Strong v. Social Security Administration, Commissioner of

Filing 22

MEMORANDUM AND ORDER: The court shall remand this case for further administrative proceedings consistent with this opinion. This remand is ordered pursuant to sentence four of 42 U.S.C. § 405(g). Signed by U.S. District Senior Judge Richard D. Rogers on 10/7/2013. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ALBERTA STRONG,

)
)
)
)
)
)
)
)
)
)
)
_

Plaintiff,
v.
Carolyn W. Colvin, Acting
Commissioner, Social Security
Administration,
Defendant.

Case No. 12-4120-RDR

MEMORANDUM AND ORDER
On July 19, 2007, plaintiff filed applications for social
security disability insurance benefits and supplemental security
income benefits.

These applications alleged a disability onset

date of June 14, 2004.

On February 11, 2010, a hearing was

conducted upon plaintiff’s applications.

The administrative law

judge (ALJ) considered the evidence and decided on April 30,
2010

that

plaintiff

was

not

qualified

to

receive

benefits.

Plaintiff asked for review of the ALJ’s decision by the Appeals
Council which was denied on August 21, 2012.
of benefits is the decision of defendant.

Thus, the denial
This case is now

before the court upon plaintiff’s motion to reverse and remand
the decision to deny plaintiff’s applications for benefits.
I.

STANDARD OF REVIEW
To

establish

qualify
that

for
he

or

disability
she

was

benefits,
“disabled”

a

claimant

under

the

must
Social

Security Act, 42 U.S.C. § 423(a)(1)(E), during the time when the

claimant had “insured status” under the Social Security program.
See Potter v. Secretary of Health & Human Services, 905 F.2d
1346, 1347 (10th Cir. 1990); 20 C.F.R. §§ 404.130, 404.131.

To

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

substantial

determinable

gainful

physical

or

activity
mental

by

reason

impairment

of

any

which

.

medically
.

.

has

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

42 U.S.C. § 423(d)(1)(A).

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

20 C.F.R. §§ 416.202-03, 416.330,

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

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

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

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

Id., quoting Richardson

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

The court must examine

the record as a whole, including whatever in the record fairly
detracts from the weight of the defendant’s decision, and on
that

basis

decide

defendant’s decision.
Cir.

1994)

(quoting

if

substantial

evidence

supports

the

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

v.
2

Secretary

of

Health

&

Human

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

The court may

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

Lax v.

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

THE ALJ’S DECISION (Tr. 14-22).
There is a five-step evaluation process followed in these

cases which is described in the ALJ’s decision.

(Tr. 15-16).

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

Second, the ALJ decides whether

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

At

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

combination

of

impairments

meet

or

medically

equal

the

criteria of an impairment listed in 20 CFR Part 404, Subpart P,
Appendix 1.

Next, the ALJ determines the claimant’s residual

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

Finally, at the last step of the

sequential

the

evaluation

process

ALJ

determines

whether

the

claimant is able to do any other work considering his or her
residual

functional

capacity,

experience.
3

age,

education

and

work

In
should

this
be

case,

denied

the

on

evaluation process.

ALJ

the

decided

basis

of

plaintiff’s
the

fourth

application
step

of

the

The ALJ decided that plaintiff maintained

the residual functional capacity to perform her past relevant
work

as

a

customer

service

clerk

through

the

date

of

his

findings

in

his

decision.
The

ALJ

made

decision.

the

First,

following

plaintiff

specific

meets

the

insured

status

requirements for Social Security benefits through June 30, 2010.
Second, plaintiff did not engage in substantial gainful activity
after

June

14,

2004,

the

alleged

onset

date

of

disability.

Third, plaintiff has the following severe impairments:

diabetes

mellitus with neuropathy; restless leg syndrome; atherosclerotic
heart

disease;

obstructive

hypertension,

pulmonary

hyperlidemia;

disease.

The

ALJ

and

further

chronic

found

that

plaintiff has affective mood disorder, which the ALJ categorized
as a non-severe impairment.

In making this finding, the ALJ

determined

that

mood

restriction

in

limitation

plaintiff’s
plaintiff’s

in

social

disorder

activities

functioning;

concentration,

persistence

decompensation.
the

ALJ

found

that

pace;

daily

mild
and

a

mild

living;

no

limitation

in

episodes

of

not

an

(Tr. 17).

Fourth,

or

a

of

caused:

plaintiff

no

does

have

impairment or combination of impairments that meet or medically
4

equal the Listed Impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1.
Fifth, the ALJ determined that plaintiff has the RFC to
perform:
a limited range of sedentary work as defined in 20 CFR
404.1567(a) and 416.967(a). Specifically, [plaintiff]
can climb no ropes, scaffolds, or ladders; she may
have only occasional handling and fingering with the
left upper extremity; and she cannot have prolonged
exposure to concentrated airborne pollutants.
(Tr. 18).
Sixth, in spite of these limitations, the ALJ found that
plaintiff

was

able

to

perform

her

customer clerk/service specialist.

past

relevant

as

a

This last finding was based

in part upon the testimony of a vocational expert.
III.

work

(Tr. 21).

PLAINTIFF’S ARGUMENTS
Plaintiff makes two arguments to reverse the decision to

deny benefits:

1) that the ALJ failed to properly consider

opinions from treating sources; and 2) that the ALJ failed to
properly consider the credibility of plaintiff’s testimony.
analyzing

these

two

arguments,

the

court

shall

focus

In
upon

plaintiff’s complaints of leg pain because plaintiff stated in
her testimony before the ALJ that leg pain was the major reason
she has not been able to work on a full-time basis.

(Tr. 50).

Also, plaintiff’s brief in support of reversal states that her
case

relates

primarily

to

her

complications

from

diabetes,

neuropathy, restless leg syndrome and left arm/hand problems.
5

Doc. No. 15, p. 2.

Of this list, leg pain as a result of

neuropathy or restless leg syndrome is the focus of plaintiff’s
argumentation.
IV.
THE ALJ FAILED TO PROPERLY CONSIDER THE OPINION OF DR.
ZULLIGER.
Plaintiff’s first argument for reversal is that the ALJ
failed

to

properly

consider

opinions

from

treating

sources.

Plaintiff is referring to statements from Dr. Laurel Zulliger.
A.
Dr.
chronic

Dr. Zulliger’s opinions
Zulliger
medical

neuropathy;

stated

in

problems

2007

that

including:

atherosclerotic

heart

plaintiff
diabetes

disease;

had

several

mellitus

with

restless

leg

syndrome; chronic obstructive pulmonary disease; depression and
anxiety;

hypertension;

and

hyperlipidemia.

(Tr.

714).

She

commented that plaintiff “recently had an exacerbation of leg
pain

which

I

am

attributing

to

her

diabetic

started her on gabapentin for her leg pain.”

Id.

neuropathy

and

She concluded

that “[d]ue to her multiple medical conditions I do not feel she
is able to seek or maintain any employment at this time or in
the future.”

Id.

In May 2008, Dr. Zulliger stated:

[Plaintiff] is unable to maintain any employment
outside her home due to her severe chronic leg pain.
I have not been able to find any medical treatment
that controls her leg pain and the restless leg
syndrome.
She
has
tried
multiple
medications
including gabapentin, Sinernet, Requip, Mirapez and
Cymbalta without benefit.
She is unable to work
outside her home in any capacity due to the severity
of her symptoms. Her pain is exacerbated by prolonged
6

sitting and ambulation.
I do not feel she will be
able to maintain employment in the future due to the
chronic and severe nature of her symptoms.
(Tr. 776).

Dr. Zulliger has also written that:

[Plaintiff has] bilateral lower leg pain, worse since
March 2007.
Treated with gabapentin & Cymbalta for
presumed diabetic neuropathy. (Tr. 727).
Depression also worsened since May 2007. Patient [is]
not able to maintain employment due to leg pain,
fatigue and depression. (Tr. 727).
[D]iabetes
&
hyperlipidemia
medication. (Tr. 728).

are

controlled

with

[Plaintiff] is not able to stand, walk or sit for any
set time period due to leg pain from diabetic
neuropathy and restless legs.
She also has chronic
fatigue due to restless legs, leg pain and depression.
(Tr. 728).1
B.

The ALJ’s evaluation of Dr. Zulliger’s opinions

The ALJ stated that he gave Dr. Zulliger’s opinions “little
weight because [they are] not consistent with the medical record
signs, laboratory findings, and the medical record as a whole.”
(Tr.

21).

elaborate

After
what

“the

opinion,

medical

ALJ

did

not

A few

his

by

the

laboratory findings, and the medical record as a whole.”
in

meant

statement,

signs,

earlier

he

this

record

paragraphs

upon

making

however,

when

discussing

plaintiff’s neuropathy and restless leg syndrome, the ALJ made

1

Dr. James Fulop, who is not a treating source, has also rendered an opinion
that plaintiff’s condition is “incurable” and that plaintiff “is unemployable
from any and all occupations.” (Tr. 839). The ALJ gave Dr. Fulop’s opinion
“little weight” because Dr. Fulop did not have a significant treatment
relationship with plaintiff and because the opinion was unsupported and
apparently based on plaintiff’s subjective complaints. (Tr. 21).

7

the

following

points

to

support

his

view

that

plaintiff’s

complaints were not consistent with the medical record:
[Plaintiff]
has
a
“mild”
diagnosis
neuropathy (Exhibit 3F, page 4).

of

sensory

[Plaintiff] has no significant neurological deficits
(Exhibits 12F, page 16, and 25F, page 6).
She has full strength in her extremities, and
pedal pulses are intact (Exhibits 7F and 14F).

her

[Plaintiff’s] symptoms are not constant, and she has
denied experiencing any numbness or weakness in her
extremities (Exhibits 3F, page 16, and 4F, page 7).
[I]n a recent examination, [plaintiff] reported that
she was “doing pretty good” (Exhibit 9F, page 8).
[H]er condition is listed as stable by her treating
physician (Exhibit 15F, [p]age 6).
(Tr. 20).

It seems logical to assume that these are the aspects

of the medical record which the ALJ considered in his assessment
of Dr. Zulliger’s opinions regarding leg pain from neuropathy
and restless leg syndrome.
C.

Standards for evaluating treating source opinions

The ALJ generally will give
medical

opinions

404.1527(d)(2).

from

some level of deference

treating

sources.

20

C.F.R.

to
§

The ALJ may decide to give controlling weight

to a treating physician’s opinion.

Before doing so, the ALJ

must consider whether the opinion is well-supported by medically
acceptable

clinical

and

laboratory

diagnostic

techniques

and

whether it is consistent with other substantial evidence in the
record.

Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir.
8

2004).

If the treating source’s opinion is not entitled to

controlling weight, it may still be entitled to deference after
considering:

the length of the treatment relationship and the

frequency of examination; the nature and extent of the treatment
relationship, including the treatment provided and the kind of
examination

or

physician’s

testing

opinion

consistency

between

performed;

is
the

the

supported
opinion

and

degree

to

which

the

by

relevant

evidence;

the

record

a

as

whole;

whether or not the physician is a specialist in the area upon
which an opinion is rendered; and other factors brought to the
ALJ’s attention which tend to support or contradict the opinion.
Id.

“’[A]n ALJ must give good reasons . . . for the weight

assigned

to

a

treating

physician’s

opinion,’

that

are

‘sufficiently specific to make clear to any subsequent reviewers
the weight the adjudicator gave to the treating source’s medical
opinion and the reason for that weight.’”

Id. (quoting Watkins

v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003)).
rejects

a

specific,

treating
legitimate

physician’s
reasons

for

opinion,
his

he

“When an ALJ

must

decision.”

Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004).

articulate
Hamlin

v.

“’In choosing to

reject the treating physician’s assessment, an 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
9

credibility judgments, speculation or lay opinion.’”
v.

Barnhart,

366

F.3d

1078,

(10th

1082

Cir.

Robinson

2004)(quoting,

McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002)).

A

statement that the ALJ is giving little weight to a treating
source

opinion,

together

with

“citation

to

contrary,

well-

supported medical evidence, satisfies the requirement that the
ALJ’s decision be ‘sufficiently specific to make clear to any
subsequent
treating

reviewers

source’s

weight.’”

the

medical

weight

the

opinion

adjudicator

and

the

gave

reasons

to

for

the
that

Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir.

2007).
D.
The ALJ failed to make specific citations to wellsupported medical evidence to substantiate his decision that Dr.
Zulliger’s opinions are entitled to little weight.
After reviewing the record, the court does not believe the
ALJ has provided sufficiently specific citations to contrary,
well-supported evidence to support his holding that the opinion
of Dr. Zulliger is entitled to little weight.2
noteworthy

that

the

diagnosis

of

“mild”

First, it is

sensory

neuropathy

referred to by the ALJ was made on July 16, 2004 – more than two
years before Dr. Zulliger started seeing plaintiff.3

2

There is

To reiterate, the only specific citations to contrary authority with regard
to plaintiff’s alleged neuropathy/leg pain and restless leg syndrome appear
to be made in support of the ALJ’s credibility analysis. But, we assume they
are also part of the ALJ’s assessment of Dr. Zulliger’s opinion.
3
This evidence may be quite relevant to plaintiff’s claim for disability
benefits since plaintiff is alleging a disability onset date of June 14,
2004, but the point here is that the evidence is less powerful as a rejoinder

10

evidence in the record that plaintiff’s leg pain has worsened
over time.
diagnosis

E.g., Dr. Zulliger’s assessment at Tr. 727.
in

2004

may

not

be

substantially

So, the

probative

to

plaintiff’s status as described by Dr. Zulliger three or four
years later.
The ALJ cites Exhibits 12F, page 16, and 25F, page 6 for
his

statement

deficits.
visit

that

plaintiff

has

no

significant

neurological

Exhibit 12F, page 16 relates to an emergency room

for

chest

pain

on

May

18,

2007.

The

emergency

room

physician noted as part of his examination that plaintiff moved
all her extremities well, that plaintiff was “[n]eurovascularly
intact

in

all

tenderness,
groups.”
records

and

four

extremities,”

that

there

(Tr. 601).
of

Dr.

was

that

“5/5

there

strength

was
in

no

all

calf
muscle

Exhibit 25F, page 6 (Tr. 853) is from the

Brian

Fahey.

On

this

page

of

Dr.

Fahey’s

records, he states that plaintiff has restless leg syndrome with
poor control, peripheral neuropathy with some dysesthesia (an
impairment of sensitivity), and left ulnar mononeuropathy across
the elbow with persistent sensory symptoms.

He also noted that

plaintiff’s exam was not all that abnormal.

After a later exam

on

October

29,

2009,

Dr.

Fahey

reported

a

myopathy

(a

neuromuscular disorder characterized by muscle weakness) which
was identified from an EMG (electropyography).

(Tr. 850).

But,

to Dr. Zulliger’s opinion because the evidence relates to a period of time
before Dr. Zulliger was plaintiff’s treating physician.

11

he was not able to prove peripheral neuropathy.
April

30,

history,
855).
to

2009,
but

not

Fahey

reported

completely

peripheral

confirmed

by

Earlier on

neuropathy

examination.

by

(Tr.

In sum, there are portions of Exhibit 25F which, contrary

the

ALJ,

problems.
visit

Dr.

Id.

indicate

that

plaintiff

has

some

neurological

And, Exhibit 12F derives from a single emergency room

for

relationship.

chest

pain,

Moreover,

not
the

a

report

long-term
from

the

doctor-patient
emergency

room

visit does not rule out muscle weakness following exertion or
repetitive activity.

This possibility was noted in a statement

from Dr. Leslie Friedman:
[plaintiff] does get a lot of fatiguability and
weakness with exertion which certainly would correlate
with things.
Her formal testing revealed normal
proximal strength but that does not eliminate the
likelihood that with exertion or some repetitive
activity she does have a sense of weakness.
Tr. 479 (September 22, 2004).
The ALJ cited Exhibits 7F and 14F for his statement that
plaintiff has full strength in her extremities and her pedal
pulses are intact.

The court has examined Exhibit 7F.

The only

comment relating to having full strength in her extremities is
the above-recited statement from Dr. Friedman in 2004.

This

observation may be somewhat dated in reference to the 2007 and
2008 opinions of Dr. Zulliger.

Furthermore, as Dr. Friedman

stated, it does not relate to weakness which may develop from
exertion

or

repetitive

activity.
12

The

observation

that

plaintiff’s

pedal

pulses

are

intact

is

contained

in

an

assessment performed by Dr. Zulliger (Exhibit 14F, Tr. 727).
Obviously, this observation did not persuade Dr. Zulliger that
plaintiff could stand, walk or sit for any set period of time.
(Tr. 728).
The ALJ stated that plaintiff’s symptoms are not constant
and that she has denied experiencing any numbness or weakness in
her extremities.

He cites Exhibit 3F, page 16 and Exhibit 4F,

page 7 for support.
2004

(Exhibit

3F)

These exhibits contain medical records from
and

2005

(Exhibit

4F).

Once

again,

the

situation observed by Dr. Zulliger could have been different in
the years 2006-2008.
records

in

Exhibit

Contrary to the ALJ’s representation, the
3F

do

discuss

numbness

in

plaintiff’s

extremities, although the extremity is plaintiff’s left hand –
not one of her legs.

(Tr. 418).

Exhibit 4F, page 7 is from a

report following an examination by Dr. Samadder as a prelude to
a sleep study.

On April 5, 2005, Dr. Samadder found no weakness

or numbness or pain.

There is no indication that Dr. Samadder

had an extended doctor-patient relationship with plaintiff.
The ALJ cites Exhibit 9F, page 8 to support his statement
that plaintiff reported in a “recent examination” that she was
doing “pretty good.”

The ALJ is mistaken that this statement is

from a “recent examination.”
August 15, 2005.

The examination was conducted on

The ALJ must have misread the handwritten “5”
13

as a “9”.

The year 2009 was near in time to when the ALJ

conducted the hearing in this case and wrote his opinion.

But,

2005 does not relate to the period when plaintiff was being seen
by Dr. Zulliger.
Finally,

the

ALJ

cites

Exhibit

15F,

page

6

for

his

statement that plaintiff’s treating physician listed plaintiff’s
condition as “stable.”
exhibit

number

Perhaps the ALJ meant to say a different

because

Exhibit

15F

contains

records

from

a

consultative examination report relating to plaintiff’s mental
health functioning.
reference

to

examination
convinced

of

that

In any event, the court has not found a

plaintiff’s
Dr.
such

condition

Zulliger’s
a

as

“stable”

records.4

reference

would

Nor
be

is

in
the

significant

our
court
here

without a better understanding of its context.
Defendant’s counsel has raised grounds to limit the weight
of Dr. Zulliger’s opinion which were not specifically mentioned
by the ALJ.
of

Counsel notes that Dr. Zulliger did not find issues

compliance

which

interfered

with

treatment,

when

other

treating sources noted that there were issues of compliance.
Counsel also notes that there was a considerable gap in time
between Dr. Zulliger’s assessment and the hearing before the
ALJ.

Neither of these points appears to be of such significance

4

If the ALJ was referring to a different treating physician, that has not
been made clear in his opinion.
There are references to certain conditions
being stable in the records of Dr. Reddy. E.g., Tr. 826.

14

that the court should alter our conclusion that the ALJ did not
specifically

or

sufficiently

support

his

finding

that

Dr.

Zulliger’s assessment was inconsistent with the medical record
signs, laboratory findings, and the medical record as a whole.
Moreover, an ALJ’s decision should be evaluated based solely on
the reasons stated in the decision.

Robinson, 366 F.3d at 1084;

Knipe v. Heckler, 755 F.2d 141, 149 n.16 (10th Cir. 1985).

As

already stated, these points were not specifically made by the
ALJ in his analysis of Dr. Zulliger’s assessment.
In summary, after a careful review of the ALJ’s opinion,
the court is convinced that remand is necessary because the ALJ
has

not

articulated

specific,

legitimate

reasons

for

his

decision to give the opinions of Dr. Zulliger little weight.
V.

THE ALJ FAILED TO PROPERLY ANALYZE PLAINTIFF’S CREDIBILITY
The second major issue raised by plaintiff is whether the

ALJ

properly

analyzed

plaintiff’s

credibility.

As

mentioned

above, the court believes the ALJ’s credibility analysis relies
upon citations to the record that do not adequately support the
conclusion drawn by the ALJ.
opinion

further,

the

court

Therefore, without extending this
shall

also

remand

this

case

for

reconsideration of plaintiff’s credibility.
VI.

CONCLUSION
In conclusion, for the above-stated reasons the court shall

remand

this

case

for

further
15

administrative

proceedings

consistent with this opinion.

This remand is ordered pursuant

to sentence four of 42 U.S.C. § 405(g).
IT IS SO ORDERED.
Dated this 7th day of October, 2013, at Topeka, Kansas.

s/Richard D. Rogers
United States District Judge

16