 1988)
(quoting Fulton v. Heckler, 760 F.2d 1052, 1055 (10th Cir. 1985)). At the
same time, the court Amay not displace the agency=s choice between two fairly
conflicting views, even though the court would justifiably have made a
different choice had the matter been before it de novo.@ Lax v. Astrue, 489 F.3d
at 1084 (internal quotation marks and citation omitted). The court will
Ameticulously examine the record as a whole, including anything that may
undercut or detract from the ALJ=s findings in order to determine if the
substantiality test has been made.@ Wall v. Astrue, 561 F.3d at 1052 (internal
quotation marks and citation omitted).
By statute, a disability is the Ainability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to . . . last for a continuous period of not
less than 12 months.@ 42 U.S.C. ' 423(d)(1)(A). An individual "shall be
determined to be under a disability only if his physical or mental impairment or
impairments are of such severity that he is not only unable to do his previous
work but cannot, considering his 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)(2)(A).
A five-step sequential process is used in evaluating a claim of
disability. Bowen v. Yuckert, 482 U.S. 137, 140 (1987). The first step entails
determining whether the Aclaimant is presently engaged in substantial gainful
activity.@ Wall v. Astrue, 561 F.3d at 1052 (internal quotation marks and
citation omitted). The second step requires the claimant to show he suffers
from a Asevere impairment,@ that is, any Aimpairment or combination of
impairments which limits [the claimant=s] physical or mental ability to do basic
work activities.@ Barnhart v. Thomas, 540 U.S. 20, 24 (2003) (internal
quotation marks and regulatory citations omitted). At step three, the claimant
is to show his impairment is equivalent in severity to a listed impairment. Lax,
489 F.3d at 1084. “If a claimant cannot meet a listing at step three, he
continues to step four, which requires the claimant to show that the
impairment or combination of impairments prevents him from performing his
past work.” Id. Should the claimant meet his burden at step four, the
Commissioner then assumes the burden at step five of showing “that the
claimant retains sufficient RFC [residual functional capacity] to perform work
in the national economy” considering the claimant’s age, education, and work
experience. Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010) (internal
quotation marks and citation omitted). Substantial evidence must support the
Commissioner’s showing at step five. Thompson v. Sullivan, 987 F.2d 1482,
1487 (10th Cir. 1993).
PROCEDURAL HISTORY
Penninger applied for DIB on December 31, 2008, alleging a
disability beginning May 1, 2006, and continuing through the date last insured.
(R. 258). His disability report prepared at the same time of his application
listed his illnesses as “Advanced lymes disease, Babesia” and described the
limiting conditions as “motor function impairment, fatigue, blurred vision
affects ability to focus, memory and concentration deficits, headaches and
nausea.” (R. 344). After his application was denied initially and on
reconsideration, he sought a hearing before the administrative law judge
(“ALJ”). Following a hearing in August of 2010 and supplemental hearings in
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November of 2010 and March of 2011, the ALJ issued her decision on March
17, 2011, concluding that Penninger was not disabled. (R. 21-28). At step two,
she found that Penninger “did not have an impairment or combination of
impairments that significantly limited the ability to perform basic work-related
activities for 12 consecutive months; therefore, the claimant did not have a
serve impairment or combination of impairments.” (R. 23). She listed as
Penninger’s only medically determinable impairment, “Lyme’s disease.” Id.
The ALJ gave “considerable weight” to the testimony of the non-examining and
non-treating medical expert, Anne Winkler, M.D., and “great weight” to the
“State agency medical opinion” of Dr. Bullock. (R. 27). Relying on these
medical opinions, the ALJ rejected the medical opinion of the treating
physician, Dr. Brewer, that Penninger suffered from chronic Lyme disease and
Babesia, as being “unsupported by objective evidence,” as being unsupported
“by medically acceptable clinical and laboratory diagnostic techniques,” and as
being “generally inconsistent with the more persuasive opinions in the record.”
(R. 27-28). The ALJ described giving “little weight” to Dr. Brewer’s opinion. (R.
28).
Is there substantial evidence of record to support the ALJ’s
determination at step 2 on the plaintiff’s medically determinable
impairments?
The ALJ found that Penninger had no medically determinable
impairments that were severe during the period from May 1, 2006, through the
5
last date of insured status, September 30, 2009. Penninger argues he had
multiple impairments, individually or in combination, that met the severity
threshold. He further argues the ALJ erred in evaluating the weight of the
differing medical opinion evidence and erred in failing to consider third party
information and observations.
It is Penninger’s burden at step two to demonstrate “any
impairment or combination of impairments” to be sufficiently severe that it
“significantly limits” his “physical or mental ability to do basic work activities.”
20 C.F.R. § 404.1520(c). The Tenth Circuit has said that this step requires a
claimant to make “a ‘de minimis’ showing of impairment,” but the showing
must evidence “more than the mere presence of a condition or ailment.” Hinkle
v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997). “[S]tep two [is] designed to
identify ‘at an early stage’ claimants with such slight impairments they would
be unlikely to be found disabled even if age, education, and experience were
considered.” Id. (discussing and quoting Bowen v. Yuckert, 482 U.S. 137, 153
(1987). “Thus, at step two, the ALJ looks at the claimant’s impairment or
combination of impairments only and determines the impact the impairment
would have on his ability to work.” Id. Basic work activities are the “the abilities
and aptitudes to do most jobs” and include “physical functions,” “[c]apacities
for seeing . . .,” and the facility to understand, remember, and carry out simple
instructions; use judgment; and deal with changes in a routine work setting.
6
20 C.F.R. § 404.1521(b). In Social Security Ruling (“SSR”) 85-28, the
Secretary clarified that, “A claim may be denied at step two only if the evidence
shows that the individual’s impairments, when considered in combination, are
not medically severe, . . . . If such a finding is not clearly established by
medical evidence, however, adjudication must continue through the sequential
evaluation process.” 1985 WL 56856 at *3; see Hunter v. Chater, 83 F.3d 432,
1996 WL 195131 at *1 (10th Cir. 1996) (Table); Gosch v. Astrue, 2011 WL
1899289 at *4 (D. Kan. 2011).
It rests with the claimant to present “medical evidence” of
impairment and severity during the alleged period of disability. Jackson v.
Colvin, 2013 WL 2147959 at *2 (D. Kan. 2013). A physical or mental
impairment “must result from anatomical, physiological, or psychological
abnormalities which can be shown by medically acceptable clinical and
laboratory diagnostic techniques.” 20 C.F.R. 404.1508. “Only laboratory
findings and clinical findings establish a medically determinable impairment;
Williams' [claimant’s] reported symptoms alone do not do so.” Williams v.
Colvin, 2013 WL 1701049, at *2 (10th Cir. Apr. 19 2013) (citing See 20 C.F.R.
§§ 416.928, 416.929(b); SSR 96–7p, 1996 WL 374186, at *1; SSR 96–4p,
1996 WL 374187, at *1). Putting these concepts together, “laboratory findings
and clinical findings (or ‘signs’) establish medically determinable impairments,
. . . a claimant's reported symptoms do not . . . [b]ut a finding entails
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‘medically acceptable clinical diagnostic techniques’ or ‘medically acceptable
laboratory diagnostic techniques.’” Holbrook v. Colvin, 2013 WL 1150298 at *3
(10th Cir. Mar. 21, 2013) (citations to regulations omitted); see SSR 96-4p,
1996 WL 374187, at *1 (“In claims in which there are no medical signs or
laboratory findings to substantiate the existence of a medically determinable
physical or mental impairment, the individual must be found not disabled at
step 2.”). “Social Security Ruling (SSR) 96–4p further states ‘[n]o symptom or
combination of symptoms can be the basis for a finding of disability, no matter
how genuine the individual's complaints may appear to be, unless there are
medical signs and laboratory findings demonstrating the existence of a
medically determinable physical or mental impairment.’ SSR 96–4p.” Simon v.
Astrue, 2009 WL 684713 at *2 (D. Kan. 2009). On the other hand, “[m]edically
acceptable evidence includes observations made by a physician during
physical examination and is not limited to the narrow strictures of laboratory
findings or test results.” Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000)
(internal quotation marks and citation omitted).
The ALJ initially found that Penninger had only one medically
determinable impairment, Lyme disease, and that Penninger suffered from
this impairment through September 30, 2009. (R. 23). And yet, the balance of
the ALJ’s decision is devoted to findings that Penninger did not have Lyme
disease after September of 2007. The ALJ found that Dr. Winkler had testified
8
that Penninger had “a history of Lyme’s disease with positive testing for an
acute infection, which resolved after treatment” and that “repeat testing
showed the disease was resolved by August or September 2007 after . . . the
appropriate treatment.” (R. 25). The ALJ observed that Dr. Winkler had “noted
there is no evidence of ongoing chronic Lyme’s disease” and had “determined
that the claimant had no objective findings that would restrict him from a
functional standpoint.” (R. 25, 26). The ALJ also gave “great weight” to the
state agency medical opinion of Dr. Bullock that chronic Lyme disease exists
“only when” the disease has “never been treated” and that he had not found
“any significant medical or scientific evidence supporting the existence of
Lyme’s disease not being 100% cured within six months of therapy.” (R. 26,
27). The court is at a loss to explain how the ALJ first can find that Penninger
has the “medically determinable impairment: Lyme’s disease” through
September 30, 2009, but then find that all the medical evidence, specifically
the opinions of treating physicians based on clinical findings and prior
laboratory results, to prove a condition through September 30, 2009, should
be rejected as unreliable in favor of the opinions from the non-treating
physicians based on current laboratory findings that the claimant had no
objective medically determinable Lyme disease after September of 2007. This
inconsistency marks the flawed analysis employed in evaluating the
physicians’ differing opinions over chronic Lyme disease.
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The claimant first contends that the ALJ failed to list and consider
the additional medially determinable impairments of depression, degenerative
disc disease, headaches, sleep apnea, fibromyalgia, and Epstein Barr Virus.
The ALJ did cite Dr. Winkler’s testimony that the claimant “has some problems
with depression,” mild degenerative disc disease, “some problems with
headaches.” (R. 25, 48). Other than accepting Dr. Winkler’s conclusion that
“the claimant had no objective findings that would restrict him from a
functional standpoint,” the ALJ does not identify or discuss the medical
evidence of record concerning these other diagnosed conditions.
The claimant also points to other diagnosed medical conditions
that are not mentioned anywhere by Dr. Winkler or by the ALJ. From the
medical record, the claimant cites the progress notes from his referral to Dr.
Verstraete, a member of the Mid-America Infectious Disease Consultants, for a
second opinion after claimant’s initial treatment for Lyme Disease by Dr.
Sahgal. (R. 813). Based on his clinical examination in August of 2007, Dr.
Verstraete listed the following as his diagnosis:
“Lyme dis., Chronic Fatigue,
Fibromyalgia, Insomnia” and ordered laboratory work. (R. 813-14). Upon
receiving the laboratory work, Dr. Verstraete performed a follow-up
examination in September of 2007 and recorded a diagnosis that included
transaminitis, sleep apnea, fibromyalgia, and chronic Epstein-Barr virus. (R.
811). Claimant was prescribed home oxygen therapy for the sleep apnea. (R.
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826). Finally, the claimant cites objective medical evidence of record showing
diagnosis and treatment for thoracic spine tendinitis in March of 2007 (R. 803),
“dermatomal thoracic sensory loss” in April of 2007 (R. 599), and a minimal
bulge noted at T11-T12 without significant impingement confirmed by the MRI
(R. 606). The ALJ’s decision does not offer any meaningful discussion of these
diagnosed impairments or their severity. Because this case is being remanded
for other reasons, the ALJ also shall address these impairments at step two.
See Johnson v. Asture, 2013 WL 557100 at *5 (D. Kan. 2013).
The claimant next presents the compelling argument that the ALJ
erred in according “considerable” weight to Dr. Winkler’s testimony, as a
non-examining physician, over the medical opinion of Dr. Brewer, the treating
physician. In this circuit, it is well settled that “the opinions of physicians who
have seen a claimant over a period of time for purposes of treatment are given
more weight over the views of consulting physicians or those who only review
the medical records and never examine the claimant.” Robinson v. Barnhart,
366 F.3d 1078, 1084 (10th Cir. 2004) (internal quotation marks and citations
omitted). A treating physician’s opinion is entitled to such weight due to the
unique perspective afforded in the treating relationship “that cannot be
obtained from the objective medical findings alone.” Id. As a general matter,
the greatest weight is given to the treating physician’s opinion with less to the
examining physician and even less to an agency physician, like Dr. Bullock
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here. Id.
The ALJ’s evaluation of a treating physician’s opinion follows a
sequential analysis:
First, the ALJ must decide whether the opinion is entitled to controlling
weight. For this, she “must first consider whether the opinion is
well-supported by medically acceptable clinical and laboratory diagnostic
techniques.” Id. [Watkins v. Barnhart, 350 F.3d 1297 (10th Cir. 2003])
at 1300 (internal quotation marks omitted). If it is not, then the opinion
is not entitled to controlling weight. If it is, then the ALJ must further
determine whether the opinion is “consistent with other substantial
evidence in the record.” Id. We have held that an ALJ must make a
finding as to whether the physician's opinion is entitled to controlling
weight “so that we can properly review the ALJ's determination on
appeal.” Id.
Jones v. Colvin, 2013 WL 1777333, at *3 (10th Cir. 2013). In this case, the ALJ
found that the treating physician Dr. Brewer’s opinion “is not supported by
medically acceptable clinical and laboratory diagnostic techniques and is
generally inconsistent with the more persuasive opinions in the record” and so
“accord[ed] it little weight.” (R. 27-28). If such deficiencies lie with Dr.
Brewer’s opinion, then the ALJ would be justified in denying it controlling
weight. Robinson v. Barnhart, 366 F.3d 1078, 1082 (10th Cir. 2004).
For her conclusion that Dr. Brewer’s opinion is not based on
medically acceptable diagnostic techniques, the ALJ relies exclusively on the
testimony of medical expert, Dr. Winkler, and the written statement of state
agency physician, Dr. Bullock. Specifically, she relied on Dr. Winkler’s opinion
that “repeat testing showed the [Lyme] disease was resolved by August or
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September 2007 after he received the appropriate treatment.” (R.25). The ALJ
cited Dr. Bullock for his opinions that he did not find “any significant medical or
scientific evidence supporting the existence of Lyme’s disease not being 100%
cured within six months of the therapy” and that “available evidence shows
that people can have chronic Lyme disease for years, but only when they have
never been treated for it.” (R. 26). From the opinions of Dr. Winkler and Dr.
Bullock alone, the ALJ concluded that Dr. Brewer’s diagnosis and treatment of
chronic Lyme disease and Babesia was “not supported by medically acceptable
clinical and laboratory diagnostic techniques.” (R. 27-28).
The court cannot accept the ALJ’s findings as supported by
substantial evidence. First, the ALJ calls Dr. Winkler a “specialist” but without
establishing the relevance of her specialization to the diagnosis and treatment
of Lyme’s disease or Babesia. More importantly, the record simply does not
show Dr. Winkler to possess certification, training or experience that is
superior to Dr. Brewer, M.D. F.A.C.P., who practices in a clinic named, “Plaza
Infectious Disease, PC” (R. 1210) and who began treating the claimant in April
2008 based on a referral for ongoing neurological symptoms from Lyme’s
disease (R. 911). Dr. Winkler’s familiarity with Social Security policy and
regulations is hardly relevant or significant to her contrary medical opinion on
the diagnosis and treatment of these diseases. As the claimant points out, the
ALJ apparently erred in characterizing Dr. Winkler’s review to have included
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the “complete documentary record.” (R. 27). Dr. Winkler testified to reviewing
exhibits 1f through 30F, (R. 48), but it is not established that she reviewed the
function reports of the claimant and third parties, medical treatment diaries,
medication lists, or the consultative examination report of the psychologist
Todd Schemmel. Nor did Dr. Winkler hear the claimant testify about his
symptoms or examine the claimant for any clinical signs. Finally, the ALJ’s
regard for Dr. Winkler’s opinion being detailed and supported by references to
laboratory findings (R. 27) begs the central question of what are medically
acceptable clinical and laboratory diagnostic techniques for chronic Lyme’s
disease and Babesia.
Based on the cursory opinions of Dr. Winkler and Dr. Bullock,
neither of whom presumed to lay a foundation for establishing what would be
the full range of medically acceptable diagnostic techniques for these diseases,
the ALJ was quick to discount Dr. Brewer, and presumably Dr. Sahgal, both of
whom appear to be specialists in infectious diseases, as having opinions based
on diagnostic techniques outside the range of medical acceptability. The
medical record shows that Dr. Winkler and Dr. Bullock both regarded Lyme
disease as cured quickly with treatment and that chronic Lyme disease was
either the result of complete failure to treat or misdiagnosis. (R. 48, 50, 1102).
As the claimant points out, the medical literature available through the Center
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for Disease Control1 and through the U.S. Department of Health and Human
Services National Institutes of Health, Allergy and Infectious Diseases2
confirms the difficulty in diagnosing and explaining chronic Lyme disease and
further confirms the medically accepted fact that some patients experience
persisting severe symptoms even after treatment despite the absence of other
evidence to confirm an active infection:
After being treated for Lyme disease, some patients still report
non-specific symptoms, including persistent pain, fatigue, impaired
cognitive function, or unexplained numbness. These patients often show
no evidence of active infection and may be diagnosed with post-Lyme
disease syndrome (PLDS). In patients with PLDS, studies have shown
that more antibiotic therapy is not beneficial and the risks outweigh the
benefits.
http://www.niaid.nih.gov/topics/lymeDisease/research/Pages/antibioti
c.aspx
What is “chronic Lyme disease?”
Lyme disease is an infection caused by the bacterium Borrelia
burgdorferi. In the majority of cases, it is successfully treated with oral
antibiotics.
The term “chronic Lyme disease” (CLD) is very confusing, as it has been
used describe people with different illnesses. While the term is
sometimes used to describe illness in patients with Lyme disease, in
many occasions it has been used to describe symptoms in people who
have no evidence of a current or past infection with B. burgdorferi (Infect
Dis Clin N Am 22:341-60, 2008). In other cases, “CLD” is used in
patients who have non-specific symptoms (like fatigue and pain) after
treatment for Lyme disease, but who have no evidence of active
infection with B. burgdorferi. Physicians sometimes describe these
patients as having post-Lyme disease syndrome (PLDS).
1See Adams v. Astrue, 2013 WL 609859 at *6 (W.D.N.C. 2013) (medical
testing of Lyme disease that referenced “the standards set forth by the CDC for
diagnosing Lyme disease.”)
2 See Farrell v. Astrue, 692 F.3d 767, 770 (7th Cir. 2012) (court considers
information from NIH’s website in evaluating diagnosis of fibromyalgia).
15
Because of the confusion in how the term CLD is employed, experts in
this field do not support its use (New Enl J Med 357:1422-30, 2008).
How is Lyme disease treated?
For early Lyme disease, a short course of oral antibiotics such as
doxycycline or amoxicillin is curative in the majority of the cases. In
more complicated cases, Lyme disease can usually be successfully
treated with 3 to 4 weeks of antibiotic therapy. In patients who have
non-specific symptoms after being treated for Lyme disease, and no
evidence of active infection (patients with PLDS), studies have shown
that more antibiotic therapy is not helpful and can be dangerous.
Has NIAID looked at the potential benefits of long-term antibiotic
therapy on PLDS?
Yes. In an effort to address the confusion regarding appropriate therapy,
NIAID has funded three placebo-controlled clinical trials on the efficacy
of prolonged antibiotic therapy for treating PLDS. The published results
were subjected to rigorous statistical, editorial, and scientific peer
review.
....
The studies reinforced the evidence that patients reporting PLDS
symptoms have a severe impairment in overall physical health and
quality of life. However, results showed no benefit from prolonged
antibiotic therapy when compared with placebo in treating those
symptoms.
http://www.niaid.hih.gov/topics/lymeDisease/understanding/Pages/chr
onic.aspx
Post-Treatment Lyme Disease Syndrome
Approximately 10 to 20% of patients treated for Lyme disease with a
recommended 2-4 week course of antibiotics will have lingering
symptoms of fatigue, pain, or joint and muscle aches. In some cases,
these can last for more than 6 months. Although often called “chronic
Lyme disease,” this condition is properly known as “Post-treatment
Lyme Disease Syndrome” (PTLDS).
The exact cause of PTLDS is not yet known. Most medical experts believe
that the lingering symptoms are the result of residual damage to tissues
and the immune system that occurred during the infection. Similar
complications and “auto-immune” responses are known to occur
following other infections, including . . . . In contrast, some health care
providers tell patients that these symptoms reflect persistent infection
with Borrelia burgdorferi. Recent animal studies have given rise to
questions that require further research, and clinical studies to determine
the cause of PTLDS in humans are ongoing.
http://www.cdc.gov/lyme/postLDS/index.html
16
This governmentally accepted and published medical information on Lyme
disease establishes that there is a condition, sometimes called chronic Lyme
disease, but more accurately described as post-treatment Lyme disease
syndrome, in which a person who has been treated with antibiotics and who
has no evidence of an active infection may still be experiencing symptoms of
fatigue, pain and aches that “have a severe impairment in overall physical
health and quality of life.” Id. While the research and study into the cause of
this condition is ongoing, the medically accepted facts are that this condition
exists in 10 to 20% of patients treated for Lyme disease and it results in
lingering symptoms that are a severe impairment. Thus, Dr. Brewer’s clinical
diagnosis of chronic Lyme disease without laboratory findings of an ongoing
active infection following antibiotic treatment is medically acceptable, contrary
to the opinions of Dr. Winkler and Dr. Bullock. Additionally, the published
information recognizes that some health care providers in this field may tell
their patients “that these symptoms reflect persistent infection” and even
prescribe continuing antibiotic therapy. Id.3
3As the claimant discusses in his memorandum, there are two recognized
schools of thought in the medical community on long-term antibiotic treatment
for chronic Lyme disease. Dk. 4, p. 26. See also
http://www.lymedisease.org/lyme101/lyme_disease/lyme_treatment.html
The ALJ offers no sound reason for discounting Dr. Brewer’s opinion on chronic
Lyme disease simply because his treatment approach on a medically
recognized condition follows a school of thought different from that followed by
Dr. Winkler and Dr. Bullock.
17
Besides this governmentally published information, the medical
record includes the claimant’s initial treatment report for Lyme disease dated
May 24, 2007. The plaintiff’s first treating specialist, Dr. Vivek Sahgal, MD,
FACP, an infectious disease consultant, records:
Charles has not been feeling well for the last year or so. He has been
having increasing symptoms with joint pains, gradually increasing
memory loss, vision problems, and speech problems. He is also having
tingling in the face and the hands, arms, and body in general.
PAST MEDICAL HISTORY: He has had Lyme serologies that were
significantly positive.
....
IMPRESSION:
1. Lyme disease
2. He does have advanced symptoms of arthritis, as well as neurological
symptoms.
PLAN:
1. Plan is to start him on Rocephin IV on an outpatient basis.
2. I have explained to Charles that recovery from his disease is not
possible with treatment, but we can prevent further progression. He
does understand that, he states.
(R. 756). Thus, another infectious disease expert and treating physician,
Dr. Sahgal, offers an opinion on the recovery from a long-standing case of
Lyme disease that is consistent with the above medical information and with
Dr. Brewer’s opinion. The court concludes that the opinions of Dr. Winkler and
Dr. Bullock on the diagnosis of chronic Lyme disease are not substantial
evidence because they are overwhelmed by the governmentally published
medical information on this disease and by the opinions of treating physicians
18
who specialize in the treatment of infectious diseases. Thus, there is not
substantial evidence to sustain the ALJ’s decision that Dr. Brewer’s diagnosis of
chronic Lyme disease is “not supported by medically acceptable clinical and
laboratory diagnostic techniques.” (R. 27-28). The medical evidence of record
sustains Dr. Brewer’s clinical examinations and medical conclusions that
Pennington was experiencing severe symptoms medically attributable in part
to chronic Lyme disease. (R. 904-907, 910-911, 962).
The ALJ’s reliance on the opinions of Dr. Winkler and Dr. Bullock to
discount Dr. Brewer’s diagnosis and treatment of Babesia (WA-1) is no less
problematic. The claimant properly cites from the medical record those blood
test results by Quest Diagnostics which were positive for antibodies of “WA1 .
. . a Babesia-like piroplasm associated with cases of an illness similar to
babesiosis in the Pacific Northwest. Little, if any cross reactivity occurs
between Babesia microti WA1.” (R. 1002, Sept. 2008; R. 1025, Apr. 2008). Dr.
Brewer’s treatment records and letters consistently reference this co-infection
as Babesia (WA-1). (R. 909-910, 927, 962, 1209-1210, 1216). Nonetheless,
neither Dr. Winkler nor Dr. Bullock discussed these positive test results for
Babesia (WA-1) or the medical acceptability of Dr. Brewer relying on these test
results in making that diagnosis. At best, Dr. Winkler testified that, “Looking at
his records I’m not sure his titers were ever elevated.” (R. 50). The above
medical records establish they were for Babesia (WA-1). Dr. Bullock limited his
19
review to Quest Diagnostics’ other test results for “Babesia IgC and IgM levels”
without referencing the WA-1 results. (R. 1102). Again, the court concludes
there is not substantial evidence to sustain the ALJ’s decision that Dr. Brewer’s
diagnosis of Babesia (WA-1) is “not supported by medically acceptable clinical
and laboratory diagnostic techniques.” (R. 27-28). For that matter, all of the
same analysis likewise demonstrates that substantial evidence is lacking for
the ALJ to find Dr. Winkler’s and Dr. Bullock’s opinions more persuasive on the
existence of a medically determinable impairment at step two.
The claimant plainly has made his required showing of underlying
medically determinable impairments, supported by medically acceptable
clinical and laboratory diagnostic techniques, that could reasonably be
expected to produce the claimant’s fatigue, headaches, pain, neurological
impairments, blurred vision, memory and concentration deficits. As the ALJ
here explained, “whenever statements about the intensity, persistence or
functionally limiting effects of pain or other symptoms are not substantiated by
objective medical evidence, the undersigned must make a finding on the
credibility of the statements based on a consideration of the entire case
record.” (R. 24). While the ALJ’s decision includes some general credibility
findings against the claimant based on his history of earnings and some
allegedly inconsistent statements about his work status and his ability to read,
the ALJ never makes a specific finding that the claimant’s statements about the
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intensity, persistence or functionally limiting effect of his impairments are so
lacking as not to meet the “de minimis” showing required at step two. More
importantly, the medical evidence here, including Dr. Brewer’s residual
functional capacity assessment as supported by his stated clinical findings and
remarks (R. 904-907), precludes a finding that the claimant’s impairments are
not medically severe at step two.
The court concludes there is not substantial evidence to sustain
the ALJ’s finding that the claimant did not have a severe impairment for
purposes of step two. The plaintiff seeks to have the Commissioner’s decision
reversed with instructions to grant his claim for disability benefits. A key factor
in remanding for further proceedings is whether it would serve a useful
purpose or would merely delay the receipt of benefits. Harris v. Secretary of
Health & Human Services, 821 F.2d 541, 545 (10th Cir. 1987). The court finds
that a remand would be useful to insure a proper evaluation of Dr. Brewer’s
opinions as a treating physician and for the sequential evaluation process to be
completed with a full consideration of the record as a whole. In that regard, the
court would expect the ALJ on remand to give full consideration to the different
third-party information and observations found in the record and to consider
the results of Dr. Schemmel’s consultative mental status examination despite
his failure to administer the MMPI-2.
IT IS THEREFORE ORDERED that the judgment of the
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Commissioner is reversed and the case is remanded pursuant to sentence four
of 42 U.S.C. ' 405(g) for further proceedings consistent with this
memorandum and order.
Dated this 23rd day of July, 2013, Topeka, Kansas.
s/ Sam A. Crow
Sam A. Crow, U.S. District Senior Judge
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