Beyer v. Social Security Administration, Commissioner of

Filing 10

MEMORANDUM AND ORDER finding 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 District Judge Sam A. Crow on 9/11/2018. (ht)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ANNA E. BEYER,
Plaintiff,
vs.

Case No. 17-2689-SAC

NANCY A. BERRYHILL,
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

1

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
substantial gainful activity (SGA).
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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
their previous work, they are determined not to be disabled.
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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 December 28, 2016, administrative law judge (ALJ)

Michael D. Shilling issued his decision (R. at 92-101).
Plaintiff alleges that she has been disabled since December 11,
2013 (R. at 92).

Plaintiff is insured for disability insurance
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benefits through March 31, 2015 (R. at 94).

At step one, the

ALJ found that plaintiff has not engaged in substantial gainful
activity from her alleged onset date through her date last
insured (R. at 94).

At step two, the ALJ found that plaintiff

has severe impairments (R. at 94).

At step three, the ALJ

determined that plaintiff’s impairments do not meet or equal a
listed impairment (R. at 96).

After determining plaintiff’s RFC

(R. at 96), the ALJ found at step four that plaintiff is unable
to perform past relevant work (R. at 99).

At step five, the ALJ

found that plaintiff could perform other work that exists in
significant numbers in the national economy (R. at 100).
Therefore, the ALJ concluded that plaintiff was not disabled (R.
at 100-101).
III.

Did the ALJ err in his consideration of the treating

source opinions?
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).
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When a treating source opinion is inconsistent with the other
medical evidence, the ALJ’s task is to examine the other medical
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.
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Robinson v.

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

A treating

source opinion not entitled to controlling weight is still
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.
Treating physician Dr. Tiffany Williams, prepared a RFC
report on the plaintiff, dated October 18, 2016.

Dr. Williams

had been treating plaintiff since October 28, 2014.

She

indicated that plaintiff suffered from back and neck pain.

She

opined that pain would constantly interfere with her attention
and concentration needed to perform even simple tasks.

She

stated that plaintiff could sit and stand/walk for less than 2

7

hours in an 8 hour workday.

She must be able to shift positions

at will, and would need to take unscheduled breaks every hour.
She indicated that plaintiff would miss more than 4 days per
month due to impairments or treatment.

She indicated that MRI’s

of the spine and abdomen, ultrasound of the abdomen, and a CT of
the abdomen support her findings.

She stated that plaintiff has

had these symptoms and limitations since December 11, 2013 (R.
at 918-922).
Dr. Daniel Buckles, another treating physician, had been
treating plaintiff since 2009.

He prepared a RFC report, dated

October 27, 2016, on the plaintiff regarding the impact of her
Crohn’s disease.

He identified multiple symptoms, including

chronic diarrhea, bloody diarrhea, fatigue, weight loss,
malaise, loss of appetite, anal fissures, bowel obstruction and
abdominal pain and cramping.

He stated that plaintiff’s pain

and other symptoms would frequently interfere with attention and
concentration.

He opined that plaintiff would need unscheduled

bathroom breaks frequently, for 15 minutes each time.

Plaintiff

may be able to give only a few minutes notice of the need for a
break.

He concluded that plaintiff would miss three days of

work per month because of her impairments or treatment (R. at
571-574).
The ALJ gave “limited” weight to the opinions of Dr.
Williams, explaining as follows:
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They [the opinions of Dr. Williams] are not
supported by the treatment notes in the
record that indicate her Crohn’s disease was
well controlled. They are not supported by
the record that shows she has only very mild
degenerative disc disease. Additionally,
they are inconsistent with the fact that she
is able to engage in numerous activities of
daily living, including cleaning houses for
pay, which indicates she is not
significantly limited by her impairments.
(R. at 99).
The ALJ gave “limited” weight to the opinions of Dr.
Buckles, explaining as follows:
They [the opinions of Dr. Buckles] are not
supported by his own treatment notes that
generally indicate her Crohn’s was well
controlled with medications. Furthermore,
they are inconsistent with the objective
testing that showed only mild to moderate
inflammation during the relevant period.
Additionally, they are inconsistent with the
fact that she is able to engage in numerous
activities of daily living including
cleaning houses for pay, which indicates she
is not significantly limited by her
impairments.
(R. at 99).
The only other medical opinion evidence regarding
plaintiff’s RFC was a report, dated June 5, 2015, prepared by a
non-examining medical source, Dr. Hunter, who reviewed the
medical records available to her on or before that date.

Dr.

Hunter opined that plaintiff did not have a severe physical
impairment (R. at 174, 99), and can perform medium work with no
other limitations (R. at 176-177).
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The ALJ afforded this

opinion “limited” weight as evidence submitted at the hearing
level indicates she would have some limitations imposed by her
Crohn’s disease and anemia, noting that she requires ongoing
infusions to treat her Crohn’s (R. at 99).

The only limitation

set forth in the ALJ’s RFC finding is that plaintiff is limited
to sedentary work (R. at 96).
Plaintiff argues that the ALJ erred by discounting the
opinions of the two treating sources, Dr. Williams and Dr.
Buckles.

Plaintiff further argues that no substantial medical

evidence supports the ALJ’s RFC findings.

As noted above, the

ALJ gave limited weight to all three medical source opinions
regarding plaintiff’s RFC.
The RFC assessment must include a narrative discussion
describing how the evidence supports each conclusion, citing
specific medical facts and nonmedical evidence.
Colvin, 727 F.3d 1061, 1069 (10th Cir. 2013).

Wells v.

An exact

correspondence between a medical opinion and the RFC is not
required.

In reaching his RFC determination, an ALJ is

permitted, and indeed required, to rely on all of the record
evidence, including but not limited to medical opinions in the
file.

That said, in cases in which the medical opinions appear

to conflict with the ALJ’s decision regarding the extent of a
plaintiff’s impairment(s) to the point of posing a serious
challenge to the ALJ’s RFC assessment, it may be inappropriate
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for the ALJ to reach an RFC determination without expert medical
assistance.

Wells v. Colvin, 727 F.3d at 1071-1072 (in Wells,

the ALJ rejected 3 medical opinions, finding that they were
inconsistent with the other evidence in the file; the court
directed the ALJ, on remand, to carefully reconsider whether to
adopt the restrictions on plaintiff’s RFC detailed in the
medical opinions, or determine whether further medical evidence
is needed on this issue).
First, the ALJ stated that he was giving only limited
weight to the opinions of Dr. Hunter because plaintiff would
have some limitations imposed by her Crohn’s disease.

However,

the only limitation made by the ALJ was to limit plaintiff to
sedentary work (Dr. Hunter had indicated that plaintiff could
perform medium work).

Dr. Buckles, who treated plaintiff for

Crohn’s disease, and prepared a RFC report which only addressed
plaintiff’s Crohn’s disease, did not place any exertional or
lifting limitations on plaintiff because of this disease.

He

opined, as noted above, that plaintiff’s pain and symptoms would
frequently interfere with attention and concentration, and that
she would require frequent restroom breaks, and would miss work
about 3 days a month because of her Crohn’s disease (R. at 571574).

Dr. Williams, in her RFC assessment, which considered

plaintiff’s Crohn’s disease, chronic back pain, degenerative
disc disease, and arthritis, opined that plaintiff’s numerous
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limitations would not even allow her to perform the exertional
requirements for sedentary work.

The ALJ failed to cite to any

evidence that would support a finding that the symptoms of her
Crohn’s disease would limit her to sedentary work, or that, with
a limitation to sedentary work, plaintiff could still be
employed.

The narrative discussion by the ALJ fails to describe

how the evidence supports a finding that plaintiff, given her
Crohn’s disease, and other severe impairments, could perform
substantial gainful activity with only a limitation to sedentary
work.
Second, although an exact correspondence is not required
between a medical opinion and the ALJ’s RFC findings, all of the
medical opinions clearly conflict with the ALJ’s decision to the
point of posing a serious challenge to the ALJ’s RFC assessment.
The ALJ gave limited weight to all three medical opinions, and
provided absolutely no evidence in support his finding that
plaintiff, with only a limitation to sedentary work, could
perform substantial gainful activity in the national economy.
Third, in discounting the opinions of Dr. Buckles, the ALJ
stated that their opinions were inconsistent with the objective
testing which showed “only mild to moderate inflammation during
the relevant period” (R. at 99).

However, the medical records

from November 26, 2014, state that the results of a colonoscopy
indicated that plaintiff had “acute and chronic inflammation”
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(R. at 449).
at 98).

Even the ALJ noted this finding in his report (R.

Acute and chronic inflammation is not consistent with

the ALJ’s assertion that the testing showed only mild to
moderate inflammation.

The ALJ misstated the evidence.

Substantial evidence does not support the ALJ’s assertion that
the objective testing showed only mild to moderate inflammation
during the relevant period.
Finally, the ALJ found that the opinions of Dr. Buckles and
Dr. Williams are inconsistent with the ALJ’s finding that
plaintiff is able to engage in numerous activities of daily
living, including cleaning houses for pay.

More specifically,

the ALJ described plaintiff’s descriptions of her daily
activities as “essentially normal,” and that she leads an active
lifestyle, water skiing, running several times a week, and
singing (R. at 99).
The record indicates that in June 2013 plaintiff reported
working 3-4 hours a week cleaning homes (R. at 283).

Plaintiff

indicated in December 2014 that she cleans 3 houses a month, and
that her pain, fatigue and exhaustion is at its peak during and
after this; plaintiff indicated that she is completely out of
commission the next day (R. at 332).
Plaintiff’s December 2014 function report indicates that
plaintiff engages in various household tasks, but only for as
long as she has the energy.

If she does too much, she is out of
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commission the next day.

She pointed out that her husband helps

with everything (R. at 325).

She indicated that she needs help

to finish tasks when she gets exhausted (R. at 326).

At the

hearing in November 2016, plaintiff testified that she does the
best she can to help out with household tasks, but that she gets
worn out easily, and her husband has to pick up a lot of the
slack with household chores (R. at 120).
According to the regulations, activities such as taking
care of yourself, household tasks, hobbies, therapy, school
attendance, club activities or social programs are generally not
considered to constitute substantial gainful activity.
C.F.R. § 404.1572(c).

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Furthermore, although the nature of daily

activities is one of many factors to be considered by the ALJ
when determining the credibility of testimony regarding pain or
limitations, Thompson v. Sullivan, 987 F.2d 1482, 1489 (10th
Cir. 1993), the ALJ must keep in mind that the sporadic
performance of household tasks or work does not establish that a
person is capable of engaging in substantial gainful activity.
Krauser v. Astrue, 638 F.3d 1324, 1332-1333 (10th Cir. 2011);
Thompson, 987 F.2d at 1490.
In the case of Draper v. Barnhart, 425 F.3d 1127, 1130-1131
(8th Cir. 2005), the ALJ noted that the claimant engaged in
household chores, including laundry, grocery shopping, mowing,
cooking, mopping and sweeping.

The ALJ concluded that
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claimant’s allegations of disabling pain were inconsistent with
her reports of her normal daily activities and were therefore
not deemed credible.

The court found that substantial evidence

did not support this conclusion, holding as follows:
The fact that Draper tries to maintain her
home and does her best to engage in ordinary
life activities is not inconsistent with her
complaints of pain, and in no way directs a
finding that she is able to engage in light
work. As we said in McCoy v. Schweiker, 683
F.2d 1138, 1147 (8th Cir.1982) (en banc),
the test is whether the claimant has “the
ability to perform the requisite physical
acts day in and day out, in the sometimes
competitive and stressful conditions in
which real people work in the real world.”
In other words, evidence of performing
general housework does not preclude a
finding of disability. In Rainey v. Dep't
of Health & Human Servs., 48 F.3d 292, 203
(8th Cir.1995), the claimant washed dishes,
did light cooking, read, watched TV, visited
with his mother, and drove to shop for
groceries. We noted that these were
activities that were not substantial
evidence of the ability to do full-time,
competitive work. In Baumgarten v. Chater,
75 F.3d 366, 369 (8th Cir.1996), the ALJ
pointed to the claimant's daily activities,
which included making her bed, preparing
food, performing light housekeeping, grocery
shopping, and visiting friends. We found
this to be an unpersuasive reason to deny
benefits: “We have repeatedly held...that
‘the ability to do activities such as light
housework and visiting with friends provides
little or no support for the finding that a
claimant can perform full-time competitive
work.’” Id. (quoting Hogg v. Shalala, 45
F.3d 276, 278 (8th Cir.1995)). Moreover, we
have reminded the Commissioner

15

that to find a claimant has the
residual functional capacity to
perform a certain type of work,
the claimant must have the ability
to perform the requisite acts day
in and day out, in the sometimes
competitive and stressful
conditions in which real people
work in the real world...The
ability to do light housework with
assistance, attend church, or
visit with friends on the phone
does not qualify as the ability to
do substantial gainful activity.
Thomas v. Sullivan, 876 F.2d 666, 669 (8th
Cir.1989) (citations omitted).
Draper, 425 F.3d at 1131 (emphasis added).
In Hughes v. Astrue, 705 F.3d 276 (7th Cir. 2013), the court
stated:
[The ALJ] attached great weight to the
applicant's ability to do laundry, take
public transportation, and shop for
groceries. We have remarked the naiveté of
the Social Security Administration's
administrative law judges in equating
household chores to employment. “The
critical differences between activities of
daily living and activities in a full-time
job are that a person has more flexibility
in scheduling the former than the latter,
can get help from other persons (... [her]
husband and other family members), and is
not held to a minimum standard of
performance, as she would be by an employer.
The failure to recognize these differences
is a recurrent, and deplorable, feature of
opinions by administrative law judges in
social security disability cases [citations
omitted].”
705 F.3d at 278.

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The ALJ’s assertion that plaintiff’s description of her
daily activities as essentially normal is not supported by
substantial evidence.

Although plaintiff stated and testified

that she tries to perform household tasks, she further indicated
that she tires easily and that her husband helps with everything
and has to pick up a lot of the slack.

Plaintiff indicated that

she cleans homes 3-4 hours a week, but that she is completely
out of commission the next day.

She also indicated that if she

tries to do too much at home, she is out of commission the next
day.

For this reason, the court finds that the ALJ’s activities

of daily living, including cleaning houses for pay, do not
provide substantial evidence for discounting the opinions of Dr.
Buckles and Dr. Williams.
For the reasons set forth above, substantial evidence does
not support the reasons offered by the ALJ for giving only
limited weight to the opinions of Dr. Buckles and Dr. Williams.
The court further finds that substantial evidence does not
support the ALJ’s RFC finding that plaintiff can perform
sedentary work.

On remand, the ALJ shall make new RFC findings

after reevaluating the opinions of the two treatment providers.
The ALJ may also want to consider whether further medical
evidence is needed on the issue of plaintiff’s RFC.
727 F.3d at 1072.

17

See Wells,

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 11th_ day of September 2018, Topeka, Kansas.

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

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