Miller v. Social Security Administration, Commissioner of

Filing 26

MEMORANDUM AND ORDER: The judgment of the Commissioner is affirmed pursuant to sentence four of 42 U.S.C. § 405(g). Signed by U.S. District Senior Judge Sam A. Crow on 9/23/14. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BRYAN EUGENE MILLER,
Plaintiff,
vs.

Case No. 13-1341-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

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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
June 22, 2012, administrative law judge (ALJ) Alison K.

Brookins issued her decision (R. at 363-375).1

Plaintiff alleges

that he had been disabled since July 26, 2004 (R. at 363).
Plaintiff meets the insured status requirements for social
1

This is the 2nd ALJ decision. The 1st decision was reversed and remanded by this court on November 19, 2010 (R.
at 395-408).
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security disability benefits through December 31, 2004 (R. at
366).

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

in substantial gainful activity since the alleged onset date (R.
at 366).

At step two, the ALJ found that plaintiff had the

following severe impairments since July 26, 2004:
disc disease of the lumbar spine.

degenerative

As of December 17, 2007,

claimant had the following severe impairments: degenerative disc
disease of the lumbar spine, major depressive disorder, and
generalized anxiety disorder (R. at 366).

At step three, the

ALJ determined that plaintiff’s impairments prior to December
17, 2007 do not meet or equal a listed impairment (R. at 367).
After determining plaintiff’s RFC prior to December 17, 2007 (R.
at 367), the ALJ determined at step four that plaintiff is
unable to perform past relevant work (R. at 370).

At step five,

the ALJ found that plaintiff, prior to December 17, 2007, can
perform jobs that exist in significant numbers in the national
economy (R. at 371).

Beginning on December 17, 2007,

plaintiff’s impairment was found to meet a listed mental
impairment, 12.04 (affective disorders) (R. at 372).

The ALJ

therefore found that plaintiff was not disabled prior to
December 17, 2007, but became disabled on that date and has
continued to be disabled through the date of the decision (R. at
374-375).

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III.

Did the ALJ err in setting the onset date for plaintiff’s

disability as December 17, 2007?
Social Security Ruling (SSR) 83-20 sets forth the policy
and describes the relevant evidence to be considered when
establishing the onset date of disability.

1983 WL 31249 at *1.

Once published, Social Security Rulings are binding on all
components of the Social Security Administration.
402.35(b)(1).

20 C.F.R. §

Factors relevant to the determination of

disability onset include the individual’s allegations as to when
the disability began, the work history, and the medical
evidence.

SSR 83-20, 1983 WL 31249 at *1; Reid v. Chater, 71

F.3d 372, 373-374 (10th Cir. 1995).

These factors are often

evaluated together to arrive at the onset date.

However, the

individual’s allegation or the date of work stoppage is
significant in determining onset only if it is consistent with
the severity of the condition(s) shown by the medical evidence.
SSR 83-20, 1983 WL 31249 at *1.

In determining the date of

onset of disability, the date alleged by the individual should
be used if it is consistent with all the evidence available.
1983 WL 31249 at *3.
With slowly progressing impairments, it is sometimes
impossible to obtain medical evidence establishing the precise
date an impairment became disabling.

Determining the proper

onset date can be particularly difficult when adequate medical
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records are not available.
to infer the onset date.

In such cases, it will be necessary

1983 WL 31249 at *2.

In some cases,

it may be possible, based on the medical evidence to reasonably
infer that the onset of a disabling impairment occurred some
time prior to the date of the first recorded medical
examination.

1983 WL 31249 at *3.

Ruling 83-20 thus recognizes

that it sometimes may be necessary to infer the onset date.

The

ALJ then should call on the services of a medical advisor at the
hearing.

A medical advisor need be called only if the medical

evidence of onset is ambiguous.

Reid, 71 F.3d at 374.

If the

medical evidence is ambiguous and a retroactive inference is
necessary, SSR 83-20 requires the ALJ to call upon the services
of a medical advisor to insure that the determination of onset
is based upon a legitimate medical basis.
F.3d 903, 911 (10th Cir. 2006);

Blea v. Barnhart, 466

Grebenick v. Chater, 121 F.3d

1193, 1200-1201 (8th Cir. 1997).
The onset date should be set on the date when it is most
reasonable to conclude from the evidence that the impairment was
sufficiently severe to prevent the individual from engaging in
substantial gainful activity for a continuous period of at least
12 months or result in death.

Convincing rationale must be

given for the date selected.

SSR 83-20, 1983 WL 31249 at *3.

Where medical evidence of onset is ambiguous, an ALJ is
obligated to call upon the services of a medical advisor.
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In

the absence of clear evidence documenting the progression of the
claimant’s condition, the ALJ does not have the discretion to
forgo consultation with a medical advisor.

Blea, 466 F.3d at

911-912.
In his decision of November 19, 2010, Judge Lungstrum held
that the medical evidence was ambiguous regarding the precise
date that plaintiff’s impairments became disabling.

The case

was remanded in order to determine the onset date, and the
Commissioner was advised to utilize the services of a medical
advisor to determine the onset date (R. at 407).
Plaintiff believes the ALJ erred by not giving controlling
or significant weight to the opinions of plaintiff’s treating
physician, Dr. Merkel.

In a statement dated December 17, 2007,

Dr. Merkel opined that plaintiff was extremely limited in all
mental categories and could not work.

Dr. Merkel further opined

that plaintiff had these limitations since 1997 (R. at 255-257).
Dr. Merkel also prepared a physical RFC assessment on the same
date in which he opined that plaintiff could sit, stand and/or
walk for less than 1 hour at a time, and further opined that
plaintiff could never use his right hand to reach, handle,
finger, feel or push/pull (R. at 258-263).
On remand, the ALJ complied with the order of the court,
and consulted a with medical advisor regarding the onset date.
The ALJ had Dr. Hymoff, a psychologist, complete a mental RFC
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assessment on the plaintiff.

Dr. Hymoff opined that plaintiff

had numerous moderate and marked impairments and met a listed
impairment as of January 15, 2008 (R. at 476-484).

Dr. Hymoff

reviewed the medical records and opined that plaintiff’s
impairments did not meet the level of a listed impairment until
plaintiff’s hospitalization on January 15, 2008 (R. at 478-480).2
The ALJ accorded substantial weight to the opinions of Dr.
Hymoff, finding it well supported by the evidence and consistent
with the record as a whole (R. at 373).

The ALJ also evaluated

Dr. Merkel’s opinion, dated December 17, 2007, in which he found
that plaintiff had extreme mental limitations that existed since
1997.

The ALJ accorded little weight to this opinion for a

number of reasons (R. at 373-374).
First, the ALJ stated that plaintiff himself did not allege
that his disability extends back this far (R. at 373).
Plaintiff is only alleging an onset of disability as of July 26,
2004 (R. at 363).

In a psychological evaluation performed on

June 14, 2006 (R. at 208-210), plaintiff stated to Dr. Schwartz
that his disability stems from an on-the-job injury; he denied
any other disability.

He specifically denied depression, and

denied that anxiety is much of a problem, although he does get

2

Although Dr. Hymoff’s report gives a date of January 5, 2008 as the onset date, and the date of plaintiff’s
hospitalization at Larned State Hospital, plaintiff was admitted to Larned State Hospital on January 15, 2008 (R. at
308). Both the ALJ and defendant believe Dr. Hymoff intended January 15, 2008 to be the onset date (R. at 373,
Doc. 22 at 11), and plaintiff does not dispute that Dr. Hymoff intended January 15, 2008 to be the onset date.
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nervous at new jobs; he minimized any emotional problems (R. at
208, 366).
Second, the ALJ stated that there was no medical evidence
(other than opinions of Dr. Merkel) indicating that plaintiff’s
mental impairments were severe, much less disabling, prior to
the established onset date (R. at 366-367, 373).

Dr. Schwartz,

on June 14, 2006, opined that plaintiff can remember work
locations and procedures and understand and follow simple
instructions, and has adequate attention, concentration and
short-term memory.

Dr. Schwartz stated that he did not detect

any severe psychiatric symptoms which would prevent him from
working (R. at 209, 366-367).

The ALJ gave substantial weight

to the opinion of Dr. Fantz, who opined on June 23, 2006 that
plaintiff did not have a severe mental impairment (R. at 224236, 370).

Dr. Hymoff opined that plaintiff’s limitations were

found to be moderate or marked only as of January 15, 2008 (R.
at 476-477).
Third, the ALJ noted that plaintiff had worked at the level
of substantial gainful activity as late as 2001.

The ALJ found

this to be plainly inconsistent with Dr. Merkel’s opinion that
plaintiff had extreme mental limitations as far back as 1997 (R.
at 373-374).
Although the ALJ gave substantial weight to the opinion of
Dr. Hymoff, the ALJ found a slightly earlier onset date of
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December 17, 2007, which is the earliest occasion in plaintiff’s
treatment records where significant deterioration in his mental
health is documented (R. at 373).

On that date, Dr. Merkel

stated that plaintiff had been having a lot of depression.

Dr.

Merkel’s record states that plaintiff is disabled from the
standpoint of his back and from depression and probably some
mental problems (R. at 239).
The court will not reweigh the evidence or substitute its
judgment for that of the Commissioner.

Hackett v. Barnhart, 395

F.3d 1168, 1173 (10th Cir. 2005); White v. Barnhart, 287 F.3d
903, 905, 908, 909 (10th Cir. 2002).

Although the court will

not reweigh the evidence, the conclusions reached by the ALJ
must be reasonable and consistent with the evidence.

See Glenn

v. Shalala, 21 F.3d 983, 988 (10th Cir. 1994)(the court must
affirm if, considering the evidence as a whole, there is
sufficient evidence which a reasonable mind might accept as
adequate to support a conclusion).
the sufficiency of the evidence.

The court can only review

Although the evidence may

support a contrary finding, the court cannot displace the
agency’s choice between two fairly conflicting views, even
though the court may have justifiably made a different choice
had the matter been before it de novo.
F.3d 1254, 1257-1258 (10th Cir. 2007).

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Oldham v. Astrue, 509

The ALJ utilized a medical expert to determine plaintiff’s
onset date based on his mental limitations, and gave significant
weight to his opinion.

The ALJ also gave specific and

legitimate reasons for discounting the opinion of Dr. Merkel
that plaintiff’s mental limitations were extreme going back to
1997.

Both Dr. Schwartz and Dr. Fantz opined in 2006 that

plaintiff did not have severe mental impairments at that time.
The ALJ gave substantial weight to the opinions of Dr.
Hymoff, and gave little weight to the opinions of Dr. Merkel
regarding the onset date based on his mental limitations.
court will not reweigh the evidence.

The

However, the ALJ tempered

the onset date to an earlier date, December 17, 2007, based on
Dr. Merkel’s treatment notes for that date.

An ALJ does not

commit reversible error by tempering medical opinions given
substantial weight by the ALJ for the claimant’s benefit.

The

ALJ does not have to provide an explanation for extending the
claimant such a benefit.
(10th Cir. 2012).

Chapo v. Astrue, 682 F.3d 1285, 1288

The court finds that substantial evidence in

the record supported the ALJ’s finding that plaintiff’s onset
date based on his mental limitations was December 17, 2007.
Regarding plaintiff’s physical limitations, Dr. Merkel made
a physical RFC assessment on December 17, 2007 (R. at 258-263).
The ALJ only accorded this opinion partial weight (R. at 370).
Dr. Merkel had opined that plaintiff could sit, stand and/or
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walk for less than 1 hour at a time, and further opined that
plaintiff could not use his right hand to reach, handle, finger,
feel or push/pull (R. at 258-263).

The ALJ found that the

limitations on walking, standing and sitting were out of all
proportion to the mild degenerative changes in the lumbar spine.
As for the manipulative limitation in the use of the right hand,
the ALJ found that the medical record does not provide any
support for an impairment that would affect plaintiff’s use of
his right hand (R. at 370).
The ALJ gave substantial weight to the opinions of Dr.
Parsons, who prepared a physical RFC assessment on June 22, 2006
(R. at 369-370, 214-221).

Dr. Parsons reviewed and discussed

the medical records (R. at 221).

He found that plaintiff could

sit for 6 hours and stand/walk for 6 hours in an 8 hour workday
(R. at 215).
at 217).

He did not find any manipulative limitations (R.

The ALJ gave little weight to the medical expert, Dr.

Axline, who opined that plaintiff could perform medium work.
The ALJ believed that Dr. Parson’s limitation to light work was
more consistent with plaintiff’s long-standing history of low
back pain (R. at 370).

Dr. Axline performed a physical RFC

assessment on November 21, 2011 (R. at 486-494).

He opined that

plaintiff could sit for 6 hours, walk for 6 hours, and stand for
4 hours in an 8 hour workday (R. at 490).

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He found no

manipulative limitations in the use of plaintiff’s hands (R. at
491).
The ALJ gave specific and legitimate reasons for
discounting some of Dr. Merkel’s opinions regarding plaintiff’s
physical limitations.

The opinions of Dr. Merkel that were

discounted by the ALJ were not supported by Dr. Parsons or Dr.
Axline.

Plaintiff does not cite to any other medical evidence

that would support such limitations.
the evidence.

The court will not reweigh

The court finds that substantial evidence

supports the ALJ’s physical RFC findings.
Plaintiff also alleges error by the ALJ in not considering
an opinion by Dr. Manguoglu in 2006 that plaintiff was disabled.
On May 19, 2006, a medical treatment record, under “SUBJECTIVE,”
states that “He has been reportedly told by Dr. Manguoglu that
he should be disabled” (R. at 244).

On July 28, 2006, the

treatment record, under “SUBJECTIVE,” states that “The patient
has been declared disabled according to Dr. Manguoglu” (R. at
243).

It is not clear from these records whether the treatment

provider is stating that Dr. Manguoglu actually reported that
plaintiff is disabled, or is simply noting that plaintiff made
this assertion.

Furthermore, a review of Dr. Manguoglu’s

records, which are from 1989, before the alleged onset date, do
not indicate that he offered such an opinion (R. at 140-144).
As noted by the ALJ in his decision, Dr. Manguoglu stated on
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April 3, 1989 that plaintiff can lift 44 pounds occasionally and
20 pounds frequently (R. at 141, 369).
It is not at all clear from the record that Dr. Manguoglu
actually offered an opinion that plaintiff was disabled.

His

own records do not reflect that he offered such an opinion.
Furthermore, there is no indication of the time period regarding
this allegation that plaintiff was disabled.

On these facts,

the court finds that the ALJ did not err by not discussing this
alleged opinion by Dr. Manguoglu.
IT IS THEREFORE ORDERED that the judgment of the
Commissioner is affirmed pursuant to sentence four of 42 U.S.C.
§ 405(g).
Dated this 23rd day of September 2014, Topeka, Kansas.

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

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