Coss v. Social Security Administration Commissioner

Filing 18

MEMORANDUM AND ORDER: IT IS THEREFORE ORDERED that the decision of the Acting Commissioner of Social Security is reversed and remanded for procedures consistent with this Memorandum and Order. The case is closed. Signed by District Judge Carlos Murguia on 07/10/2017. (cv)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

SHERYL L. COSS,
Plaintiff,
v.
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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Case No. 16-2301-CM

MEMORANDUM AND ORDER
Plaintiff Sheryl L. Coss claims that she became disabled on June 3, 2013. She suffers from
heart problems, diabetes, an aneurysm, depression, elbow problems, eye problems, and sleep apnea.
Plaintiff has not engaged in substantial gainful activity since June 2013, after undergoing coronary
bypass surgery. She filed this action pursuant to Title II of the Social Security Act (“Act”), 42 U.S.C.
§§ 401 et seq., requesting disability benefits.
An Administrative Law Judge (“ALJ”) found that plaintiff was not disabled in a decision issued
in November 2015, which stands as the final decision of the Commissioner of Social Security.
Plaintiff argues that the ALJ erred in several ways: (1) he failed to properly weigh the medical
opinions; (2) he unreasonably discounted plaintiff’s credibility; and (3) he improperly held that she
was capable of returning to her past work. After reviewing the record, the court makes the following
rulings.
I.

Legal Standard
This court applies a two-pronged review to the ALJ’s decision: (1) Are the factual findings

supported by substantial evidence in the record? (2) Did the ALJ apply the correct legal standards?
Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citation omitted). “Substantial evidence” is a
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term of art. It means “more than a mere scintilla” and “‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Hunter v. Astrue, 321 F. App’x 789, 792 (10th
Cir. 2009) (quoting Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007)). When evaluating
whether the standard has been met, the court is limited; it may not reweigh the evidence or replace the
ALJ’s judgment with its own. Bellamy v. Massanari, 29 F. App’x 567, 569 (10th Cir. 2002) (citing
Kelley v. Chater, 62 F.3d 335, 337 (10th Cir. 1995)). On the other hand, the court must examine the
entire record—including any evidence that may detract from the decision of the ALJ. Jaramillo v.
Massanari, 21 F. App’x 792, 794 (10th Cir. 2001) (citing Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir.
1994)).
Plaintiff bears the burden of proving disability. Hunter, 321 F. App’x at 792. A disability
requires an impairment—physical or mental—that causes one to be unable to engage in any substantial
gainful activity. Id. (quoting Barnhart v. Walton, 535 U.S. 212, 217 (2002)). Impairment, as defined
under 42 U.S.C. § 423(d)(1)(A), is a “medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months.”
The ALJ uses a five-step sequential process to evaluate disability claims. Williams v. Bowen,
844 F.2d 748, 750 (10th Cir. 1988) (citation omitted). But the ALJ may stop once he makes a
disability determination; he does not need to continue through subsequent steps if he is able to find a
claimant disabled or not disabled at an intermediate step. Id.
The components of the five-step process are:


Step One: The plaintiff must demonstrate that she is not engaged in substantial gainful
employment activity. Id. If the plaintiff meets this burden, then the ALJ moves to Step Two.

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

Step Two: The plaintiff must demonstrate that she has a “medically severe impairment or
combination of impairments” that severely limits her ability to do work. Id. (internal quotation
omitted).
o If the plaintiff’s impairments have no more than a minimal effect on her ability to do
work, then the ALJ can make a nondisability determination at this step.
o If the plaintiff makes a sufficient showing that her impairments are more than minimal,
then the ALJ moves to Step Three.



Step Three: The ALJ compares the impairment to the “listed impairments”—impairments that
the Secretary of Health and Human Services recognizes as severe enough to preclude
substantial gainful activity. Id. at 751.
o If the impairment(s) match one on the list, then the ALJ makes a disability finding. Id.
o If an impairment is not listed, the ALJ moves to Step Four of the evaluation. Id.



Prior to Step Four: The ALJ must assess the plaintiff’s residual functional capacity (“RFC”).
Baker v. Barnhart, 84 F. App’x 10, 13 (10th Cir. 2003) (citing Winfrey v. Chater, 92 F.3d 1017,
1023 (10th Cir. 1996)).



Step Four: The plaintiff must show that she cannot perform her past work. Williams, 844 F.2d
at 751. If plaintiff shows that she cannot, the ALJ moves to the last step.



Step Five: Here, the burden shifts to the ALJ. The ALJ must show that the plaintiff can
perform some work that exists in large numbers in the national economy. Id.

II.

Analysis
In this case, the ALJ proceeded through Step Four, ultimately finding that plaintiff could

perform her past work. Plaintiff challenges the ALJ’s construction of her RFC based on the medical

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opinions in the record and credibility findings by the ALJ. She also challenges how the ALJ
determined that she could engage in her past work.
The record in this case is substantial. Plaintiff was seen by a number of doctors for various
problems during her alleged period of disability. In the ALJ’s review of the record, plaintiff claims
that he “picked and chose” evidence in the record that supported a finding of no disability—ignoring
substantial evidence that supported a finding of disability. Specifically, plaintiff argues that the ALJ
ignored the opinions of physicians that supported a finding that she could only perform unskilled work
(which would have rendered her disabled under the Commissioner’s rules), and that she could not
work a full day without taking multiple breaks and napping. Plaintiff claims that if the ALJ had given
more weight to the opinions of Dr. Suzanne Crandall, Dr. Ravi Patel, and Dr. David Pulcher, a
disability finding would have been required. Dr. Crandall was a treating physician, and Drs. Patel and
Pulcher were examining physicians. The ALJ gave their opinions less weight than the opinions of
several non-examining consultants and other doctors who were only focused on one element of
plaintiff’s health—not the entire scope of her health.
A. Dr. Crandall’s Opinion
Dr. Crandall is plaintiff’s treating neurologist. “‘Treating source medical opinions are [ ]
entitled to deference,’ and must be either given controlling weight or assigned some lesser weight
‘using all of the factors provided in 20 C.F.R. 404.1527 and 416.927.’” Andersen v. Astrue, 319 F.
App’x 712, 718 (10th Cir. 2009) (quoting Social Security Ruling (“SSR”) 96-2p, 1996 WL 374188, at
*4). The ALJ must give the opinion controlling weight if it is (1) “well-supported by medically
acceptable clinical and laboratory diagnostic techniques”; and (2) “not inconsistent with the other
substantial evidence” in the record. 20 C.F.R. § 404.1527(c)(2). If the opinion fails either of these
tests, then the ALJ must consider a number of factors to determine the weight to give the opinion:

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(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, 1301 (10th Cir. 2003). The ALJ’s opinion need not explicitly
discuss each factor, see Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007), but it must be clear
that the ALJ considered every factor, see 20 C.F.R. § 404.1527(c)(2) (“[W]e apply the factors listed in
paragraphs (c)(2)(i) and (c)(2)(ii) of this section, as well as the factors in paragraphs (c)(3) through
(c)(6) of this section in determining the weight to give the opinion.”); SSR 96-2p, 1996 WL 374188, at
*4 (“Treating source medical opinions . . . must be weighed using all of the factors provided . . . .”).
When a treating physician’s opinion is inconsistent with other medical evidence, the ALJ’s task is to
examine the other physicians’ reports to see if they outweigh the treating physician’s reports.
Goatcher v. United States Dep’t of Health & Human Servs., 52 F.3d 288, 289–90 (10th Cir. 1995).
Dr. Crandall opined that plaintiff would miss three or more days from work per month, would
require extra breaks, and would need to lie down and nap during an eight-hour day. The ALJ stated
that he considered Dr. Crandall’s opinion, but he discounted it (to some unspecified degree) because he
suggested that plaintiff saw Dr. Crandall only once. The ALJ summarily concluded that Dr. Crandall
did not have further contact with the claimant, and that her opinions were “not well supported by
clinical findings, diagnostic testing or the preponderance of evidence in the record.” (Doc. 4-1 at 29.)
There are several problems with the ALJ’s analysis. First, plaintiff saw Dr. Crandall from 2012
through at least August 2014. There are multiple documents in the record evidencing at least five
visits with Dr. Crandall. Second, while it is clear that the ALJ gave less weight than controlling weight
to the opinion, the ALJ did not specify the weight. See Brownrigg v. Berryhill, No. 16-7002, 2017 WL

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2179113, at *5 (10th Cir. Apr. 19, 2017) (holding that the ALJ must discuss the weight he assigns to
the opinions of treating physicians) (citing Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir.
2012)). Third, the ALJ did not identify which evidence was inconsistent with Dr. Crandall’s opinion.
See Hamlin v. Barnhart, 365 F.3d 1208, 1217 (10th Cir. 2014) (“[T]he ALJ must specifically highlight
those portions of the record with which the [treating] physician’s opinion was allegedly
inconsistent[.]”).
Based on these errors, the court concludes that the ALJ’s analysis of Dr. Crandall’s opinion—
the opinion of a treating physician—was inadequate under the law. Without more discussion and
accurate references to evidence in the record, the court cannot meaningfully evaluate whether the
ALJ’s decision to give Dr. Crandall’s opinion something less than controlling weight is supported by
substantial evidence.
B. Dr. Patel’s Opinion
Dr. Patel examined plaintiff once after her June 2015 hearing. Dr. Patel found that plaintiff had
only eight pounds of grip strength bilaterally and could never balance. The ALJ gave Dr. Patel’s
opinion “weight only insofar as [it] agree[s] with [the ALJ’s functional assessment].” The ALJ did not
specify why he discounted Dr. Patel’s opinion, but observed that Dr. Patel saw plaintiff only once and
“reviewed only limited records.” It is unclear to the court whether the statement that Dr. Patel
reviewed only limited records is accurate.
The ALJ’s analysis of Dr. Patel’s opinion is insufficient. The court cannot determine why the
ALJ gave less weight to Dr. Patel’s opinion, and therefore cannot meaningfully review the decision.
See Drapeau v. Massanari, 255 F.3d 1211, 1214 (10th Cir. 2001) (“[W]hen, as here, an ALJ does not
provide any explanation for rejecting medical evidence, we cannot meaningfully review the ALJ’s
determination.”).

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C. Dr. Pulcher’s Opinion
Dr. Pulcher saw plaintiff for a consultative psychological examination at the request of
defendant. Dr. Pulcher opined that plaintiff might have difficulty interacting with others. He further
opined that plaintiff was limited to “simple” work because her attention and concentration were at the
lower end of the average range. The ALJ gave only limited weight to Dr. Pulcher’s opinion because
plaintiff’s past employer had longitudinal contact, and the employer reported that plaintiff worked with
other people as part of her job without problem. But the employer’s assessment, of course, related to
plaintiff’s behavior before her claimed date of disability. And although the ALJ stated that the
evidence, including Dr. Pulcher’s own findings, fails to show significant mental limitations, he did not
identify the evidence to which he refers. Instead, the ALJ merely cites page 8 of Exhibit 4A, which is
the report of Dr. Charles Fantz, a non-examining medical consultant.
As with Drs. Crandall and Patel, the ALJ’s treatment Dr. Pulcher was cursory and inadequate to
give this court a basis on which to review whether the ALJ’s decision was supported by substantial
evidence. The opinions of these three doctors are the opinions which could support a finding of
disability.
On the other hand, the ALJ gave great weight to the opinions of other doctors—the opinions
that support a finding of “not disabled.” Dr. Oliver did not examine plaintiff or review part of the
record, including Drs. Crandall’s and Patel’s opinions. He repeatedly said that his review was limited
to a cardiac standpoint. He did not opine on plaintiff’s other ailments. Likewise, Dr. Robin Reed (a
non-examining psychological consultant) did not review Dr. Pulcher’s opinions, and Dr. Fantz
inaccurately characterized a portion of Dr. Pulcher’s opinion. This court may not reweigh the
evidence, but the ALJ was willing to overlook factors that detracted from the validity of the opinions

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of these doctors. He did not do the same for Drs. Crandall, Patel, and Pulcher (or at least he did not
explain with adequate reasoning why he was unwilling to overlook flaws with their opinions).
The court concludes that the ALJ’s review of the opinions of various physicians was
inadequate. He did not apply the governing law in deciding what weight to assign to the opinions of
Drs. Crandall, Patel, and Pulcher. On remand, the ALJ may still reach the same ultimate opinion, but
this court must be able to follow the reasoning of the ALJ to determine that his analysis is supported by
substantial evidence in the record.
D. Other Arguments
Because the court concludes that the ALJ erred in his evaluation of the physician’s opinions,
the court need not reach the ALJ’s credibility findings or his conclusion that plaintiff was capable of
engaging in her prior work. Both of these determinations may be subject to change on remand.
Plaintiff asks this court to make an immediate award of benefits rather than remanding the case
for further proceedings. But the court determines that further fact-finding would be useful and
beneficial. See Sorenson v. Bowen, 888 F.2d 706, 713 (10th Cir. 1989). (“Outright reversal and
remand for immediate award of benefits is appropriate [only] when additional fact finding would serve
no useful purpose.”). The court should only direct an award of benefits when the administrative record
has been fully developed and when substantial and uncontradicted evidence indicates that the claimant
is disabled and entitled to benefits. Gilliland v. Heckler, 786 F.2d 178, 184, 185 (3d Cir. 1986). Here,
the record contains evidence both supporting a finding of disability and contradicting such a finding.
The court’s jurisdiction in Social Security cases is limited; the court only reviews the final decision of
the Commissioner. Califano v. Sanders, 430 U.S. 99, 105–07 (1977). The court may not decide the
facts anew, reweigh the evidence, or substitute its judgment for the Commissioner’s. It is the
Commissioner’s duty to resolve factual issues and evidentiary conflicts. Lax v. Astrue, 489 F.3d 1080,

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1084 (10th Cir. 2007); White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001). In this case, it is
appropriate to remand for the ALJ to make and record factual findings about the various physicians
and their opinions.
IT IS THEREFORE ORDERED that the decision of the Acting Commissioner of Social
Security is reversed and remanded for procedures consistent with this Memorandum and Order.
The case is closed.
Dated this 10th day of July, 2017 at Kansas City, Kansas.

s/ Carlos Murguia_________________
CARLOS MURGUIA
United States District Judge

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