Plute v. Social Security Administration, Commissioner of

Filing 9

MEMORANDUM AND ORDER: 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. Signed by U.S. District Senior Judge Sam A. Crow on 8/29/17. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

LAURA E. PLUTE,
Plaintiff,
vs.

Case No. 16-2658-SAC

NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,1
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.

1

Glenn v. Shalala, 21 F.3d 983, 984

On January 20, 2017, Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of Social Security.
1

(10th Cir. 1994).

Substantial evidence requires more than a

scintilla, but less than a preponderance, and is satisfied by
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
2

substantial gainful activity (SGA).

The claimant's physical or

mental impairment or impairments must be of such severity that
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
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their previous work, they are determined not to be disabled.

If

the claimant survives step four, the fifth and final step
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 April 14, 2015, administrative law judge (ALJ) Michael

D. Shilling issued his decision (R. at 20-26).

Plaintiff

alleges that she has been disabled since April 1, 2012 (R. at
4

20).

Plaintiff is insured for disability insurance benefits

through March 31, 2014 (R. at 22).

At step one, the ALJ found

that plaintiff has not engaged in substantial gainful activity
since the alleged onset date (R. 22).

At step two, the ALJ

found that plaintiff did not have any severe impairments or
combination of impairments (R. at 22).

Therefore, the ALJ

concluded that plaintiff was not disabled (R. at 26).
III.

Does substantial evidence support the ALJ’s finding at

step two that plaintiff does not have a severe impairment or
combination of impairments?
Plaintiff argues that substantial evidence does not support
the ALJ’s finding at step two.
is on the plaintiff.

The burden of proof at step two

See Nielson v. Sullivan, 992 F.2d 1118,

1120 (10th Cir. 1993)(the claimant bears the burden of proof
through step four of the analysis).

A claimant’s showing at

step two that he or she has a severe impairment has been
described as “de minimis.”

Hawkins v. Chater, 113 F.3d 1162,

1169 (10th Cir. 1997); see Williams v. Bowen, 844 F.2d 748, 751
(10th Cir. 1988)(“de minimis showing of medical severity”).

A

claimant need only be able to show at this level that the
impairment would have more than a minimal effect on his or her
ability to do basic work activities.2

2

Williams, 844 F.2d at 751.

Basic work activities are “abilities and aptitudes necessary to do most jobs,” 20 C.F.R. § 404.1521(b)[416.921(b)],
including “walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or handling; seeing, hearing, and
speaking; understanding, carrying out, and remembering simple instructions; use of judgment, responding
5

However, the claimant must show more than the mere presence of a
condition or ailment.

If the medical severity of a claimant’s

impairments is so slight that the impairments could not
interfere with or have a serious impact on the claimant’s
ability to do basic work activities, the impairments do not
prevent the claimant from engaging in substantial work activity.
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 or her ability to work.
Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997).

Hinkle v.

A claimant must

provide medical evidence that he or she had an impairment and
how severe it was during the time the claimant alleges they were
disabled.

20 C.F.R. § 404.1512(c), § 416.912(c).

SSR 85-28 (Medical impairments that are not severe) states
the following:
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, i.e., do not have
more than a minimal effect on the person’s
physical or mental ability(ies) to perform
basic work activities. If such a finding is
not clearly established by medical evidence,
however, adjudication must continue through
the sequential evaluation process.
...........

appropriately to supervision, coworkers, and usual work situations; and dealing with changes in a routine work
setting.” Social Security Ruling 85-28, 1985 WL 56856 at *3; Langley v. Barnhart, 373 F.3d 1116, 1123 (10th Cir.
2004).
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Great care should be exercised in applying
the not severe impairment concept. If an
adjudicator is unable to determine clearly
the effect of an impairment or combination
of impairments on the individual's ability
to do basic work activities, the sequential
evaluation process should not end with the
not severe evaluation step. Rather, it
should be continued.
1985 WL 56856 at *3, 4 (emphasis added).3
The step two determination is based on medical factors
alone.

Langley v. Barnhart, 373 F.3d 1116, 1123 (10th Cir.

2004); Williamson v. Barnhart, 350 F.3d 1097, 1100 (10th Cir.
2003); Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988).
The step two requirement is generally considered a de minimis
screening device to dispose of groundless claims; thus,
reasonable doubts on severity are to be resolved in favor of the
claimant.

Field v. Astrue, Case No. 06-4126-SAC, 2007 WL

2176031 at *4 (D. Kan. June 19, 2007); Brant v. Barnhart, 506
Fed. Supp.2d 476, 482 (D. Kan. 2007); Samuel v. Barnhart, 295 F.
Supp.2d 926, 952 (E.D. Wis. 2003); see Lee v. Barnhart, 117 Fed.
Appx. 674, 676-677 (10th Cir. Dec. 8, 2004)(Step two is designed
to weed out at an early stage those individuals who cannot
possibly meet the statutory definition of disability.

While the

mere presence of a condition or ailment is not enough to get the
claimant past step two, a claimant need only make a “de minimis”
3

SSR rulings are binding on an ALJ. 20 C.F.R. § 402.35(b)(1); Sullivan v. Zebley, 493 U.S. 521, 530 n.9, 110 S.
Ct. 885, 891 n.9, 107 L. Ed.2d 967 (1990); Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993).
7

showing of impairment to move on to further steps in the
analysis); Church v. Shalala, 1994 WL 139015 at *2 (10th Cir.
April 19, 1994)(citing to SSR 85-28, the court stated that step
two is an administrative convenience to screen out claims that
are totally groundless solely from a medical standpoint); Newell
v. Commissioner of Social Security, 347 F.3d 541, 547 (3rd Cir.
2003)(reasonable doubts on severity are to be resolved in favor
of the claimant).
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).
Plaintiff’s treating physician, Dr. Khalid, indicated on

February 25, 2014 that plaintiff would be unable to work.

She

could only sit for 30 minutes in a workday, could not lift,
could seldom (1% to 10% of a workday; up to ¼ hour) bend, stoop,
balance, manipulate with either hand, tolerate dust, smoke,
fumes or noise.

She could occasionally

(11% to 33% of a

workday; up to 2 2/3 hours) reach with either arm.
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She could

not work around dangerous equipment, operate a motor vehicle or
tolerate heat or cold.

She frequently suffers from pain and

constantly suffers from fatigue.

Dr. Khalid indicated that this

condition has existed since December 1, 2012.

Dr. Khalid

indicated that the objective clinical findings which could
reasonably be expected to cause the above identified limitations
are uncontrolled diabetes and diabetic neuropathy (R. at 477479).
The ALJ accorded no weight to the opinions of Dr. Khalid.
The ALJ found that his opinions contained several significant
limitations that are unsupported by the record.

According to

the ALJ, Dr. Khalid’s opinions are inconsistent with the fact
that in June 2014 she reported walking two hours each day for
exercise.

They are inconsistent with the fact that she has not

developed any significant end organ damage from her
hypertension, hyperlipidemia or diabetes mellitus.

They are

inconsistent with routine and conservative treatment that she
has received.

They are inconsistent with the treatment notes,

as they do not document any significant neuropathy and the
examination reports do not include any type of functional
examination (R. at 26).
The only other medical opinion in the record is a report
from Dr. Coleman, a non-examining physician who reviewed the
record and issued a report on February 11, 2014.
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Dr. Coleman

incorrectly stated that the date last insured was March 3, 2013
(in fact it was March 31, 2014), and, according to Dr. Coleman,
there was insufficient evidence in regards to plaintiff’s
allegations to make a medical decision.

However, the report

later indicates that the diagnoses of diabetes mellitus, thyroid
gland-all disorders, and essential hypertension are all severe
impairments (R. at 68-70).

The ALJ noted the finding by Dr.

Coleman that the records were insufficient to determine her
functioning prior to the date last insured, and gave the opinion
limited weight as Dr. Coleman used an incorrect date last
insured.

Furthermore, the ALJ stated that there is enough

evidence in the record to determine plaintiff’s functioning (R.
at 25-26).
In the case of Williamson v. Barnhart, 350 F.3d 1097, 1099
(10th Cir. 2003), the ALJ rejected the opinion of a treating
physician, and found at step two that plaintiff did not have a
severe impairment at step two and was therefore not disabled.
The court noted that the ALJ in that case had ordered that
plaintiff undergo a comprehensive medical and psychological
examination which found no evidence of injury or illness except
for hypertension, and concluded that plaintiff was “healthy in
mind and body.” 350 F.3d at 1099.

The court concluded that the

record demonstrated that plaintiff was basically healthy, and
further concluded that plaintiff failed to demonstrate that his
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low weight substantially limited his ability to engage in basic
work activities.
affirmed.

Therefore, the decision of the ALJ was

350 F.3d at 1100.

In the case of Langley v. Barnhart, 373 F.3d 1116, 1118
(10th Cir. 2004), the ALJ also determined that plaintiff did not
have a severe impairment at step two and was therefore not
disabled.

In Langley, two treating medical sources offered

opinions regarding plaintiff’s limitations which were rejected
by the ALJ.

373 F.3d at 1119-1122.

The court held that in

choosing to reject the treating physician’s assessment, the 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 judgment, speculation or lay opinion.
1121.

373 F.3d at

The court, noting the “de minimus” standard with regard

to findings at step two, found that the Commissioner did not
apply the correct legal standards, and reversed the decision of
the Commissioner and remanded the case for further proceedings.
373 F.3d at 1123-1124.
In the case before the court, the ALJ discounted the
opinions of Dr. Khalid because they are: (1) inconsistent with
plaintiff’s assertion in June 2014 that she walked two hours

11

each day for exercise,4 (2) inconsistent with the fact that she
had not developed any significant end organ damage from her
hypertension, hyperlipidemia, or diabetes mellitus, (3)
inconsistent with the fact that she required only routine and
conservative treatment, and (4) inconsistent with his own
treatment records, as Dr. Khalid does not document any
significant neuropathy and his examination reports do not
include any type of functional examination (R. at 26).
Dr. Khalid, in his report, opined that plaintiff could
stand for 15 minutes at one time, but offered no opinion on how
long she could either stand or walk in a workday (R. at 477).
Thus, on its face, the opinions of Dr. Khalid are not clearly
inconsistent with plaintiff’s statement in June 2014 that she
walked two hours each day for exercise.
The ALJ also relied on the lack of end organ damage, and
plaintiff’s routine and conservative treatment, to give no
weight to the opinions of Dr. Khalid.

Earlier in his opinion,

the ALJ indicated that if plaintiff was as limited as alleged,
it seems she would have exhibited loss of sensation on an
ongoing basis and she would have required further treatment and
additional testing (R. at 24).

However, the ALJ failed to cite

to any medical evidence regarding the relevance of end organ
damage, or the lack of end organ damage, to the limitations set
4

A medical report from June 27, 2014 states that plaintiffs walks for 2 hours daily (R. at 490).
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out by Dr. Khalid.

Furthermore, there is no evidence from a

physician that further testing or treatment would be warranted
if plaintiff were as limited as Dr. Khalid alleged.

None of

this was discussed by Dr. Coleman (who incorrectly believed that
plaintiff’s date last insured was March 3, 2013 instead of March
31, 2014).

The ALJ is not free to substitute his own medical

opinion for that of a disability claimant’s treating doctors.
Hamlin v. Barnhart, 365 F.3d 1208, 1221 (10th Cir. 2004)(the ALJ
noted that Mr. Hamlin did not require an assistive device for
his neck; the court pointed out that there was no evidence that
any physician recommended an assistive device or suggested that
one would have provided any pain relief, and concluded that an
ALJ is not free to substitute his own medical opinion for that
of a disability claimant’s treating doctors).
Furthermore, the ALJ is not a medical expert on identifying
the clinical signs typically associated with uncontrolled
diabetes or diabetic neuropathy.

An ALJ is not entitled to sua

sponte render a medical judgment without some type of support
for his determination.

The ALJ’s duty is to weigh conflicting

evidence and make disability determinations; he is not in a
position to render a medical judgment.

Bolan v. Barnhart, 212

F. Supp.2d 1248, 1262 (D. Kan. 2002).

As was set forth above,

an ALJ may reject a treating physician’s opinion outright only
on the basis of contradictory medical evidence and not due to
13

his or her own credibility judgments, speculation or lay
opinion.

Langley, 373 F.3d at 1121.

Unlike the case in

Williamson, in which the ALJ ordered a comprehensive medical and
psychological examination which concluded that the plaintiff was
healthy in mind and body, the ALJ in the case before the court
failed to cite to any medical evidence that clearly contradicts
the opinions set forth by Dr. Khalid.
Finally, the ALJ concluded that the findings of Dr. Khalid
were inconsistent with the treatment records because Dr. Khalid
did not document any significant neuropathy, and because the
examination reports did not include any type of functional
examination (R. at 26).

Earlier, the ALJ stated that plaintiff

did not report “any” difficulty with hand numbness or pain to
her in hands or arm (R. at 24).

However, Dr. Khalid, on

February 25, 2014 (the same day he offered his opinions
regarding plaintiff’s limitations), found that plaintiff has
neuropathy in her hands and feet, her left thumb locks up and
she has difficulty grasping things with her hand, she has to
manually straighten her thumb-it clicks, pops and is painful,
she has diminished sensation on bilateral feet and left thumb
trigger finger.

He also diagnosed diabetes mellitus,

uncontrolled (R. at 518, 519).

On November 25, 2013, Dr.

Khalid’s treatment notes indicate that plaintiff’s arms and legs

14

feel weak and that she has difficulty holding a cup or stirring
a pot of soup (R. at 471).
The ALJ had previously noted that plaintiff had not
undergone any type of testing to determine the extent of her
neuropathy (R. at 24).

However, although the lack of testing

could provide a basis for not giving controlling weight to a
medical opinion, it cannot serve as a basis to completely reject
a medical opinion; instead the opinion must be evaluated using
all of the relevant factors in order to determine what weight
should be accorded to the opinion.

Langley, 373 F.3d at 1120.

Dr. Khalid stated that the objective clinical findings of
uncontrolled diabetes and diabetic neuropathy could reasonably
be expected to cause the limitations set forth in his report (R.
at 479).

Therefore, Dr. Khalid’s medical records describe

medically determinable impairments that could, according to Dr.
Khalid, reasonably cause the described limitations.

See

Langley, 373 F.3d at 1120-1121 (Dr. Hjortsvang’s medical records
do describe medically determinable impairments that could
reasonably cause the described limitations).

The ALJ does not

cite to any medical evidence which indicates that the medically
determinable impairments, which the ALJ himself acknowledge
existed with plaintiff (R. at 22), could not reasonably cause
the described limitations set forth by Dr. Khalid.

A treating

physician’s opinion may be rejected outright only on the basis
15

of contradictory medical evidence.

Langley, 373 F.3d at 1121

(emphasis added).
A claimant’s showing at step two is a de minimis screening
device to dispose of groundless claims; reasonable doubts on
severity are to be resolved in favor of the claimant.

If the

ALJ is unable to determine clearly the effect of an impairment
or combination of impairments on the claimant’s ability to do
basic work activities, the sequential evaluation process should
continue past step two.

In the case before the court,

plaintiff’s treating physician offered an opinion that plaintiff
has limitations which clearly indicate that plaintiff has severe
impairments.

A treating physician’s opinion can be rejected

outright only on the basis of contradictory medical evidence.
The ALJ does not cite to any contradictory medical evidence.
Unlike the case in Williamson, there was no medical examination
showing that plaintiff was basically healthy, nor was there any
examination or medical opinion that contradicted the opinions of
Dr. Khalid.

Even if the ALJ had a basis for not giving

controlling weight to the opinions of Dr. Khalid, Dr. Khalid’s
records describe medically determinable impairments that could
reasonably cause the described limitations.

Dr. Khalid’s

records, as set forth above, note difficulties that plaintiff
has in the use of her arms and hands, neuropathy in her feet and
hands, diminished sensation in her feet and left thumb trigger
16

finger.

There was no medical evidence cited by the ALJ

indicating that the medically determinable impairments could not
reasonably cause the described limitations.

On the facts of

this case, the court finds that substantial evidence does not
support the ALJ’s finding that plaintiff does not have a severe
impairment at step two.
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 29th day of August 2017, Topeka, Kansas.

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

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