Grubbs v. Social Security Administration, Commissioner of

Filing 12

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 3/14/2012. (bmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

HARMONY GRUBBS,
Plaintiff,
vs.

Case No. 11-1125-SAC

MICHAEL J. ASTRUE,
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
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

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

1

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.
v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).

Ray

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.
Graham v. Sullivan, 794 F. Supp. 1045, 1047 (D. Kan. 1992).

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).

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,

2

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.

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

3

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
the analysis.
1993).

Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir.

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 18, 2010, administrative law judge (ALJ) Linda L.
Sybrant issued her decision (R. at 12-21).

Plaintiff alleges

that she has been disabled since May 22, 2007 (R. at 12).

At

step one, the ALJ found that plaintiff has never engaged in
substantial gainful activity (R. at 12).

At step two, the ALJ

found that plaintiff had the following severe impairments:
history of “probable” systemic lupus crythematosus (SLE), chronic

4

soft tissue pain not inconsistent with fibromyalgia, and morbid
obesity (R. at 13).

The ALJ further found that plaintiff’s

depressive disorder and history of alcohol and drug abuse were
not severe impairments (R. at 13).

At step three, the ALJ

determined that plaintiff’s impairments do not meet or equal a
listed impairment (R. at 13).

After determining plaintiff’s RFC

(R. at 18), the ALJ determined at step four that plaintiff has no
past relevant work experience (R. at 18).

At step five, the ALJ

determined that other jobs exist in significant numbers in the
national economy that plaintiff could perform (R. at 19).
Therefore, the ALJ concluded that plaintiff was not disabled (R.
at 21).
III.

Did the ALJ err in his finding at step two that plaintiff’s

depression was not a severe impairment?
The ALJ found that plaintiff’s depression was not a severe
impairment (R. at 13).

In making this finding, the ALJ carefully

reviewed the medical and other evidence regarding plaintiff’s
mental impairment (R. at 13-16).
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.
5

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.1

Williams, 844 F.2d at 751.

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.
1997).

Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir.

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).
The ALJ clearly gave greater weight to a consultative

1

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 judgement, responding 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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psychological assessment by Dr. Kovach (R. at 15).
found that plaintiff had a GAF of 68.2

Dr. Kovach

She found that

plaintiff’s depression “appears to be under substantial control
with medication” (R. at 307).

She stated that plaintiff did not

indicate that depression is keeping her from working.

Dr. Kovach

went on to state that “with the exception of lower concentration,
she seems to have no significant cognitive impairment that would
prevent her from working” (R. at 307).
Dr. Schulman, a non-examining medical source, reviewed the
record, including the report of Dr. Kovach, and concluded on
August 27, 2007 that plaintiff did not have a severe mental
impairment (R. at 324, 334, 336).

Dr. Fantz found on January 17,

2008 that this assessment was still valid (R. at 353).

The ALJ

clearly accorded weight to these opinions in finding that
plaintiff did not have severe mental impairments (R. at 19).
The ALJ noted that plaintiff’s treating physician, Dr.
2

GAF (global assessment of functioning) scores can be found
in the Diagnostic and Statistical Manual of Mental Disorders.
The scores in this case represent the following:
61-70: Some mild symptoms (e.g., depressed
mood and mild insomnia) OR some difficulty in
social, occupational, or school
functioning...but generally functioning
pretty well, has some meaningful
interpersonal relationships (emphasis in
original).
Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR)
(4th ed., text revision, American Psychiatric Association 2000 at
34) (emphasis in original).
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Warren, opined that plaintiff had numerous marked and extreme
mental limitations (R. at 15-16, 519-520).

However, as noted by

the ALJ, his findings are not supported by the other medical
evidence, particularly by the report of Dr. Kovach, a licensed
clinical psychologist (R. at 305).

Furthermore, the ALJ

correctly notes that no exam by Dr. Warren supports his medical
source statement regarding plaintiff’s alleged mental limitations
(R. at 16).

Plaintiff does not point to any other medical

opinion evidence that addresses plaintiff’s mental limitations
and their impact, if any, on plaintiff’s ability to work.
The court will not reweigh the evidence or substitute its
judgment for that of the Commissioner.

Hackett v. Barnhart, 395

F.3d 1168, 1173 (10th Cir. 2005); White v. Barnhart, 287 F.3d
903, 905, 908, 909 (10th Cir. 2002).

Although the court will not

reweigh the evidence, the conclusions reached by the ALJ must be
reasonable and consistent with the evidence.

See Glenn v.

Shalala, 21 F.3d 983, 988 (10th Cir. 1994)(the court must affirm
if, considering the evidence as a whole, there is sufficient
evidence which a reasonable mind might accept as adequate to
support a conclusion).

The court finds that the findings of the

ALJ regarding the nature and extent of plaintiff’s mental
impairments and limitations are reasonable; there is sufficient
evidence which a reasonable mind would accept as adequate to
support the findings of the ALJ on this issue.

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IV.

Did the ALJ properly consider the medical opinion evidence

when formulating plaintiff’s physical RFC?
The ALJ found that plaintiff had the RFC to perform light
work, with the ability to occasionally stoop, crouch, kneel,
crawl and climb.

The ALJ found that plaintiff could not climb

ladders, ropes and scaffolds.

The ALJ further determined that

plaintiff should avoid hazards and extremes of temperature (R. at
18).

The ALJ’s RFC findings match the physical RFC assessment

prepared by Dr. Tawadros, a non-examining physician, on August
27, 2007 (R. at 316-323).

This finding was affirmed by Dr.

Legler, another non-examining physician, on March 25, 2008 (R. at
363).

The ALJ stated that the opinions of Dr. Tawadros were

generally consistent with and supported by the findings,
opinions, and conclusions of treating and medical sources
contained in the record (R. at 19).
The ALJ also considered the physical RFC assessment by Dr.
Warren, plaintiff’s treating physician, who opined that plaintiff
had numerous limitations, including an inability to sit and
stand/walk for 8 hours in an 8 hour workday (R. at 522-523).

The

ALJ gave little weight to his opinions, finding that his opinions
were not consistent with the medical evidence, including the
physician’s own records, and were not supported by plaintiff’s
sporadic treatment and demonstrated level of functioning (R. at
18).
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The record also contains a consultative physical examination
by Dr. Veloor on February 28, 2007.

Dr. Veloor, after an

examination of the plaintiff, stated the following:
The patient at this point is unable to hold
any gainful employment secondary to her
diffuse arthralgias and generalized weakness.
She also complains of some fatigue that
limits her ability to work. The patient
should avoid heavy type of work. She may be
able to do some sedentary or light duty work.
I advised her to contact social security
disability to initiate the process for her to
obtain disability. I will be happy to assist
her with any kind of paperwork.
(R. at 249).

The ALJ gave little weight to the opinions of Dr.

Veloor as she found that the opinions of Dr. Veloor were not
consistent with the totality of the evidence, and were based only
on a one-time evaluation of the plaintiff in 2007 (R. at 18).
The record also contains a statement by another treating
physician, Dr. Thomas, who stated the following on January 18,
2007:
She [plaintiff] talked to me about signing an
FMLA form and other documentation regarding
her disability, she clearly is in a lot of
pain and at this point I do not believe she
is able to work... .
(R. at 260).
decision.

This opinion was never mentioned by the ALJ in his

Although the opinion of Dr. Thomas was made

approximately four months prior to her alleged onset date (May
22, 2007, R. at 12), a medical opinion of disability that
predates by a few months the alleged onset date of disability

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should nonetheless be considered by the ALJ.

Lackey v. Barnhart,

127 Fed. Appx. 455, 458 (10th Cir. April 5, 2005); Hamlin v.
Barnhart, 365 F.3d 1208, 1223 n.15 (10th Cir. 2004).
The ALJ asserted that the opinions of the non-examining
medical sources were consistent with and supported by the
findings, opinions, and conclusions of treating and medical
sources.

The ALJ also asserted that the opinions of Dr. Warren,

a treating medical source, and Dr. Veloor, an examining medical
source, were not supported by or not consistent with the medical
evidence.

However, it is these assertions by the ALJ that are

not supported by the medical evidence of record.

Dr. Warren

opined that plaintiff had physical limitations that prevented her
from engaging in substantial gainful activity (R. at 522-523).
On March 8, 2010, the day he rendered this opinion, Dr. Warren
performed a detailed physical examination of the plaintiff (R. at
515-516).

The ALJ failed to mention the fact that Dr. Warren’s

findings regarding plaintiff’s limitations were made on the same
day he performed a detailed physical examination.

Nothing in Dr.

Warren’s physical examination report of March 8, 2010 is
inconsistent with his opinions set forth in his physical RFC
assessment.

Furthermore, the opinion of Dr. Warren is consistent

with the opinion of Dr. Thomas, another treating physician, who
indicated in 2007 that plaintiff was disabled.

Finally, the

opinion of Dr. Warren is also consistent with the opinion of Dr.

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Veloor, a consulting physician, who also indicated in 2007 that
plaintiff was unable to hold any “gainful employment” (R. at
249).

Thus, contrary to the assertion of the ALJ, the opinions

of Dr. Warren and Dr. Veloor are in fact consistent with the
opinions of other treatment providers and examining medical
sources; by contrast, no other medical source opinion in the
record supports the opinions of Dr. Tawadros and Dr. Legler, who
never examined the plaintiff.
In the case of Krauser v. Astrue, 638 F.3d 1324 (10th Cir.
2011), the ALJ concluded that the opinions of the treating
physician was inconsistent with the other evidence, including the
treating physician’s own treatment records.

However, the ALJ

failed to reference those portions of the record with which the
treating physician’s opinions were allegedly inconsistent.

The

court remanded the case for further hearing, holding that the ALJ
should identify what in the treating physician’s treatment
records he found inconsistent with her opinions, and explain the
inconsistency.

638 F.3d at 1331 & n.3.

As in Krauser, in the case before the court, ALJ asserted
that the opinions of Dr. Warren were not consistent with the
totality of the medical evidence, including that physician’s own
treatment records, but the ALJ stated this in conclusory fashion,
without reference to those portions of the record with which Dr.
Warren’s opinions were allegedly inconsistent.

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The ALJ also

asserted that Dr. Veloor’s opinions were not consistent with the
totality of the evidence, but again, the ALJ stated this in
conclusory fashion, without reference to those portions of the
record with which Dr. Veloor’s opinions were allegedly
inconsistent.
As noted above, the record in fact demonstrates that the
opinions of Dr. Warren were based on a thorough physical
examination performed the same day that he filled out the
physical RFC assessment.

Nothing in the examination report is

inconsistent with the opinions of Dr. Warren.

Furthermore, the

opinions of Dr. Warren are consistent with the opinion of Dr.
Thomas, a treating physician, and Dr. Veloor, a consulting
physician who also examined the plaintiff before offering his
opinions.

By contrast, there is no medical opinion from either

an examining or treating medical source that supports the state
agency RFC assessment by a non-examining physician.
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.

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Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004).
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 consultive
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.
2004).

Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir.

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.
at 1084.

Robinson, 366 F.3d

The ALJ has failed to provide a reasonable explanation

for why the opinions of the non-examining medical consultants
should be given more weight than the opinions of two treating
physicians and a consultative physician who also examined the
plaintiff before offering his opinions.
The ALJ also erred by failing to even mention the opinion of
Dr. Thomas.
record.
2004).

An ALJ must evaluate every medical opinion in the

Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir.
This rule was recently described as a “well-known and

overarching requirement.”

Martinez v. Astrue, 2011 WL 1549517 at

*4 (10th Cir. Apr. 26, 2011). Even on issues reserved to the
Commissioner, including plaintiff’s RFC and the ultimate issue of
disability, opinions from any medical source must be carefully

14

considered and must never be ignored.

Social Security Ruling

(SSR) 96-5p, 1996 WL 374183 at *2-3.

The ALJ “will” evaluate

every medical opinion that they receive, and will consider a
number of factors in deciding the weight to give to any medical
opinion.

20 C.F.R. § 404.1527(d).

ignore a medical opinion.

It is clear legal error to

Victory v. Barnhart, 121 Fed. Appx.

819, 825 (10th Cir. Feb. 4, 2005). Furthermore, according to SSR
96-8p:
If the RFC assessment conflicts with an
opinion from a medical source, the
adjudicator must explain why the opinion was
not adopted.
1996 WL 374184 at *7.
For these reasons, the court finds that the ALJ failed to
provide a proper explanation for rejecting the opinions of two
treating physicians, Dr. Thomas and Dr. Warren, and for rejecting
the opinion of Dr. Veloor, an examining physician.

This case

shall be remanded in order for the defendant to give proper
consideration to the medical opinion evidence, particularly the
opinions of the treating and examining physicians.
V.

Did the ALJ err in her credibility analysis?
Plaintiff also asserts error by the ALJ in her credibility

and RFC findings.

The court will not reach this issue because ut

may be affected by the ALJ’s resolution of the case on remand
after giving further consideration to the medical opinion
evidence, as set forth above.

See Robinson v. Barnhart, 366 F.3d
15

1078, 1085 (10th Cir. 2004).
However, the court will address one of the arguments raised
by the ALJ in her decision.

The ALJ stated that plaintiff’s

daily activities were not consistent with a finding of total
disability (R. at 14).

When this case is remanded, the ALJ

should consider plaintiff’s daily activities in light of the
regulations and case law.

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) (2010 at 396).

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.

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

16

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
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
17

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).
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 14th day of March 2012, Topeka, Kansas.

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

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