Chisholm v. Social Security Administration, Commissioner of

Filing 28

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 9/24/14. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DEBRA L. CHISHOLM,
Plaintiff,
vs.

Case No. 13-1276-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
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
2

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 August 2, 2012, administrative law judge (ALJ) Joseph R.

Doyle issued his decision (R. at 14-23).

Plaintiff alleges that

she had been disabled since March 1, 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 16).
4

At

step two, the ALJ found that plaintiff had the following severe
impairments:

degenerative disc disease with spinal stenosis and

arthralgias (R. at 16).

At step three, the ALJ determined that

plaintiff’s impairments do not meet or equal a listed impairment
(R. at 17).

After determining plaintiff’s RFC (R. at 18), the

ALJ determined at step four that plaintiff could perform past
relevant work as a hostess, reception clerk, office clerk, and
toll collector (R. at 20).

In the alternative, at step five,

the ALJ found that plaintiff can perform jobs that exist in
significant numbers in the national economy (R. at 22-23).
Therefore, the ALJ concluded that plaintiff was not disabled (R.
at 23).
III.

Are the ALJ’s RFC findings supported by substantial

evidence?
According to SSR 96-8p, the RFC assessment “must include a
narrative discussion describing how the evidence supports each
conclusion, citing specific medical facts...and nonmedical
evidence.”

The ALJ must explain how any material

inconsistencies or ambiguities in the evidence in the case
record were considered and resolved.

The RFC assessment must

always consider and address medical source opinions.

If the RFC

assessment conflicts with an opinion from a medical source, the
ALJ must explain why the opinion was not adopted.
1996 WL 374184 at *7.

SSR 96-8p,

SSR rulings are binding on an ALJ.
5

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).

When the ALJ

fails to provide a narrative discussion describing how the
evidence supports each conclusion, citing to specific medical
facts and nonmedical evidence, the court will conclude that his
RFC conclusions are not supported by substantial evidence.

See

Southard v. Barnhart, 72 Fed. Appx. 781, 784-785 (10th Cir. July
28, 2003).

The ALJ’s decision must be sufficiently articulated

so that it is capable of meaningful review; the ALJ is charged
with carefully considering all of the relevant evidence and
linking his findings to specific evidence.

Spicer v. Barnhart,

64 Fed. Appx. 173, 177-178 (10th Cir. May 5, 2003).

It is

insufficient for the ALJ to only generally discuss the evidence,
but fail to relate that evidence to his conclusions.

Cruse v.

U.S. Dept. of Health & Human Services, 49 F.3d 614, 618 (10th
Cir. 1995).

When the ALJ has failed to comply with SSR 96-8p

because he has not linked his RFC determination with specific
evidence in the record, the court cannot adequately assess
whether relevant evidence supports the ALJ’s RFC determination.
Such bare conclusions are beyond meaningful judicial review.
Brown v. Commissioner of the Social Security Administration, 245
F. Supp.2d 1175, 1187 (D. Kan. 2003).

6

The ALJ found that plaintiff had the RFC to perform light
work; she could lift, carry, push or pull 20 pounds occasionally
and 10 pounds frequently.

Plaintiff can stand or walk up to 6

hours, and sit for 6 hours in an 8 hour workday.

Plaintiff

cannot climb ladders, ropes, or scaffolds, and can only
occasionally climb ramps or stairs, stoop, kneel, crouch, crawl
and balance.

Plaintiff is also limited to jobs that do not

involve concentrated exposure to extreme vibration (R. at 18).
Dr. Lewis, plaintiff’s treating physician, stated on May
26, 2010 that it is certainly a bad idea for plaintiff to do
work that involves standing and/or lifting (R. at 390).
February 28, 2012, he stated the following:
She does have spinal stenosis that is proven
radiographically and which requires daily
pain management. At times she has been
required to use a walker when the condition
has flared. It is my opinion that less than
full time employment is better for her with
regard to this diagnosis. I do not expect
that she would be able to do more than 2
hours of standing and walking within an 8
hour work day due to exacerbated pain. She
should also not lift more than 10 pounds and
could only reasonably be expected to lift
equal to or less than 10 pounds less than
2/3 of an 8 hour day. It is likely that she
will need to miss more than 3 days per month
due to increased severity of pain.
Continuing in the same body position for an
extended period of time often flares her
spinal stenosis pain so any employment
situation will likely need to provide the
flexibility for her to recline or lie down
during frequent breaks to assist in
alleviating pain and fatigue.
7

On

(R. at 407).
The ALJ gave little weight to this opinion, stating that it
is not supported by the “thin” record of treatment, and it is
generally inconsistent with physical findings of record and with
the fact that she is still able to work part-time (R. at 19-20).
The record also contains a physical RFC assessment from Dr.
Vopat, dated July 16, 2010 (R. at 391-398).

Among his findings,

Dr. Vopat opined that plaintiff could only stand/walk for 2
hours in an 8 hour workday (R. at 392).

Dr. Vopat stated that

plaintiff would be capable of performing at this RFC level by
March 1, 2011 (R. at 393).

Dr. Parsons affirmed this assessment

on March 11, 2011 (R. at 406).

The ALJ found that plaintiff’s

functional limitations are less significant than those set forth
in the assessment, and gave only limited weight to the
assessment (R. at 20).
The ALJ found that plaintiff could stand or walk for up to
6 hours in an 8 hour workday, and could therefore perform light
work (R. at 18).

Jobs in this category generally require a good

deal of walking or standing.

20 C.F.R. § 404.1567(b).

However,

the opinions of all three medical sources state that plaintiff
can only stand/walk for 2 hours in an 8 hour workday (R. at 392,
406, 407).

There is no medical opinion or medical evidence

8

indicating that plaintiff can stand/walk for 6 hours in an 8
hour workday.
The first problem in the ALJ’s analysis is that the ALJ
rejected all three medical source opinions in finding that
plaintiff could stand/walk for 6 hours in an 8 hour workday.
The ALJ does not cite to any medical opinion in support of this
finding.

However, an exact correspondence between a medical

opinion and the RFC is not required.

In reaching his RFC

determination, an ALJ is permitted, and indeed required, to rely
on all of the record evidence, including but not limited to
medical opinions in the file.

That said, in cases in which the

medical opinions appear to conflict with the ALJ’s decision
regarding the extent of a plaintiff’s impairment(s) to the point
of posing a serious challenge to the ALJ’s RFC assessment, it
may be inappropriate for the ALJ to reach an RFC determination
without expert medical assistance.

Wells v. Colvin, 727 F.3d

1061, 1071-1072 (10th Cir. 2013) (in Wells, the ALJ rejected 3
medical opinions, finding that they were inconsistent with the
other evidence in the file; the court directed the ALJ, on
remand, to carefully reconsider whether to adopt the
restrictions on plaintiff’s RFC detailed in the medical
opinions, or determine whether further medical evidence is
needed on this issue).

9

The ALJ asserts that the medical evidence does not support
the existence of limitations greater than those reported in the
ALJ’s RFC findings (R. at 19).

However, the ALJ cites to no

medical opinion evidence which indicates that the medical
evidence in this case would support a finding that plaintiff can
stand/walk for 6 hours in an 8 hour workday.

Nor does the ALJ

cite to any other evidence in this case that would support a
finding that plaintiff can stand/walk for 6 hours in an 8 hour
workday.

In fact, all three medical sources, based on their

treatment of the plaintiff, or their review of the medical and
other evidence in this case, indicate that plaintiff is limited
to standing/walking for only 2 hours in an 8 hour workday.
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.
Langley v. Barnhart, 373 F.3d 1116, 1121 (10th Cir. 2004);
Robinson v. Barnhart, 366 F.3d 1078, 1082 (10th Cir. 2004);
McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002).
ALJ does not cite to any medical or other evidence that
contradicts the opinions of three medical sources, including
plaintiff’s primary care physician, that plaintiff can only
stand/walk for 2 hours in an 8 hour workday.
10

The

Second, the ALJ also discounted the opinions of Dr. Lewis
because they are inconsistent with the fact that she continues
to work part-time (R. at 19-20).

The ALJ also discounts

plaintiff’s credibility because of the fact that she is working
part-time preparing food at a cafeteria (R. at 19).
Plaintiff testified that she presently works at Cessna
Elementary School serving lunch from 11:00 a.m. to 1:45 p.m.
Plaintiff stated that they start serving lunches at 11:30, when
they serve the first class, which takes about 15 minutes.
she has a 15 minute break to sit down if she needs to.

Then

About

every 15 minutes, another class comes in; plaintiff stands and
serves lunches.

She testified that every 15 minutes, she gets a

15 minute break to sit down and “just relax.”

When she gets

home, she lies down to relax (R. at 34-35, 53).1
The ALJ’s statement that plaintiff is working part-time at
a cafeteria preparing food fails to acknowledge her testimony of
the limited time span of her work (2 hours and 45 minutes), and
the fact that she gets a break every 15 minutes to sit down and
just relax.

An ALJ cannot use mischaracterization 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.

1

Plaintiff also testified to a job held in 2011 prepping food in a kitchen in the evenings, working 2-4 hours a night
for 3-4 days a week. In that job, she testified that she received breaks about every 15 minutes or when she needed to
take a break (R. at 56-58).
11

10, 2011); see Sisco v. U.S. Dep’t of Health & Human Services,
10 F.3d 739, 742-43 (10th Cir. 1993)(ALJ took claimant’s
testimony out of context, selectively acknowledged only parts of
her statements, and presented his findings as accurate
reflections of her statements); see also Talbot v. Heckler, 814
F.3d 1456, 1462, 1464 (10th Cir. 1987)(ALJ improperly based
conclusion claimant could do light work on mischaracterization
of his activities).

Nothing in plaintiff’s description of this

job is facially inconsistent with the limitations set forth by
her treating physician, Dr. Lewis,2 or with the opinions of all
three medical sources that plaintiff can only stand/walk for 2
hours in an 8 hour workday.
Third, the ALJ relied on the “thin” record of medical
treatment to discount the opinions of Dr. Lewis (R. at 19).
Furthermore, in the ALJ’s credibility analysis, the ALJ stated
that although financial limitation is stated as a factor at the
hearing, there is little evidence of treatment for her
conditions.

The ALJ noted that plaintiff has not obtained

diagnostic testing suggested by her physician or x-rays of her
knees or recent images of her back, has not undergone surgery,
has not received epidural injections, and has a history of
infrequent visits to her doctor.

2

The ALJ concluded that “these

The treatment records of Dr. Lewis indicate that Dr. Lewis was aware that plaintiff was employed for the Wichita
School District in the food department for a couple hours a day (R. at 409). This treatment record is dated February
27, 2012, or one day before Dr. Lewis offered his opinion regarding plaintiff’s limitations (R. at 407, 409).
12

facts tend to weaken claimant’s allegation of disability and
subtract from the overall credibility of the claimant’s
statements” (R. at 19).
While failure to seek treatment may be probative of
severity, the ALJ has a basic duty of inquiry to ask the
plaintiff why he/she did not seek treatment, or why it was
sporadic.

Kratochvil v. Barnhart, 2003 WL 22176084 at *5 (D.

Kan. Sept. 17, 2003).

Similarly, SSR 96-7p states the

following:
On the other hand, the individual's
statements may be less credible if the level
or frequency of treatment is inconsistent
with the level of complaints, or if the
medical reports or records show that the
individual is not following the treatment as
prescribed and there are no good reasons for
this failure. However, the adjudicator must
not draw any inferences about an
individual's symptoms and their functional
effects from a failure to seek or pursue
regular medical treatment without first
considering any explanations that the
individual may provide, or other information
in the case record, that may explain
infrequent or irregular medical visits or
failure to seek medical treatment. The
adjudicator may need to recontact the
individual or question the individual at the
administrative proceeding in order to
determine whether there are good reasons the
individual does not seek medical treatment
or does not pursue treatment in a consistent
manner. The explanations provided by the
individual may provide insight into the
individual's credibility.

13

SSR 96-7p, 1996 WL 374186 at *7 (emphasis added); cited with
approval in Madron v. Astrue, 311 Fed. Appx. 170, 178 (10th Cir.
Feb. 11, 2009).

The fact than an individual may be unable to

afford treatment and may not have access to free or low-cost
medical service is a legitimate excuse.

Madron, 311 Fed. Appx.

at 178; SSR 96-7p, 1995 WL 374186 at *8.
On May 24, 2010, the medical record states the following:
“needs further workup of possible stenosis seen of plaintiff on
plain film in [M]arch, but no insurance” (R. at 416).

On May

26, 2010, Dr. Lewis stated that plaintiff had spinal stenosis
which would certainly be a cause for dysfunction and pain.

He

noted that she needs more extensive x-ray and testing which at
present is “cost prohibitive for her because of her insurance
situation” and that plaintiff had elected to wait until she has
obtained benefits to cover such services (R. at 390).

Again, on

February 27, 2012, the medical records note that she has no
insurance, and needs a pelvic exam, mammogram, colonoscopy, and
bloodwork but refuses due to expense and will plan to do these
things when she has insurance support (R. at 411).
At the hearing, plaintiff testified that Dr. Lewis had
other options he wanted to do, but she can’t afford to do
anything right now because she has no medical insurance;
plaintiff indicated it had been over five years since she had
insurance (R. at 65).

The record provided ample evidence that
14

plaintiff’s lack of treatment was due to her inability to afford
treatment.

The ALJ therefore discounted plaintiff’s credibility

and the opinions of Dr. Lewis without taking into consideration
the reasons for the lack of treatment, as required by the
regulations and case law.
Fourth, the ALJ also discounts plaintiff’s credibility
because she had not had surgery, and had not received epidural
injections.

The adjudicator is not free to substitute his own

medical opinion for that of a disability claimant’s treatment
providers and other medical sources.

Hamlin v. Barnhart, 365

F.3d 1208, 1221 (10th Cir. 2004)(ALJ noted that claimant did not
require assistive device for neck; court stated there was no
evidence that a physician recommended such a device, or
suggested that one would have provided relief).

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.
Barnhart, 212 F. Supp.2d 1248, 1262 (D. Kan. 2002).

Bolan v.

In the

absence of any medical opinion or other evidence indicating that
surgery or epidural injections were recommended or would have
provided relief, the ALJ overstepped his bounds into the
province of medicine.

Miller v. Chater, 99 F.3d 972, 977 (10th

Cir. 1996).
15

In summary, the ALJ made RFC findings contrary to all three
medical source opinions.

There is no medical opinion or other

evidence that supports a finding that plaintiff can stand/walk
for 6 hours in an 8 hour workday, or that contradicts the
opinions of three medical sources that plaintiff can only
stand/walk for 2 hours in an 8 hour workday.

Second, in relying

on plaintiff’s part-time work to discount the opinions of Dr.
Lewis, and to discount plaintiff’s credibility, the ALJ
mischaracterized plaintiff’s part-time work by failing to
acknowledge the serious limitations in that part-time work
(works only 2 hours and 45 minutes, and gets a break every 15
minutes to sit down and rest).

Third, the ALJ relied on

plaintiff’s lack of treatment as a basis for discounting both
plaintiff’s credibility and the opinions of Dr. Lewis.

However,

the ALJ erred by failing to take into consideration plaintiff’s
inability to afford treatment, even though the medical records
and her testimony indicated that an inability to pay or lack of
insurance was the basis for a lack of treatment.

Fourth, the

ALJ discounted plaintiff’s credibility because she had not had
certain types of treatment.

However, the ALJ erred by

overstepping his bounds into the province of medicine in the
absence of any evidence that such treatment was advised or would
have provided relief.

For all these reasons, the court finds

that substantial evidence does not support the ALJ’s RFC
16

findings and determination that plaintiff can perform past work
or other work in the national economy.

This case shall be

remanded in order for the ALJ to properly evaluate the medical
evidence (and if necessary, to obtain additional medical
evidence or medical opinion evidence), and to properly evaluate
plaintiff’s credibility.
IV.

Other issues raised by plaintiff
Plaintiff has raised other issues.

The court will not

address the remaining issues in detail because they may be
affected by the ALJ’s resolution of the case on remand after the
ALJ properly evaluates the medical evidence, the medical opinion
evidence, and plaintiff’s credibility, and makes new RFC
findings.

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

Cir. 2004).
However, the court will address the issue of plaintiff’s
daily activities.

The ALJ stated that plaintiff’s daily

activities are not as limited as one would expect with disabling
limitations.

The ALJ then proceeded to note that plaintiff does

housework, shops, cooks, tends to her personal care needs and
manages her finances (R. at 19).

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) (2013 at 399).
17

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
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
18

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.
Thomas v. Sullivan, 876 F.2d 666, 669 (8th
Cir.1989) (citations omitted).
Draper, 425 F.3d at 1131 (emphasis added).
The fact that plaintiff can perform housework, shop, cook,
tend to personal care needs, and manage her finances do not

19

qualify as the ability to do substantial gainful activity.
Therefore, on remand, the ALJ should examine plaintiff’s daily
activities in light of the above regulations and case law, and
also take into consideration the limitations plaintiff noted
regarding those activities.
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 24th day of September 2014, Topeka, Kansas.

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

20