Price v. Social Security Administration, Commissioner of

Filing 15

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 3/11/14. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JASON SAINT JAMES PRICE,
Plaintiff,
vs.

Case No. 13-1052-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
On June 10, 2011, administrative law judge (ALJ) Melvin B.

Werner issued his decision (R. at 13-21).

Plaintiff alleges

that he had been disabled since June 30, 2008 (R. at 13).
Plaintiff is insured for disability insurance benefits through
4

June 30, 2008 (R. at 15).

At step one, the ALJ found that

plaintiff did not engage in substantial gainful activity since
the alleged onset date (R. at 15).

At step two, the ALJ found

that plaintiff has the following medically determinable
impairments:

intermittent pancreatitis with a history of

traumatic pancreatitis and surgery for duodenal hematoma, posttraumatic stress disorder, history of conduct disorder,
cognitive disorder, alcohol abuse, borderline personality
disorder, and rule out borderline intellectual functioning (R.
at 16).

However, the ALJ further held at step two that

plaintiff’s impairments or combination of impairments did not
significantly limit the ability to perform basic work
activities; therefore, plaintiff did not have a severe
impairment or combination of impairments (R. at 16).

Therefore,

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

Does substantial evidence support the ALJ’s determination

at step two that plaintiff does not have a severe impairment or
combination of impairments?
Plaintiff argues that the ALJ erred at step two in finding
that plaintiff’s impairments were 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
5

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

this level that the impairment would have more than a minimal
effect on his or her ability to do basic work activities.2
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).

2

Basic work activities are “abilities and aptitudes necessary to do most jobs,” 20 C.F.R. § 404.1521(b)[416.921(b)],
including “walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or handling; seeing, hearing, and
speaking; understanding, carrying out, and remembering simple instructions; use of judgment, responding
appropriately to supervision, coworkers, and usual work situations; and dealing with changes in a routine work
setting.” Social Security Ruling 85-28, 1985 WL 56856 at *3; Langley v. Barnhart, 373 F.3d 1116, 1123 (10th Cir.
2004).
6

SSR 85-28 (Medical impairments that are not severe) states
the following:
A claim may be denied at step two only if
the evidence shows that the individual’s
impairments, when considered in combination,
are not medically severe, i.e., do not have
more than a minimal effect on the person’s
physical or mental ability(ies) to perform
basic work activities. If such a finding is
not clearly established by medical evidence,
however, adjudication must continue through
the sequential evaluation process.
...........
Great care should be exercised in applying
the not severe impairment concept. If an
adjudicator is unable to determine clearly
the effect of an impairment or combination
of impairments on the individual's ability
to do basic work activities, the sequential
evaluation process should not end with the
not severe evaluation step. Rather, it
should be continued.
1985 WL 56856 at *3, 4 (emphasis added).3

The step two

requirement is generally considered a de minimis screening
device to dispose of groundless claims; thus, reasonable doubts
on severity are to be resolved in favor of the claimant.

Field

v. Astrue, Case No. 06-4126-SAC, 2007 WL 2176031 at *4 (D. Kan.
June 19, 2007); Brant v. Barnhart, 506 Fed. Supp.2d 476, 482 (D.
Kan. 2007); Samuel v. Barnhart, 295 F. Supp.2d 926, 952 (E.D.
Wis. 2003); see Church v. Shalala, 1994 WL 139015 at *2 (10th
Cir. April 19, 1994)(citing to SSR 85-28, the court stated that
3

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).
7

step two is an administrative convenience to screen out claims
that are totally groundless solely from a medical standpoint);
Newell v. Commissioner of Social Security, 347 F.3d 541, 547
(3rd Cir. 2003)(reasonable doubts on severity are to be resolved
in favor of the claimant).
The record contains two physical examinations of the
plaintiff.

The first, by Dr. Fevurly on July 10, 2009, is a 9

page evaluation (R. at. 301-309).

Dr. Fevurly reviewed the

medical records, interviewed the plaintiff, and examined the
plaintiff and assessed plaintiff with duodenal hematoma and
hematoma/contusion of the head of the pancreas, 9/2/06; and
subsequent 2 years and 8 months of chronic abdominal pain (R. at
307).

Under current fitness for duty, Dr. Fevurly opined as

follows:
Based on the available information, he is
qualified to work full time in a light
medium work level with lifting limited to 35
pounds on an occasional basis and 20 pounds
on a frequent basis. Bending and stooping
should be limited to occasional.
(R. at 308).
The ALJ noted that this evaluation was based on a one time
examination of the plaintiff, and the ALJ found that plaintiff’s
lack of follow up treatment following his injury did not support
these limitations.

Therefore, the opinion was given little

weight (R. at 19).

8

A second physical examination of the plaintiff was
performed by Dr. Parra on August 20, 2009 (R. at 317-324).

His

8 page report was based on a review of the medical records, and
an interview and examination of the plaintiff.

His impression

was that plaintiff had a duodenal hematoma, and abdominal pain,
which was found to be severe and unrelenting (R. at 322).

His

opinion regarding plaintiff’s ability to work was as follows:
I do not feel that Mr. Price can in the
immediate foreseeable future find gainful
employment due to his inability to perform
repetitive motion with more than 15 to 20
pounds. I would state that he should not
lift greater tha[n] 45 pounds at any point
either.
He may be able to find employment in a job
that requires sitting for the majority of
the day (secretarial type positions) but
should take hourly breaks to minimize his
pain.
(R. at 323).
The ALJ noted that this evaluation is also based on a one
time examination and that the limitations are not supported by
the lack of follow up medical treatment; therefore, the ALJ gave
little weight to this opinion (R. at 19).
On March 25, 2010, Dr. Williamson, who did not examine the
plaintiff, but reviewed the medical records that were then in
the file, concluded: “Considering the longitudinal history of
these allegations and the fact the claimant has not sought
medical attention his MDI of S/P duodenal hematoma is non9

severe” (R. at 299).

The ALJ found that this opinion was well-

supported and was given substantial weight (R. at 19.
The court finds numerous problems with the ALJ’s analysis
of the medical opinion evidence regarding whether plaintiff has
a severe physical impairment.
examined the plaintiff.

First, Dr. Williamson never

The opinion of an examining medical

source is generally entitled to greater weight than the opinion
of a non-examining medical source.

Robinson v. Barnhart, 366

F.3d 1078, 1084 (10th Cir. 2004).
Second, plaintiff points out that Dr. Williamson did not
have before him extensive hospital records (R. at 325-962), and
that the evaluations from Dr. Fevurly and Dr. Smith were also
not in the record when Dr. Williamson reviewed the file.

The

fact that Dr. Williamson did not have before him the evaluations
of Dr. Fevurly and Dr. Parra is not disputed by the defendant.
As noted above, the opinions of examining medical sources are
generally entitled to greater weight than the opinion of a nonexamining medical source.

Furthermore, an ALJ must not consider

the opinions of one medical source in isolation, but each
medical source opinion must be considered in light of the entire
evidentiary record, including the opinions and assessments of
other treating or examining 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
10

evidentiary record, and, in particular, on the 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).

Both Dr. Fevurly and Dr. Parra,

who, unlike Dr. Williamson, examined the plaintiff, opined that
plaintiff had various severe limitations.

The court is

concerned with the reliance on a stale opinion from a nonexamining physician who did not have before him extensive
medical records and two opinions from physicians who actually
examined the plaintiff.

See Chapo v. Astrue, 682 F.3d 1285,

1292-1293 (10th Cir. 2012)(the ALJ’s reliance on a patently stale
opinion was found to be “troubling” in light of the material
changes in the medical record since the report relied on by the
ALJ).
Third, the ALJ gave little weight to the opinions of Dr.
Fevurly and Dr. Parra because the ALJ found that their opinions
were not supported by plaintiff’s lack of follow up medical
treatment.

However, in the case of Grotendorst v. Astrue, 370

Fed. Appx. 879, 882-883 (10th Cir. March 22, 2010), the ALJ found
that claimant’s anxiety and depression were not severe because
there was no objective medical evidence that she had been
treated for anxiety or depression.
regarding a step two evaluation:
11

The court held as follows

the regulations set out exactly how an ALJ
is to determine severity, and consideration
of the amount of treatment received by a
claimant does not play a role in that
determination. This is because the lack of
treatment for an impairment does not
necessarily mean that the impairment does
not exist or impose functional limitations.
Further, attempting to require treatment as
a precondition for disability would clearly
undermine the use of consultative
examinations. Thus, the ALJ failed to follow
the regulations in reaching her
determination that Ms. Grotendorst's mental
limitations were not severe at step two of
the sequential evaluation.
370 Fed. Appx. at 883.

Thus, the ALJ erred at step two by

relying on a lack of follow up treatment to discount the
opinions of Dr. Fevurly and Dr. Parra that plaintiff did not
have a severe impairment(s).
The court will next review the medical opinions regarding
plaintiff’s mental impairments.

On December 18, 2009, Dr.

Smith, a licensed psychologist, performed a mental status
examination on the plaintiff (R. at 276-279).

His conclusions

were as follows:
Because of his low intellectual functioning,
Mr. Price may have problems understanding
and following simple instructions,
particularly in novel or complex situations.
Because of his low motivation and problems
with attention and memory, he may have
difficulty working persistently at tasks.
Because of his history of problems with
temper, post traumatic stress and borderline
traits, he may have difficulty sustaining
appropriate relations with others. Because
of his low intellectual functioning, poor
12

arithmetic skills, and difficulty with
concentration and memory, he may need help
managing benefits.
(R. at 278-279).

The ALJ noted that the opinion of Dr. Smith

was based on a single evaluation, and there is no evidence of
treatment for mental impairments to support the findings of Dr.
Smith.

The ALJ states that much of the report of Dr. Smith

focuses on the subjective complaints of the plaintiff and
plaintiff’s credibility is limited.

Thus, the opinions of Dr.

Smith are given little weight (R. at 19).
Dr. Martin conducted a state agency mental assessment of
the plaintiff on February 15, 2010 (R. at 282-296), and found
that plaintiff had moderate limitations in maintaining social
functioning and in maintaining concentration, persistence, or
pace (R. at 290).

Dr. Martin found that plaintiff was

moderately limited in 7 of 20 categories, and markedly limited
in his ability to carry out detailed instructions (R. at 294295).

Dr. Martin opined that plaintiff was capable of

maintaining attention for two hour increments without extra
supervision, and would do best in an environment where there was
minimal interaction with others and no public contact (R. at
296).

Dr. Schulman reviewed this assessment on March 25, 2010,

and affirmed it as written (R. at 297).

The ALJ gave little

weight to the opinions of Dr. Martin for the same reason he gave
little weight to the opinions of Dr. Smith (R. at 20).
13

The ALJ rejected the opinions of Dr. Smith, Dr. Martin and
Dr. Schulman because of his assertion that Dr. Smith focused 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 this assertion.

In fact, the report of Dr. Smith

indicates that his sources of information were a mental status

14

exam, and a review of records provided by Disability
Determination Services (R. at 276).
Furthermore, the practice of psychology is necessarily
dependent, at least in part, on a patient’s subjective
statements.

Thomas v. Barnhart, 147 Fed. Appx. 755, 759-760

(10th Cir. Sept. 2, 2005); Miranda v. Barnhart, 205 Fed. Appx.
638, 641 (10th Cir. Aug. 11, 2005).

A psychological opinion may

rest either on observed signs and symptoms or on psychological
tests.

Langley v. Barnhart, 373 F.3d 1116, 1122 (10th Cir.

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

The ALJ cannot reject a psychologist’s opinion solely

for the reason that it was based on a claimant’s responses
because such rejection impermissibly substitutes the ALJ’s
judgment for that of the psychologist.

Thomas, 147 Fed. Appx.

at 760; Miranda, 205 Fed. Appx. at 641.

Given the fact that a

psychological report is dependent, at least in part, on a
patient’s subjective statements, and the fact that Dr. Smith did
not just rely on plaintiff’s self-reporting, but also on Dr.
Smith’s own observations, a review of medical records, and a
mental status examination, the court finds that the ALJ erred by
discounting the opinion of Dr. Smith because of the ALJ’s
assertion that Dr. Smith’s report focused on plaintiff’s
subjective complaints.

15

The ALJ also relied on the lack of treatment for any mental
impairments in support of giving little weight to the reports of
Dr. Smith, Dr. Martin and Dr. Schulman.

However, Grotendorst,

cited above, clearly held that the lack of treatment for an
impairment does not necessarily mean the impairment does not
exist, or does not impose functional limitations.

Consideration

of the amount of treatment received by a claimant does not play
a role in the determination of severity at step two.

Thus, the

court finds that the ALJ gave invalid reasons for discounting
the opinions of Dr. Smith, Dr. Martin and Dr. Schulman regarding
the issue of whether plaintiff had a severe mental impairment.
SSR 85-28 states that if a finding that a plaintiff’s
impairments, when considered in combination, are not severe is
not clearly established by medical evidence, adjudication must
continue through the sequential evaluation process.

Reasonable

doubts on severity are to be resolved in favor of the claimant.
In fact, the medical evidence in the case before the court
provides strong support for a finding that plaintiff has a
severe impairment or combination of physical and/or mental
impairments at step two.
Both Dr. Fevurly and Dr. Parra opined after a consultative
examination that plaintiff had various physical limitations in
his ability to work.

The ALJ relied on Dr. Williamson, who

never examined the plaintiff, and did not have before him the
16

examinations by Dr. Fevurly and Dr. Parra and hundreds of pages
of hospital records.

The opinion of Dr. Williamson was clearly

stale in light of the medical records added to the case record
subsequent to the examination of the record by Dr. Williamson.
Finally, for the reasons set forth above, the ALJ erred by
relying on the lack of follow up treatment by the plaintiff.
Dr. Smith performed a mental consultative examination of
the plaintiff, and found that plaintiff had a number of mental
limitations in his ability to work.

Dr. Martin and Dr.

Schulman, after reviewing Dr. Smith’s report, found that
plaintiff had a number of mental limitations in plaintiff’s
ability to work.

There is no medical opinion evidence stating

that plaintiff had no severe mental impairments, and the ALJ, as
set forth above, provided invalid reasons for giving little
weight to the opinions of Dr. Smith, Dr. Martin, and Dr.
Schulman.
Substantial evidence does not support the finding of the
ALJ that plaintiff does not have a severe impairment or
combination of impairments.

Plaintiff has provided substantial

medical opinion evidence that his physical and mental
impairments would have more than a minimal effect on his ability
to do basic work activities.

On remand, the ALJ is reminded

that a claim may be denied at step two only if the medical
evidence clearly establishes that the individual’s impairments,
17

in combination, are not medically severe, i.e., do not have more
than a minimal effect on the person’s physical or mental ability
to perform basic work activities.

Otherwise, the adjudication

must continue through the sequential evaluation process.
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 11th day of March 2014, Topeka, Kansas.

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

18