Mitchell v. Social Security Administration, Commissioner of

Filing 18

MEMORANDUM AND ORDER - It is ordered that the Commissioners decision shall be REVERSED and that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) REMANDING the case for further proceeding consistent herewith. Signed by District Judge John W. Lungstrum on 10/28/2013. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JAYSON MITCHELL,

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)
Plaintiff,
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v.
)
)
)
CAROLYN W. COLVIN,1
Acting Commissioner of Social Security,
)
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Defendant.
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________________________________________ )

CIVIL ACTION
No. 12-1238-JWL

MEMORANDUM AND ORDER

Plaintiff seeks review of a decision of the Commissioner of Social Security
(hereinafter Commissioner) denying Supplemental Security Income (SSI) benefits under
sections 1602, and 1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 1381a, and
1382c(a)(3)(A) (hereinafter the Act). Finding error in the ALJ’s evaluation of Plaintiff’s
allegations of symptoms, the court ORDERS that the decision shall be REVERSED and
that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g)
REMANDING the case for further proceeding consistent with this opinion.
I.

Background
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On February 14, 2013, Carolyn W. Colvin became Acting Commissioner of
Social Security. In accordance with Rule 25(d)(1) of the Federal Rules of Civil
Procedure, Ms. Colvin is substituted for Commissioner Michael J. Astrue as the
defendant. In accordance with the last sentence of 42 U.S.C. § 405(g), no further action
is necessary.

Plaintiff applied for SSI alleging disability beginning April 1, 2009.2 (R. 13, 11921). In due course, Plaintiff exhausted proceedings before the Commissioner, and now
seeks judicial review of the final decision denying benefits. He alleges that the
Administrative Law Judge (ALJ) erred in evaluating the medical opinions; and in
evaluating the credibility of Plaintiff’s allegations of symptoms resulting from his
impairments.
The court’s review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052
(10th Cir. 2009). Section 405(g) of the Act provides that in judicial review “[t]he
findings of the Commissioner as to any fact, if supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). The court must determine whether the ALJ’s factual
findings are supported by substantial evidence in the record and whether he applied the
correct legal standard. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); accord,
White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001). Substantial evidence is more than
a scintilla, but it is less than a preponderance; it is such evidence as a reasonable mind
might accept to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971);
Wall, 561 F.3d at 1052; Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir. 1988).
The court may “neither reweigh the evidence nor substitute [its] judgment for that
of the agency.” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting

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In his application, Plaintiff alleged disability beginning October 1, 1992, but after
consultation with his attorney, at the hearing he amended his alleged onset date to April 1,
2009. (R. 35).
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Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)); accord,
Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). Nonetheless, the
determination 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 constitutes mere conclusion. Gossett, 862 F.2d at 804-05; Ray v.
Bowen, 865 F.2d 222, 224 (10th Cir. 1989).
The Commissioner uses the familiar five-step sequential process to evaluate a
claim for disability. 20 C.F.R. §§ 404.1520, 416.920; Wilson v. Astrue, 602 F.3d 1136,
1139 (10th Cir. 2010) (citing Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)).
“If a determination can be made at any of the steps that a claimant is or is not disabled,
evaluation under a subsequent step is not necessary.” Wilson, 602 F.3d at 1139 (quoting
Lax, 489 F.3d at 1084). In the first three steps, the Commissioner determines whether
claimant has engaged in substantial gainful activity since the alleged onset, whether he
has a severe impairment(s), and whether the severity of his impairment(s) meets or equals
the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt.
P, App. 1). Williams, 844 F.2d at 750-51. After evaluating step three, the Commissioner
assesses claimant’s residual functional capacity (RFC). 20 C.F.R. § 404.1520(e). This
assessment is used at both step four and step five of the sequential evaluation process. Id.
The Commissioner next evaluates steps four and five of the sequential process-determining at step four whether, in light of the RFC assessed, claimant can perform his
past relevant work; and at step five whether, when also considering the vocational factors
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of age, education, and work experience, claimant is able to perform other work in the
economy. Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In steps one
through four the burden is on Plaintiff to prove a disability that prevents performance of
past relevant work. Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006); accord,
Dikeman v. Halter, 245 F.3d 1182, 1184 (10th Cir. 2001); Williams, 844 F.2d at 751 n.2.
At step five, the burden shifts to the Commissioner to show that there are jobs in the
economy which are within the RFC assessed. Id.; Haddock v. Apfel, 196 F.3d 1084,
1088 (10th Cir. 1999).
The court finds that remand is necessary because substantial record evidence does
not support the ALJ’s credibility determination. Because remand is necessary in any
case, the court will not reach Plaintiff’s arguments with regard to the medical opinions.
He may make these arguments before the Commissioner on remand.
II.

The Credibility Determination
The ALJ determined that Plaintiff’s allegations of the severity of symptoms

resulting from his impairments is not credible in general terms because the allegations
lack support from the objective medical evidence, from Plaintiff’s medications or other
treatment, and from Plaintiff’s activities. (R. 18-20). Plaintiff claims that the ALJ’s
consideration of Plaintiff’s activities constitutes reliance merely upon the sporadic
performance of work or household tasks, that the ALJ erroneously relied upon Plaintiff’s
alleged noncompliance with taking his insulin, and that in discussing Plaintiff’s treatment
the ALJ did not demonstrate Plaintiff’s allegations were not credible but “just noted ways
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in which Mitchell has been compliant with medical treatment.” (Pl. Br. 20). He then
explains how, in his view, a proper evaluation of the evidence would yield a finding that
his allegations are credible. Id. at 21-24. The Commissioner argues that the ALJ
properly considered Plaintiff’s credibility. She argues that, contrary to Plaintiff’s
assertion, the ALJ considered all of the medical evidence in making his credibility
determination, and that because of a needle phobia Plaintiff did not take the full amount
of insulin recommended and would not administer a second shot to himself which weighs
against his credibility. (Comm’r Br. 5-6). She argues that although the ALJ recognized
that Plaintiff’s treating physician instructed him to discontinue use of his continuous
positive airway pressure (CPAP) machine, he also noted that Plaintiff took medication
that helped him stay awake during the day and reduced the time he spent napping. Id. 67. The Commissioner also argues that substantial record evidence supports the credibility
determination, and that the ALJ’s findings should be upheld. Id. at 7-8. In his reply brief,
Plaintiff argues that his needle phobia is a proper basis to excuse his noncompliance with
full insulin treatment and “should not weigh against his credibility.” (Reply 1).
A.

Standard for Evaluating the ALJ’s Credibility Determination

The court’s review of an ALJ’s credibility determination is deferential. Credibility
determinations are generally treated as binding on review. Talley v. Sullivan, 908 F.2d
585, 587 (10th Cir. 1990); Broadbent v. Harris, 698 F.2d 407, 413 (10th Cir. 1983).
“Credibility determinations are peculiarly the province of the finder of fact” and will not

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be overturned when supported by substantial evidence. Wilson, 602 F.3d at 1144; accord
Hackett, 395 F.3d at 1173. However,
[b]ecause a credibility assessment requires consideration of all the factors
“in combination,” [] when several of the factors relied upon by the ALJ are
found to be unsupported or contradicted by the record, [a court is]
precluded from weighing the remaining factors to determine whether they,
in themselves, are sufficient to support the credibility determination.
Bakalarski v. Apfel, No. 97-1107, 1997 WL 748653, *3 (10th Cir. Dec. 3, 1997)
(emphasis in original) (quoting Huston v. Bowen, 838 F.2d 1125, 1132 n.7 (10th Cir.
1988) (citation omitted)).
In reviewing the ALJ’s credibility determinations, the court will usually defer to
the ALJ on matters involving witness credibility. Glass v. Shalala, 43 F.3d 1392, 1395
(10th Cir. 1994); but see Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th Cir. 1993)
(“deference is not an absolute rule”). “However, ‘[f]indings as to credibility should be
closely and affirmatively linked to substantial evidence and not just a conclusion in the
guise of findings.’” Wilson, 602 F.3d at 1144 (quoting Huston, 838 F.2d at 1133);
Hackett, 395 F.3d at 1173 (same).
B.

Analysis

Although the court’s review is deferential, and it is loathe to remand based on error
in a credibility determination, it focuses on two matters which demonstrate the error and
the need for remand in this case. Therefore, and because a credibility determination
requires consideration of all the factors in combination, the court will remand for the

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Commissioner to consider the combination of factors and will not attempt to reweigh the
evidence itself and substitute its judgment for that of the Commissioner.
First, in his analysis of how treatment suggests Plaintiff’s allegations are not
credible the ALJ implied, without specifically finding, that Plaintiff was not compliant
with taking his insulin for diabetes. (R. 19) (“While treatment notes suggest the claimant
reports compliance with his diabetes medication, his treatment providers suspect he does
not receive the recommended dose of insulin due to his needle phobia.”). The
Commissioner argues that this is proper because Plaintiff on one occasion admitted to his
treating physician that he did not take his insulin properly, and this failure to follow the
recommended course of treatment detracts from the credibility of his allegations.
(Comm’r Br. 6). Plaintiff argues that his needle phobia is a sufficient basis to justify a
failure to administer insulin properly. (Reply 1).
Both Plaintiff and the Commissioner miss the law of this Circuit. In Frey v.
Bowen, 816 F.2d 508, 517 (10th Cir. 1987), the court stated a test which should be
applied by an ALJ where a claimant has refused to follow or failed to undertake treatment
recommended by his physician. “In reviewing the impact of a claimant’s failure to
undertake treatment, . . . [the court] consider[s] four elements: (1) whether the treatment
at issue would restore claimant’s ability to work; (2) whether the treatment was
prescribed; (3) whether the treatment was refused; and, if so, (4) whether the refusal was
without justifiable excuse.” Frey, 816 F.2d at 517. But, the Tenth Circuit has also
recognized that the Frey test should not be applied in those situations where treatment has
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not been prescribed, but where the ALJ is merely considering “what attempts plaintiff
made to relieve his pain--including whether he took pain medication--in an effort to
evaluate the veracity of plaintiff’s contention that his pain was so severe as to be
disabling.” Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000). The controlling point
in this case is the ALJ’s suggestion that Plaintiff does not take “the recommended dose of
insulin due to his needle phobia.” (R. 19). The ALJ’s appeal to Plaintiff’s failure to take
“the recommended dose of insulin,” clearly implicates a refusal or failure to undertake
recommended treatment and requires that the Frey test be applied before the ALJ may use
Plaintiff’s failure to follow the recommended treatment to discount the credibility of his
allegations of symptoms. The ALJ did not do so here, and that failure is error.
The second matter the court considers with regard to the credibility determination
is the ALJ’s discussion and analysis regarding treatment for Plaintiff’s sleep apnea:
As for the claimant’s use of a continuous positive airway pressure (CPAP)
machine, treatment notes confirm the claimant has tried a variety of masks
without success. (Exhibit 21F) Although the claimant was able to avoid
leaks with a full face mask, he was unable to tolerate the machine for more
than brief periods at night due to excessive dry mouth. (Exhibit 21F) The
claimant’s treatment provider recommended additional surgery, but this was
not covered by the claimant’s insurance. (Exhibit 21F at p. 8) Ultimately,
the claimant’s treatment provider recommended he discontinue use of the
CPAP machine entirely. (Exhibit 21F at p. 8) . . .The claimant testified he
does take medication to help him stay awake during the day, which has
reduced the amount of time he spends napping.
(R. 19). As Plaintiff’s brief suggests, this discussion demonstrates that Plaintiff has sleep
apnea which interferes with his sleep to the extent that he was prescribed a CPAP
machine, but that the machine was unhelpful and the physician instructed him to
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discontinue use of the machine. These facts support Plaintiff’s need to nap during the day
and therefore support the credibility of his allegations. As the Commissioner points out,
the ALJ did note that Plaintiff takes medication which has reduced the amount of time he
spends napping. But, that notation merely admits that Plaintiff needs to nap during the
day. The ALJ’s discussion says nothing with regard to whether Plaintiff’s need to nap
can be accommodated and still allow a full eight-hour workday, and it certainly says
nothing with regard to whether the record evidence will support such a finding.
The court has identified two of the ALJ’s credibility findings which were
inadequately considered and are therefore not supported by substantial record evidence.
While the court recognizes that other record evidence supports the ALJ’s credibility
determination, the court is precluded from weighing the remaining factors to determine
whether they, despite the two erroneous grounds, are sufficient to support the ALJ’s
credibility determination. Bakalarski, 1997 WL 748653 at *3. Remand is necessary for
the Commissioner to make a proper credibility determination in light of all of the record
evidence.
IT IS THEREFORE ORDERED that the Commissioner’s decision shall be
REVERSED and that judgment shall be entered pursuant to the fourth sentence of 42
U.S.C. § 405(g) REMANDING the case for further proceeding consistent herewith.
Dated this 28th day of October 2013, at Kansas City, Kansas.

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s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge

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