Reeder v. Social Security Administration, Commissioner of

Filing 22

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 9/11/14. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

GARY RAY REEDER,
Plaintiff,
vs.

Case No. 13-1201-SAC

CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
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

scintilla, but less than a preponderance, and is satisfied by

1

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).

The claimant's physical or

mental impairment or impairments must be of such severity that
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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.
the claimant survives step four, the fifth and final step
3

If

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 27, 2012, administrative law judge (ALJ) Michael R.

Dayton issued his decision (R. at 12-28).1

Plaintiff alleges

that he had been disabled since November 1, 2007 (R. at 12).
Plaintiff is insured for disability insurance benefits through
1

This is the 2nd ALJ decision. The 1st ALJ decision, dated May 14, 2010 (R. at 103-120) was remanded by the
Appeals Council on June 30, 2011 (R. at 121-125).
4

March 31, 2010 (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:

mild

scoliosis of the thoracic spine with possible partial
compression fracture of the T-11, obesity, dysthymic disorder,
more recently diagnosed as bipolar disorder and depression and
generalized anxiety disorder (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 17), the ALJ determined at step four that plaintiff has
no past relevant work (R. at 26).

At step five, the ALJ found

that plaintiff can perform jobs that exist in significant
numbers in the national economy (R. at 26-27).

Therefore, the

ALJ concluded that plaintiff was not disabled (R. at 27-28).
III.

Did the ALJ err in his evaluation of the medical opinion

evidence in regards to plaintiff’s mental limitations?
In his RFC findings, the ALJ found that plaintiff is able
to understand and remember simple to complex instructions.

He

is able to sustain concentration at a reasonable pace over a
full workday.

Plaintiff is able to relate sufficiently well to

supervisors and co-workers for task completion in jobs not
requiring significant social interaction.
in adaptation (R. at 17).
5

He has no limitation

Dr. Mintz performed a consultative examination on August 4,
2008 (R. at 427-430), and a 2nd examination on February 13, 2009
(R. at 465-467).

In both examinations, Dr. Mintz found that

plaintiff may have some difficulty relating well to co-workers
and supervisors, he is able to understand simple to complex
instructions, and his concentration capacity appears intact (R.
at 430, 466).

The ALJ accorded “substantial” weight to his

opinions (R. at 25).
Dr. Warrender prepared a mental RFC assessment on February
26, 2009, finding that plaintiff had moderate limitations in the
ability to work in coordination with or proximity to others
without being distracted by them, and in the ability to interact
appropriately with the general public (R. at 482-483).

He found

that plaintiff can relate sufficiently well with supervisors and
coworkers for task completion in jobs not requiring significant
social interaction (R. at 484).

The ALJ accorded “considerable”

weight to his opinions (R. at 26), and his mental RFC findings
clearly follow the opinions of Dr. Mintz and Dr. Warrender.
The file also contains four other mental assessments from
three treatment providers and one psychologist who performed a
psychological evaluation.

The first one is from Jeffrey Ready,

LCP (licensed clinical psychologist), a treatment provider who
saw plaintiff on three occasions in 2006 and on five other
occasions in 2009-2010 (R. at 575-582, 585-586, 589-590, 5946

599, 609-610, 613-614, 617-618, 619, 600-03, 620-21).

On

February 16, 2010 (after 3 contacts with plaintiff in 2006, 3
contacts with plaintiff in 2009 and 1 contact with plaintiff in
2010), LCP Ready opined that plaintiff was moderately limited in
2 categories and markedly limited in 2 other categories (R. at
512-513, 20 categories in assessment).
The second assessment is from Dr. Brooks, a licensed
psychologist, who performed a diagnostic assessment on August 9,
2010 (R. at 552-557).

Dr. Brooks performed a mental status

examination and utilized the Millon Clinical Multiaxial
Inventory-3rd edition (MCMI-III) (R. at 555).

He concluded,

based on his clinical findings, that plaintiff’s emotional
disturbance is of the severity and magnitude sufficient enough
to interfere with his ability to consistently perform daily
tasks, and preclude him from performing an occupation (R. at
557).

He found plaintiff moderately limited in 4 categories and

markedly limited in 16 categories (R. at 548-549, 20 categories
in assessment).

Dr. Brooks diagnosed plaintiff with

schizophreniform disorder, bipolar disorder, and panic disorder
(R. at 556).
The third assessment is from Pamela Allen, a licensed
clinical social worker (LCSW), a treatment provider who saw
plaintiff on six occasions in 2011-2012 (R. at 604-07, 624-25,
627, 632, 636, 644, 687).

On December 12, 2011, after four
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treatment sessions, LCSW Allen opined that plaintiff was
moderately limited in 2 categories, markedly limited in 2
categories, and extremely limited in 2 categories (R. at 572573, 8 categories in assessment).
The fourth assessment is from Elizabeth Garton (advanced
registered nurse practitioner, ARNP), a treatment provider who
saw plaintiff on ten occasions in 2011-2012 (R. at 628-631, 633634, 637-638, 640-641, 645-646, 648-649, 661-662, 680-681, 683684, 688-689).

ARNP Garton diagnosed plaintiff with

schizoaffective disorder, bipolar type (R. at 631, 661).

On May

12, 2012, after sessions, she prepared an assessment indicating
that plaintiff was moderately limited in 6 categories and
markedly limited in 1 category (R. at 654-655, 8 categories in
assessment).
The ALJ gave limited or little weight to these four
assessments (R. at 20, 23-25).

The ALJ noted the differences

between the four assessments (R. at 25), and their alleged
reliance on plaintiff’s subjective complaints (R. at 25).
However, all four assessments found that plaintiff was at least
markedly limited in her ability to complete a normal workday and
work week without interruptions from psychologically based
symptoms and to perform at a consistent pace without an

8

unreasonable number and length of rest periods (R. at 512, 548,
573, 655).2
In the case of Chapo v. Astrue, 682 F.3d 1285 (10th Cir.
2012), the ALJ gave “great” weight to the opinions of Dr. Amin,
who examined plaintiff in March 2008.

Id. at 1287, 1292.

The

court noted that the medical record underwent material changes
in the 20 months between Dr. Amin’s report and the ALJ’s
decision in November 2009.

However, the agency did not seek

another exam by Dr. Amin or provide him the new information and
request a follow-up to his opinion.

Thus, while Dr. Amin’s

opinion may have been supported by the record when made in March
2008, it did not account for material objective evidence
developed long afterward.

The court found that the reliance on

Dr. Amin’s “patently stale” opinion of Dr. Amin was troubling,
notwithstanding the rejection of the opposing opinion of Dr.
Krause in November 2009.

Although the court did not need to

make a definitive determination on this question, the ALJ was
encouraged on remand to obtain an updated exam or report in
order to forestall any potential problem from arising.

Id. at

1293.
Dr. Mintz performed his 2nd consultative examination on
February 13, 2009, and only diagnosed dysthymia, moderate, and
generalized anxiety disorder with panic attack symptoms (R. at
2

LCSW Allen opined that plaintiff was extremely limited in this category (R. at 573).
9

467).

The ALJ decision was made on July 27, 2012, or 3 ½ years

after the assessment by Dr. Mintz.

When the Appeals Council

vacated the 1st ALJ decision on June 30, 2011, it noted that the
assessment of Dr. Brooks needed to be evaluated in light of the
additional diagnoses of bipolar disorder, probable adult
attention deficit disorder without hyperactivity,
schizophreniform disorder, panic disorder with agoraphobia, and
social phobia (R. at 122).

Subsequent to that decision, in

November 2011 and August 2012, ARNP Garton diagnosed plaintiff
with schizoaffective disorder, bipolar type (R. at 631, 688).
In Chapo, the court was concerned with the agency’s
reliance on a patently stale medical opinion that was made 20
months prior to the ALJ decision.

In the case before the court,

the ALJ relied on a medical opinion made 41 months prior to the
ALJ decision, despite substantial and significant additions to
the medical record, including new diagnoses not mentioned by Dr.
Mintz.

Many of these diagnoses, including schizoaffective

disorder, or schizophreniform disorder, were not even mentioned
by the ALJ in his decision.
Furthermore, the assessment by Dr. Brooks included a
psychological test, the MCMI-III (R. at 555).

The MCMI-III

provides a measure of 24 personality disorders and clinical
syndromes, and assists clinicians in psychiatric diagnosis
(http://psychcentral.com/lib/million-clinical-multiaxial10

inventory-mcmi-iii0006106, Sept. 2, 2014).
by Dr. Mintz in his assessment.

No testing was done

Dr. Brooks found the validity

indices of this profile to be valid (R. at 555).
The ALJ also gave less weight to at least two of the
opinions because they allegedly relied on plaintiff’s subjective
complaints (R. at 24-25).3

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.

Subsequently, in the case of Victory v. Barnhart, 121 Fed. Appx.
819 (10th Cir. Feb. 4, 2005), the court held:
3

Defendant also asserts in their brief that the ALJ discounted the opinions of Dr. Brooks because the opinions were
based in large part on plaintiff’s subjective allegations (Doc. 21 at 6).
11

The ALJ's finding that Dr. Covington's
opinion was based on claimant's own
subjective report of her symptoms
impermissibly rests on his speculative,
unsupported assumption. See Langley, 373
F.3d at 1121 (holding that ALJ may not
reject a treating physician's opinion based
on speculation). We find no support in the
record for the ALJ's conclusion. Nothing in
Dr. Covington's report indicates that he
based his opinion on claimant's subjective
complaints, and the ALJ's finding ignores
all of Dr. Covington's examinations, medical
tests, and reports. Indeed, the ALJ's
discussion of Dr. Covington omits entirely
his March 22, 2001 examination and report.
His April 3, 2001 statement might well have
been based on his recent first-hand
examination and observation of claimant
during this examination, performed less than
two weeks earlier, rather than on claimant's
subjective complaints, as the ALJ
speculated. See Morales v. Apfel, 225 F.3d
310, 317 (3d Cir.2000) (noting that the
treating physician's opinion may “reflect
expert judgment based on a continuing
observation of the patient's condition over
a prolonged period of time”).
121 Fed. Appx. at 823-824.
As Langley makes clear, the ALJ must have a legal or
evidentiary basis for asserting that a medical source report was
based on plaintiff’s subjective complaints.

However, the ALJ

did not cite to either a legal or evidentiary basis for his
assertion that the opinions of LCSW Allen or ARNP Garton were
based solely or primarily on plaintiff’s subjective complaints.
LCSW Allen prepared her assessment on the same day she had a
therapy session with the plaintiff; this was the fourth therapy

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session (R. at 573, 636).

ARNP Garton prepared her assessment

on May 16, 2012, the same day she saw the plaintiff (R. at 655,
661-662).

This was her 7th session with the plaintiff (R. at

628-631, 633-634, 637-638, 640-641, 645-646, 648-649, 661-662).
As the court stated in Victory, their assessments might well
have been based on their first-hand examination and observations
of the plaintiff during those treatment sessions, rather than on
plaintiff’s subjective complaints, as the ALJ speculated.
Finally, the opinions of Dr. Brooks were based, in part, on the
valid test results of the MCMI-III.
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.
at 760; Miranda, 205 Fed. Appx. at 641.

13

Thomas, 147 Fed. Appx.

Dr. Brooks noted in his assessment in August 2010 that
plaintiff reported hallucinations about every other day (R. at
556).

The ALJ noted that they were not well documented prior to

2010 (R. at 20).

However, treatment notes in 2011 and 2012 from

LCSW Allen and ARNP Garton (these treatment notes are on the
same day that they prepared their assessments) indicate that
plaintiff is still having some difficulty with hallucinations,
but that the medication was helping (R. at 636, 661).
In Chapo, the court found it “troubling” that the ALJ
relied on a “patently stale” assessment that was prepared 20
months before the ALJ decision, especially in light of the fact
that the medical records had undergone material changes in those
20 months.

In the case before the court, the ALJ relied on an

assessment prepared 41 months prior to the ALJ decision, and
failed to discuss additional diagnoses that were made during
that period.

As noted above, even the Appeals Council pointed

out back on June 30, 2011 that additional diagnoses were
contained in the new evidence which needed to be addressed (R.
at 122).
Although there are inconsistencies with the four
assessments given little weight by the ALJ, all four of them
demonstrate limitations in excess of the limitations found by
the ALJ, who relied on the opinions of Dr. Mintz and Dr.
Warrender prepared 41 months before the ALJ decision.
14

The

assessment of Dr. Brooks was prepared in August 2010, and the
assessments by treatment providers Ready, Allen and Garton were
prepared in 2010, 2011 and 2012, and all of them were prepared
after numerous treatment sessions with the plaintiff.4

Only Dr.

Brooks used a test, the MCMI-III, to assist him in his
assessment.

Furthermore, all four of them agreed that plaintiff

was at least markedly limited in her ability to complete a
normal workday and work week without interruptions from
psychologically based symptoms and to perform at a consistent
pace without an unreasonable number and length of rest periods
(R. at 512, 548, 573, 655).5

Finally, the ALJ erred by

discounting some of these opinions because of their alleged
reliance on plaintiff’s subjective complaints, as set forth
above.

For all of these reasons, the court finds that

substantial evidence does not support the ALJ’s mental RFC
assessment, and the case shall be remanded in order for
defendant to reconsider the four mental RFC assessments, and to
consider whether to obtain an updated assessment which takes
into consideration the treatment notes and assessments in the
record since the assessment in February 2009 relied on by the
ALJ.

4

Subsequent to the assessments by Dr. Mintz and Dr. Warrender in February 2009, LCP Ready saw plaintiff on 5
occasions in 2009-2010, LCSW Allen saw plaintiff on 6 occasions in 2011-2012, and ARNP Garton saw plaintiff on
10 occasions in 2011-2012.
5
LCSW Allen opined that plaintiff was extremely limited in this category (R. at 573).
15

IV.

Did the ALJ err in his evaluation of the medical opinion

evidence in regards to plaintiff’s physical limitations?
The ALJ, in making his physical RFC findings, gave great
weight to the opinions of Dr. King and Dr. Parsons (R. at 26,
423-424, 445-452, 462).

Although the court finds no clear error

in the ALJ’s reliance on these opinions, subsequent to the ALJ
decision, plaintiff included in the record a physical RFC
assessment by NP French (R. at 698-699).

It is undated.

Thus,

the court cannot determine if the assessment is from an
examining or a treating source, and the form provides almost no
explanation in support of the limitations.

Because this case is

being remanded for other reasons, on remand, the parties should
obtain more information about the date, source and basis for
this assessment, and the ALJ should make a finding regarding its
impact, if any, on plaintiff’s physical RFC.
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 September 2014, Topeka, Kansas.

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

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