Glaze 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. Signed by U.S. District Senior Judge Sam A. Crow on 8/6/14. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ANGELA GLAZE,
Plaintiff,
vs.

Case No. 13-2129-SAC

CAROLYN W. COLVIN,
Acting 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

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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
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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 January 11, 2012, administrative law judge (ALJ)

Sharilyn Hopson issued her decision (R. at 10-22).

Plaintiff

alleges that she had been disabled since July 15, 2008 (R. at
10).

Plaintiff is insured for disability insurance benefits

through September 30, 2010 (R. at 12).
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At step one, the ALJ

found that plaintiff did not engage in substantial gainful
activity from July 15, 2008 through September 30, 2010 (R. at
12).

At step two, the ALJ found that plaintiff had the

following severe impairments:

morbid obesity, fibromyalgia,

major depressive disorder, and anxiety without agoraphobia (R.
at 12)).

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 16), the ALJ determined
at step four that plaintiff is able to perform past relevant
work as an office clerk (R. at 21).

Therefore, the ALJ

concluded that plaintiff was not disabled (R. at 22).
III.

Did the ALJ err in her evaluation of the opinions of

treatment providers?
The opinions of physicians, psychologists, or psychiatrists
who have seen a claimant over a period of time for purposes of
treatment are given more weight than the views of consulting
physicians or those who only review the medical records and
never examine the claimant.

The opinion of an examining

physician is generally entitled to less weight than that of a
treating physician, and the opinion of an agency physician who
has never seen the claimant is entitled to the least weight of
all.

Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004).

When a treating source opinion is inconsistent with the other
medical evidence, the ALJ’s task is to examine the other medical
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source’s reports to see if they outweigh the treating source’s
reports, not the other way around.

Treating source opinions are

given particular weight because of their unique perspective to
the medical evidence that cannot be obtained from the objective
medical findings alone or from reports of individual
examinations, such as consultative examinations.

If an ALJ

intends to rely on a nontreating physician or examiner’s
opinion, he must explain the weight he is giving to it.
v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004).

Hamlin

The ALJ must

provide a legally sufficient explanation for rejecting the
opinion of treating medical sources in favor of non-examining or
consulting medical sources.

Robinson, 366 F.3d at 1084.

A treating physician’s opinion about the nature and
severity of the claimant’s impairments should be given
controlling weight by the Commissioner if well supported by
clinical and laboratory diagnostic techniques and if it is not
inconsistent with other substantial evidence in the record.
Castellano v. Secretary of Health & Human Services, 26 F.3d
1027, 1029 (10th Cir. 1994); 20 C.F.R. §§ 404.1527(d)(2),
416.927(d)(2).

When a treating physician opinion is not given

controlling weight, the ALJ must nonetheless specify what lesser
weight he assigned the treating physician opinion.
Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004).

Robinson v.

A treating

source opinion not entitled to controlling weight is still
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entitled to deference and must be weighed using all of the
following factors:
(1) the length of the treatment relationship and the frequency
of examination;
(2) the nature and 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.
Watkins v. Barnhart, 350 F.3d 1297, 1300-1301 (10th Cir. 2003).
After considering the above factors, the ALJ must give good
reasons in his/her decision for the weight he/she ultimately
assigns the opinion.

If the ALJ rejects the opinion completely,

he/she must then give specific, legitimate reasons for doing so.
Watkins, 350 F.3d at 1301.
On February 23, 2011, plaintiff’s treating psychiatrist,
Dr. Carolina, prepared a medical source statement stating that
plaintiff was markedly limited in 4 out of 20 categories, and
was extremely limited in 6 other categories (R. at 393-395).
The ALJ stated that Dr. Carolina’s opinion relies upon the
claimant’s own reports of her limitations and not upon clinical
observations or signs.

The ALJ further asserted that

psychological test results established that the claimant is not
as limited as alleged by Dr. Carolina.

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For these reasons, the

ALJ accorded only “slight” weight to Dr. Carolina’s opinions (R.
at 20).

The ALJ further noted that Dr. Matzeder, a

psychologist, performed a consultative examination, and that
objective psychological testing formed the basis of her
opinions; thus, her opinions were accorded “great” weight.
First, the ALJ asserts that Dr. Carolina’s opinions rely
upon plaintiff’s own reports of her limitations and not upon
clinical observations or signs.

In the case of Langley v.

Barnhart, 373 F.3d 1116, 1121 (10th Cir. 2004), the court held:
The ALJ also improperly rejected Dr.
Hjortsvang's opinion based upon his own
speculative conclusion that the report was
based only on claimant's subjective
complaints and was “an act of courtesy to a
patient.” Id. The ALJ had no legal nor
evidentiary basis for either of these
findings. Nothing in Dr. Hjortsvang's
reports indicates he relied only on
claimant's subjective complaints or that his
report was merely an act of courtesy. “In
choosing to reject the treating physician's
assessment, an ALJ may not make speculative
inferences from medical reports and may
reject a treating physician's opinion
outright only on the basis of contradictory
medical evidence and not due to his or her
own credibility judgments, speculation or
lay opinion.” McGoffin v. Barnhart, 288 F.3d
1248, 1252 (10th Cir.2002) (quotation
omitted; emphasis in original). And this
court “held years ago that an ALJ's
assertion that a family doctor naturally
advocates his patient's cause is not a good
reason to reject his opinion as a treating
physician.” Id. at 1253.

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Subsequently, in the case of Victory v. Barnhart, 121 Fed. Appx.
819 (10th Cir. Feb. 4, 2005), the court held:
The ALJ's finding that Dr. Covington's
opinion was based on claimant's own
subjective report of her symptoms
impermissibly rests on his speculative,
unsupported assumption. See Langley, 373
F.3d at 1121 (holding that ALJ may not
reject a treating physician's opinion based
on speculation). We find no support in the
record for the ALJ's conclusion. Nothing in
Dr. Covington's report indicates that he
based his opinion on claimant's subjective
complaints, and the ALJ's finding ignores
all of Dr. Covington's examinations, medical
tests, and reports. Indeed, the ALJ's
discussion of Dr. Covington omits entirely
his March 22, 2001 examination and report.
His April 3, 2001 statement might well have
been based on his recent first-hand
examination and observation of claimant
during this examination, performed less than
two weeks earlier, rather than on claimant's
subjective complaints, as the ALJ
speculated. See Morales v. Apfel, 225 F.3d
310, 317 (3d Cir.2000) (noting that the
treating physician's opinion may “reflect
expert judgment based on a continuing
observation of the patient's condition over
a prolonged period of time”).
121 Fed. Appx. at 823-824.
As Langley makes clear, the ALJ must have a legal or
evidentiary basis for asserting that a medical source report was
based on plaintiff’s subjective complaints.

However, the ALJ

did not cite to either a legal or evidentiary basis for his
assertion that Dr. Carolina’s opinions were based on plaintiff’s
subjective complaints.

In fact, Dr. Carolina performed a

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psychiatric evaluation/mental status examination on plaintiff on
February 23, 2011, the same day that Dr. Carolina prepared the
medical source statement (R. at 415).

Dr. Carolina had

performed other evaluations/examinations of plaintiff on
September 27, 2010, October 12, 2010, November 9, 2010, and
December 1, 2010 (R. at 403-404, 407, 408, 412).

As the court

stated in Victory, Dr. Carolina’s assessment might well have
been based on her first-hand examination and observation of the
plaintiff during the psychiatric evaluation/mental status
examination on the day of the assessment and on earlier
occasions, rather than on plaintiff’s subjective complaints, as
the ALJ speculated.
Furthermore, the practice of psychology is necessarily
dependent, at least in part, on a patient’s subjective
statements.

Thomas v. Barnhart, 147 Fed. Appx. 755, 759-760

(10th Cir. Sept. 2, 2005); Miranda v. Barnhart, 205 Fed. Appx.
638, 641 (10th Cir. Aug. 11, 2005).

A psychological opinion may

rest either on observed signs and symptoms or on psychological
tests.

Langley v. Barnhart, 373 F.3d 1116, 1122 (10th Cir.

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

The ALJ cannot reject a psychologist’s opinion solely

for the reason that it was based on a claimant’s responses
because such rejection impermissibly substitutes the ALJ’s

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judgment for that of the psychologist.

Thomas, 147 Fed. Appx.

at 760; Miranda, 205 Fed. Appx. at 641.
Second, the ALJ gave greater weight to the opinions of Dr.
Matzeder because of her “objective” psychological testing, and
gave less weight to the opinions of Dr. Carolina because the
psychological test results (presumably those of Dr. Matzeder)
did not establish that plaintiff was as limited as Dr. Carolina
opined.

Dr. Matzeder’s report indicates that Dr. Matzeder

interviewed and performed a mental status examination of the
plaintiff (R. at 308-311).

Dr. Carolina also performed a mental

status examination/psychiatric evaluation on the plaintiff on
February 23, 2011 (R. at 415), and on previous dates, as noted
above.

The tests that were mentioned by Dr. Matzeder were those

for attention and concentration, memory, abstractions and
intellectual functioning, and insight and judgment (R. at 310).
The tests performed by Dr. Matzeder did not address many of the
limitations contained in Dr. Carolina’s report, including her
ability to maintain attention and concentration for extended
periods, being able to perform activities within a schedule,
maintain regular attendance, and be punctual within customary
tolerances, or the ability to complete a normal workday and
workweek and perform at a consistent pace without an
unreasonable number and length of rest periods.

Furthermore,

Dr. Matzeder did not offer any opinions regarding the nature and
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extent of plaintiff’s limitations in most of the categories
contained in Dr. Carolina’s report.

Therefore, the evidence

does not support the ALJ’s assertion that psychological test
results do not support the limits set forth by Dr. Carolina.
For these reasons, the case shall be remanded in order for the
ALJ to give further consideration to the opinions of Dr.
Carolina.
The record also contains a medical source statement, dated
December 17, 2011, from Ms. Boal, a treatment source who has
seen plaintiff in a professional capacity (R. at 20).

Ms. Boal

found that plaintiff was not significantly impaired in 2
categories, moderately impaired in 8 categories, markedly
impaired in 8 categories, and extremely impaired in 2 categories
(R. at 482-484).

Ms. Boal noted in her report that she had not

known plaintiff on or before September 30, 2010 (R. at 484).
The ALJ stated that the opinions of Ms. Boal noted that their
relationship was not long-standing and that some of the opined
limitations were due to plaintiff’s physical impairments, which
Ms. Boal did not treat.

Thus, the ALJ accorded only slight

weight to her opinions (R. at 20).
Although the opinions of Dr. Carolina and Ms. Boal disagree
on many particulars, both agree that plaintiff is extremely
limited in her ability to: (1) perform activities within a
schedule, maintain regular attendance, and be punctual within
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customary tolerances, and (2) complete a normal workday and
workweek without interruptions from psychologically based
symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods (R. at 394, 483).
An ALJ must not consider the opinions of one treating or
examining source in isolation, but his opinions must be
considered in light of the entire evidentiary record, including
the opinions and assessments of other treating or examining
sources.

The court is concerned with the necessarily

incremental effect of each individual report or opinion by a
source on the aggregate assessment of the evidentiary record,
and, in particular, on the evaluation of reports and opinions of
other medical treating or examining sources, and the need for
the ALJ to take this into consideration.

See Lackey v.

Barnhart, 127 Fed. Appx. 455, 458-459 (10th Cir. April 5, 2005).
On remand, the ALJ should take into consideration the fact that
both treating professionals found plaintiff markedly or
extremely limited in numerous categories.
The record also contains a medical source statement from
Dr. Ruhlman, who opined on March 10, 2011 that plaintiff could
only work for 2 hours a day; he further opined that plaintiff
could only stand for 60 minutes in a workday and sit for 2 hours
in a workday.

He also opined that plaintiff could never bend or

stoop (R. at 424).

The ALJ stated that, according to Dr.
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Landau, Dr. Ruhlman’s opinions express limitations absent from
the treatment records (R. at 21).
However, a review of Dr. Landau’s testimony does not
establish that he stated that Dr. Ruhlman’s opinions express
limitations absent from the treatment records (R. at 54-61).

In

fact, Dr. Landau did not directly comment on Dr. Ruhlman’s
opinions; he simply noted that he had seen Exhibit 21F which
contains the opinions of Dr. Ruhlman (R. at 59).

Dr. Landau

testified that there was no objective evidence of her disease in
the record, but also testified that there are no objective
findings of fibromyalgia, other than trigger points (R. at 60).
Dr. Landau testified that he agreed with the diagnosis of
fibromyalgia (R. at 61).

Dr. Landau never discussed or

evaluated the opinions of Dr. Ruhlman.

The testimony of Dr.

Landau does not support the ALJ’s assertion that Dr. Landau
stated that Dr. Ruhlman’s opinions express limitations that are
absent from the treatment or medical records.

Therefore, this

case should be remanded in order for the ALJ to reevaluate the
opinions of Dr. Landau and Dr. Ruhlman, and provide a legally
sufficient basis for the weight assigned to the opinions of Dr.
Ruhlman, a treating physician.
In their brief, defendant sets forth the argument that Dr.
Ruhlman’s opinion was inconsistent with the record, and then
noted various inconsistencies (Doc. 13 at 8-9).
14

However, these

arguments were not made by the ALJ in her opinion as a basis for
discounting the opinions of Dr. Ruhlman.

An ALJ=s decision

should be evaluated based solely on the reasons stated in the
decision.
2004).

Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir.

A decision cannot be affirmed on the basis of appellate

counsel=s post hoc rationalizations for agency action.
Heckler, 755 F.2d 141, 149 n.16 (10th Cir. 1985).

Knipe v.

A reviewing

court may not create post hoc rationalizations to explain the
Commissioner=s treatment of evidence when that treatment is not
apparent from the Commissioner=s decision.
399 F.3d 1257, 1263 (10th Cir. 2005).

Grogan v. Barnhart,

By considering legal or

evidentiary matters not considered by the ALJ, a court risks
violating the general rule against post hoc justification of
administrative action.

Allen v. Barnhart, 357 F.3d 1140, 1145

(10th Cir. 2004).
IV.

Did the ALJ err by not evaluating whether sleep disorder

was a severe impairment at step two and in considering
plaintiff’s obesity?
Although the ALJ did not mention sleep disorder at step
two, Dr. Landau testified that one of the manifestations of
fibromyalgia is sleep disturbance (R. at 59).

The court finds

no error because it was not mentioned as a severe impairment at
step two in light of the finding that plaintiff had a severe
impairment of fibromyalgia.
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IV.

Did the ALJ err in her evaluation of plaintiff’s obesity?
At step two, the ALJ found that plaintiff’s severe

impairments included morbid obesity (R. at 12).

The ALJ noted

that the medical expert, Dr. Landau, testified that plaintiff
was morbidly obese, noting her weight and body mass index (R. at
18, 56).

The ALJ then gave great weight to the opinions of Dr.

Landau.

The court finds no error in the ALJ’s consideration of

plaintiff’s obesity.
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 6th day of August 2014, Topeka, Kansas.

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

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