Cartwright v. Social Security Administration, Commissioner of

Filing 20

MEMORANDUM AND ORDER - It is 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 proceedings consistent herewith. Signed by District Judge John W. Lungstrum on 05/23/2014. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JOAN CARTWRIGHT,

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

CIVIL ACTION
No. 13-1084-JWL

MEMORANDUM AND ORDER

Plaintiff seeks review of a decision of the Commissioner of Social Security
(hereinafter Commissioner) denying Social Security Disability (SSD) benefits under
sections 216(i) and 223 of the Social Security Act. 42 U.S.C. §§ 416(i) and 423
(hereinafter the Act). Finding error in the Commissioner’s evaluation of Plaintiff’s
headaches, 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 proceedings consistent with this opinion.
I.

Background
Plaintiff applied for SSD, alleging disability beginning August 28, 2008. (R. 11,

211-12). In due course, Plaintiff exhausted proceedings before the Commissioner, and
now seeks judicial review of the final decision denying benefits. She alleges the

Administrative Law Judge (ALJ) erred in evaluating the severity of her headaches at step
two of the Commissioner’s five-step sequential evaluation process; erred in evaluating the
non-examining source opinion of Dr. Goren, particularly with regard to Plaintiff’s
headaches; and erred in evaluating the credibility of Plaintiff’s allegations of symptoms
resulting from her 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 she 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
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
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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 she
has a severe impairment(s), and whether the severity of her 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 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 her
past relevant work; and at step five whether, when also considering the vocational factors
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,
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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).
Applying this standard, the court finds that remand is necessary because the ALJ
erred in evaluating Plaintiff’s headaches at step two of the sequential evaluation process.
On remand, if the Commissioner determines Plaintiff’s headaches do not meet the de
minimis standard for a “severe” impairment, she must explain in terms of the record
evidence how she determined that headaches have no more than a minimal effect on
Plaintiff’s ability to perform basic work activities. That explanation will necessarily
involve evaluation of the medical opinions and the credibility of Plaintiff’s allegations of
symptoms in light of the specific record evidence regarding Plaintiff’s headaches.
II.

The Step Two Evaluation
Plaintiff argues that “the ALJ made no documentation of her analysis of the ‘non-

severe’ impairments at step two.” (Pl. Br. 23). Plaintiff notes that the ALJ recognized
headaches as a medically determinable impairment in the facts and circumstances of this
case, but that she found that they are not “severe” impairments within the meaning of the
Act and regulations. Id. at 24. Plaintiff points to record evidence which in Plaintiff’s
view meets the de minimis standard to establish headaches as a “severe” impairment, and
argues that in spite of this evidence the “ALJ failed to give an explanation for her finding
at step two,” and that this failure requires remand. (Pl. Brief 25).
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The Commissioner argues that Plaintiff has the burden of proof at step two of the
sequential evaluation process to show that she has an impairment having more than a
minimal affect on her ability to perform basic work activities, and that because Plaintiff
did “not identify any impairment not discussed by the ALJ,” she cannot establish that
such an impairment is severe. (Comm’r Br. 13). The Commissioner points out the
medical expert’s (Dr. Goren’s) testimony that he excluded Plaintiff’s headaches from his
consideration because they are merely Plaintiff’s allegation of symptoms which cannot be
confirmed by the medical evidence, and that it is the ALJ’s responsibility to make the
credibility determination. Id. at 16. She argues that the ALJ reasonably relied upon Dr.
Goren’s testimony that the medical evidence cannot confirm the severity of Plaintiff’s
headaches, and that the ALJ “made an independent determination on the credibility of
Plaintiff’s allegations regarding her headaches that went beyond the factors considered by
Dr. Goren, including inconsistencies in the record and Plaintiff’s reported work
activities.” Id. at 18. Therefore, the Commissioner argues that because the ALJ
reasonably relied upon Dr. Goren’s opinion, and because the ALJ’s credibility
determination is supported by substantial record evidence, there is no need to remand for
evaluation whether Plaintiff’s headaches are severe. Id. at 14.
A.

Standard for Evaluating Severity at Step Two

An impairment is not considered severe if it does not significantly limit plaintiff’s
ability to do basic work activities such as walking, standing, sitting, carrying,
understanding simple instructions, responding appropriately to usual work situations, and
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dealing with changes in a routine work setting. 20 C.F.R. § 404.1521. The Tenth Circuit
has interpreted the regulations and determined that to establish a “severe” impairment or
combination of impairments at step two of the sequential evaluation process, plaintiff
must make only a “de minimis” showing. Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th
Cir. 1997). Plaintiff need only show that an impairment would have more than a minimal
effect on her ability to do basic work activities. Williams, 844 F.2d 748, 751 (10th Cir.
1988). However, she must show more than the mere presence of a condition or ailment.
Hinkle, 132 F.3d at 1352 (citing Bowen v. Yuckert, 482 U.S. 137, 153 (1987)). If an
impairment’s medical severity is so slight that it could not interfere with or have a serious
impact on plaintiff’s ability to do basic work activities, it could not prevent plaintiff from
engaging in substantial work activity and will not be considered severe. Hinkle, 132 F.3d
at 1352.
B.

The ALJ’s Step Two Finding

The court presents here the ALJ’s step two finding in its entirety:
3.
The claimant has the following severe impairments: disorders of the
back[,] depression, anxiety, chronic obstructive pulmonary disease
(COPD)[,] and syncope (20 CFR 404.1520(c)).
These impairments impose more than minimal limitations on the claimant’s
ability to perform work-related activity.
All other impairments alleged by the claimant or mentioned in the medical
records are not severe under the Act and Regulations, as they have no more
than a minimal effect on the claimant’s ability to perform basic work
activities. These specifically include the following medically determinable
impairment: headaches.

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(R. 13-14) (bolding omitted).
The ALJ specifically acknowledged that Plaintiff “reported frequent headaches.”
(R. 16). Later, when discussing Dr. Goren’s testimony, the ALJ stated, “Dr. Goren
testified that he would have no reason to challenge the fact that the claimant was having
headaches, if she advised her physician she was experiencing headaches. Despite these
findings, as outlined above, medical records do not support the severity of headaches that
claimant has alleged.” Id. The ALJ adopted Dr. Goren’s opinion. Id. She also noted
that in December 2010 “the claimant reported less frequent headaches (she had not
experienced any debilitating headaches in the past month).” Id. at 17 (citing ex. 43F/3).
This is the totality of the ALJ’s discussion with regard to headaches.
C.

Analysis

As Plaintiff argues, the ALJ determined that Plaintiff has the medically
determinable impairment of headaches and that this impairment has no more than a
minimal effect on Plaintiff’s ability to perform basic work activities. (R. 13-14). But, the
ALJ did not explain how the evidence, or even what evidence, supported that finding.
The record is replete with medical records reflecting treatment for Plaintiff’s complaints
of headaches. E.g., (R. 366-67, 564, 567, 761, 806, 995, 1004). Plaintiff testified at the
hearing that she gets headaches three times a week, that she forgets what she learns while
she has headaches, that the headaches last all day or all night--more than eight hours, that
medication does not help her headaches, and that when the headaches keep her from
sleeping she is irritable. (R. 33-34). Moreover, she testified that at least twice a week she
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has headaches where she has to lie down, shut the curtains, cover her head, and stay there
the whole day. Id. at 35.
The Commissioner argues that the ALJ adopted Dr. Goren’s opinion and also
found that Plaintiff’s allegations of symptoms are not credible, and she argues that these
findings are supported by the record evidence. In the Commissioner’s view, then, the
determination that headaches are not a severe impairment in this case is a proper finding
because headaches are a symptom which is based upon a claimant’s allegations and which
is unsupportable by medical evidence. She reasons that because the ALJ properly found
that Plaintiff’s allegations are not credible, then Plaintiff’s allegations regarding
headaches are not credible, and headaches do not have more than a minimal effect on her
ability to perform basic work activities and are not a severe impairment. However, the
Commissioner’s argument and the ALJ’s decision both ignore that only a de minimis
showing is necessary to demonstrate the presence of a severe impairment within the
meaning of the Act and the regulations.
To be sure, the ALJ both adopted Dr. Goren’s opinion, and determined that
Plaintiff’s allegations of symptoms are not credible. But the ALJ did not specifically
examine the record evidence regarding headaches when making either finding, and did
not explain how that evidence in particular supported the findings. In adopting Dr.
Goren’s opinion, the ALJ stated, “Dr. Goren testified that he would have no reason to
challenge the fact that the claimant was having headaches, if she advised her physician
she was experiencing headaches. Despite these findings, as outlined above, medical
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records do not support the severity of headaches that claimant has alleged. Overall, Dr.
Goren’s findings are compatible with the evidence of record and the undersigned adopts
the same.” (R. 16). The only reason given to adopt Dr. Goren’s opinions was that they
“are compatible with the evidence of record.” But, the ALJ did not explain in what way
the opinions are compatible with the record evidence, and she did not cite to particular
record evidence which is compatible with Dr. Goren’s opinion. In many circumstances,
this procedure might be acceptable because the court will review the record evidence and
can determine whether the evidence is compatible with the opinion. Here, however, the
court would at least have to weight the evidence regarding Plaintiff’s headaches and
determine what effect the headaches would have on the limitations opined by Dr. Goren
before it can determine if the opinions are compatible with the record evidence regarding
headaches. It is not within the purview of the court to reweigh the evidence in such a
fashion, it is the duty of the Commissioner, and it was not fulfilled here. At least it was
not explained in the decision.
The court’s task is further compounded in this case by the fact that in making her
credibility determination the ALJ did not specifically consider Plaintiff’s allegations
regarding headaches, and the record evidence in that regard. As noted above, the ALJ
stated, “as outlined above, medical records do not support the severity of headaches that
claimant has alleged.” (R. 16). But, in making her credibility determination, the ALJ
found that Plaintiff’s allegations are not credible, and stated the bases for that finding-that Plaintiff was working from her home performing work activities that are
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incompatible with the limitations plaintiff asserted, and that Plaintiff continued to drink
alcohol after she was told not to do so because it might cause further dehydration and
might be the cause of Plaintiff’s syncopal episodes. In her credibility analysis, she said
nothing regarding how the record evidence relating to headaches reflects on Plaintiff’s
allegations that those headaches produced disabling symptoms.
At one point later in the decision, the ALJ noted a medical record from December
2010 in which it was noted that Plaintiff “reported having less frequent headaches (she
had not experienced any debilitating headaches in the past month).” (R. 17). But this
discussion relates to but one month in a medical record extending over a period of years,
and says little regarding the credibility of Plaintiff’s continuing allegations regarding
headaches. In fact, that record confirms at least Plaintiff’s belief that she has had
debilitating headaches frequently enough that she would report when she has had a month
free of such headaches. Moreover, the fact that the treating physician recorded the report
provides at least some indication that the physician believed Plaintiff’s reports of
frequent, debilitating headaches.
Here, it appears the ALJ determined that Plaintiff’s allegations of symptoms are
not credible without specifically discussing Plaintiff’s allegations regarding disabling
headaches, and adopted Dr. Goren’s opinion regarding functional limitations without
explaining how those limitations were affected by, or affect, Plaintiff’s allegations of
disabling headaches. This was done in the face of Dr. Goren’s admission that he had not
considered Plaintiff’s report of disabling headaches because he viewed them as symptoms
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which cannot be confirmed by medical evidence, and may be accepted only by the ALJ’s
credibility determination. Having decided the issue of credibility without ever
specifically addressing the record evidence regarding Plaintiff’s headaches, the ALJ
determined that Plaintiff’s allegations regarding headaches are not credible, that
Plaintiff’s headaches have no more than a minimal effect on Plaintiff’s ability to perform
basic work activities, and that Plaintiff’s headaches are not severe within the meaning of
the Act and the regulations. This procedure does not comport with the de minimis
standard for determining whether an impairment is severe at step two of the sequential
evaluation process.
Remand is necessary for the Commissioner to specifically consider the record
evidence regarding headaches, and to apply the de minimis standard at step two of the
sequential evaluation process to determine whether Plaintiff’s headaches are a severe
impairment within the meaning of the Act and the regulations. The court does not hereby
intend to imply that the Commissioner must find that Plaintiff’s headaches are a severe
impairment, that Dr. Goren’s opinion may not be adopted, or that the Commissioner must
find Plaintiff’s allegations of symptoms to be credible. Rather, the court finds that the
Commissioner must apply the de minimis standard and actually discuss her evaluation of
the evidence regarding headaches in the circumstances of this case, and that she may not
simply determine that Plaintiff’s allegations of symptoms are not credible and that,
therefore, Plaintiff’s headaches are not severe.

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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 proceedings consistent herewith.
Dated this 23rd day of May 2014, at Kansas City, Kansas.

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

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