Duff v. Social Security Administration, Commissioner of

Filing 18

MEMORANDUM AND ORDER: The court shall reverse defendant's decision to deny plaintiff's applications for benefits. The court shall direct that this case be remanded to the Commissioner for further proceedings consistent with this opinion. This remand is made under the fourth sentence of 42 U.S.C. 405(g). Signed by District Judge Richard D. Rogers on 5/14/14. (meh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
HOLLY M. DUFF,

)
)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.

Case No. 13-2466-RDR

MEMORANDUM AND ORDER
On

February

1,

2010,

plaintiff

filed

applications

for

social security disability insurance benefits and supplemental
security

income

benefits.

These

applications

disability onset date of February 29, 2008.
2012,

a

hearing

was

conducted

upon

alleged

a

On January 10,

plaintiff’s

applications.

The administrative law judge (ALJ) considered the evidence and
decided on February 8, 2012 that plaintiff was not qualified to
receive benefits.

This decision has been adopted by defendant.

This case is now before the court upon plaintiff’s motion to
reverse and remand the decision to deny plaintiff’s applications
for benefits.
and

remand

After due consideration, the court shall reverse
the

decision

for

further

administrative

review

because the court is convinced that the ALJ did not properly
evaluate the opinion of a treating physician.

I.

STANDARD OF REVIEW
To

qualify

establish

that

for
he

disability

or

she

was

benefits,
“disabled”

a

claimant

under

the

must
Social

Security Act, 42 U.S.C. § 423(a)(1)(E), during the time when the
claimant had “insured status” under the Social Security program.
See Potter v. Secretary of Health & Human Services, 905 F.2d
1346, 1347 (10th Cir. 1990); 20 C.F.R. §§ 404.130, 404.131.

To

be “disabled” means that the claimant is unable “to engage in
any

substantial

determinable

gainful

physical

or

activity
mental

by

reason

impairment

of

any

which

.

medically
.

.

has

lasted or can be expected to last for a continuous period of not
less than 12 months.”

42 U.S.C. § 423(d)(1)(A).

For supplemental security income claims, a claimant becomes
eligible in the first month where he or she is both disabled and
has an application on file.

20 C.F.R. §§ 416.202-03, 416.330,

416.335.
The court must affirm the ALJ’s decision if it is supported
by substantial evidence and if the ALJ applied the proper legal
standards.
2004).

Rebeck v. Barnhart, 317 F.Supp.2d 1263, 1271 (D.Kan.

“Substantial evidence” is “more than a mere scintilla;”

it is “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.”

Id., quoting Richardson

v. Perales, 402 U.S. 389, 401 (1971).

The court must examine

the record as a whole, including whatever in the record fairly
2

detracts from the weight of the defendant’s decision, and on
that

basis

decide

if

defendant’s decision.
Cir.

1994)

(quoting

substantial

evidence

supports

the

Glenn v. Shalala, 21 F.3d 983, 984 (10th
Casias

v.

Secretary

of

Health

Services, 933 F.2d 799, 800-01 (10th Cir. 1991)).

&

Human

The court may

not reverse the defendant’s choice between two reasonable but
conflicting views, even if the court would have made a different
choice if the matter were referred to the court de novo.

Lax v.

Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Zoltanski
v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).
II.

THE ALJ’S DECISION (Tr. 13-21).
There is a five-step evaluation process followed in these

cases which is described in the ALJ’s decision.

(Tr. 14-15).

First, it is determined whether the claimant is engaging in
substantial gainful activity.

Second, the ALJ decides whether

the claimant has a medically determinable impairment that is
“severe” or a combination of impairments which are “severe.”

At

step three, the ALJ decides whether the claimant’s impairments
or

combination

of

impairments

meet

or

medically

equal

the

criteria of an impairment listed in 20 C.F.R. Part 404, Subpart
P, Appendix 1.

Next, the ALJ determines the claimant’s residual

functional capacity and then decides whether the claimant has
the residual functional capacity to perform the requirements of
his or her past relevant work.

Finally, at the last step of the
3

sequential evaluation process, the ALJ determines whether the
claimant is able to do any other work considering his or her
residual

functional

capacity,

age,

education

and

work

experience.
In
should

this
be

case,

denied

evaluation

the

on

ALJ

the

process.

decided

basis

The

of

ALJ

plaintiff’s
the

fourth

determined

application
step

that

of

the

plaintiff

maintained the residual functional capacity to perform her past
relevant work as a nanny, daycare attendant, security guard or
hostess.
The

ALJ

decision.
requirements
2012.

made

the

First,
for

following

plaintiff

Social

Security

specific

meets

findings

the

benefits

insured

through

in

his

status

March

31,

Second, plaintiff did not engage in substantial gainful

activity after February 29, 2008, the alleged onset date of
disability.
impairments:
Tooth

Third,

plaintiff

has

the

following

severe

pelvic fracture; pituitary adenoma; Charcot-Marie-

Syndrome;

hypothyroidism;

hypertension;

pericardial effusion; obesity and osteopenia.1

inflammatory

Fourth, plaintiff

does not have an impairment or combination of impairments that
meet or medically equal the listed impairments in 20 C.F.R. Part

1

The court in VanOvermeiren v. Colvin, 2013 WL 3753437 *1 n.2 (D.Minn.
7/16/2013) cites the following definition for Charcot-Marie-Tooth Syndrome:
“a peripheral muscular disorder, a common feature of which is marked wasting
of the distal part of the extremities, usually involving the legs before the
arms.”

4

404, Subpart P, Appendix 1.

Fifth, plaintiff has the residual

functional capacity to perform the full range of light work as
defined in 20 C.F.R. 404.1567(b) and 416.967(b).

And, finally,

the ALJ determined that plaintiff is able to perform her past
relevant work as nanny, daycare attendant, security guard or
hostess.

This last finding was based in part upon the testimony

of a vocational expert, specifically the following exchange:
Q. Second hypothetical, we have the same individual.
This person can sit six hours in an eight-hour day,
stand and walk four hours in an eight-hour day, can
occasionally lift 20 pounds, frequently lift 10
pounds.
This person can occasionally climb stairs,
balance, stoop, kneel, crouch, crawl, should never
climb ladders, scaffolds, or ropes.
Based on
hypothetical number two, would she be able to return
to any of the past jobs?
A. Your Honor, based on the description in the record
... As performed, yes to the nanny and the daycare ...
(Tr. 45).

However, the vocational expert did not make reference

to plaintiff’s past relevant work as security guard or hostess,
other than to say that these occupations are classified as light
work.

(Tr. 44).

III.
THE DECISION TO DENY BENEFITS SHALL BE REVERSED AND
REMANDED FOR FURTHER CONSIDERATION BECAUSE THE ALJ DID NOT
PROPERLY EVALUATE THE OPINION OF DR. ECK, ONE OF PLAINTIFF’S
TREATING PHYSICIANS.
Most

of

the

argumentation

in

this

case

concerns

the

opinions of Dr. Steven Gerber, a nonexamining physician, and the
opinions

of

physicians.

Dr.

Leigh

Dr.

Gerber

Eck,
is

one

a

of

medical
5

plaintiff’s
expert

who

treating

gave

brief

testimony during the administrative hearing in this case.

Dr.

Gerber testified that he reviewed the medical records pertaining
to plaintiff and he concluded that plaintiff had the ability “to
stand

and/or

walk

for

four

out

of

eight

hours

with

normal

breaks, sit six out of eight hours with normal breaks, lift and
carry

[20

pounds

occasionally

and

10

pounds

frequently],

[perform all postural positions occasionally], and no ladders or
scaffolding.”

(Tr. 31-32).

The ALJ gave Dr. Gerber’s opinion

“great weight” because “he had the opportunity to review the
most

up

to

date

medical

records

and

because

consistent with the medical evidence of record.”

his

opinion

(Tr. 20).

is
In

contrast, the ALJ gave “no weight” to the opinion of Dr. Leigh
Eck, a treating physician.
out

a

check-a-box

form

physical capacities.2

On November 29, 2011, Dr. Eck filled

providing

her

(Tr. 824-827).

opinion

of

plaintiff’s

The form sets forth the

same lifting and carrying restrictions, the same or expanded
sitting abilities, and the same or similar postural restrictions
as Dr. Gerber stated.

But, the form states (differing from Dr.

Gerber’s testimony) that plaintiff can stand or walk for less
than one hour at the time; that plaintiff needs to elevate her
2

In addition, Dr. Eck wrote a short letter on December 1, 2011 which states
in part:
I see Ms. Duff for panhypopituitarism related to a pituitary
tumor. . . . In addition to this condition, Ms. Duff has CharcotMarie-Tooth.
I am not an expert on Charcot-Marie-Tooth, but my
perception is that this condition is quite debilitating to Ms.
Duff. These chronic illnesses may result i[n] difficulty for Ms.
Duff to participate in a normal stressful work environment.

6

feet for two hours during an 8-hour workday; that plaintiff
occasionally

has

debilitating

pain;

that

plaintiff

takes

prednisone which increases irritability and social isolation;
and that plaintiff would need to be absent from work more than
three times a month.3
The court shall not address many of the arguments plaintiff
makes with regard to the ALJ’s analysis and presentation of Dr.
Gerber’s

testimony.

Instead,

the

court

shall

focus

upon

plaintiff’s contention that the ALJ failed to properly consider
the opinion of Dr. Eck.
contention,

it

is

Because the court agrees with this

unnecessary

for

the

court

to

decide

plaintiff’s other arguments.
The first step in evaluating a treating doctor’s opinion is
to

determine

the

opinion

is

entitled

to

controlling

Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir.

weight.
2004).

whether

This is accomplished in two stages:

1) determining

whether the opinion is supported by medically accepted clinical
and

laboratory

diagnostic

techniques

and,

if

so,

then

2)

determining if the opinion is consistent with other substantial
evidence in the record.
1300

(10th

Cir.

2003).

Watkins v. Barnhart, 350 F.3d 1297,
The

ALJ

found

fault

with

Dr.

Fck’s

opinions at the second stage.

3

The form also mentions dizziness, numbness, depression, short attention
span, memory problems, and behavior extremes.
But, these problems are not
the focus of plaintiff’s claims.

7

The second step in evaluating a treating doctor’s opinion
is determining what amount of weight to attach to the opinion if
the opinion does not deserve controlling weight.
consider

such

factors

as:

1)

the

length

of

An ALJ may
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 the opinion is rendered; and
6) other factors brought to the ALJ’s attention which tend to
support or contradict the opinion.
The

ALJ

attributed

“no

Langley, 373 F.3d at 1119.

weight”

to

Dr.

Eck’s

opinions

because “the treatment notes simply do not support her opinion,
and

her

opinion

debilitating

that

appears

the

based

CMT
on

[Charcot-Marie-Tooth]
the

claimant’s

complaints rather than any objective testing.”

is

subjective

(Tr. 19).

When

discussing the treatment notes in the record the ALJ commented:
The treatment notes essentially detail that the
claimant was doing well on her various treatments and
medications.
The numerous physical and neurological
examinations in the record do not contain objective
findings to support that the neurological examinations
in the record do not contain objective findings to
support that the claimant could not perform work
activities at least consistent with [the ALJ’s
assessment of her residual functional capacity].
8

Moreover, the claimant’s own statements and actual
activities
are
not
fully
consistent
with
her
allegations of a complete inability to work.
At her
gynecology appointment in September 2008 and her
initial September 2008 appointment with Dr. Jansen to
establish care, the claimant reported she had not
taken any medications since 2001. She reported to Dr.
Jansen that she felt well.
(Tr. 20).
The court’s review of the medical records is not firmly
consistent with the ALJ’s conclusions.

On October 30, 2008,

plaintiff reported that she felt well; but she also stated that
she became tired after walking a block or two.

(Tr. 421).

This

condition, which appears inconsistent with the requirements for
nanny or daycare position, seems to have persisted as noted
later.
On

January

15,

2009,

plaintiff

had

“no

complaints”

denied fatigue, but did mention muscle weakness.

(Tr. 577).

Plaintiff mentioned fatigue to Dr. Eck on April 8, 2009.
512).

(Tr.

She denied fatigue to Dr. Jansen on January 28, 2010.

(Tr. 583).
2010.

and

Dr. Desta recorded no muscle weakness on March 2,

(Tr. 587).

About the same time, however, Dr. Eck stated

that plaintiff was positive for fatigue, weakness and decreased
energy.
current

(Tr. 597-98).
complaints

other

In April 2010, plaintiff reported no
than

mild

fatigue

and

some

immaterial matters to Drs. Teng and Awadh. (Tr. 765-66).

other
In May

2010, Dr. Fortune commented that plaintiff had no difficulty

9

walking
637).

but

became

somewhat

fatigued

after

30

minutes.

(Tr.

In September 2010, Dr. Gollub stated that plaintiff was

“doing well.”

(Tr. 669).

In October 2010 and March 2011,

doctors recorded that plaintiff was negative for fatigue.
707, 754, 756).

(Tr.

But, in August 2011, Dr. Sharma stated that

plaintiff was positive for weakness and fatigue.

He noted that

plaintiff’s exercise tolerance was limited to walking about 2-3
blocks because of her Charcot-Marie-Tooth disease.
841).

(Tr. 704,

In October and November of 2011, plaintiff reported pain

after baby sitting and discomfort after shopping and carrying
packages.

(Tr. 801-02).

Dr. Eck stated that plaintiff had

muscle pain which limited her from standing or walking for long
periods in November 2011, but plaintiff did not report fatigue.
(Tr. 815).

In December 2011, Dr. Gollub reported that plaintiff

was “doing well,” although there was no change in plaintiff’s
exercise tolerance.

(Tr. 834).

He also noted that plaintiff

was positive for fatigue and muscle weakness.

(Tr. 835).

These treatment notes appear to be at least as consistent
with Dr. Eck’s assessment of plaintiff’s ability to stand or
walk

for

periods

of

Gerber’s assessment.

time

as

they

are

consistent

with

Dr.

Further, contrary to the ALJ’s decision,

the record does not reflect that Dr. Gerber relies upon more or
better “objective” evidence for his opinion than Dr. Eck does
for her opinion.

Under these circumstances, we believe Dr.
10

Eck’s opinion deserves more weight.

See Watkins, 350 F.3d at

1300 (citing regulations directing that more weight be given to
opinions from treating sources).

Contrary to Watkins, the ALJ

failed to provide clear or convincing reasons for giving Dr.
Eck’s opinion “no weight.”

An “ALJ must give good reasons in

the . . . decision for the weight he ultimately assigns to the
[treating physician’s] opinion,” and if he “rejects the opinion
completely, he must then give specific, legitimate reasons for
doing

so.”

Watkins,

omitted).

Here,

350

the

F.3d

ALJ’s

at

1301

decision

(interior

does

not

quotations

identify

the

records or objective findings which support rejecting Dr. Eck’s
conclusions

as

to

plaintiff’s

lengthy periods of time.

ability

to

stand

or

walk

for

Accordingly, the court does not find a

good basis in the ALJ’s decision for crediting Dr. Gerber’s
assessment

of

plaintiff’s

condition

over

that

of

one

of

plaintiff’s treating physicians.
In reaching this decision, the court is not finding that
Dr.

Eck’s

opinions

deserve

controlling

weight.

We

further

acknowledge that a treating doctor’s opinion on issues reserved
to the Commissioner is never entitled to controlling weight.
Still, when an ALJ fails to give good reasons for the weight
assigned

to

a

required.

Krauser

treating
v.

physician’s

Astrue,

638

F.3d

opinion,
1324,

a

1330

remand
(10th

is
Cir.

2011); see also, Langley, 373 F.3d at 1120 (while absence of
11

objective testing provided basis for denying controlling weight
to treating physician’s opinion, the ALJ was not entitled to
reject it completely on this basis).
IV.

THE COURT SHALL NOT DIRECT AN IMMEDIATE AWARD OF BENEFITS.
While the court has discretion to reverse and remand for an

award of benefits, the court shall not do so because the court
believes that additional fact finding and analysis may clarify
the nature and extent of plaintiff’s impairments.
V.

CONCLUSION
The

court

shall

reverse

defendant’s

plaintiff’s applications for benefits.
that

this

case

be

remanded

to

the

decision

to

The court shall direct
Commissioner

proceedings consistent with this opinion.

for

further

This remand is made

under the fourth sentence of 42 U.S.C. § 405(g).

IT IS SO ORDERED.
Dated this 14th day of May 2014, at Topeka, Kansas.

_s/Richard D. Rogers_
Richard D. Rogers
United States District Judge

12

deny