Hendrix v. Social Security Administration, Commissioner of
Filing
17
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 3/17/15. (msb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
TARA HENDRIX,
Plaintiff,
vs.
Case No. 13-1456-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 31, 2012, administrative law judge (ALJ) Michael
R. Dayton issued his decision (R. at 11-25).
Plaintiff alleges
that she had been disabled since March 1, 2010 (R. at 11).
At
step one, the ALJ found that plaintiff did not engage in
substantial gainful activity after the application date of March
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15, 2010 (R. at 13).
At step two, the ALJ found that plaintiff
had severe impairments of diabetes mellitus, obesity, hiatal
hernia, history of bilateral carpal tunnel syndrome,
degenerative changes of the lumbar spine, bipolar disorder,
generalized anxiety disorder, and personality disorder (R. at
13).
At step three, the ALJ determined that plaintiff’s
impairments do not meet or equal a listed impairment (R. at 13).
After determining plaintiff’s RFC (R. at 15), the ALJ determined
at step four that plaintiff has no past relevant work (R. at
23).
At step five, the ALJ found that plaintiff could perform
jobs that exist in significant numbers in the national economy
(R. at 24).
Therefore, the ALJ concluded that plaintiff was not
disabled (R. at 25).
III.
Did the ALJ properly weigh the medical opinion evidence
when determining plaintiff’s mental RFC?
The ALJ limited plaintiff to light work.
Regarding mental
limitations, the ALJ stated that plaintiff has the ability to
understand complex instructions but would only be able to
maintain concentration, persistence and pace to carry out simple
and some intermediate level instructions.
He found that she
could adapt to normal changes in an environment that limits
contact with co-workers and general public to occasional (R. at
15).
5
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
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.
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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
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
7
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.
On June 5, 2008, Dr. Whitten, a clinical psychologist,
performed a psychological evaluation on the plaintiff at the
request of SRS.
He summarized his findings as follows:
…She told me that she on occasion has a
hallucination of seeing [her ex-husband]
walking up the road towards her house, no
doubt a persecutory delusional form of
thinking as well. Though her emotional
status is highly troubled and she might be
subject to a Bipolar Disorder with psychotic
features, she has avoided needed contact
with evaluator and treatment sources so far.
The picture is further complicated by the
possibility of significant brain damage with
loss of ability and achievement levels. She
is continuing her efforts to obtain Social
Security disability benefits, an appropriate
move on her part…She clearly has not
demonstrated enough stable behavior in any
area of her life to assure me that she can
sustain any job long term. She should as
well be strongly urged to get further
evaluation and treatment for her emotional
and social difficulties.
(R. at 399).
The ALJ never mentioned this evaluation in his decision,
although it is part of the record.
Defendant argues in his
brief that the ALJ did not need to mention this report because
it pre-dated her onset date (Doc. 16 at 15).
Plaintiff filed
for supplemental security income payments (SSI) on March 15,
2010, alleging an onset date of March 1, 2010 (R. at 11).
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Plaintiff cannot receive SSI benefits for any period prior to
the filing of their application.
Kepler v. Chater, 68 F.3d 387,
389 (10th Cir. 1995); 20 C.F.R. § 416.335.
Thus, in an SSI case,
the alleged onset date for purposes of receiving benefits
becomes the date of the filing of the application.
An ALJ must evaluate every medical opinion in the record.
Hamlin v. Barnhart, 365 F.3d 1208, 1215(10th Cir. 2004).
Even if
a doctor’s medical observations regarding a claimant’s
allegations of disability date from earlier, previously
adjudicated periods, the doctor’s observations are nevertheless
relevant to claimant’s medical history and should be considered
by the ALJ.
Id.
In Hamlin, the court found that the ALJ failed
to adequately consider the opinions of two physicians whose
opinions covered a five year period preceding the relevant
period of the claimant’s current application.
1216-1220.
Id. at 1213,
Later, the court noted other medical reports,
stating that while these medical reports date from an earlier
adjudicated period, they are nonetheless part of claimant’s case
record and should have been considered by the ALJ.
n. 15.
Id. at 1222,
As the court indicated in Hamlin, the Commissioner will
evaluate every medical opinion that he receives.
20 C.F.R. §
404.1527(c).
In the case of Lackey v. Barnhart, 127 Fed. Appx. 455, 458
(10th Cir. April 5, 2005), the Commissioner argued that a medical
9
record was irrelevant to the period under review because the
opinions were expressed several months before the alleged onset
date of plaintiff’s disability.
The court, citing to Hamlin,
stated that “no authority is cited for the proposition that
medical reports prior to the operative onset date are
categorically irrelevant, and, indeed, our precedent is to the
contrary”
Id.
The ALJ should have considered the opinions of
Dr. Whitten, especially in light of the subsequent medical
source opinions regarding plaintiff’s mental limitations by
other examining and/or treating medical sources.
On May 18, 2010, a mental status examination was conducted
Dr. Hough, a clinical psychologist (R. at 421-426).
He found
that plaintiff’s thought processes demonstrate psychotic
tendencies.
Plaintiff becomes easily derailed, often is
tangential.
She offers improbable if not impossible stories (R.
at 424).
Dr. Hough stated that plaintiff offered numerous
instances of poor judgment and impulsivity that would be
consistent with a Bipolar diagnosis (R. at 425).
Dr. Hough
concluded his report as follows:
Regarding money management, the claimant
reports that she manages funds independently
and without assistance at home. However,
her history of impulsivity, of poor
judgment, would suggest that she would be at
risk for poor money management. Also, at
this juncture, the claimant’s
psychopathology is so fraught with psychotic
symptomatology and mood dysregulation that I
10
do not believe that she could engage in
simple unskilled work at competitive level
over an eight hour day.
(R. at 426).
The ALJ found that this opinion is contradicted by
plaintiff’s testimony that she independently manages her
household finances, raises two young children, shops, cooks,
cleans and is able to engage in child and self-grooming.
The
ALJ also noted that the opinion of Dr. Hough is on an issue
reserved to the Commissioner (R. at 23).
In discounting the opinions of Dr. Hough, the ALJ placed
great emphasis on plaintiff’s daily activities.
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.
404.1572(c) (2013 at 399).
20 C.F.R. §
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.
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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
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
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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).
Therefore, the fact
that plaintiff raises children, shops, cooks, cleans and can
engage in grooming of herself and her young children does not
demonstrate that plaintiff can engage in simple unskilled work
at a competitive level over an 8 hour day.
On December 16, 2010, another consultative report was done
by Dr. Berg (R. at 495-498).
The ALJ stated that he agrees with
Dr. Berg’s opinion that plaintiff “has the ability to perform
some simple tasks efficiently” (R. at 22).
The ALJ therefore
gave this opinion substantial weight (R. at 22).
13
However, the
full text of Dr. Berg’s report regarding plaintiff’s ability to
perform work related activities is as follows:
The Claimant’s ability to attend to and
process simple information is extremely
erratic. Although she can perform some
simple tasks efficiently, she demonstrates a
propensity for gross deterioration in her
ability to pay attention, such that she can
make gross errors and not persist, as she
becomes overwhelmed and confused. Her
ability to learn and retain new information
is at least mildly limited.
The Claimant was able to adhere to the
structure of the consultation, although it
was also necessary to actively structure her
to keep her on track. She made several
loose and peculiar comments. She is given
to inappropriate laughter and modes of
interaction. According to her history, she
is also vulnerable to surges of violent
anger. She does not tolerate interpersonal
contact, for fear that she will lose control
of her rage.
(R. at 498).
Although Dr. Berg did state that plaintiff can
perform some simple tasks efficiently, the ALJ failed to mention
that Dr. Berg also stated that her ability to attend to and
process simple information is extremely erratic, and that she
demonstrates a propensity for gross deterioration in her ability
to pay attention, such that she can make gross errors and not
persist as she becomes overwhelmed and confused.
Dr. Berg also
stated that her history shows that she is vulnerable to surges
of violent anger, and does not tolerate interpersonal contact,
for fear that she will lose control of her rage.
14
However,
despite giving “substantial weight” to this opinion, none of
these other impairments and limitations were included in the RFC
findings.
In the case of Martinez v. Astrue, 422 Fed. Appx. 719, 724725 (10th Cir. Apr. 26, 2011), the court held that the ALJ erred
by failing to include all of the limitations found by Dr.
LaGrand without explaining why he rejected some of the
limitations, especially in light of the ALJ’s conclusion that
the medical source’s opinion was entitled to “great weight.”
The ALJ simply ignored certain limitations contained in the
medical report.
The court held that the ALJ may have had
reasons for giving great weight to some of the limitations set
forth by the medical source, while rejecting other limitations.
However, before rejecting some of the limitations, the ALJ was
required to discuss why he did not include those limitations.
An ALJ must explain why he rejected some limitations contained
in a RFC assessment from a medical source while appearing to
adopt other limitations contained in the assessment.
Haga v.
Astrue, 482 F.3d 1205, 1207-1208 (10th Cir. 2007); Frantz v.
Astrue, 509 F.3d 1299, 1302-1303 (10th Cir. 2007); Wilson v.
Colvin, 541 Fed. Appx. 869, 872-874 (10th Cir. Oct. 16, 2013).
The ALJ erred by failing to include in his RFC findings all
of the opinions of Dr. Berg without explaining why he rejected
some of the limitations found by Dr. Berg, especially in light
15
of the ALJ’s conclusion that Dr. Berg’s opinion was entitled to
“substantial” weight.
Furthermore, the opinions of Dr. Berg
should be considered in light of the opinions of the other
examining and/or treating medical sources regarding plaintiff’s
mental limitations.
Finally, Dr. Handshy, a treating physician, prepared a
medical source statement-mental on September 20, 2011 opining
that plaintiff had marked limitations 7 categories, and moderate
limitations in 13 categories (R. at 620-621).
Among his
findings, Dr. Handshy found that plaintiff was markedly limited
in her ability to complete a normal workday/workweek without
interruption from psychologically based symptoms and to perform
at a consistent pace without an unreasonable number and length
of rest periods.
The ALJ gave these opinions little weight,
finding that they are not supported by treatment notes or
plaintiff’s statements, including her daily activities (R. at
22).
In making his mental RFC findings, the ALJ gave substantial
weight to two non-examining medical sources, Dr. Stern (R. at
427-443), and Dr. Blum (R. at 500-518).
However, as noted
above, the opinions of non-examining medical sources are
generally entitled to the least weight of all.
All four
examining and/or treating sources, Dr. Whitten, Dr. Hough, Dr.
Blum and Dr. Handshy indicated that plaintiff had major mental
16
impairments that would likely preclude employment.
ALJ ignored the report of Dr. Whitten.
However, the
Furthermore, despite
giving “substantial” weight to the opinions of Dr. Berg, the
ALJ, without explanation, failed to include in his mental RFC
findings many of the findings noted by Dr. Berg in his report.
Finally, the ALJ relied on daily activities of the plaintiff to
discount the opinions of both Dr. Hough and Dr. Handshy even
though such tasks, as discussed above, do not demonstrate that
plaintiff can engage in simple unskilled work at a competitive
level over an 8 hour day.
For these reasons, the court finds
that substantial evidence does not support the ALJ’s mental RFC
findings.
On remand, the ALJ must not consider the opinions of the
treating and examining sources in isolation, but their opinions
must be considered in light of the entire evidentiary record,
including the opinions and assessments of the other treating and
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
the ALJ to take this into consideration.
See Lackey v.
Barnhart, 127 Fed. Appx. 455, 458-459 (10th Cir. April 5, 2005).
17
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 17th day of March 2015, Topeka, Kansas.
s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge
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