Holle v. Social Security Administration, Commissioner of

Filing 27

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. Signed by U.S. District Senior Judge Sam A. Crow on 9/17/2013. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BOBBY C. HOLLE,
Plaintiff,
vs.

Case No. 12-1242-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.
3

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
February 12, 2010, administrative law judge (ALJ) Christine

A. Cooke issued her decision (R. at 17-26).

Plaintiff alleges

that he has been disabled since December 15, 2005 (R. at 17).
Plaintiff is insured for disability insurance benefits through
4

June 30, 2010 (R. at 19).

At step one, the ALJ found that

plaintiff has not engaged in substantial gainful activity since
plaintiff’s alleged onset date of disability (R. at 19).

At

step two, the ALJ found that plaintiff has the following severe
impairments:
(R. at 19).

COPD, and a history of multiple cardiac conditions
At step three, the ALJ determined that plaintiff’s

impairments do not meet or equal a listed impairment (R. at 21).
After determining plaintiff’s RFC (R. at 21), the ALJ determined
at step four that plaintiff is unable to perform any past
relevant work (R. at 24).

At step five, the ALJ determined that

plaintiff could perform other jobs that exist in significant
numbers in the national economy (R. at 24-25).

Therefore, the

ALJ concluded that plaintiff was not disabled (R. at 25).
III.

Did the ALJ err at step two?
Plaintiff argues that the ALJ erred at step two in finding

that plaintiff’s mental impairment was nonsevere.
proof at step two is on the plaintiff.

The burden of

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. 1988)(“de minimis showing of
medical severity”).

A claimant need only be able to show at
5

this level that the impairment would have more than a minimal
effect on his or her ability to do basic work activities.
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.
Cir. 1997).

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

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).
According to 20 C.F.R. § 404.1520a(c)(3), the Commissioner
rates a claimant’s mental limitations in four functional areas:
activities of daily living; social functioning; concentration,
persistence, or pace; and episodes of decompensation.

If the

degree of limitation in the first three categories is none or
mild, and none in the fourth category, the Commissioner will
generally conclude that the mental impairment is nonsevere.
C.F.R. § 404.1520a(d)(1).
6

20

The ALJ found that plaintiff had mild limitations in
activities of daily living and social functioning.

The ALJ

further found that plaintiff had no limitation in concentration,
persistence or pace.

Finally, the ALJ found that plaintiff had

no episodes of decompensation (R. at 20).
the findings of Dr. Smith (R. at 463-475).

These findings match
By contrast,

plaintiff cites to no medical opinion evidence indicating that
plaintiff’s mental impairments are severe.
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).

The court finds that

substantial evidence supports the ALJ’s determination that
plaintiff’s mental impairments are not severe.
Even assuming plaintiff met his burden of proving that
plaintiff had a severe mental impairment, the issue before the
court would be whether it is reversible error if the ALJ fails
to list all the severe impairments at step two.

In Brescia v.

Astrue, 287 Fed. Appx. 626, 628-629 (10th Cir. July 8, 2008),
the claimant argued that the ALJ improperly determined that
several of her impairments did not qualify as severe
impairments.

The court held that once an ALJ has found that

plaintiff has at least one severe impairment, a failure to
designate another as “severe” at step two does not constitute
7

reversible error because, under the regulations, the agency at
later steps considers the combined effect of all of the
claimant’s impairments without regard to whether any such
impairment, if considered separately, would be of sufficient
severity.

In Hill v. Astrue, 289 Fed. Appx. 289, 291-292 (10th

Cir. Aug. 12, 2008), the court held that once the ALJ finds that
the claimant has any severe impairment, he has satisfied the
analysis for purposes of step two.

The ALJ’s failure to find

that additional alleged impairments are also severe is not in
itself cause for reversal.

However, the ALJ, in determining

plaintiff’s RFC, must consider the effects of all of the
claimant’s medically determinable impairments, both those he
deems “severe” and those “not severe.”
In making his RFC findings, the ALJ stated that she
considered all symptoms and the extent to which these symptoms
can reasonably be accepted as consistent with the objective
medical evidence and other evidence; the ALJ also stated that
she considered the opinion evidence (R. at 21).

Furthermore,

the ALJ indicated that in making her RFC findings, she “must
consider all of the claimant’s impairments, including
impairments that are not severe” (R. at 18-19).

Plaintiff

failed to cite to any medical evidence indicating that
plaintiff’s mental impairments would have more than a minimal
impact on plaintiff’s ability to work or constituted a severe
8

impairment.

In light of the fact that the ALJ found other

severe impairments at step two, considered all symptoms and
evidence when making RFC findings for the plaintiff, considered
all of plaintiff’s impairments, including non-severe impairments
when making his RFC findings, and the failure of plaintiff to
cite to any medical evidence that plaintiff had limitations from
these impairments that were not included in the ALJ’s RFC
findings, the court finds that the ALJ did not err in his
consideration of plaintiff’s mental impairments.
IV.

Did the ALJ err at step three in her finding that

plaintiff’s impairments do not meet or equal a listed
impairment?
The ALJ found at step three that plaintiff did not have an
impairment or combination of impairments that met or equaled a
listed impairment.

The ALJ noted that plaintiff’s attorney

represented that he was not contending that plaintiff’s
conditions met or equaled a listed impairment.

The ALJ further

noted that no doctor had stated that plaintiff’s conditions met
or equaled a listed impairment (R. at 21).
At the hearing on October 6, 2009, the transcript contains
the following:
ALJ: For the record, do you contend that
your client’s impairment or combination of
impairments meets or medically equals the
criteria of any listed impairment?

9

ATTY: No, your honor.
(R. at 46).

The issue before the court is whether this

representation by counsel precludes plaintiff from raising this
issue.
The doctrine of invited error is set forth as follows:
The invited error doctrine prevents a party
from inducing action by a court and later
seeking reversal on the ground that the
requested action was error. Eateries, Inc.
v. J.R. Simplot Co., 346 F.3d 1225, 1229
(10th Cir. 2003); John Zink Co. v. Zink, 241
F.3d 1256, 1259 (10th Cir. 2001). This
doctrine has been applied when a party
requested that the Departmental Appeals
Board (DAB) of the Department of Health and
Human Services, in an appeal from an ALJ
decision, conduct a de novo review of the
record, and then claimed before the district
court that the DAB erred in conducting a de
novo review. St. Anthony Hospital v. U.S.
Dept. of H.H.S., 309 F.3d 680, 686, 690, 696
(10th Cir. 2002). This doctrine has been
applied by this court when an attorney
stipulated to an ALJ that the claimant’s
mental impairment was non-severe at step
two, and then argued to this court that the
ALJ erroneously determined that the mental
impairment was non-severe. Basler v.
Barnhart, Case No. 02-1084-WEB
(recommendation and report, April 2, 2003 at
10-12; affirmed by district court April 15,
2003), and when an attorney, on the record,
amended the onset date to a date later than
had been originally alleged, but then argued
that the ALJ erred by failing to find the
earlier onset date which had been originally
alleged. Rivas v. Barnhart, Case No. 051266-MLB (recommendation and report, July
26, 2006 at 6-9; affirmed by district court
Aug. 16, 2006).
In this case, the attorney clearly and
unambiguously asserted to the ALJ that he
10

did not believe that his client met a
listing. It is therefore clear that
plaintiff’s counsel induced or invited the
ALJ at step [three] to find that plaintiff
did not meet a listed impairment.
Therefore, the court holds that the doctrine
of invited error bars the plaintiff from
raising this issue on appeal.
Tracy v. Astrue, 518 F. Supp.2d 1291, 1305-1306 (D. Kan. 2007).
The facts of the case before the court mirror the facts in
Tracy.

The court finds that plaintiff’s counsel induced or

invited the ALJ at step three to find that plaintiff did not
meet or equal a listed impairment.

Therefore, the court holds

that the doctrine of invited error bars the plaintiff from
raising this issue on appeal.
V.

Did the ALJ err by failing to consider or discuss medical

opinion evidence?
An ALJ must evaluate every medical opinion in the record.
Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004).

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 considered and must never be ignored.
Ruling (SSR) 96-5p, 1996 WL 374183 at *2-3.

Social Security

The ALJ “will”

evaluate every medical opinion that they receive, and will

11

consider a number of factors in deciding the weight to give to
any medical opinion.

20 C.F.R. §§ 404.1527(c), 416.927(c).

is clear legal error to ignore a medical opinion.

It

Victory v.

Barnhart, 121 Fed. Appx. 819, 825 (10th Cir. Feb. 4, 2005).
The record contains the following letter from Dr. Pascucci,
dated October 22, 2007:
The letter is in regards to Mr. Bobby Holle,
a patient of mine at the Oklahoma University
Internal Medicine Clinic in Tulsa, Oklahoma.
Mr. Holle has radiologic and oxygen
saturation monitor evidence of extremely
severe emphysema and intermittent
claudication, both which put severe limits
on Mr. Holle’s ability to hold gainful
employment. Mr. Holle is in desperate need
of medical attention and is actively seeking
such attention but due to his inability to
gain employment secondary to his medical
conditions he finds himself unable to afford
the necessary medical interventions.
Without assistance and intervention, I
expect Mr. Holle to have a greatly shortened
life span.
(R. at 402).

The ALJ did not discuss this medical opinion in

her decision; this point is conceded by defendant in her brief
(Doc. 20 at 16).
As the regulations and case law make clear, even on issues
reserved to the Commissioner, including the ultimate issue of
disability, opinions from any medical source must be carefully
considered and must never be ignored.

Because of the ALJ’s

failure to consider the medical opinion of Dr. Pascucci, this

12

case shall be reversed and remanded in order for the ALJ to
consider this medical opinion.
The court would also note that the record contains an RFC
assessment from Dr. Seibert, a treating physician, dated October
1, 2009 (R. at 644-647).

Dr. Seibert sets forth a number of

physical limitations in her report.

She further opined that

plaintiff would not be able to work on a sustained and
continuing basis 8 hours a day, 5 days a week because of fatigue
(R. at 645), that plaintiff’s impairments would interfere with
his ability to engage in work that required a consistent pace of
production, and that plaintiff would be unable to complete tasks
in a timely manner for 1 or more hours in an 8 hour workday (R.
at 646).

Dr. Seibert provided a narrative discussion of the

medical findings that supported her opinions, including
fatigability and shortness of breath with minimal activity (R.
at 647).
The ALJ discounted the opinions of Dr. Seibert because they
were not supported by the medical evidence of record or by the
testimony of Dr. Gaeta, a non-examining medical expert who
testified (R. at 24).

However, the opinions of Dr. Seibert are

in fact supported by the medical opinion of another treatment
provider, Dr. Pascucci.

Furthermore, the opinions of

physicians, psychologists, or psychiatrists who have seen a
claimant over a period of time for purposes of treatment are
13

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

Robinson v.
Thus, the record

in fact reflects that two treatment providers have opined that
plaintiff is disabled, while a non-examining physician has
opined that plaintiff is able to work.
The ALJ must provide a legally sufficient explanation for
rejecting the opinions of treating medical sources in favor of
non-examining or consulting medical sources.
at 1084.

Robinson, 366 F.3d

In light of the fact that the ALJ failed to mention or

discuss the opinion of Dr. Pascucci, the ALJ has provided no
explanation for rejecting the opinions of two treatment
providers in favor of a non-examining medical source.
Furthermore, an ALJ must not consider the opinions of one
treating source in isolation, but his opinions must be
considered in light of the entire evidentiary record, including
the opinions and assessments of other treating sources.

The

court is concerned with the necessarily incremental effect of
each individual report or opinion by a source on the aggregate
assessment of the evidentiary record, and, in particular, on the
14

evaluation of reports and opinions of other medical treating or
examining sources, and the need for the ALJ to take this into
consideration.

See Lackey v. Barnhart, 127 Fed. Appx. 455, 458-

459 (10th Cir. April 5, 2005).
This case shall therefore be remanded in order for the ALJ
to consider the opinions expressed by Dr. Pascucci.

Those

opinions should be considered in light of all the evidence, and
in particular the opinions of another treatment provider, Dr.
Seibert.
VI.

Did the ALJ err in his reliance on plaintiff’s daily

activities?
The ALJ noted that in a report filled out by claimant, he:
listed a myriad of activities in which he
engaged, including walking, sitting at his
brother’s home or at a friend’s homes,
watching television, doing computer work,
and tending to a dog (Exhibit 6E). These
activities are not compatible with total
disability.
(R. at 22).
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.
C.F.R. § 404.1572(c) (2013 at 399).

20

Furthermore, although the

nature of daily activities is one of many factors to be
considered by the ALJ when determining the credibility of
15

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.

Krauser v. Astrue, 638 F.3d 1324,

1332-1333 (10th Cir. 2011); 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 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
16

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
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).
Walking, sitting, watching television, doing computer work,
and tending to a dog do not qualify as the ability to do
substantial gainful activity.

Watching television is not

inconsistent with allegations that a person is unable to work.

17

See Krauser v. Astrue, 638 F.3d 1324, 1333 (10th Cir.
2011)(watching television not inconsistent with allegations of
pain and concentration problems).

Furthermore, one does not

need to be utterly or totally incapacitated in order to be
disabled.

Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir.

2001); Jones v. Sullivan, 804 F. Supp. 1398, 1405 (D. Kan.
1992).
Furthermore, the report filled out by the plaintiff also
states that plaintiff can only engage in short walks (one or two
blocks), he goes slow and cannot run, and he stops to catch his
breath (R. at 350-355).

An ALJ cannot use mischaracterization

of a claimant’s activities of a claimant’s activities by
selective and misleading evidentiary review to discredit his/her
claims of disabling limitations.

Sitsler v. Astrue, 410 Fed.

Appx. 112, 117-118 (10th Cir. Jan. 10, 2011).

Although the ALJ

found that plaintiff engaged in some activities, the ALJ failed
to discuss any of the limitations noted above in the report.
Therefore, on remand, the ALJ will need to examine
plaintiff’s daily activities in light of the regulations and
case law set forth above.

The ALJ will need to make new

credibility findings after giving consideration to all the
medical opinion evidence, and examining plaintiff’s daily
activities in light of the regulations and case law.

18

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 17th day of September 2013, Topeka, Kansas.

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

19