Johnson v. Social Security Administration, Commissioner of

Filing 19

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 3/12/15. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DUSTIN JOHNSON,
Plaintiff,
vs.

Case No. 13-1401-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
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 July 16, 2013, administrative law judge (ALJ) Michael D.

Shilling issued his decision (R. at 13-26).

Plaintiff alleges

that he had been disabled since November 14, 2011 (R. at 13).
Plaintiff meets the insured status requirements for social
security disability benefits through December 31, 2015 (R. at
4

15).

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

in substantial gainful activity after the alleged onset date (R.
at 15).

At step two, the ALJ found that plaintiff had severe

impairments of a history of avascular necrosis with joint
replacement, substance abuse disorder, depression, anxiety and
post-traumatic stress disorder (R. at 15).

At step three, the

ALJ determined that plaintiff’s impairments do not meet or equal
a listed impairment (R. at 16).

After determining plaintiff’s

RFC (R. at 17-18), the ALJ determined at step four that
plaintiff is unable to perform past relevant work (R. at 24).
At step five, the ALJ found that plaintiff could perform jobs
that exist in significant numbers in the national economy (R. at
25-26).

Therefore, the ALJ concluded that plaintiff was not

disabled (R. at 26).
III.

Did the ALJ err in his consideration of the treating

source opinions of Dr. Hawkins?
The opinions of physicians, psychologists, or psychiatrists
who have seen a claimant over a period of time for purposes of
treatment are given more weight than the views of consulting
physicians or those who only review the medical records and
never examine the claimant.

The opinion of an examining

physician is generally entitled to less weight than that of a
treating physician, and the opinion of an agency physician who
has never seen the claimant is entitled to the least weight of
5

all.

Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004).

When a treating source opinion is inconsistent with the other
medical evidence, the ALJ’s task is to examine the other medical
source’s reports to see if they outweigh the treating source’s
reports, not the other way around.

Treating source opinions are

given particular weight because of their unique perspective to
the medical evidence that cannot be obtained from the objective
medical findings alone or from reports of individual
examinations, such as consultative examinations.

If an ALJ

intends to rely on a nontreating physician or examiner’s
opinion, he must explain the weight he is giving to it.
v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004).

Hamlin

The ALJ must

provide a legally sufficient explanation for rejecting the
opinion of treating medical sources in favor of non-examining or
consulting medical sources.

Robinson, 366 F.3d at 1084.

A treating physician’s opinion about the nature and
severity of the claimant’s impairments should be given
controlling weight by the Commissioner if well supported by
clinical and laboratory diagnostic techniques and if it is not
inconsistent with other substantial evidence in the record.
Castellano v. Secretary of Health & Human Services, 26 F.3d
1027, 1029 (10th Cir. 1994); 20 C.F.R. §§ 404.1527(d)(2),
416.927(d)(2).

When a treating physician opinion is not given

controlling weight, the ALJ must nonetheless specify what lesser
6

weight he assigned the treating physician opinion.
Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004).

Robinson v.

A treating

source opinion not entitled to controlling weight is still
entitled to deference and must be weighed using all of the
following factors:
(1) the length of the treatment relationship and the frequency
of examination;
(2) the nature and extent of the treatment relationship,
including the treatment provided and the kind of examination or
testing performed;
(3) the degree to which the physician’s opinion is supported by
relevant evidence;
(4) consistency between the opinion and the record as a whole;
(5) whether or not the physician is a specialist in the area
upon which an opinion is rendered; and
(6) other factors brought to the ALJ’s attention which tend to
support or contradict the opinion.
Watkins v. Barnhart, 350 F.3d 1297, 1300-1301 (10th Cir. 2003).
After considering the above factors, the ALJ must give good
reasons in his/her decision for the weight he/she ultimately
assigns the opinion.

If the ALJ rejects the opinion completely,

he/she must then give specific, legitimate reasons for doing so.
Watkins, 350 F.3d at 1301.
Dr. Hawkins is plaintiff’s treating physician.

On April

24, 2012, he wrote to plaintiff stating that he was not able to
provide him with a statement of disability.

Dr. Hawkins

indicated that it was his opinion that plaintiff was not able to
work in the field in which he was trained, but this did not mean
that he was not able to work in other fields that are not as

7

labor intensive.

He encouraged plaintiff to seek out such

employment and consider entering into training to be prepared
for a different field of work (R. at 528).

On May 4, 2012, the

treatment notes of Dr. Hawkins indicated that he told plaintiff
that although it is unfortunate that he is unable to continue in
his current field, that did not make him unable to work (R. at
595).
However, following an examination of the plaintiff on March
11, 2013 (R. at 645), Dr. Hawkins filled out a medical source
statement-physical limiting plaintiff to lifting 10 pounds
occasionally and 5 pounds frequently.

He stated that plaintiff

could stand/walk for 30 minutes at a time, and needed a 1 hour
break after that time.

He also stated that plaintiff could sit

for 15 minutes at a time, and needed a 30 minute break between
episodes of sitting.

He opined that plaintiff could never climb

or crawl, and could only occasionally stoop, kneel, crouch, and
reach.

He indicated that plaintiff should avoid any exposure to

extreme cold, weather, hazards and heights, he should avoid
moderate exposure to extreme heat and vibration, and should
avoid concentrated exposure to wetness/humidity and dust/fumes.
He further opined that plaintiff needed to lie down every 15-30
minutes for 45-60 minutes at a time (R. at 642-643).
The ALJ stated that this opinion was not assigned
controlling weight because the record reveals that plaintiff had
8

only visited Dr. Hawkins twice in the last twelve months.

He

gave no weight to the opinion because it did not state the total
number of hours that plaintiff could sit, stand or walk in an 8
hour workday, and it appeared to have been completed based on
the plaintiff’s subjective input (R. at 20-21).

The ALJ gave

great weight to the opinions expressed by Dr. Hawkins in 2012
that plaintiff could work in other fields (R. at 21).
When the ALJ rejects an opinion for a treating physician,
he must give specific and legitimate reasons for rejecting the
opinion.

First, the ALJ stated that the 2013 opinion by Dr.

Hawkins “appeared to have been completed based on the claimant’s
subjective input” (R. at 21).

On the same date that Dr. Hawkins

filled out the RFC evaluation, he conducted a physical
examination of the plaintiff.

He found that plaintiff had a

fairly good range of motion of the right shoulder, but also
found that his left shoulder was very limited in abduction
(movement).

Plaintiff can lift it about 90 degrees but can’t go

above his shoulder without significant discomfort.
noted that both arms are weak.

He also

He diagnosed plaintiff with

chronic pain (R. at 645).
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
9

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:
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
10

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 Dr. Hawkins were based solely or
primarily on plaintiff’s subjective complaints.

In fact, the

form filled out by Dr. Hawkins indicates that his opinions were
based on his medical history, clinical findings, laboratory
findings, diagnosis, and treatment (R. at 643).

Furthermore,

Dr. Hawkins had examined the plaintiff on the same day that he
filled out the RFC form.

The medical records also show that

plaintiff was examined by Dr. Hawkins on February 3, 2012, March
2, 2012, April 6, 2012, May 4, 2012 and June 22, 2012 (R. at
498-99, 500, 532-33, 527, 595, 592-594).

As the court stated in

Victory, Dr. Hawkins’ opinions in March 2013 might well have
been based on his first-hand examination and observation of
plaintiff during his examination on the same date that he filled

11

out the RFC form, rather than on plaintiff’s subjective
complaints, as the ALJ speculated.
Second, the ALJ stated that Dr. Hawkins had only seen
plaintiff twice in the last 12 months.

However, as noted above,

Dr. Hawkins saw plaintiff on February 3, 2012, March 2, 2012,
April 6, 2012, May 4, 2012, June 22, 2012 and March 11, 2013, or
six times in a 13 month period.
Third, the ALJ gave much greater weight to the opinions of
Dr. Hawkins in 2012 that plaintiff should be able to find other
work that is not as labor intensive.

However, according to the

ALJ, plaintiff underwent a partial replacement of his right
shoulder on June 27, 2012, and a partial replacement of his left
shoulder on November 12, 2012 (R. at 18).

Therefore,

plaintiff’s medical condition underwent a material change from
the time that Dr. Hawkins opined in April/May 2012 that
plaintiff could find other work, and the opinions expressed by
Dr. Hawkins in March 2013.
The ALJ cannot ignore the fact that a major change in
plaintiff’s medical condition occurred between the opinions
expressed by Dr. Hawkins in 2012 and those expressed in 2013,
i.e., plaintiff had a partial replacement of his left and right
shoulders in June and November 2012.

In fact, Dr. Hawkins, in

his medical notes of March 11, 2013, discussed the range of
motion in plaintiff’s shoulders, particularly the limitation in
12

motion in the left shoulder, the weakness in his arms, and
diagnosed chronic pain (R. at 645).

There is no legal or

evidentiary basis for finding that the opinions of Dr. Hawkins
in 2013 were based on plaintiff’s subjective complaints.

Dr.

Hawkins examined plaintiff on the same day he filled out the RFC
form, and his findings may well have been based on that
examination and observation of the plaintiff during that
examination, including his findings regarding plaintiff’s
shoulders and the presence of chronic pain following partial
replacement of both shoulders in 2012.
Fourth, the ALJ assigned no weight to the opinion of Dr.
Hawkins because the opinion did not state the total number of
hours that plaintiff could sit, stand or walk in an 8 hour
workday.

However, the ALJ did state that plaintiff would need a

1 hour break after standing/walking for 30 minutes, and would
need a 30 minute break after sitting for 15 minutes (R. at 642).
Furthermore, the mere fact that Dr. Hawkins did not offer an
opinion on how long plaintiff could sit, stand or walk in an 8
hour workday does not provide a legitimate basis for giving no
weight to his other opinions regarding plaintiff’s physical
limitations.

For these reasons, the court finds that the ALJ

failed to give legitimate reasons for rejecting the opinions of
Dr. Hawkins.

13

On remand, the ALJ will need analyze the opinions of Dr.
Hawkins in accordance with the case law set forth above, and
must give specific and legitimate reasons for the weight
accorded that opinion.

Plaintiff also argues that the ALJ erred

in his RFC findings and his findings regarding plaintiff’s
credibility.

The court will not address these issues in detail

because they may be affected by the ALJ’s resolution of the case
on remand after the ALJ gives proper consideration to the
opinions of Dr. Hawkins.

See Robinson v. Barnhart, 366 F.3d

1078, 1085 (10th Cir. 2004).
However, on remand, the ALJ should also consider the
opinions of Dr. Hawkins in light of the opinions of two other
treating physicians, Dr. McLellan (R. at 488-489, Feb. 1, 2012),
and Dr. Hodges, plaintiff’s orthopedist (R. at 660-661, March
13, 2013).

An ALJ must not consider the opinions of one

treating or examining source in isolation, but his opinions must
be considered in light of the entire evidentiary record,
including the opinions and assessments of other treating or
examining sources.

The court is concerned with the necessarily

incremental effect of each individual report or opinion by a
source on the aggregate assessment of the evidentiary record,
and, in particular, on the evaluation of reports and opinions of
other medical treating or examining sources, and the need for

14

the ALJ to take this into consideration.

See Lackey v.

Barnhart, 127 Fed. Appx. 455, 458-459 (10th Cir. April 5, 2005).
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 12th day of March 2015, Topeka, Kansas.

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

15