Burgess v. Social Security Administration, Commissioner of

Filing 17

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 8/21/2013. (bmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DENISE BURGESS,
Plaintiff,
vs.

Case No. 12-1258-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.

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
On July 11, 2011, administrative law judge (ALJ) Christina

Young Mein issued her decision (R. at 10-21).

Plaintiff alleges

that she has been disabled since March 1, 2008 (R. at 10).
Plaintiff is insured for disability insurance benefits through
4

December 31, 2012 (R. at 12).

At step one, the ALJ found that

plaintiff has not engaged in substantial gainful activity since
plaintiff’s alleged onset date (R. at 12).

At step two, the ALJ

found that plaintiff has the following severe impairments:
fibromyalgia; depression; and migraine headaches (R. at 12).

At

step three, the ALJ determined that plaintiff’s impairments do
not meet or equal a listed impairment (R. at 12).

After

determining plaintiff’s RFC (R. at 14), the ALJ determined at
step four that plaintiff is unable to perform her past relevant
work (R. at 20).

At step five, the ALJ found that plaintiff

could perform jobs that exist in significant numbers in the
national economy (R. at 20-21).

Therefore, the ALJ concluded

that plaintiff was not disabled (R. at 21).
III.

Did the ALJ err in discounting the opinions of Dr. Veloor,

plaintiff’s treating physician?
On November 4, 2010, Dr. Veloor, plaintiff’s treating
physician, filled out a form indicating that plaintiff had
fibromyalgia, and setting forth the following limitations:
Hours patient can work per day: 2 hours
Standing at one time: 30 minutes
Stand in workday: 60 minutes
Sitting at one time: 15-30 minutes
Sitting in workday: 60 minutes
Lifting on an occasional basis: 5 pounds
5

Lifting on a frequent basis: none
Bend and Stoop: occasionally
Raise arms over shoulder level: occasionally
(R. at 425-426).
The ALJ provided the following explanation for discounting
the opinions of Dr. Veloor:
The severe limitations imposed by Dr.
Veloor…are contrary to the claimant’s own
testimony that she has the capacity to lift
10 pounds at a time, stand for one hour at a
time, and can sit for one hour at a time.
In addition, based on the medical evidence
in the record, it would appear that Dr.
Veloor’s opinions are based solely on the
claimant’s subjective complaints of pain
symptoms at that time, and not on credible
objective evidence. Additionally, as the
July 19, 2010 examination indicates, Dr.
Veloor’s own medical records do not support
her opinions of the claimant’s functioning
during this time. As a result, Dr. Veloor’s
opinions in this matter are given very
little weight in this decision.
(R. at 17).

According to defendant, the ALJ gave little weight

to the opinions of Dr. Veloor because they were not supported by
plaintiff’s own testimony and reports of daily activities, were
inconsistent with Dr. Veloor’s treatment notes, and were based
on plaintiff’s subjective complaints (Doc. 16 at 13).

The ALJ

stated that plaintiff’s “significant” activities showed that
plaintiff “clearly retains the ability to perform work
activities” (R. at 18).

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Although Dr. Veloor indicated that plaintiff could only
stand for 30 minutes at a time, and sit for 15-30 minutes at a
time (R. at 426), plaintiff testified that she could sit and
stand about one hour at a time (R. at 54).

However, plaintiff

qualified her answer about standing for one hour at a time by
stating that she could do that on a “good” day (R. at 54).
Plaintiff went on to testify that she only has 3 “good” days a
week, and that on the other 4 days, she is not able to do
anything, but just lays around, and has trouble walking or
bending her fingers (R. at 58).

Plaintiff’s qualifications of

her answer regarding her ability to sit and stand were not
discussed by the ALJ.
The ALJ further asserted that it appears that Dr. Veloor’s
opinions are based solely on plaintiff’s subjective complaints,
and not on credible objective medical evidence.

However, 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);
7

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.

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).

The rule of

thumb is that the patient must be positive on at least 11 of the
18 tender points to be diagnosed with fibromyalgia (R. at 425);
Gilbert, 231 Fed. Appx. at 783; Brown, 182 Fed. Appx. at 773
n.1; Glenn, 102 F. Supp.2d at 1259.

On May 15, 2009, Dr. Veloor

found that plaintiff has 18/18 positive tender points (R. at
362).
As the case law makes clear, the lack of “objective”
medical evidence is not determinative of the severity of
8

fibromyalgia.

As this court has previously indicated, it is

error for the ALJ to discount plaintiff’s allegations of
limitations due to fibromyalgia because of the lack of objective
medical evidence.

Gibbs v. Colvin, Case No. 11-1318-SAC (D.

Kan. March 6, 2013; Doc. 30 at 6-9); Walden v. Astrue, Case No.
11-4120-SAC (D. Kan. Aug. 28, 2012; Doc. 15 at 15-16).
Dr. Veloor found that plaintiff has 18/18 positive tender
points; only 11 of 18 must be found to be positive to diagnose
fibromyalgia.

Dr. Veloor’s opinions are clearly premised on his

diagnosis of fibromyalgia (R. at 425-426).

It is clear that the

ALJ, as in Gibbs and Walden, improperly discounted the opinions
of Dr. Veloor because of the lack of objective medical evidence,
despite the diagnosis of fibromyalgia.

This case shall

therefore be reversed and remanded for further hearing in order
for the Commissioner to reevaluate the opinions of Dr. Veloor in
light of the diagnosis of fibromyalgia and the case law set
forth above governing the consideration of fibromyalgia.
The ALJ also discounted the opinion of Dr. Veloor because
the examination of July 19, 2010 showed a normal gait pattern,
and no focal deficits neurologically (R. at 17, 411).

However,

the ALJ failed to cite to any evidence indicating that these
findings are inconsistent with the opinions expressed by Dr.
Veloor.

An ALJ may reject a treating physician’s opinion

outright only on the basis of contradictory medical evidence and
9

not due to his or her own credibility judgments, speculation or
lay opinion.

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

Cir. 2002).

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

The ALJ clearly erred by failing to cite to any

evidence that the findings by Dr. Veloor on July 19, 2010
conflict with the opinions he expressed regarding plaintiff’s
limitations on November 4, 2010.
Defendant also argues that Dr. Veloor’s opinions were
discounted because of plaintiff’s reports of her daily
activities.

The ALJ stated that plaintiff’s “significant”

activities indicates that plaintiff clearly retains the ability
to work (R. at 18, 19).

The ALJ noted that plaintiff takes the

children to school every morning (R. at 14), and further
indicated that caring for minor children can be quite demanding
both physically and emotionally.

The ALJ stated that the

ability to care for minor children alone during the day could
indicate that plaintiff has the ability to work (R. at 18).
10

First, 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) (2012 at 398).

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.

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
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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
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.
12

Thomas v. Sullivan, 876 F.2d 666, 669 (8th
Cir.1989) (citations omitted).
Draper, 425 F.3d at 1131 (emphasis added).
In the case of Richardson v. Astrue, 858 F. Supp.2d 1162
(D. Colo. March 12, 2012), the court held that the ALJ
selectively applied the evidence regarding plaintiff’s household
activities, socialization with friends, and the fact that she
cared for three children.

The court noted that the evidence

showed that plaintiff’s daily activities were limited, and held
that limited activities, in themselves, do not establish that
one can engage in sedentary or light work.
Supp.2d at 1178-1179.

Richardson, 858 F.

Further, the fact that a claimant takes

care of her children does not necessarily mean that this was
demanding physically or emotionally, when there is nothing in
the record to support that.

Richardson, 858 F. Supp.2d at 1179;

see Martinez v. Astrue, 422 Fed. Appx. 719, 728 (10th Cir. April
26, 2011)(there is nothing in the record to support ALJ finding
that providing care for daughter is quite demanding both
physically and emotionally).
Although plaintiff initially testified that that she takes
the children to school every morning (R. at 50), she later
clarified her testimony by indicating that on “bad” days (four
days a week, R. at 58) she sometimes has her husband come home
to take the kids to school; she has also called a taxi to take
13

the kids to school (R. at 59).

Although plaintiff testified

that she does the laundry, cleans the house, and cooks (R. at
54-55), she does not do these activities on “bad” days (R. at
59).

Plaintiff further testified that she sometimes has trouble

standing on her feet, and therefore “a lot of times my husband
has to cook” (R. at 65).

Plaintiff also indicated that

fibromyalgia interferes with her ability to take care of
herself, including showering, putting on makeup, and combing her
hair (R. at 63).

She also has physical problems doing the

laundry (R. at 65).
The ALJ relied on plaintiff’s daily activities and care for
her children to discount the opinion of Dr. Veloor and to
conclude that plaintiff retains the ability to work.

The ALJ

stated that plaintiff’s “significant” activities, including the
ability to care for minor children, demonstrates her ability to
work (R. at 18, 19).

However, according to the regulations,

activities such as household tasks are generally not considered
to constitute substantial gainful activity.

Furthermore, as the

case law makes clear, the ability to engage in the sporadic
performance of daily tasks, or to engage in ordinary life
activities, do not establish that a claimant can engage in
substantial gainful activity.

Plaintiff’s daily activities do

not demonstrate that plaintiff is capable of working.

Although

the ALJ asserts that caring for children can be quite demanding
14

both physically and emotionally, there is nothing in the record
to support the ALJ finding that providing care for the children
is quite demanding physically and emotionally.

Martinez v.

Astrue, 422 Fed. Appx. 719, 728 (10th Cir. April 26, 2011)(there
is nothing in the record to support ALJ finding that providing
care for daughter is quite demanding both physically and
emotionally).
Second, 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 significant activities, the ALJ failed to
discuss many of the limitations noted above in her testimony.
When this case is remanded, plaintiff’s daily activities must be
considered in light of all the evidence and the case law set
forth above.
IV.

Did the ALJ err in making his RFC findings?
In light of the errors by the ALJ in his evaluation of the

opinions of Dr. Veloor, and in his evaluation of plaintiff’s
daily activities, the ALJ, on remand, will need to make new RFC
findings after properly evaluating the opinions of Dr. Veloor
and plaintiff’s daily activities.

The ALJ will need to make RFC

findings that fully comply with SSR 96-8p.
15

The RFC assessment

must include a narrative discussion describing how the evidence
supports each conclusion, citing specific medical facts and
nonmedical evidence.

The RFC assessment must always consider

and address medical source opinions, and if the RFC assessment
conflicts with an opinion from a medical source, the ALJ must
explain why the opinion was not adopted.
374184 at *7.

SSR 96-8p, 1996 WL

Finally, the ALJ must make every reasonable

effort to ensure that the file contains sufficient evidence to
assess RFC.

SSR 96-8p, 1996 WL 374814 at *5; Fleetwood v.

Barnhart, 211 Fed. Appx. 736, 740 (10th Cir. Jan. 4, 2007).
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 21st day of August, 2013, Topeka, Kansas.

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

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