Gibbs v. Social Security Administration, Commissioner of

Filing 30

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 3/6/2013. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)(bmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

KRISTEEN M. GIBBS,
Plaintiff,
vs.

Case No. 11-1318-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.
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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 May 3, 2007, administrative law judge (ALJ) Robert J.

Burbank issued a decision denying plaintiff disability benefits
(R. at 28-36).

Plaintiff sought judicial review of the agency

action, and on May 11, 2010, the U.S. District Court of Kansas
4

reversed and remanded the case for further hearing, granting
defendant’s motion to reverse and remand (R. at 764-766).
On June 17, 2011, administrative law judge (ALJ) Alison K.
Brookins issued a 2nd decision (R. at 728-740).

Plaintiff

alleges that she has been disabled since June 6, 2001 (R. at
728).

Plaintiff is insured for disability insurance benefits

through March 31, 2002 (R. at 730).

At step one, the ALJ found

that plaintiff has not engaged in substantial gainful activity
since plaintiff’s alleged onset date (R. at 730).

At step two,

the ALJ found that plaintiff had the following severe
impairments: fibromyalgia, back pain, a history of migraine
headaches, generalized anxiety disorder, depression and
dysthymic disorder (R. at 730).

At step three, the ALJ

determined that plaintiff’s impairments do not meet or equal a
listed impairment (R. at 731).

After determining plaintiff’s

RFC (R. at 733), the ALJ determined at step four that plaintiff
is unable to perform any past relevant work (R. at 739).

At

step five, the ALJ determined that plaintiff could perform other
jobs that exist in significant numbers in the national economy
(R. at 739-740).

Therefore, the ALJ concluded that plaintiff

was not disabled (R. at 740).
III.

Did the ALJ properly consider plaintiff’s fibromyalgia

when analyzing the opinions of Dr. Rausch, plaintiff’s treating
physician, and when analyzing plaintiff’s credibility?
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At step two, the ALJ found that plaintiff had a severe
impairment of fibromyalgia (R. at 730).

Dr. Rausch, plaintiff’s

treating physician, opined on March 8, 2007 that plaintiff could
only sit for 3 hours a day, could only stand/walk for 3 hours a
day, and would need to lie down for 2 hours during the workday,
along with numerous other limitations (R. at 291-294).

Dr.

Rausch indicated that the main clinical findings which caused
the limitations he set forth were fibromyalgia, scoliosis &
compression of the spine, and depression (R. at 294).
The ALJ stated the following regarding the opinions of Dr.
Rausch:
…the undersigned finds Dr. Rausch’s opinion
to be mostly without support. It is clear
that his opinion is based largely on the
claimant’s subjective complaints, and not
objective medical evidence. As is discussed
above, there is evidence of at most mild
disc herniation in the claimant’s thoracic
spine and an old compression fracture.
There is no evidence of stenosis or nerve
root compression that would in any way
account for the limitations asserted by Dr.
Rausch. There is little explanation why the
claimant would be unable to complete an 8hour workday, or why she suffers
“debilitating” pain and fatigue.
(R. at 736, emphasis added).

Furthermore, in evaluating

plaintiff’s credibility, the ALJ noted that although plaintiff
reported debilitating pain, objective medical evidence,
including testing, had revealed little in the way of back
impairment; the ALJ therefore found that plaintiff’s allegations
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of pain and limitations were not fully credible (R. at 734, 737;
Doc. 25 at 5).
As this and other courts have repeatedly stated, the
symptoms of fibromyalgia are entirely subjective, and there are
no laboratory tests to identify its presence or severity.
Wilson v. Astrue, 602 F.3d 1136, 1143 (10th Cir. 2010)(when the
record contained diagnoses of chronic pain syndrome or
fibromyalgia, the court stated that complaints of severe pain do
not readily lend themselves to analysis by objective medical
tests, and are notoriously difficult to diagnose and treat;
further noting that no objective medical tests reveal the
presence of fibromyalgia);

Gilbert v. Astrue, 231 Fed. Appx.

778, 783-784 (10th Cir. Apr. 11, 2007)(the lack of objective
test findings noted by the ALJ is not determinative of the
severity of fibromyalgia); Brown v. Barnhart, 182 Fed. Appx.
771, 773 (10th Cir. May 25, 2006); Priest v. Barnhart, 302 F.
Supp.2d 1205, 1213 (D. Kan. 2004); Glenn v. Apfel, 102 F.
Supp.2d 1252, 1258 (D. Kan. 2000); Anderson v. Apfel, 100 F.
Supp.2d 1278, 1286 (D. Kan. 2000); Ward v. Apfel, 65 F. Supp.2d
1208, 1213 (D. Kan. 1999).

Because fibromyalgia is diagnosed by

ruling out other diseases through medical testing, negative test
results or the absence of an objective medical test to diagnose
the condition cannot support a conclusion that a claimant does
not suffer from a potentially disabling condition.
7

Priest, 302

F. Supp.2d at 1213.

Fibromyalgia is diagnosed entirely on the

basis of patients’ reports and other symptoms.

Brown v.

Barnhart, 182 Fed. Appx. 771, 773 n.1 (10th Cir. May 25, 2006).
In the case of Walden v. Astrue, Case No. 11-4120-SAC (D.
Kan. Aug. 28, 2012), the ALJ found that there was “no objective
medical evidence in the record to support the level of
limitation alleged by the claimant” (Doc. 15 at 15).2

Based on

the case law cited above, the court held that the ALJ erred by
discounting plaintiff’s allegations of limitations because of
the lack of objective medical evidence (Doc. 15 at 15-16); see
Gilbert, 231 Fed. Appx. at 783-784 (although the ALJ found
fibromyalgia to be a severe impairment, the court stated that
the lack of objective test findings expressly relied on by the
ALJ is not determinative of the severity of her fibromyalgia).
As was the case in Walden, the ALJ in the case before the
court found plaintiff’s allegations of pain and limitations were
not fully credible because of the lack of objective medical
evidence in the form of diagnostic testing.

Furthermore, the

ALJ in the case before the court asserted that the opinions of
Dr. Rausch were based largely on plaintiff’s subjective
complaints and not objective medical evidence.

Dr. Rausch

indicated that one of the bases for his findings was the
diagnosis of fibromyalgia (R. at 294).
2

It is clear that the ALJ

In Walden, as in the case before the court, the ALJ had found fibromyalgia to be a severe impairment at step two
(Walden, Doc. 15 at 5).
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discounted the opinions of Dr. Rausch primarily because of the
lack of objective medical evidence, despite the diagnosis of
fibromyalgia.

In light of the diagnosis of fibromyalgia, the

ALJ erred by discounting the opinions of Dr. Rausch and
plaintiff’s allegations of pain and limitations because of the
lack of objective medical evidence.

This case shall therefore

be reversed and remanded for further hearing in order for the
Commissioner to reevaluate the opinions of Dr. Rausch and
plaintiff’s credibility in light of the diagnosis of
fibromyalgia and the case law set forth above governing the
consideration of fibromyalgia.
Other issues have been raised by plaintiff in their brief.
The court will not discuss these issues in detail because they
may be affected by the ALJ’s resolution of the case on remand
after reevaluating the opinions of Dr. Rausch and plaintiff’s
credibility in light of the diagnosis of fibromyalgia.

See

Robinson v. Barnhart, 366 F.3d 1078, 1085 (10th Cir. 2004).3
IV.

Should this case be reversed and remanded for further

hearing, or reversed for an award of benefits?
At step five, the burden of proof shifts to the
Commissioner to show that the claimant retains sufficient RFC to
perform work in the national economy.

3

Lax v. Astrue, 489 F.3d

Although plaintiff raises the issue of reversible error because of the failure of the ALJ to adhere to portions of the
Appeals Council order, the court declines to address this issue; however, on remand, the ALJ would be well advised
to consider the mandates set out in any order from the Appeals Council.
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1080, 1084 (2007); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th
Cir. 2005).

In light of the errors noted above, the court finds

that the Commissioner has failed to meet their burden of
demonstrating that the plaintiff retains sufficient RFC to
perform work in the national economy.
When a decision of the Commissioner is reversed, it is
within the court’s discretion to remand either for further
administrative proceedings or for an immediate award of
benefits.

When the defendant has failed to satisfy their burden

of proof at step five, and when there has been a long delay as a
result of the defendant’s erroneous disposition of the
proceedings, courts can exercise their discretionary authority
to remand for an immediate award of benefits.
Shalala, 992 F.2d 1056, 1060 (10th Cir. 1993).

Ragland v.
The defendant is

not entitled to adjudicate a case ad infinitum until it
correctly applies the proper legal standard and gathers evidence
to support its conclusion.

Sisco v. United States Dept. of

Health & Human Services, 10 F.3d 739, 746 (10th Cir. 1993).

A

key factor in remanding for further proceedings is whether it
would serve a useful purpose or would merely delay the receipt
of benefits.

Harris v. Secretary of Health & Human Services,

821 F.2d 541, 545 (10th Cir. 1987).

Thus, relevant factors to

consider are the length of time the matter has been pending, and
whether or not, given the available evidence, remand for
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additional fact-finding would serve any useful purpose, or would
merely delay the receipt of benefits.
F.3d 615, 626 (10th Cir. 2006).

Salazar v. Barnhart, 468

The decision to direct an award

of benefits should be made only when the administrative record
has been fully developed and when substantial and uncontradicted
evidence in the record as a whole indicates that the claimant is
disabled and entitled to benefits.

Gilliland v. Heckler, 786

F.2d 178, 184, 185 (3rd Cir. 1986).
The first issue for the court to consider is the amount of
time that the case has been pending.

Plaintiff filed her

application for supplemental security income on September 13,
2004 (R. at 28); therefore this case has been pending for over 8
years.

This case has already been remanded once previously on

the motion of the defendant.
The second issue for the court to consider is whether a
remand would serve any useful purpose, or would merely delay the
receipt of benefits.

Certainly, the opinions of Dr. Rausch and

ARNP Ridder (R. at 287-290) would indicate that plaintiff is
unable to work given their limitations on plaintiff’s ability to
sit and stand/walk in an 8 hour workday.

On the other hand, the

mental RFC assessment by Dr. Stern (R. at 1122-1124) and the
physical RFC assessment affirmed by Dr. Siemsen (R. at 11001107, 1141) do not appear to preclude plaintiff’s ability to

11

work in some capacity.

The ALJ accorded “significant” weight to

the state agency assessments (R. at 737).
Because of the conflicting medical opinion evidence noted
above, and the failure of the ALJ to consider the opinions of
Dr. Rausch and plaintiff’s credibility in light of the diagnosis
of fibromyalgia, the court finds that a remand for further
hearing would serve a useful purpose and would not merely delay
the receipt of benefits.

Furthermore, it is not for the court

to reweigh the evidence.

See Hamby v. Astrue, 260 Fed. Appx.

108, 113 (10th Cir. Jan. 7, 2008)(based on the record, the court
was not convinced that a remand would be an exercise in
futility); Tucker v. Barnhart, 201 Fed. Appx. 617, 625 (10th
Cir. Oct. 19, 2006)(even though case pending for 9 years,
additional fact-finding and consideration by ALJ appropriate in
the case); Miller v. Chater, 99 F.3d 972, 978 (10th Cir.
1996)(in light of use of incorrect legal framework and other
errors, and because the appeals court does not reweigh the
evidence, the case was remanded for further proceedings even
though court acknowledged that there had already been four
administrative hearings).
On remand, the ALJ will need to consider all of the medical
opinion evidence after taking into account the diagnosis of
fibromyalgia.

The ALJ must provide a legally sufficient

explanation for rejecting the opinion of treating medical
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sources in favor of non-examining or consulting medical sources.
Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004).
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 6th day of March, 2013, Topeka, Kansas.

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

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