Hutchins 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 7/9/14. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

HENRIETTA HUTCHINS,
Plaintiff,
vs.

Case No. 13-1130-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.
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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).
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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.
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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 February 24, 2012, administrative law judge (ALJ) Joseph

R. Doyle issued his decision (R. at 12-21).

Plaintiff alleges

that she had been disabled since December 7, 2010 (R. at 12).
Plaintiff is insured for disability insurance benefits through
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December 31, 2014 (R. at 14).

At step one, the ALJ found that

plaintiff did not engage in substantial gainful activity since
the alleged onset date (R. at 14).

At step two, the ALJ found

that plaintiff had the following severe impairments:

rheumatoid

arthritis, osteoarthritis of the bilateral knees, history of a
right hip replacement, history of left ankle repair, history of
sarcoidosis and asthma (R. at 14).

At step three, the ALJ

determined that plaintiff’s impairments do not meet or equal a
listed impairment (R. at 15).

After determining plaintiff’s RFC

(R. at 15), the ALJ determined at step four that plaintiff is
able to perform past relevant work as a customer service
representative (R. at 20).

Therefore, the ALJ concluded that

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

Did the ALJ err in his consideration of the opinions of

the treating physicians?
When an ALJ rejects a treating physician’s opinion, he must
give specific, legitimate reasons for doing so.

Hamlin v.

Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004); Robinson v.
Barnhart, 366 F.3d 1078, 1082 (10th Cir. 2004).
The record in this case includes two treating physician
opinions, Dr. Claiborne and Dr. Strickland.

Dr. Claiborne

opined on November 14, 2011 that plaintiff could only stand/walk
for 2 hours in an 8 hour day, and could only sit for 2 hours in
an 8 hour day (R. at 287-288).

Dr. Claiborne further opined on
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December 6, 2011 that plaintiff can only work for 1-2 hours a
day, and because of asthma, must be in a clean environment as
far as air quality (R. at 329-330).

Dr. Strickland opined on

November 8, 2011 that plaintiff could stand/walk for 4 hours in
an 8 hour workday, and could sit for 8 hours in a workday, but
also opined that plaintiff would “possibly use a cane or walker
if painful” for ambulation or balance (R. at 285).
The ALJ stated the following regarding the opinions of Dr.
Clairborne and Dr. Strickland:
The undersigned considered the opinions
offered by the claimant’s treating physician
Richard Clairborne, M.D. Dr. Clairborne
opined that the claimant could not perform
even sedentary work on a sustained basis.
Dr. Clairborne opined that the claimant
would likely miss more than two or three
days of work per month (Exhibit B9F, B13F).
The undersigned also considered the opinion
offered by treating physician Justin
Strickland, M.D. who found that the claimant
could not stand and/or walk for even two
hours total in an eight-hour workday. The
undersigned gives these opinions little
weight as they are not consistent with the
objective medical record or the claimant’s
acknowledged activities. The claimant has
osteoarthritis of the knees, which does not
require surgery or narcotic pain medication.
She reports significant relief from steroid
injections. On exam, she has no tenderness
or swelling of any joints. She has full,
non-painful range of motion of all joints.
She participates in aerobics three days a
week. This evidence establishes that the
claimant is able to stand and/or walk for up
to two hours a day. Further, her
osteoarthritis of the knees does not impose
any significant sitting limitation, as there
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is no weight bearing on the joints while in
the seated position. Finally, the
claimant’s asthma does not impose
significant limitations that would preclude
remunerative work. The claimant’s asthma is
well controlled with medication. She has
never had an emergency room admission for an
acute flare up. Based on the above, the
undersigned gives these opinions little
weight.
(R. at 19, emphasis added).

As noted above, the ALJ gave

“little” weight to the treating physician opinions, and
concluded that plaintiff could perform sedentary work (R. at
15).
The ALJ correctly indicates that Dr. Claiborne’s opinions
precluded sedentary work.

However, the ALJ went on to say that

Dr. Claiborne opined that plaintiff would likely miss more than
two or three days of work per month.

However, Dr. Claiborne did

not indicate that plaintiff would likely miss more than two or
three days of work per month.
The ALJ further stated that Dr. Strickland opined that
plaintiff could not stand and/or walk for even two hours in an 8
hour workday.

However, that statement is clearly inaccurate.

Dr. Strickland’s opinion was that plaintiff could stand and/or
walk for 4 hour a day, and sit for 8 hours a day (R. at 284).
The court is very concerned with the fact that one of the
two opinions of Dr. Clairborne set forth by the ALJ in his
decision was inaccurate, and that the only opinion of Dr.

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Strickland set forth by the ALJ was also inaccurate.

The ALJ

must provide legitimate reasons for giving little or no weight
to a treating physician opinion.

However, in order for the ALJ

to provide legitimate reasons for giving little or no weight to
a treating physician opinion, he must first accurately set forth
their opinions.

Reasons given for discounting opinions the

treating physicians never expressed are clearly irrelevant.
When the ALJ clearly misstates the opinions of the treating
physicians, a legitimate question is raised as to whether the
ALJ was aware of their actual opinions, and considered their
actual opinions when determining plaintiff’s RFC.
Furthermore, the opinions of Dr. Strickland actually
support the ALJ’s finding that her limitations in standing
and/or walking and sitting do not preclude sedentary work.
However, Dr. Strickland also opined that plaintiff would
“possibly use a cane or walker if painful” for ambulation or
balance (R. at 285).
discussed by the ALJ.

This opinion was not mentioned or
Both Dr. Strickland and Dr. Claiborne

opined that plaintiff was limited to occasional balancing (R. at
285, 288).

However, the ALJ found that plaintiff can frequently

engage in activities requiring balancing (R. at 15).2

2

These treating physician opinions conflict with the opinions of Dr. Siemsen, a non-examining physician, who
opined that plaintiff could frequently balance, and did not indicate that plaintiff needed a cane or walker (R. at 7885). However, it is clear from Dr. Siemsen’s report that he did not have before him the opinions of either treating
physician (R. at 84).
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If the RFC assessment conflicts with an opinion from a
medical source, the ALJ must explain why the opinion was not
adopted.

SSR 96-8p, 1996 WLL 374184 at *7.

Furthermore, when

there are conflicting medical opinions, the ALJ must explain the
basis for adopting one and rejecting another.

Quintero v.

Colvin, 2014 WL 2523705 at *4 (10th Cir. June 5, 2014);
Reveteriano v. Astrue, 490 Fed. Appx. 945, 947 (10th Cir. July
27, 2012).

The ALJ did not even mention the above opinions by

the treating physicians, or offer any explanation for not
adopting them.
According to SSR 96-9p:
Medically required hand-held assistive
device: To find that a hand-held assistive
device is medically required, there must be
medical documentation establishing the need
for a hand-held assistive device to aid in
walking or standing, and describing the
circumstances for which it is needed (i.e.,
whether all the time, periodically, or only
in certain situations; distance and terrain;
and any other relevant information). The
adjudicator must always consider the
particular facts of a case. For example, if
a medically required hand-held assistive
device is needed only for prolonged
ambulation, walking on uneven terrain, or
ascending or descending slopes, the
unskilled sedentary occupational base will
not ordinarily be significantly eroded.
Since most unskilled sedentary work requires
only occasional lifting and carrying of
light objects such as ledgers and files and
a maximum lifting capacity for only 10
pounds, an individual who uses a medically
required hand-held assistive device in one
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hand may still have the ability to perform
the minimal lifting and carrying
requirements of many sedentary unskilled
occupations with the other hand.[FN7] For
example, an individual who must use a handheld assistive device to aid in walking or
standing because of an impairment that
affects one lower extremity (e.g., an
unstable knee), or to reduce pain when
walking, who is limited to sedentary work
because of the impairment affecting the
lower extremity, and who has no other
functional limitations or restrictions may
still have the ability to make an adjustment
to sedentary work that exists in significant
numbers. On the other hand, the occupational
base for an individual who must use such a
device for balance because of significant
involvement of both lower extremities (e.g.,
because of a neurological impairment) may be
significantly eroded.
In these situations, too, it may be
especially useful to consult a vocational
resource in order to make a judgment
regarding the individual's ability to make
an adjustment to other work.
SSR 96-9p, 1996 WL 374185 at *7 (emphasis added).
The need to use an assistive device can be considered a
manipulative limitation.

This requires an evaluation and a

finding by the ALJ as to whether this non-exertional impairment
was severe enough to preclude the claimant from performing a
wide range of sedentary work.

Jones v. Astrue, 310 Fed. Appx.

286, 290 (10th Cir. Feb. 6, 2009); Walker v. Bowen, 826 F.2d 996,
1003 (11th Cir. 1987).
SSR 96-9p also states that if a person is limited in
balancing even when standing or walking on level terrain, there
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may be a significant erosion of the unskilled sedentary
occupational base.

Furthermore, it is important to state in the

RFC assessment what is meant by limited balancing in order to
determine the remaining occupational base.

Consultation with a

vocational resource may also be appropriate.

1996 WL 374185 at

*7.
In light of SSR 96-9p, the ALJ should have considered the
opinion of Dr. Strickland that plaintiff would possibly use a
cane or walker if painful for ambulation or balance, and the
opinions of both treating physicians that plaintiff be limited
to occasional balancing.

In light of the ALJ’s clear

misstatements of the opinions of both treating physicians, and
the ALJ’s failure to accurately set forth any of Dr.
Strickland’s opinions, the court cannot determine if the ALJ
gave any consideration to their opinions on these limitations.
These opinions are clearly relevant in light of SSR 96-9p, which
indicates that the occupational base for an individual who must
use an assistive device for balance because of significant
involvement of both lower extremities may be significantly
eroded, and that a person limited in balancing even when
standing or walking on level terrain may result in a significant
erosion of the unskilled sedentary occupational base.

On

remand, it would be advisable to obtain clarification on what
the treating physicians meant by limited balancing, and whether
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the assistive device for balance is because of significant
involvement of both lower extremities.
IV.

Are the ALJ’s credibility findings supported by substantial

evidence?
Plaintiff also asserts error by the ALJ in his credibility
findings.

The court will not address this issue because it may

be affected by the ALJ’s resolution of the case on remand after
properly considering the medical opinions of the treating
physicians.

See Robinson v. Barnhart, 366 F.3d 1078, 1085 (10th

Cir. 2004).
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 9th day of July 2014, Topeka, Kansas.

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

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