Thompson v. Social Security Administration, Commissioner of

Filing 14

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. See attached for more details. Signed by U.S. District Senior Judge Sam A. Crow on 4/24/2013. (bmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

VERITA JO THOMPSON,
Plaintiff,
vs.

Case No. 12-4039-SAC

CAROLYN W. COLVIN,
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 and supplemental security income payments.
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

Carolyn W. Colvin became Acting Commissioner of Social Security on February 14, 2013, replacing Michael J.
Astrue, the former Commissioner of Social Security.
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).
2

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.
3

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 May 20, 2011, administrative law judge (ALJ) Michael D.

Shilling issued his decision (R. at 46-57).

Plaintiff alleges

that she has been disabled since August 22, 2008 (R. at 46).
Plaintiff is insured for disability insurance benefits through
4

December 31, 2009 (R. at 48).

At step one, the ALJ found that

plaintiff has not engaged in substantial gainful activity since
plaintiff’s alleged onset date (R. at 48).

At step two, the ALJ

found that plaintiff had the following severe impairments:
generalized anxiety disorder, depression and minimal L5-S1 disc
disease (R. at 48).

At step three, the ALJ determined that

plaintiff’s impairments do not meet or equal a listed impairment
(R. at 49).

After determining plaintiff’s RFC (R. at 50), the

ALJ determined at step four that plaintiff is unable to perform
her past relevant work (R. at 55).

At step five, the ALJ

determined that plaintiff could perform other jobs that exist in
significant numbers in the national economy (R. at 56-57).
Therefore, the ALJ concluded that plaintiff was not disabled (R.
at 57).
III.

Did the ALJ err in his evaluation of the medical opinion

evidence?
On January 29, 2010, a mental status examination was
performed by Dr. Lynn Parsons, a clinical psychologist.

Dr.

Parsons performed a clinical interview, and reviewed a wide
variety of medical records.

His diagnostic impression included

the following:
…What does seem definite is that Ms.
Thompson experiences symptoms of both
depression and anxiety that she relates to
physical and psychological sequalae[?] of
her accident, that she experiences symptoms
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of anxiety/psychosis that predate her
accident, and that there is a chronic
pattern of maladjustment that relates to
relationships. It seems uncertain whether
Ms. Thompson will be able to work
sufficiently to be self-supporting. At
best, her lower than average intellectual
capacity will restrict her to unskilled
labor. Unskilled labor tends to be
physically demanding, which is something she
claims to be unable to tolerate. If her
pain problem can be sufficiently relieved,
thus relieving much of her depression as
well, she may be able to return to work in
the future. She is unable to work at
present. Much will depend, however, on how
her psychosis develops and how that will
affect her ability to keep a job.
The ALJ stated the following regarding this consultative
evaluation:
An opinion of whether an individual is
capable of working is reserved to the
Commissioner…However, this opinion has been
considered. This opinion is inconsistent
with the fact the claimant engages in
numerous daily activities including care for
her children and maintaining her household.
Clearly, she has demonstrated the capability
of engaging in various work like activities
on a consistent basis. Therefore, this
opinion is not given significant weight.
(R. at 55).

Previously, in his opinion, the ALJ stated the

following regarding plaintiff’s daily activities:
…the claimant testified that she goes out
drinking…In addition, she generally attends
all of her health care appointments and
frequent emergency room visits, alone.
Furthermore, the claimant talks on the phone
to others, drives her children to and from
school and drove from approximately an hour
to the hearing. These facts clearly
6

indicate her anxiety does not limit her
social contacts to the extent she has
alleged.
………………….
The record reflects that the claimant has
four young children all of who live with her
on a full time basis. The claimant is the
sole caregiver for her children. There is
no indication contained within the record
that the claimant has not be capable of
caring for her children. She testified that
she picks one of them up from school on a
daily basis. The fact that she can handle
the emotional demands of caring for four
children, two of whom are young,
demonstrates that her anxiety and depression
are not as limiting as she has alleged.
In addition to caring for her children, the
claimant has been able to maintain her
household. She testified that she does
household chores such as vacuuming and doing
the dishes. Her house has been described as
nice and well kept. The claimant also
testified that she goes shopping. Notably,
in March of 2011 she told her case worker
that she was doing well and able to handle
her household on her own including handling
her finances (Exhibit 28F). Her ability to
maintain her household shows her anxiety and
depression do not prevent her from engaging
in various daily activities. In addition,
her ability to maintain her household shows
she can engage in various physical
activities, which is inconsistent with her
allegation of debilitating back pain.
(R. at 53, 54).
On April 6, 2011, Dr. Lassi and Floyd Hooper, LCP,
treatment providers for the plaintiff, filled out a medical
source statement of plaintiff’s ability to do work-related

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activities (mental).

After noting numerous signs and symptoms,

they opined that plaintiff had an extreme restriction in one
category:
The ability to complete a normal workday and
workweek without interruptions from
psychologically based symptoms and perform
at consistent pace without an unreasonable
number and length of rest periods.
(R. at 1043).

They also found that plaintiff had marked

restrictions in the following six categories:
Interact appropriately with the public.
Interact appropriately with co-workers.
Respond appropriately to work pressures in a
usual work setting.
Respond appropriately to changes in a
routine work setting.
The ability to perform activities within a
schedule, maintain regular attendance, and
be punctual within customary tolerances.
The ability to travel in unfamiliar places
or use public transportation.
These treatment providers further opined that plaintiff was
moderately limited in 9 other categories (out of a total of 23
categories on the form in which an opinion was rendered) (R. at
1038-1045).
The ALJ stated the following regarding the opinions of
these treatment providers:
The marked limitations are not supported by
her activities of daily living including
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going out drinking, going shopping at WalMart, going to her doctor’s appointments
alone, and caring for her children and her
household. These activities demonstrate the
claimant is capable of interacting in a
socially appropriate manner on a basic
level. Therefore, these opinions are given
only some weight.
(R. at 55).
In discounting the opinions of the above medical sources
who either treated or examined plaintiff, the ALJ clearly gave
great weight to plaintiff’s daily activities and her care of her
household and children.

The question is whether the ALJ could

reasonably rely on those activities to discount the opinions of
these medical sources.
First, 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.

20 C.F.R. § 404.1572(c) (2012 at 398).

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

9

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

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
10

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
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 the case of Richardson v. Astrue, 858 F. Supp.2d 1162
(D. Colo. March 12, 2012), the court held that the ALJ
selectively applied the evidence regarding plaintiff’s household
activities, socialization with friends, and the fact that she
cared for three children.

The court noted that the evidence

showed that plaintiff’s daily activities were limited, and held
that limited activities, in themselves, do not establish that
one can engage in sedentary or light work.

11

Richardson, 858 F.

Supp.2d at 1178-1179.

Further, the fact that a claimant takes

care of her children does not necessarily mean that this was
demanding physically or emotionally, when there is nothing in
the record to support that.

Richardson, 858 F. Supp.2d at 1179;

see Martinez v. Astrue, 422 Fed. Appx. 719, 728 (10th Cir. April
26, 2011)(there is nothing in the record to support ALJ finding
that providing care for daughter is quite demanding both
physically and emotionally).
The ALJ clearly relied on plaintiff’s daily activities and
care for her children to discount the opinions of treating and
examining medical sources.

The ALJ even stated that such

activities demonstrate the capability of engaging in various
work like activities on a consistent basis (R. at 55).

However,

according to the regulations, activities such as household tasks
are generally not considered to constitute substantial gainful
activity.

Furthermore, as the case law makes clear, the ability

to engage in the sporadic performance of daily tasks, or to
engage in ordinary life activities, do not establish that a
claimant can engage in substantial gainful activity.

The daily

activities, as set forth by the ALJ, do not demonstrate that
plaintiff is capable of working.
Second, an ALJ cannot use mischaracterization of a
claimant’s activities of a claimant’s activities by selective
and misleading evidentiary review to discredit his/her claims of
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disabling limitations.

Sitsler v. Astrue, 410 Fed. Appx. 112,

117-118 (10th Cir. Jan. 10, 2011).

According to the ALJ,

plaintiff’s daily activities demonstrate a capability of
engaging in various work like activities on a consistent basis;
the ALJ never mentioned any limitations in plaintiff’s daily
activities.
However, the ALJ, as in Sitsler, 410 Fed. Appx. at 117,
ignored the numerous qualifications and limitations of her daily
activities that are contained in the record.

Plaintiff

testified that she picks up her 7 year old son early from school
because she does not like being around other parents (R. at 2223).

A progress note from Pawnee Mental Health also noted that

plaintiff was picking up her son early so she can avoid others
in the parking lot, and that staff are asking her and her son
why mom picks him up early.

Plaintiff indicated that she tells

them it is for an appointment (R. at 999).

The Pawnee Mental

Health records also document that plaintiff’s daughter was in
trouble for truancy at school because plaintiff has her stay
home when she needs her to do so (R. at 993, 995).
Plaintiff’s children need to remind plaintiff to take care
of personal needs and grooming, including taking a shower (R. at
23, 194, 257).

Plaintiff’s daughter has to tell her mom to get

in the tub, and to brush her teeth and hair (R. at 303).
Plaintiff indicates that her older daughter helps her bathe and
13

dress herself (R. at 14-15).

Her son noted that she wears the

same clothes for a couple of days, does not do her hair, forgets
bathroom essentials and forgets to brush her teeth (R. at 310).
She also needs reminders to take her medicine (R. at 14, 194,
257, 307).

Her older children prepare most of the meals (R. at

24, 257, 303, 310).

The older children also do much of the

housework (R. at 24, 257).

Plaintiff may start doing some

household tasks, but will not finish it, and her children will
then finish the task (R. at 307, 311).

The older children also

help in taking care of the younger children, including feeding
them and getting them dressed (R. at 303, 306, 311).
When plaintiff goes shopping, she takes one of her older
children with her; she does not think that she can go by herself
(R. at 15).

Plaintiff’s daughter states that they go shopping

with her, noting that she has difficulty pushing the cart and
being around people (R. at 304).

Plaintiff’s son indicated they

go early in the morning, sometimes at 6:00 a.m., noting that she
has difficulty shopping when in public.

He also noted that she

does not keep track of what she has already, does not pay
attention, gets tired real easily, and has a bad back and
therefore has trouble picking up heavy items such as bottled
water, jugs, and soda pop (R. at 311).

Medical records also

indicate that plaintiff avoids public places and goes shopping
during slow times of 10:00 p.m. or 6:00 a.m., going with her son
14

(R. at 915).

Plaintiff testified that if there are too many

people where she is shopping and she has to stand in line, she
will leave (R. at 17).
Her son stated that plaintiff forgets the names of her
children and calls them the wrong names, she forgets things that
just happened recently, and throws away things that they still
need (like dishes or clothes she just bought) (R. at 312).
Plaintiff testified that she could not manage without the help
of her children (R. at 16).

Although the ALJ asserted that

there is “no indication contained within the record” that
plaintiff is not capable of caring for her children (R. at 54),
the statements and testimony of plaintiff and her older children
provides clear evidence that her older children have a major
role in the care of their mother and younger children.
The ALJ failed to mention any of these limitations.

An ALJ

cannot use mischaracterizations of a claimant’s activities to
discredit her claims of disabling limitations or to discount the
opinions of treating or examining medical sources.

For this

reason, this case shall be remanded in order for the ALJ to
reexamine plaintiff’s credibility after considering the evidence
regarding plaintiff’s qualifications and limitations in her
daily activities, and to reevaluate the medical source evidence
from treating and examining sources after considering the
qualifications and limitations in her daily activities.
15

Finally, the ALJ will determine whether this additional evidence
will warrant new mental RFC findings.
The record also contains a letter from Dr. Gardner, a
treating physician, who opines that plaintiff can do no
prolonged standing without an option to walk and/or sit
periodically.

He indicated that standing longer than 20 minutes

at a time without the ability to change would aggravate her
symptoms.

He stated she should not lift over 30 pounds, she

should not engage in stooping or significant bending, and she
should not push over 50 pounds (R. at 370).

The ALJ gave

significant weight to the opinions of Dr. Gardner, but did not
include the limitations on stooping or bending, because the ALJ
indicated that such limitations are not consistent with the
evidence because it showed that plaintiff only has mild
degenerative disc disease (R. at 54).
However, a report dated April 11, 2009 (R. at 478-479) from
Dr. Peloquin included the following:
The patient with very mild degenerative
changes at L5-S1 with the bulging disk now
encroaching at nerve root. This patient has
a transitional segmented S1. She has
significant pain in the low back with some
sciatic-pattern radiculopathy down her left
leg. Band of pain across the low back is
consistent with facet disease.
(R. at 479, emphasis added).

This was again confirmed by Dr.

Peloquin on July 15, 2009 (R. at 447).

16

Even the ALJ

acknowledged some of this evidence earlier in his decision;
however, the ALJ failed to note that Dr. Peloquin found that
plaintiff had significant pain in her lower back (R. at 51).
The medical evidence establishes that she now has a bulging disk
encroaching at the nerve roots, significant pain in her low
back, and pain consistent with facet disease.

The ALJ failed to

acknowledge how this medical evidence is inconsistent with the
opinions of Dr. Gardner, including his opinion that plaintiff
cannot stoop and bend.

Therefore, on remand, the ALJ will need

to reevaluate the opinions of Dr. Gardner after taking into
account this medical evidence, and make new physical RFC
findings, if warranted.
The ALJ also discounted some of Dr. Gardner’s opinions
because she has not received “consistent” treatment (R. at 5455).

While failure to seek treatment may be probative of

severity, the ALJ has a basic duty of inquiry to ask the
plaintiff why he/she did not seek treatment, or why it was
sporadic.

Kratochvil v. Barnhart, 2003 WL 22176084 at *5 (D.

Kan. Sept. 17, 2003).

Similarly, SSR 96-7p states the

following:
On the other hand, the individual's
statements may be less credible if the level
or frequency of treatment is inconsistent
with the level of complaints, or if the
medical reports or records show that the
individual is not following the treatment as
prescribed and there are no good reasons for
17

this failure. However, the adjudicator must
not draw any inferences about an
individual's symptoms and their functional
effects from a failure to seek or pursue
regular medical treatment without first
considering any explanations that the
individual may provide, or other information
in the case record, that may explain
infrequent or irregular medical visits or
failure to seek medical treatment. The
adjudicator may need to recontact the
individual or question the individual at the
administrative proceeding in order to
determine whether there are good reasons the
individual does not seek medical treatment
or does not pursue treatment in a consistent
manner. The explanations provided by the
individual may provide insight into the
individual's credibility.

SSR 96-7p, 1996 WL 374186 at *7 (emphasis added); cited with
approval in Madron v. Astrue, 311 Fed. Appx. 170, 178 (10th Cir.
Feb. 11, 2009).

The fact than an individual may be unable to

afford treatment and may not have access to free or low-cost
medical service is a legitimate excuse.

Madron, 311 Fed. Appx.

at 178; SSR 96-7p, 1995 WL 374186 at *8.

At the hearing, the

ALJ failed to ask the plaintiff to provide any explanation for
her lack of “consistent” treatment.

Therefore, on remand, the

ALJ shall comply with SSR 96-7p and consider any explanations
plaintiff may provide for not receiving “consistent” treatment.
Finally, the ALJ, without explanation, did not include in
his RFC findings the opinion of Dr. Gardner that plaintiff
should not stand for longer than 20 minutes.

18

Therefore, on

remand, the ALJ will also need to either include Dr. Gardner’s
limitation on plaintiff’s ability to stand, or, in the
alternative, provide a reasonable explanation for not including
such a limitation.
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 24th day of April, 2013, Topeka, Kansas.

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

19