Gerard v. Social Security Administration, Commissioner of

Filing 16

MEMORANDUM AND ORDER - It is ordered that the Commissioner's decision shall be REVERSED and that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) REMANDING this case for further proceedings consistent herewith. Signed by District Judge John W. Lungstrum on 05/20/2014. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CYNTHIA M. GERARD,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security,
)
)
Defendant.
)
________________________________________ )

CIVIL ACTION
No. 13-2029-JWL

MEMORANDUM AND ORDER

Plaintiff seeks review of a decision of the Commissioner of Social Security
(hereinafter Commissioner) denying Social Security Disability (SSD) benefits under
sections 216(i) and 223 of the Social Security Act. 42 U.S.C. §§ 416(i) and 423
(hereinafter the Act). Finding error in the Commissioner’s evaluation of the medical
opinions, the court ORDERS that the decision shall be REVERSED and that judgment
shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) REMANDING the
case for further proceedings consistent with this opinion.
I.

Background
Plaintiff applied for SSD, alleging disability beginning July 14, 2010. (R. 18, 104-

05). In due course, Plaintiff exhausted proceedings before the Commissioner, and now
seeks judicial review of the final decision denying benefits. She alleges the

Administrative Law Judge (ALJ) erred in evaluating the medical opinions of Dr. Goering
and Dr. Parry; failed to assess functional limitations in maintaining concentration,
persistence, or pace, or in Plaintiff’s ability to use her hands and fingers; and erred by
making a credibility determination which is unsupported by the record evidence.
The court’s review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052
(10th Cir. 2009). Section 405(g) of the Act provides that in judicial review “[t]he
findings of the Commissioner as to any fact, if supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). The court must determine whether the ALJ’s factual
findings are supported by substantial evidence in the record and whether he applied the
correct legal standard. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); accord,
White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001). Substantial evidence is more than
a scintilla, but it is less than a preponderance; it is such evidence as a reasonable mind
might accept to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971);
Wall, 561 F.3d at 1052; Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir. 1988).
The court may “neither reweigh the evidence nor substitute [its] judgment for that
of the agency.” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting
Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)); accord,
Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). Nonetheless, the
determination whether substantial evidence supports the Commissioner’s decision is not
simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by

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other evidence or if it constitutes mere conclusion. Gossett, 862 F.2d at 804-05; Ray v.
Bowen, 865 F.2d 222, 224 (10th Cir. 1989).
The Commissioner uses the familiar five-step sequential process to evaluate a
claim for disability. 20 C.F.R. §§ 404.1520, 416.920; Wilson v. Astrue, 602 F.3d 1136,
1139 (10th Cir. 2010) (citing Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)).
“If a determination can be made at any of the steps that a claimant is or is not disabled,
evaluation under a subsequent step is not necessary.” Wilson, 602 F.3d at 1139 (quoting
Lax, 489 F.3d at 1084). In the first three steps, the Commissioner determines whether
claimant has engaged in substantial gainful activity since the alleged onset, whether she
has a severe impairment(s), and whether the severity of her impairment(s) meets or equals
the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt.
P, App. 1). Williams, 844 F.2d at 750-51. After evaluating step three, the Commissioner
assesses claimant’s residual functional capacity (RFC). 20 C.F.R. § 404.1520(e). This
assessment is used at both step four and step five of the sequential evaluation process. Id.
The Commissioner next evaluates steps four and five of the sequential process-determining at step four whether, in light of the RFC assessed, claimant can perform her
past relevant work; and at step five whether, when also considering the vocational factors
of age, education, and work experience, claimant is able to perform other work in the
economy. Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In steps one
through four the burden is on Plaintiff to prove a disability that prevents performance of
past relevant work. Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006); accord,
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Dikeman v. Halter, 245 F.3d 1182, 1184 (10th Cir. 2001); Williams, 844 F.2d at 751 n.2.
At step five, the burden shifts to the Commissioner to show that there are jobs in the
economy which are within the RFC assessed. Id.; Haddock v. Apfel, 196 F.3d 1084,
1088 (10th Cir. 1999).
The court finds that remand is necessary because the ALJ erred in evaluating the
medical opinions. Having found error requiring remand, the court will not assess the
additional error’s alleged in Plaintiff’s brief. She may make those arguments, if desired,
to the Commissioner on remand.
II.

Evaluation of Medical Opinions

The ALJ’s discussion of the medical opinion evidence occupied two paragraphs in his
decision:
As for the opinion evidence, on September 28, 2010, a State agency single
decision maker (SDM), Emily Brinkmeyer, reviewed the claimant’s
medical records and completed a physical residual functional capacity
(PRFC) assessment (Exhibit B2A [(R. 49-54)]). In the PRFC, Ms.
Brinkmeyer opined the claimant could lift and carry ten pounds frequently
and twenty pounds occasionally, sit for six hours in an eight-hour day, and
stand or walk for six hours in an eight-hour day (Exhibit B2A/2 [(R. 50)]).
Ms. Brinkmeyer also opined the claimant could perform all postural
activities on an occasional basis (Exhibit B2A/3 [(R. 50-51)]).
Furthermore, Ms. Brinkmeyer opined the claimant has no visual,
manipulative, or communicative workplace limitations, but she should
avoid concentrated exposure to hazards (Exhibit B2A/3-4 [(R. 51-52)]).
Ms. Brinkmeyer is not, for purposes of this decision, an acceptable medical
source. However, on June 14, 2011, Emil Goering, M.D., affirmed Ms.
Brinkmeyer’s opinions in the PRFC (Exhibit B8F [(R. 256)]). Dr. Goering
is an acceptable medical source and his opinion is consistent with the record
as a whole. Accordingly, Dr. Goering’s opinion is given very substantial
weight.

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In July 2011 and January 2012, the claimant’s treating physician, Amy
Parry, D.O., completed paperwork for the claimant to get a handicapparking placard (Exhibits B12F/28 [(R. 298)] and B14F/8 [(R. 376)]). In
the paperwork, Dr. Parry stated the claimant could not walk one-hundred
feet without stopping to rest (Exhibits B12F/28 and B14F/8). However, Dr.
Parry’s assertion directly conflicts with the claimant’s reports that she walks
one mile for exercise per day (Exhibit B14F/21 [(R. 389)]). Therefore, Dr.
Parry’s limitation on the claimant’s ability to walk to less than one-hundred
feet at a time is given very little weight.
(R. 24-25).
Plaintiff claims the ALJ erred in weighing Dr. Goering’s opinion, and argues that
Dr. Goering’s opinion is worthy of no weight because he did not examine Plaintiff, he no
longer practices medicine, and his opinion merely affirmed the opinion of the SDM and
contained no assessment whatsoever. (Pl Br. 11-12). She claims error in according “very
little weight” to the treating source opinion of Dr. Parry, and argues that there is no
inconsistency between Dr. Parry’s opinion and Plaintiff’s limited walking ability. Id.
She also claims the ALJ erred when he failed to discuss the opinions expressed in the
FMLA (Family and Medical Leave Act) paperwork completed by Dr. Perry. Id. at 12
(citing “Certification of Health Care Provider” at R. 351-54, 359-62). She notes Dr.
Parry’s opinion that limitations caused by pain would prevent Plaintiff from performing
the functions of her job as outlined by her employer, and that Plaintiff would likely have
flare-ups approximately 10 times a month causing increased pain, poor concentration,
office visits, and physical therapy, and which would further prevent work. (Pl. Br. 13).
The Commissioner argues that it is not error for a state agency consultant to affirm
the opinion of an SDM as was done in this case; that as the ALJ noted, Dr. Goering’s
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opinion is consistent with the record as a whole; and even though Dr. Goering did not
have access to all of the medical evidence, that fact does not preclude the ALJ from
according substantial weight to Dr. Goering’s opinion because the ALJ himself reviewed
all of the evidence before according weight to Dr. Goering’s opinion. (Comm’r Br. 1214). She argues that it was proper for the ALJ to accord little weight to Dr. Parry’s
opinion (that Plaintiff cannot walk 100 feet without stopping to rest) because that opinion
is contradicted by Plaintiff’s report that she walks one mile a day for exercise in spite of
her assertion elsewhere that she must stop and rest for 10 to 15 minutes after walking for
“several blocks.” Id. at 14. With regard to the opinions expressed in Dr. Parry’s FMLA
paperwork, the Commissioner argues that Plaintiff can show no prejudice from the failure
to discuss those opinions because they were formed before the alleged onset date of
disability and because Plaintiff does not demonstrate that the opinions preclude the ability
to perform a range of light work as assessed by the ALJ. Id. at 15-16.
A physician such as Dr. Parry in this case, who has treated a patient frequently
over an extended period of time (a treating source)1 is expected to have greater insight
into the patient’s medical condition, and his opinion is generally entitled to “particular

1

The regulations define three types of “acceptable medical sources:”
“Treating source:” an “acceptable medical source” who has provided the claimant
with medical treatment or evaluation in an ongoing treatment relationship. 20 C.F.R.
§§ 404.1502, 416.902.
“Nontreating source:” an “acceptable medical source” who has examined the
claimant, but never had a treatment relationship. Id.
“Nonexamining source:” an “acceptable medical source” who has not examined
the claimant, but provides a medical opinion. Id.
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weight.” Doyal v. Barnhart, 331 F.3d 758, 762 (10th Cir. 2003). But, “the opinion of an
examining physician [(a nontreating source)] who only saw the claimant once is not
entitled to the sort of deferential treatment accorded to a treating physician’s opinion.”
Id. at 763 (citing Reid v. Chater, 71 F.3d 372, 374 (10th Cir. 1995)). However, opinions
of nontreating sources are generally given more weight than the opinions of
nonexamining sources such as Dr. Goering, who have merely reviewed the medical
record. Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004); Talbot v. Heckler,
814 F.2d 1456, 1463 (10th Cir. 1987) (citing Broadbent v. Harris, 698 F.2d 407, 412
(10th Cir. 1983), Whitney v. Schweiker, 695 F.2d 784, 789 (7th Cir. 1982), and Wier ex
rel. Wier v. Heckler, 734 F.2d 955, 963 (3d Cir. 1984)).
The Tenth Circuit has explained the nature of the inquiry regarding a treating
source’s medical opinion. Watkins v. Barnhart, 350 F.3d 1297, 1300-01 (10th Cir. 2003)
(citing Soc. Sec. Ruling (SSR) 96-2p). The ALJ determines “whether the opinion is
‘well-supported by medically acceptable clinical and laboratory diagnostic techniques,’”
and if the opinion is well-supported, he must confirm that the opinion is also consistent
with the other substantial evidence in the record. Id. at 1300 (quoting SSR 96-2p). If the
opinion is deficient in either of these respects, it is not entitled to controlling weight. Id.
Even if the treating source opinion is not given controlling weight, the inquiry does
not end. Id. A treating source opinion is “still entitled to deference and must be weighed
using all of the factors provided in 20 C.F.R. § 404.1527 and 416.927.” Id. Those factors
are: (1) length of treatment relationship and frequency of examination; (2) the nature and
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extent of the treatment relationship, including the treatment provided and the kind of
examination or testing performed; (3) the degree to which the physician’s opinion is
supported by relevant evidence; (4) consistency between the opinion and the record as a
whole; (5) whether or not the physician is a specialist in the area upon which an opinion
is rendered; and (6) other factors brought to the ALJ’s attention which tend to support or
contradict the opinion. Id. at 1301; 20 C.F.R. §§ 404.1527(d)(2-6), 416.927(d)(2-6); see
also Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001) (citing Goatcher v.
Dep’t of Health & Human Servs., 52 F.3d 288, 290 (10th Cir. 1995)).
After considering the regulatory factors, the ALJ must give reasons in the decision
for the weight he gives the treating source opinion. Id. 350 F.3d at 1301. “Finally, if the
ALJ rejects the opinion completely, he must then give ‘specific, legitimate reasons’ for
doing so.” Id. (citing Miller v. Chater, 99 F.3d 972, 976 (10th Cir. 1996) (quoting Frey
v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987)).
Both Plaintiff and the Commissioner have constructed arguments supporting their
positions based upon the record evidence, and both positions find a basis in the evidence
and in the legal standard for evaluating medical opinions. Specifically, as the
Commissioner asserts, even though the opinion of a SDM is worthy of no weight as a
medical opinion, a medical consultant might adopt the SDM opinion as his own, and the
resulting medical opinion is then properly evaluated to determine whether it might be
accorded particular weight in the Commissioner’s decision. Thongleuth v. Astrue, No.
10-1101-JWL, 2011 WL 1303374, at *11-12 (D. Kan. Apr. 4, 2011). Thus, in the proper
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circumstances, it is appropriate to accord greater weight to an opinion adopted by a state
agency medical consultant than to the opinion of a treating physician. Moreover, despite
Plaintiff’s protestations to the contrary, Dr. Parry’s certification in July of 2011 and in
January of 2012 that Plaintiff cannot walk 100 feet without stopping to rest is worthy of
very little weight because it is inconsistent with Plaintiff’s contemporaneous report to Dr.
Warner in November of 2011 that she walks a mile a day for exercise. Compare (R. 298,
376) with (R. 389).
However, Plaintiff is also correct to point out that SDM Brinkmeyer’s opinion (as
adopted by Dr. Goering) did not address Plaintiff’s degenerative disc disease and
degenerative joint disease, did not acknowledge the March 2011 spinal MRI suggesting a
syrinx, and was not accompanied by thorough written reports. And, as Plaintiff also
points out, the ALJ said nothing about Dr. Parry’s opinions as reflected in her FMLA
paperwork. Both parties’ arguments are supported by the record evidence. While it
might be possible for the court to evaluate the evidence and the parties’ arguments, and
reach a decision which is supported by substantial record evidence and which applies the
correct legal standard, that is not the court’s prerogative in a Social Security case. That is
the Commissioner’s duty as assigned by Congress in the Social Security Act. The
parties’ arguments thus illustrate the error in the ALJ’s decision--he did not make factual
findings regarding the medical opinions which are supported by substantial record
evidence.

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The ALJ stated that he accorded “very substantial weight” to Dr. Goering’s
opinion because Dr. Goering is an acceptable medical source and because his opinion is
consistent with the record as a whole. The record and the decision demonstrate that Dr.
Goering is an acceptable medical source. However, the same cannot be said regarding the
consistency between the opinion and the record as a whole. As Plaintiff argues, neither
Dr. Goering nor SDM Brinkmeyer addressed Plaintiff’s degenerative disc disease and
degenerative joint disease, or the March 2011 spinal MRI suggesting a syrinx. Moreover,
while the ALJ addressed these issues, he did not explain how they are consistent with Dr.
Goering’s opinion, and the opinion does not reveal on its face that alleged consistency.
Moreover, as Plaintiff points out, Dr. Goering’s decision is not accompanied by thorough
written reports. Dr. Goering merely stated that he had reviewed the medical evidence of
record and had affirmed “as written” the RFC dated September 28, 2010. (R. 256). The
rationale in the RFC adopted by Dr. Goering is similarly deficient. (R. 49-54). The only
explanations given were: “Considerations given due to the claimant’s conditions” (R. 50,
51, 52), and: “The claimant currently experiences additional limitations due to her ankle
fracture. This is expected to resolve by one year from AOD [(alleged onset of
disability)]. By 7/14/11 the claimant will be capable of work activities as outlined
above.” (R. 54). This simply does not explain how the opinion is consistent with the
record as a whole as found by the ALJ.
And, while the court finds the decision to discount Dr. Parry’s opinion regarding
walking is supported by substantial record evidence, Plaintiff is correct that the ALJ erred
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in failing to consider Dr. Parry’s opinions that limitations caused by pain would prevent
Plaintiff from performing the functions of her job as outlined by her employer, and that
Plaintiff would likely have flare-ups approximately 10 times a month causing increased
pain, poor concentration, office visits, and physical therapy, and would further prevent
work. The Commissioner’s argument that Plaintiff can show no prejudice from the
failure to discuss these opinions because they were formed before the alleged onset date
of disability and because Plaintiff does not demonstrate that the opinions preclude the
ability to perform a range of light work is without merit. Although it is true that the
opinions, formulated on August 13, 2009 and July 8, 2010, were dated before Plaintiff’s
alleged onset date of disability--July 14, 2010--they were both formulated within the year
before Plaintiff filed her application--August 10, 2010. That is significant because the
Commissioner has decided that she “will develop your complete medical history for at
least the 12 months preceding the month in which you file your application,” 20 C.F.R.
§ 404.1512(d), and that she “will assess [claimant’s] residual functional capacity based on
all the relevant evidence in your case record.” Id. § 404.1545(a). While the ALJ in this
case properly developed Plaintiff’s complete medical history as required by the
regulations, he did not assess Plaintiff’s RFC based on the opinions expressed in Dr.
Parry’s FMLA paperwork, or at least he did not discuss those opinions in any way. If
those opinions are accepted, Plaintiff cannot perform the functions of her past relevant
work as outlined by her employer, and she will have approximately 10 flare-ups a month
which require office visits and physical therapy.
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The ALJ found that Plaintiff is able to perform her past relevant work, because it
does not require the performance of work-related activities precluded by her limitations.
(R. 26). However, Dr. Parry opined that Plaintiff’s limitations prevent certain workrelated activities. Where the ALJ’s RFC determination conflicts with a medical source
opinion, the ALJ must explain why he did not adopt the medical source opinion. SSR 968p, West’s Soc. Sec. Reporting Serv. 150 (Supp. 2013). The failure to do so here is error
requiring remand. Moreover, the vocational expert in this case testified that in Plaintiff’s
past relevant work she would be allowed to miss “up to two to three weeks a year.” Dr.
Parry’s opinion that Plaintiff might have up to 120 flare-ups a year--potentially requiring
missed work due to office visits or physical therapy--is significantly probative evidence
contrary to the ALJ’s decision that Plaintiff can perform her past relevant work.
Therefore, the ALJ is required to discuss that evidence in his decision. Clifton v. Chater,
79 F.3d 1007, 1009-10 (10th Cir. 1996). Failure to do so requires remand.
IT IS THEREFORE ORDERED that the Commissioner’s decision shall be
REVERSED and that judgment shall be entered pursuant to the fourth sentence of 42
U.S.C. § 405(g) REMANDING this case for further proceedings consistent herewith.
Dated this 20th day of May 2014, at Kansas City, Kansas.

s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge

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