Baxter v. Social Security Administration, Commissioner of

Filing 17

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 12/29/16. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

FERYL BAXTER,
Plaintiff,
vs.

Case No. 16-1005-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 August 29, 2014, administrative law judge (ALJ) Susan W.

Conyers issued her decision (R. at 12-19).

Plaintiff alleges

that she has been disabled since June 26, 2010 (R. at 12).
Plaintiff is insured for disability insurance benefits through
December 31, 2015 (R. at 14).

At step one, the ALJ found that
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plaintiff did not engage in substantial gainful activity since
the alleged onset date (R. at 14).

At step two, the ALJ found

that plaintiff had the severe impairment of migraine headaches
(R. at 14).

At step three, the ALJ determined that plaintiff’s

impairments do not meet or equal a listed impairment (R. at 15).
After determining plaintiff’s RFC (R. at 15), the ALJ found at
step four that plaintiff is unable to perform any past relevant
work (R. at 17).

At step five, the ALJ found that plaintiff

could perform other jobs that exist in significant numbers in
the national economy (R. at 18-19).

Therefore, the ALJ

concluded that plaintiff was not disabled (R. at 19).
III.

Are the ALJ’s RFC findings supported by substantial

evidence?
The ALJ found that plaintiff suffered from a severe
impairment of migraine headaches (R. at 14).

The ALJ found that

plaintiff had an RFC to perform the full range of work at all
exertional levels, but would have the following nonexertional
limitations:

plaintiff should avoid dust, fumes, gases,

pulmonary irritants, climbing ladders, ropes and scaffolds,
unprotected heights, hazardous machinery, open water and open
flame.

She can perform tasks in an environment involving no

more than a moderate level of noise (R. at 15).
There are two medical opinions contained in the file
regarding the impact of plaintiff’s migraines on her ability to
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work.

On July 15, 2013, Dr. Geis reviewed the medical records

then contained in the file and opined that plaintiff’s headaches
were non-severe.

He indicated that she is not prescribed

preventative medication for migraines.

He stated that there is

no medical evidence supporting the frequency she reports
migraines (two times a month lasting 3-7 days).

He concluded

that the evidence does not support that these conditions
severely interfere with her ability to function (R. at 72).
The ALJ found that plaintiff was later provided with
preventative medication and plaintiff was later seen on a
somewhat regular basis for her migraine headaches.

Thereby,

this opinion was given partial weight with some limitations (R.
at 17).
Dr. Glen Patton is plaintiff’s treating physician.

On a

form dated May 14, 2014, he stated that plaintiff has migraines
on a weekly basis, and that they are generally controlled with
medication.

He opined that plaintiff could not work during a

migraine headache, and would miss work for 1-4 days during a
migraine headache (R. at 324).

However, on May 22, 2014, only 8

days later, he opined that plaintiff is unable to work during a
migraine, stating that they occur 1-2 times a month and they
last for 1-3 days (R. at 321).1

Dr. Patton failed to provide any

reasons for his conclusion that plaintiff could not work, and
1

Plaintiff testified that she suffered from migraines twice a month, and that they last from 3-5 days (R. at 35). She
further testified that she would be “down and out” from 5-14 days a month due to migraines (R. at 45-46).
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did not provide any specific functional limitations that
plaintiff would have because of a migraine headache.

However,

he did note that her symptoms would include nausea and vomiting,
that she would be sensitive to light, and that she would suffer
from fatigue and pain (R. at 320).
The ALJ noted that Dr. Patton’s May 14, 2014 opinion (that
plaintiff had weekly migraines that kept her working from 1-4
days during each migraine) was inconsistent with his opinion of
May 22, 2014 (that she had migraines 1-2 times a month which
kept her from working from 1-3 days during each migraine) and
was inconsistent with plaintiff’s testimony that she has
migraines twice a month.

Therefore, this opinion was given

little weight (R. at 17).
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
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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.

Oldham v. Astrue, 509

F.3d 1254, 1257-1258 (10th Cir. 2007).
The court finds no clear error in the decision of the ALJ
to accord little weight to the opinions of Dr. Patton in light
of clearly different opinions regarding the frequency and length
of her migraine headaches, especially when such opinions were
offered only 8 days apart.

No explanation in the record appears

to explain such different opinions being offered only 8 days
apart.
The ALJ also stated that Dr. Patton’s opinion that
plaintiff could not work 1-2 times a month for 1-3 days (for
each episode) when she had migraine headaches is an issue
reserved to the Commissioner and is not entitled to controlling
weight or special significance.

According to C.F.R. §

404.1527(d)(1), a statement by a medical source that you are
disabled or unable to work does not mean that the agency will
determine that you are disabled.

SSR 96-5p further states that

treating source opinions on issues reserved to the Commissioner
(including whether plaintiff is disabled) is not entitled to
controlling weight or special significance, but it must not be
ignored.

1996 WL 374183 at *2-3.
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In the case of Franklin v. Astrue, 450 Fed. Appx. 782, 785
(10th Cir. Dec. 16, 2011), the court found that the ALJ decision
to give little weight to a treating physician’s opinion that
plaintiff is disabled, without expressing any opinion about the
claimant’s physical or mental capabilities, was supported by
substantial evidence.

A treating physician’s opinion can be

rejected if it is brief, conclusory, and unsupported by medical
evidence.

Williamson v. Barnhart, 350 F.3d 1097, 1099 (10th Cir.

2003); Bernal v. Bowen, 851 F.2d 297, 301 (10th Cir. 1988); Frey
v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987).
Dr. Patton’s statement that plaintiff cannot work while
suffering from migraine headaches is a conclusory statement on
an issue reserved to the Commissioner.

Dr. Patton offered no

opinions regarding plaintiff’s physical or mental capabilities
while she suffered from a migraine headache; he simply made the
conclusory statement that she could not work.2

In light of the

regulations and case law, the court finds no error in the ALJ’s
decision to given little weight to the conclusory opinion of Dr.
Patton that plaintiff could not work for a certain number of
days due to migraine headaches.
The ALJ made RFC findings that plaintiff was not as limited
as opined by Dr. Patton, but found that she in fact had a severe

2

This is not a situation in which Dr. Patton offered medical opinions regarding specific work-related functional
limitations, which, if accepted, would impact the RFC determination. See Krauser v. Astrue, 638 F.3d 1324, 1332
(10th Cir. 2011).
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impairment of migraine headaches with some limitations.3

On the

facts of this case, the court finds no clear error in the ALJ’s
evaluation of the medical opinion evidence; the court will not
reweigh the evidence.

Furthermore, when the ALJ is faced with

conflicting medical opinions, and adopts a middle ground,
arriving at an assessment between the two medical opinions
without fully embracing either one, such an approach has been
upheld and found not to be error.

Smith v. Colvin, 821 F.3d

1264, 1268 (10th Cir. 2016).
The ALJ did note that there was no evidence that plaintiff
has a neurological condition that would result in migraine
headaches, noting that neurological examinations were within
normal limits (R. at 16).

As this court has previously found,

migraine headaches cannot be diagnosed or confirmed through
laboratory or diagnostic testing.

Jones v. Astrue, Case No. 09-

1061-WEB (D. Kan. June 4, 2010; Doc. 17, Doc. 16 at 10).
However, despite that statement, the ALJ found that plaintiff in
fact suffered from a severe impairment of migraine headaches,
which impacted her ability to work.

Furthermore, the ALJ did

not discount the opinions of Dr. Patton because of the absence
of a neurological condition.

On the facts of this case, the

court finds no clear error in this statement by the ALJ.

3

As noted earlier in this opinion, Dr. Geis had opined that plaintiff’s migraine headache impairment was nonsevere. The ALJ only gave the opinion partial weight.
10

The ALJ further noted the periods between treatment.
Although plaintiff claimed disability as of June 26, 2010, the
ALJ indicated that plaintiff was not receiving medical care for
that condition on or around that date (R. at 16).

In fact, even

plaintiff did not cite to any medical treatment in 2010 for
migraine headaches, and her medical records show no treatment
for headaches in 2010 (R. at 252-277).

The first medical record

of treatment for headaches (after the alleged onset date) was on
April 21, 2011 (R. at 262), 10 months after the alleged onset
date.
The ALJ further argued that plaintiff’s contention that her
migraine headaches are debilitating is incongruent with her
reported activities of daily living (R. at 17).

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) (2016 at 402).

20 C.F.R. §

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.
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Krauser v. Astrue, 638 F.3d 1324, 1332-1333 (10th Cir. 2011);
Thompson, 987 F.2d at 1490.
This rationale by the ALJ creates some concern given the
fact that plaintiff testified that she could not perform most of
her daily activities while she was suffering from migraines,
spending most of her time in a dark room (R. at 35-36).

On the

other hand, the ALJ has raised a legitimate question, based on
the evidence, regarding the frequency and severity of
plaintiff’s migraine headaches.

As noted above, plaintiff did

not seek any medical treatment for migraines from June 26, 2010,
her alleged onset date, until April 21, 2011.

Also, as noted

above, the ALJ gave legitimate reasons for discounting the
opinions of Dr. Patton.

The ALJ, in discounting the opinions of

Dr. Patton, noted that he indicated that plaintiff’s migraines
are generally controlled with medication (R. at 17, 324).
Finally, the ALJ discounted the opinions of plaintiff’s
husband, stating that the medical evidence did not support his
statements (R. at 17).

The court will not reweigh the evidence;

the court finds no clear error by the ALJ for giving little
weight to his statement.
On the facts of this case, the court finds no clear error
by the ALJ in her credibility analysis of plaintiff or her
husband, and finds no clear error in the ALJ’s analysis of the
medical evidence.

See Barnum v. Barnhart, 385 F.3d 1268, 1274
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(10th Cir. 2004)(while the court had some concerns about the
ALJ’s reliance on plaintiff’s alleged failure to follow a weight
loss program and her performance of certain household chores,
the court concluded that the balance of the ALJ’s credibility
analysis was supported by substantial evidence in the record).
Therefore, on the facts of this case, the court finds that
substantial evidence supports the ALJ’s RFC findings.
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 29th day of December 2016, Topeka, Kansas.

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

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