Secord v. Social Security Administration, Commissioner of

Filing 24

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. (bmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

KIMBERLEE R. SECORD,
Plaintiff,
vs.

Case No. 12-1016-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 August 9, 2010, administrative law judge (ALJ) George M.

Bock issued his decision (R. at 12-20).

Plaintiff alleges that

she has been disabled since August 1, 2007 (R. at 12).
Plaintiff is insured for disability insurance benefits through
4

September 30, 2012 (R. at 14).

At step one, the ALJ found that

plaintiff has not engaged in substantial gainful activity since
plaintiff’s alleged onset date (R. at 14).

At step two, the ALJ

found that plaintiff had the following severe impairments:
depression and feet numbness (R. at 14).

At step three, the ALJ

determined that plaintiff’s impairments do not meet or equal a
listed impairment (R. at 15).

After determining plaintiff’s RFC

(R. at 16), the ALJ determined at step four that plaintiff is
unable to perform any past relevant work (R. at 18).

At step

five, the ALJ determined that plaintiff could perform other jobs
that exist in significant numbers in the national economy (R. at
18-19).

Therefore, the ALJ concluded that plaintiff was not

disabled (R. at 19-20).
III.

Did the ALJ err in his evaluation of the opinions of Dr.

Swanson?
The opinions of physicians, psychologists, or psychiatrists
who have seen a claimant over a period of time for purposes of
treatment are given more weight than the views of consulting
physicians or those who only review the medical records and
never examine the claimant.

The opinion of an examining

physician is generally entitled to less weight than that of a
treating physician, and the opinion of an agency physician who
has never seen the claimant is entitled to the least weight of
all.

Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004).
5

When a treating source opinion is inconsistent with the other
medical evidence, the ALJ’s task is to examine the other medical
source’s reports to see if they outweigh the treating source’s
reports, not the other way around.

Treating source opinions are

given particular weight because of their unique perspective to
the medical evidence that cannot be obtained from the objective
medical findings alone or from reports of individual
examinations, such as consultative examinations.

If an ALJ

intends to rely on a nontreating physician or examiner’s
opinion, he must explain the weight he is giving to it.
v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004).

Hamlin

The ALJ must

provide a legally sufficient explanation for rejecting the
opinion of treating medical sources in favor of non-examining or
consulting medical sources.

Robinson, 366 F.3d at 1084.

A treating physician’s opinion about the nature and
severity of the claimant’s impairments should be given
controlling weight by the Commissioner if well supported by
clinical and laboratory diagnostic techniques and if it is not
inconsistent with other substantial evidence in the record.
Castellano v. Secretary of Health & Human Services, 26 F.3d
1027, 1029 (10th Cir. 1994); 20 C.F.R. §§ 404.1527(d)(2),
416.927(d)(2).

When a treating physician opinion is not given

controlling weight, the ALJ must nonetheless specify what lesser
weight he assigned the treating physician opinion.
6

Robinson v.

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

A treating

source opinion not entitled to controlling weight is still
entitled to deference and must be weighed using all of the
following factors:
(1) the length of the treatment relationship and the frequency
of examination;
(2) the nature and extent of the treatment relationship,
including the treatment provided and the kind of examination or
testing performed;
(3) the degree to which the physician’s opinion is supported by
relevant evidence;
(4) consistency between the opinion and the record as a whole;
(5) whether or not the physician is a specialist in the area
upon which an opinion is rendered; and
(6) other factors brought to the ALJ’s attention which tend to
support or contradict the opinion.
Watkins v. Barnhart, 350 F.3d 1297, 1300-1301 (10th Cir. 2003).
After considering the above factors, the ALJ must give good
reasons in his/her decision for the weight he/she ultimately
assigns the opinion.

If the ALJ rejects the opinion completely,

he/she must then give specific, legitimate reasons for doing so.
Watkins, 350 F.3d at 1301.
Dr. Swanson, plaintiff’s treating physician, filled out a
medical source statement on December 30, 2009 which limited
plaintiff to standing/walking for less than 2 hours in an 8-hour
workday, and sitting for less than 4 hours in an 8-hour workday;
Dr. Swanson also included various postural and manipulative
limitations (R. at 308-309).

The vocational expert (VE)

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testified that a person with the limitations set out in Dr.
Swanson’s statement would not be able to work (R. at 41).
The ALJ stated the following regarding the opinions of Dr.
Swanson:
However, the undersigned gives little weight
to the opinions of the claimant’s treating
physician, Dr. Swanson, because it appears
to be based solely on the claimant’s
subjective complaints, since all objective
test results were essentially negative.
Moreover, Dr. Swanson’s opinions were
inconsistent with his own treatment notes
that indicate the claimant’s condition was
and could be controlled with medication and
her “bruising on the hands” was an unusual
complaint.
(R. at 18).
The ALJ discounted the opinions of Dr. Swanson because they
appeared to be based solely on plaintiff’s subjective
complaints, since all objective test results were essentially
negative.

The court will first address the question of

essentially negative test results.

Dr. Swanson’s treatment

records from July 15, 2008 include the following:
The patient has what continues to be
neuropathic pain, though without an EMG
supporting the diagnosis of peripheral
neuropathy. This is not uncommon.
(R. at 229).

An earlier treatment note, dated September 14,

2007, stated the following:
At the present time her EMG/nerve conduction
study was normal with no suggestion of a
clearly defined peripheral neuropathic
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change, radicular change or plexopathy in
the right lower extremity. Certainly some
aspects of nervous system change could be
missed by this test especially those that
involve strictly the central nervous system.
Clinical correlation is encouraged though at
the present time her peripheral nervous
system seems to be functioning adequately
well though sometimes small sensory
neuropathies may be present and cannot be
detected by this test.
(R. at 248).

Although the test results were negative, Dr.

Swanson indicates that this is not uncommon, and that some
aspects of nervous system change could be missed by the test.
An ALJ may reject a treating physician’s opinion outright
only on the basis of contradictory medical evidence and not due
to his or her own credibility judgments, speculation or lay
opinion.
2002).

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

The adjudicator is not free to substitute his own

medical opinion for that of a disability claimant’s treatment
providers.
2004).

Hamlin v. Barnhart, 365 F.3d 1208, 1221 (10th Cir.

An ALJ is not entitled to sua sponte render a medical

judgment without some type of support for his determination.
The ALJ’s duty is to weigh conflicting evidence and make
disability determinations; he is not in a position to render a
medical judgment.
(D. Kan. 2002).

Bolan v. Barnhart, 212 F. Supp.2d 1248, 1262

There is no medical opinion evidence disputing

or contradicting Dr. Swanson’s analysis of these test results;
thus, there is no valid basis for the ALJ to assert that the
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negative test results indicate that the opinions of Dr. Swanson
were based solely on plaintiff’s subjective complaints.
In the case of Langley v. Barnhart, 373 F.3d 1116, 1121
(10th Cir. 2004), the court held:
The ALJ also improperly rejected Dr.
Hjortsvang's opinion based upon his own
speculative conclusion that the report was
based only on claimant's subjective
complaints and was “an act of courtesy to a
patient.” Id. The ALJ had no legal nor
evidentiary basis for either of these
findings. Nothing in Dr. Hjortsvang's
reports indicates he relied only on
claimant's subjective complaints or that his
report was merely an act of courtesy. “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 credibility judgments, speculation or
lay opinion.” McGoffin v. Barnhart, 288 F.3d
1248, 1252 (10th Cir.2002) (quotation
omitted; emphasis in original). And this
court “held years ago that an ALJ's
assertion that a family doctor naturally
advocates his patient's cause is not a good
reason to reject his opinion as a treating
physician.” Id. at 1253.
As Langley makes clear, the ALJ must have either a legal or
evidentiary basis for asserting that a medical source report was
based only or primarily on plaintiff’s subjective complaints.
However, the ALJ did not have either a legal or evidentiary
basis for his assertion that his opinions were based solely on
plaintiff’s subjective complaints.

10

Although the medical statement prepared by Dr. Swanson
indicated that it mentioned a face-to-face interview, presumably
with the plaintiff, the statement further indicated that the
opinions expressed were “based upon objective findings and your
professional judgment” (R. at 308).

For the reasons set forth

above, the court therefore finds that the ALJ clearly erred by
concluding that the opinions of Dr. Swanson appeared to be based
solely on plaintiff’s subjective complaints.
The ALJ also discounted the opinions of Dr. Swanson because
his opinions were inconsistent with the treatment notes
indicating that plaintiff’s condition was and “could be
controlled with medication” (R. at 18).

However, what Dr.

Swanson indicated in his treatment notes of July 15, 2008 was
that the medication “was certainly quite helpful before at
reducing some of her neuropathic pain” (R. at 229), and that
medication “may improve this pain over time” (R. at 230).

There

is nothing in these statements which are clearly inconsistent
with the opinions of Dr. Swanson.

The ALJ failed to cite to any

evidence indicating that Dr. Swanson indicated plaintiff’s
condition “could be controlled with medication.”
IV.

Did the ALJ err in his evaluation of the medical source

evidence pertaining to plaintiff’s mental impairments and
limitations?

11

On December 29, 2008, Dr. Wilkinson performed a
psychological evaluation on the plaintiff.

She concluded as

follows:
Ability to work
Based on the Ms. Secord’s performance
during this evaluation, as well as clinical
observations, she demonstrates a marginal
capacity to work. Her cognitive capacity to
understand and remember simple instructions
is within normal limits. Her ability to
sustain concentration, persistence and pace
in a work setting is vulnerable to her
depression and fatigue. Her ability to
maintain appropriate social interactions
with coworkers, supervisors and clientele is
within normal limits.
(R. at 279).

On January 26, 2009, Dr. Fantz prepared a mental

RFC assessment.

He found that plaintiff was moderately limited

in the following categories:
The ability to understand and remember
detailed instructions.
The ability to carry out detailed
instructions.
The ability to maintain attention and
concentration for extended periods.
(R. at 294-295).

The ALJ stated that he gave “great weight” to

the opinions of the consultative psychologist and the state
agency assessments (R. at 18).

The only mental limitation that

the ALJ included in his RFC findings for the plaintiff was:
“the claimant is limited to unskilled work that involves 1 to 3
step instructions” (R. at 16).

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According to SSR 96-8p:
The RFC assessment must always consider and
address medical source opinions. 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.

SSR rulings are binding on an ALJ.

20

C.F.R. § 402.35(b)(1); Sullivan v. Zebley, 493 U.S. 521, 530
n.9, 110 S. Ct. 885, 891 n.9, 107 L. Ed.2d 967 (1990); Nielson
v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993).
In the case before the court, the ALJ, despite giving great
weight to the consultative psychologist and the state agency
assessments, clearly failed to include all of the moderate
limitations set forth in the assessment by Dr. Fantz.

Although

the ALJ limited plaintiff to work that involves 1 to 3 step
instructions, the ALJ did not include the opinion of Dr. Fantz
that plaintiff had a moderate limitation in the ability to
maintain attention and concentration for extended periods.
In the case of Newton v. Chater, 92 F.3d 688, 695 (8th Cir.
1996), two medical sources found that the claimant had a
moderate limitation in his ability to maintain attention and
concentration for extended periods.

However, the ALJ failed to

include this and other limitations in concentration and
persistence in the hypothetical question to the vocational
expert (VE).

Because these limitations were not included in the

hypothetical question, the court held that the VE’s testimony
13

could not constitute substantial evidence to support the
Commissioner’s decision, even though the hypothetical question
limited the claimant’s capabilities to “simple jobs.”
Furthermore, in this case, the VE testified that a moderate
deficiency in concentration and persistence would cause problems
on an ongoing daily basis, regardless of what the job required
from a physical or skill standpoint.

The court remanded the

case for further hearing, and directed that the hypothetical
question on remand should include claimant’s deficiencies of
concentration, persistence, or pace so that the vocational
expert might accurately determine his ability to work.
The ALJ failed to include in his RFC findings all of the
limitations set out in the assessment by Dr. Fantz, and failed
to explain why all of the limitations were not included in the
RFC findings.

This violates the requirement in SSR 96-8p that

if the RFC assessment conflicts with an opinion from a medical
source, the ALJ must explain why the opinion was not adopted.
Therefore, in accordance with the holding in Newton, on remand,
the ALJ should either include a limitation in plaintiff’s
ability to maintain attention and concentration for extended
periods, or provide a legally sufficient explanation for not
including this limitation in plaintiff’s RFC.
IT IS THEREFORE ORDERED that the judgment of the
Commissioner is reversed and remanded pursuant to sentence four
14

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

15