Gatewood v. Social Security Administration, Commissioner of

Filing 26

MEMORANDUM AND ORDER: The judgment of the Commissioner is remanded pursuant to sentence six of 42 U.S.C. § 405(g) for further proceedings consistent with this memorandum and order. Parties will comply with the requirements of D. Kan Rule 83.7.2. Signed by U.S. District Senior Judge Sam A. Crow on 9/30/14. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

NEILA DIANE GATEWOOD,
Plaintiff,
vs.

Case No. 13-1339-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.

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

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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
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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 May 11, 2012, administrative law judge (ALJ) John B.

Langland issued his decision (R. at 20-29).

Plaintiff alleges

that she had been disabled since June 12, 2009 (R. at 20).
Plaintiff meets the insured status requirements for social
security disability benefits through December 31, 2014 (R. at
4

22).

At step one, the ALJ found that plaintiff did not engage

in substantial gainful activity since the alleged onset date (R.
at 22).

At step two, the ALJ found that plaintiff had the

following severe impairments:

history of carpal tunnel syndrome

(status post bilateral release surgery), sleep apnea,
hypertension, chronic heart failure, history of angina,
fibromyalgia, an affective disorder, and recent anxiety
diagnosis (R. at 22).

At step three, the ALJ determined that

plaintiff’s impairments do not meet or equal a listed impairment
(R. at 22).

After determining plaintiff’s RFC (R. at 24), the

ALJ determined at step four that plaintiff is unable to perform
past relevant work (R. at 28).

At step five, the ALJ found that

plaintiff can perform jobs that exist in significant numbers in
the national economy (R. at 28-29).

Therefore, the ALJ

concluded that plaintiff was not disabled (R. at 29).
III.

Should this case be remanded in order for the Commissioner

to consider new evidence?
42 U.S.C. § 405(g), as it pertains to remands, states in
sentence six that “[t]he court…may at any time order additional
evidence to be taken before the Commissioner of Social Security,
but only upon a showing that there is new evidence which is
material and that there is good cause for the failure to
incorporate such evidence into the record in a prior
proceeding…”.

The requirements for a sentence six remand are
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set forth in Heimerman v. Chater, 939 Fed. Supp. 832, 833-834
(D. Kan. 1996):
For a remand to be appropriate when good
cause is shown, it must be determined “that
the new evidence would have changed the
Secretary's decision had it been before
him.” Hargis v. Sullivan, 945 F.2d 1482,
1493 (10th Cir.1991). Implicit in the
materiality requirement is that “the
proffered evidence relate to the time period
for which the benefits were denied.” Hargis
v. Sullivan, 945 F.2d 1482, 1493 (10th
Cir.1991). See also Szubak v. Secretary of
Health and Human Services, 745 F.2d 831, 833
(3rd Cir.1984) (new evidence may not relate
to a “later-acquired disability” or “the
subsequent deterioration of the previously
non-disabling condition”). The requirements
for introduction of additional evidence may
be summarized as follows: (1) the proffered
evidence must be “‘new’” and not merely
cumulative of what is already in the record;
(2) the proffered evidence must be material,
that is, relating to the time period for
which benefits were denied, and offering a
reasonable possibility of changing the
Secretary's decision; and (3) the claimant
must show good cause for the failure to
obtain and present the evidence at the prior
hearing. Tirado v. Bowen, 842 F.2d 595, 597
(2nd Cir.1988).
On February 8, 2011, plaintiff’s treating physician, Dr.
Davis, prepared a physical capacities evaluation on the
plaintiff.

He opined that plaintiff could frequently lift 5

pounds, could occasionally lift up to 10 pounds, and could never
climb, balance, crouch or crawl.

He stated that plaintiff

suffers from fatigue and pain for which there is a reasonable
medical basis, and indicated that the fatigue and pain are
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disabling to the extent that it prevents the plaintiff from
working full-time, even in a sedentary position (R. at 486-489).
The ALJ discounted the opinions of Dr. Davis, explaining as
follows:
However, the treatment notes at the end of
2010 and the beginning of 2011 appear to
show that the claimant was having an episode
of plantar fasciitis and that she was
receiving injections for that diagnosis
along with a recommendation for physical
therapy. Additionally, the treatment notes
from Dr. Davis on February 16, 2009 show
that he informed the claimant she should
seek help from the personnel department at
her job to get temporary disability for
recovery time due to her medical condition
including imminent bariatric surgery
(Exhibit 3F, p. 14 [R. at 312]). Thus, the
medical record supports a finding that Dr.
Davis’ opinions regarding the claimant’s
limitations is only for a limited period of
time and not permanent total disability. It
is specifically noted that an
echocardiography on November 17, 2011 was
basically normal (Exhibit 20F) and the
claimant’s cardiac testing supports a
finding that the claimant could actually
perform up to medium exertional level work.
(R. at 27).

The ALJ had also previously noted that the most

recent treatment notes of Dr. Davis indicated that the plaintiff
reported feeling quite good except for some chest pain (R. at
25).
After the ALJ decision of May 11, 2012, plaintiff filed a
request for review of the ALJ decision on June 22, 2012 (R. at
14-16).

On June 6, 2013, the Appeals Council wrote to

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plaintiff’s counsel, providing him with the records he was
requesting, and informing him that he could submit additional
evidence or information within 25 days of the date of this
letter.

It indicates that they would not allow counsel more

time to submit evidence except for very good reasons (R. at 6).
On July 1, 2013, plaintiff’s counsel wrote the Appeals Council.
Counsel provided some additional records and stated that he is
currently in the process of obtaining treating source statements
from two separate sources, and requested until July 31, 2013 for
submission of those statements (Doc. 17-2).

On July 12, 2013,

the Appeals Council issued its decision, denying plaintiff’s
request for review (R. at 1-5).

There was no mention of the

request of plaintiff’s counsel for additional time to submit the
two treating source statements.

On July 31, 2013, plaintiff’s

counsel filed a motion to reopen, along with the treating source
statements by Dr. Schell, dated July 19, 2013, and Dr. Davis,
dated July 26, 2013 (Doc. 17-3).

The record does not reflect

the filing of this motion or any decision on this motion by the
Appeals Council.
Plaintiff’s counsel indicated that because he was new to
the case, it was necessary to request a copy of the record and
additional time to develop and submit additional evidence.

The

Appeals Council provided the record on June 6, 2013 (Doc. 17 at
18).

Plaintiff’s counsel further stated that the two treating
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source statements could not be obtained within the 25 day time
limit set by the Appeals Council because of the schedules of the
two doctors, and the need to obtain consultations and then for
the doctors to review their statements (Doc. 17 at 20).

As

noted above, plaintiff’s counsel requested additional time to
submit those statements on July 1, 2013, but there is no
indication the Appeals Council ruled or responded to that
request.

Plaintiff’s counsel stated that the Appeals Council

failed to act on the request to reopen (Doc. 17 at 20).
The court will first review the statement from Dr. Davis,
dated July 26, 2013.

It states, in relevant part:

…I am responding to some questions about the
Social Security Judge’s interpretation of
the “Physical Capacities Evaluation” that I
ordered on February 8, 2011. The judge
thought that I was including limitations
from her plantar fasciitis, which was a
temporary condition. I was not including
consideration of her plantar fasciitis. I
was including primarily consideration of her
fibromyalgia, which causes, and still does,
disabling pain and fatigue as I indicated in
the “Physical Capacities Evaluation”. It is
my opinion that her cardiac condition and
hypertension, though controlled, could at
times also contribute somewhat to her
fatigue. She also suffers from stress,
which plays a definite role in exacerbating
her pain and fatigue and causes chest pain
and elevates her blood pressure at times.
She also has sleep apnea, which contributes
to difficulty sleeping and thus to her
fatigue.
The judge also thought that the
“Physical Capacities Evaluation” conflicted
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with my February 16, 2009 opinion that she
needed temporary disability to recover from
upcoming bariatric surgery. The temporary
disability that I stated she needed was “for
one year to allow a sufficient recovery to
return to gainful employment.”
Her medical
course unfortunately did not permit the
hoped for return to work even after more
than a year as I documented in the February
15, 2011 “Physical Capacities Evaluation.”
Her fibromyalgia did not improve.
My June 22, 2009 treatment note
reflects that I had been recommending
disability for some time before Ms. Gatewood
actually stopped working [R. at 307]…Some
days are relatively good, but others are not
so good, and on some days, because of
fibromyalgia exacerbations, she must rest,
lie down, and take naps frequently
throughout the day. These would be days she
could not work at all. Days like this occur
at least three days a month and can be
considerably more frequent especially if she
overdoes her activities. On other days she
would be limited to less than eight hours
work because of the pain and need to rest.
If she tried to keep a work schedule in
which she could not rest, including lie down
as needed, that would increase the frequency
and duration of her fibromyalgia
exacerbations.
The judge relied on my “most recent
treatment notes” when Ms. Gatewood reported
feeling quite good except for some chest
pain. That, however, is the nature of the
fibromyalgia; she has some relatively good
patches of time followed by more difficult
times and by periods of acute exacerbations.
Feeling “quite good” at times is entirely
consistent with her fibromyalgia and my
assessment of her limitations…
(Doc. 17-3 at 14-15, emphasis added).

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In reviewing the requirements for introduction of
additional evidence, the proffered statement of Dr. Davis is
clearly new, and not merely cumulative of what is already in the
record.

It elaborates on his opinions, and, most importantly,

it responds to various statements of the ALJ in his decision.
The second requirement is materiality; the statement must
relate to the time period for which benefits were denied, and
offer a reasonable possibility of changing the Commissioner’s
decision.

The statement clearly relates to the time period for

which benefits were denied because it addresses and clarifies
the opinions expressed by Dr. Davis on February 8, 2011.

The

court must next consider whether it offers a reasonable
possibility of changing the Commissioner’s decision.
In the case of Wilson v. Colvin, Case No. 12-1365-JWL, 2014
WL 1689293 (D. Kan. April 29, 2014), Ms. Martin, a psychiatric
nurse-practitioner, had provided a medical source statement, but
the ALJ accorded it little weight.

Instead, the ALJ gave great

weight to the opinions of state agency consultants.
1689293 at *4.

2014 WL

Ms. Martin then submitted an opinion letter

explaining and clarifying her earlier statement; this letter was
first submitted to the Appeals Council.
6.

2014 WL 1689293 at *5-

The court held that Ms. Martin’s explanation, if accepted,

provides material information which would significantly alter
the ALJ’s decision, for it tends to negate much of the ALJ’s
11

basis for discounting the opinions of Ms. Martin and Dr.
Schwartz.

The court noted that if those opinions are not

properly discounted, disability is the only remaining option.
The court indicated that it could not weigh this evidence in the
first instance, and remanded the case in order for the
Commissioner to consider the letters provided to the Appeals
Council and to determine what weight should be accorded to the
medical opinions in light of all the record evidence.

2014 WL

1689293 at *6.
As was the case in Wilson, the July 26, 2013 statement from
Dr. Davis provides material information which, if accepted,
would significantly alter the ALJ’s decision, for it tends to
negate much of the ALJ’s basis for discounting the earlier
opinions expressed by Dr. Davis.

If the opinions of Dr. Davis

are not properly discounted, they indicate that plaintiff cannot
work due to fatigue and pain.

The court therefore finds that

the July 26, 2013 statement from Dr. Davis is clearly material.
The third requirement for a sentence six remand to consider
new evidence is that plaintiff must show good cause for the
failure to obtain and present the evidence at the prior hearing.
Plaintiff must be able to show why she could not have obtained
and submitted the July 26, 2013 statement from Dr. Davis to the
ALJ and the Appeals Council.
1149-1150 (10th Cir. 2010).

Wilson v. Astrue, 602 F.3d 1136,
Certainly, plaintiff could not have
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presented the statement from Dr. Davis to the ALJ prior to his
decision because the letter addresses the reasons given by the
ALJ for discounting the opinions of Dr. Davis.

Plaintiff’s

counsel, who was new to the case, made a good faith effort to
provide the material to the Appeals Council before its decision.
However, the record does not indicate that the Appeals Council
responded to counsel’s July 1, 2013 request for additional time
to provide the treating source statements.

This request was

made prior to the ruling by the Appeals Council on July 12,
2013.

The record is also silent on plaintiff’s July 31, 2013

request to reopen in order to submit the statements by Dr. Davis
and Dr. Schell.

On the facts of this case, the court finds that

plaintiff demonstrated good cause for the failure to present
this evidence prior to the ALJ and the Appeals Council
decisions.

Because the statement from Dr. Davis is new and

material, and because good cause was shown for the failure to
obtain and present this material prior to the decisions by the
ALJ and the Appeals Council, this case shall be remanded
pursuant to sentence six in order for the Commissioner to
consider the statement of Dr. Davis, and to determine the
appropriate weight to be accorded to each of the medical
opinions in the record in light of all of the record evidence.
Plaintiff also seeks remand of this case to consider a
statement and mental RFC assessment from Dr. Schell, dated July
13

19, 2013 (Doc. 17-3 at 7-12).

The treatment and opinions of Dr.

Schell occurred after the ALJ decision; thus, there are
legitimate questions regarding whether such evidence was
material and whether plaintiff should have obtained and
presented such evidence prior to the ALJ decision.

However,

because this case is being remanded in order to consider the
statement from Dr. Davis, on remand, the ALJ shall evaluate the
treatment and opinions of Dr. Schell, and determine what weight,
if any, to accord to his opinions.
Plaintiff’s brief raised other issues in addition to the
motion to remand.

However, the court will not address these

issues at this time because they may be affected by the ALJ’s
resolution of the case on remand after the ALJ considers the new
evidence.

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

Cir. 2004).
However, on remand, the court would note that the ALJ, in
his decision, stated that the opinions of Dr. Fluter indicated
that plaintiff was temporarily limited to lifting no more than
10 pounds (R. at 27).

However, Dr. Fluter stated in regards to

all his restrictions that plaintiff had a number of restrictions
“at least on a temporary basis” (R. at 565).

Furthermore, Dr.

Fluter’s report mentioned numerous other limitations which were
not discussed or addressed by the ALJ in his decision.

On

remand, the ALJ shall consider those opinions, and if they are
14

not included in the ALJ’s RFC findings, the ALJ shall, as
required by SSR 96-8p, explain why those opinions were not
adopted.

1996 WL 374184 at *7.

IT IS THEREFORE ORDERED that the judgment of the
Commissioner is remanded pursuant to sentence six of 42 U.S.C. §
405(g) for further proceedings consistent with this memorandum
and order.
IT IS FURTHER ORDERED that the parties will comply with the
requirements of D. Kan. Rule 83.7.2.
Dated this 30th day of September 2014, Topeka, Kansas.

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

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