Wilkins-Scott v. Social Security Administration, Commissioner of

Filing 13

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 3/31/17. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DEBRA WILKINS-SCOTT,
Plaintiff,
vs.

Case No. 16-1123-SAC

NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,1
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.

1

Glenn v. Shalala, 21 F.3d 983, 984

On January 20, 2017, Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of Social Security.
1

(10th Cir. 1994).

Substantial evidence requires more than a

scintilla, but less than a preponderance, and is satisfied by
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
2

substantial gainful activity (SGA).

The claimant's physical or

mental impairment or impairments must be of such severity that
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
3

their previous work, they are determined not to be disabled.

If

the claimant survives step four, the fifth and final step
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 June 12, 2014, administrative law judge (ALJ) Michael D.

Shilling issued his decision (R. at 13-19).

Plaintiff alleges

that she has been disabled since August 23, 2012 (R. at 13).
4

At

step one, the ALJ found that plaintiff has not engaged in
substantial gainful activity since the application date of
August 23, 2012 (R. at 15).

At step two, the ALJ found that

plaintiff had medically determinable impairments (R. at 15), but
further determined that plaintiff does not have a severe
impairment or combination of impairments (R. at 15).

In the

alternative, at step four, the ALJ concluded that even if
plaintiff was limited to light work due to a combination of her
impairments, she could still perform past relevant work (R. at
18).

Therefore, the ALJ concluded that plaintiff was not

disabled (R. at 19).
III.

Did the ALJ err in finding that plaintiff’s arthralgia was

not a medically determinable impairment?
Plaintiff argues that the ALJ’s finding that plaintiff’s
arthralgia was not a medically determinable impairment was
erroneous (Doc. 11 at 7).

In his decision, the ALJ stated that

through February 2013, the claimant was noted to have only
“arthralgia” and no medically determinable musculoskeletal or
rheumatologic diagnosis was ever given.

Therefore, the ALJ

found that the claimant has no medically determinable impairment
related to her complaints of joint pain (R. at 17).
An impairment must result from anatomical, physiological,
or psychological abnormalities which can be shown by medically
acceptable clinical and laboratory diagnostic techniques, and
5

must be established by medical evidence consisting of signs,
symptoms, and laboratory findings.
416.908.

20 C.F.R. §§ 404.1508,

Evidence to establish a medically determinable

impairment must come from acceptable medical sources.

20 C.F.R.

§§ 404.1513(a), 416.913(a).
Plaintiff’s treating physician diagnosed plaintiff with
arthralgia on numerous occasions (R. at 191-192, 194-195, 196197, 198-199, 261-262, 263-264).

As set forth above, the ALJ

mentioned that plaintiff was noted to have arthralgia,2 but that
no medically determinable musculoskeletal or rheumatologic
diagnosis was ever given; therefore the ALJ concluded that the
plaintiff has no medically determinable impairment related to
her complaints of joint pain.

Defendant argues that arthralgia,

or joint pain, is not an impairment, but a symptom that can be
caused by numerous impairments (Doc. 12 at 4).

However, the

citation provided by the defendant in support of this argument
does not state that arthralgia is not an impairment, but a
symptom.

This article on joint pain does state that joint pain,

also known as arthralgia, can be caused by many types of
injuries or conditions, which are listed.
https://medlineplus.gov/ency/article/003261.htm (March 29,
2017).

2

Arthralgia is defined as pain in a joint. Webster’s New World Medical Dictionary, 3rd ed. (2008 at 30).

6

Another article on arthralgia indicates that there are many
causes of arthralgia.

It then proceeds to list the “symptoms”

and the causes of arthralgia.
https://www.healthgrades.com/conditions/arthralgia (March 29,
2017).

Yet another article on arthralgia, comparing it to

arthritis, discusses arthritis and arthralgia as “conditions,”
and discusses the “symptoms” and the causes of both conditions.
http://www.healthline.com/health/rheumatoid-arthritis/arthralgia
(March 29, 2017).
Finally, it should be noted that numerous ALJs have found
that arthralgia has been found to be a severe impairment at step
two; e.g., Hayden v. Barnhart, 374 F.3d 986, 990 (10th Cir.
2004); Sitsler v. Astrue, 410 Fed. Appx. 112, 114 (10th Cir. Jan.
10, 2011); Avery v. Astrue, 313 Fed. Appx. 114, 116 (10th Cir.
Feb. 19, 2009).

The ALJ offered no evidence to support a

finding that arthralgia is not a medically determinable
impairment.

Plaintiff’s physician diagnosed plaintiff as having

arthralgia, and the defendant’s own records note that diagnosis
(R. at 24).

An ALJ 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, speculations,
or lay opinions.
Cir. 2002).

McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th

The adjudicator is not free to substitute his own

medical opinion for that of a disability claimant’s treatment
7

providers and other medical sources.
F.3d 1208, 1221 (10th Cir. 2004).

Hamlin v. Barnhart, 365

An ALJ is not entitled to sua

sponte render a medical judgment without some type of support
for his determination.

The ALJ’s duty is to weigh conflicting

evidence and make disability determinations; he is not in a
position to render a medical judgment.

Bolan v. Barnhart, 212

F. Supp.2d 1248, 1262 (D. Kan. 2002).
Given the fact that plaintiff’s treating physician
diagnosed arthralgia, the fact that Dr. Parsons affirmed a
report listing it as a diagnosis (R. at 228-229), the fact that
medical sources list the symptoms associated with arthralgia
(and do not indicate that arthralgia is merely a symptom), and
the fact that ALJs have repeatedly listed arthralgia as a severe
impairment in other cases, and the absence of any evidence in
this record that arthralgia is merely a symptom and cannot be
considered a medically determinable impairment, the court finds
that the ALJ erred by finding that plaintiff has no medically
determinable impairment related to her complaints of joint pain.
Given that the ALJ should have considered plaintiff’s
diagnosis of arthralgia as a medically determinable impairment,
the next question is whether the ALJ erred in finding that
plaintiff did not have a severe impairment(s) at step two.
burden of proof at step two is on the plaintiff.

See Nielson v.

Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993)(the claimant
8

The

bears the burden of proof through step four of the analysis).

A

claimant’s showing at step two that he or she has a severe
impairment has been described as “de minimis.”

Hawkins v.

Chater, 113 F.3d 1162, 1169 (10th Cir. 1997); see Williams v.
Bowen, 844 F.2d 748, 751 (10th Cir. 1988)(“de minimis showing of
medical severity”).

A claimant need only be able to show at

this level that the impairment would have more than a minimal
effect on his or her ability to do basic work activities.3
Williams, 844 F.2d at 751.

However, the claimant must show more

than the mere presence of a condition or ailment.

If the

medical severity of a claimant’s impairments is so slight that
the impairments could not interfere with or have a serious
impact on the claimant’s ability to do basic work activities,
the impairments do not prevent the claimant from engaging in
substantial work activity.

Thus, at step two, the ALJ looks at

the claimant’s impairment or combination of impairments only and
determines the impact the impairment would have on his or her
ability to work.
Cir. 1997).

Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th

A claimant must provide medical evidence that he or

she had an impairment and how severe it was during the time the
claimant alleges they were disabled.
3

20 C.F.R. § 404.1512(c),

Basic work activities are “abilities and aptitudes necessary to do most jobs,” 20 C.F.R. § 404.1521(b)[416.921(b)],
including “walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or handling; seeing, hearing, and
speaking; understanding, carrying out, and remembering simple instructions; use of judgment, responding
appropriately to supervision, coworkers, and usual work situations; and dealing with changes in a routine work
setting.” Social Security Ruling 85-28, 1985 WL 56856 at *3; Langley v. Barnhart, 373 F.3d 1116, 1123 (10th Cir.
2004).
9

§ 416.912(c).
SSR 85-28 (Medical impairments that are not severe) states
the following:
A claim may be denied at step two only if
the evidence shows that the individual’s
impairments, when considered in combination,
are not medically severe, i.e., do not have
more than a minimal effect on the person’s
physical or mental ability(ies) to perform
basic work activities. If such a finding is
not clearly established by medical evidence,
however, adjudication must continue through
the sequential evaluation process.
...........
Great care should be exercised in applying
the not severe impairment concept. If an
adjudicator is unable to determine clearly
the effect of an impairment or combination
of impairments on the individual's ability
to do basic work activities, the sequential
evaluation process should not end with the
not severe evaluation step. Rather, it
should be continued.
1985 WL 56856 at *3, 4 (emphasis added).4
The step two determination is based on medical factors
alone.

Langley v. Barnhart, 373 F.3d 1116, 1123 (10th Cir.

2004); Williamson v. Barnhart, 350 F.3d 1097, 1100 (10th Cir.
2003); Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988).
The step two requirement is generally considered a de minimis
screening device to dispose of groundless claims; thus,
reasonable doubts on severity are to be resolved in favor of the
4

SSR rulings are binding on an ALJ. 20 C.F.R. § 402.35(b)(1); Sullivan v. Zebley, 493 U.S. 521, 530 n.9, 110 S.
Ct. 885, 891 n.9, 107 L. Ed.2d 967 (1990); Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993).
10

claimant.

Field v. Astrue, Case No. 06-4126-SAC, 2007 WL

2176031 at *4 (D. Kan. June 19, 2007); Brant v. Barnhart, 506
Fed. Supp.2d 476, 482 (D. Kan. 2007); Samuel v. Barnhart, 295 F.
Supp.2d 926, 952 (E.D. Wis. 2003); see Lee v. Barnhart, 117 Fed.
Appx. 674, 676-677 (10th Cir. Dec. 8, 2004)(Step two is designed
to weed out at an early stage those individuals who cannot
possibly meet the statutory definition of disability.

While the

mere presence of a condition or ailment is not enough to get the
claimant past step two, a claimant need only make “de minimis”
showing of impairment to move on to further steps in the
analysis); Church v. Shalala, 1994 WL 139015 at *2 (10th Cir.
April 19, 1994)(citing to SSR 85-28, the court stated that step
two is an administrative convenience to screen out claims that
are totally groundless solely from a medical standpoint); Newell
v. Commissioner of Social Security, 347 F.3d 541, 547 (3rd Cir.
2003)(reasonable doubts on severity are to be resolved in favor
of the claimant).
On September 9, 2013, Dr. Schmidt, plaintiff’s treating
physician, diagnosed pain in joints (R. at 258), and in his
physical exam found the following:
Swelling present in hands and knees
symmetrically. Sausage digits5 present.
Some limited ROM [range of motion] in hands
and knees and some stiffness present on
movement.
5

Sausage digit refers to the appearance of swelling of a digit. https://radiopaedia.org/articles/sausage-digit (March
29, 2017).
11

(R. at 259).

On June 11, 2013, Dr. Schmidt diagnosed arthralgia

and stated that plaintiff has limited endurance and weakness (R.
at 261).6
The court finds that the medical records from Dr. Schmidt
clearly provide a reasonable basis for changing the ALJ’s
decision that plaintiff does not have a severe impairment.
First, as noted above, the step two requirement is generally
considered a de minimis screening device to dispose of
groundless claims; thus, reasonable doubts on severity are to be
resolved in favor of the claimant.

All that plaintiff needs to

show at this level is that the impairment would have more than a
minimal effect on his or her ability to do basic work
activities.

Second, the medical evidence from Dr. Schmidt,

which was not before Dr. Winkler or Dr. Parsons, finds that
plaintiff, who was diagnosed with arthralgia (a.k.a. joint
pain), had a limited range of motion in her hands and knees, and
some stiffness present on movement, and had limited endurance

6

This evidence was first submitted to and considered by the Appeals Council (R. at 4, 5, 8). The court must
consider the qualifying new evidence submitted to the Appeals Council when evaluating the Commissioner’s denial
of benefits under the substantial evidence standard. Threet v. Barnhart, 353 F.3d 1185, 1191 (10th Cir. 2003);
O’Dell v. Shalala, 44 F.3d 855, 859 (10th Cir. 1994). The court will examine both the ALJ’s decision and the
additional findings of the Appeals Council. This is not to dispute that the ALJ’s decision is the Commissioner’s
final decision, but rather to recognize that the Commissioner’s “final decision” includes the Appeals Council’s
conclusion that the ALJ’s findings remained correct despite the new evidence. O’Dell, 44 F.3d at 859. The district
court’s very task is to determine whether the qualifying new evidence upsets the ALJ’s disability determination,
Martinez v. Astrue, 389 Fed. Appx. 866, 869 (10th Cir. Aug. 3, 2010), or whether the new evidence submitted to the
Appeals Council provides a basis for changing the ALJ’s decision. Hardman v. Barnhart, 362 F.3d 676, 681 (10th
Cir. 2004).
12

and weakness.

This undisputed medical evidence is sufficient to

meet the threshold for a severe impairment at step two.
However, in the alternative, the ALJ found at step four
that plaintiff could perform past relevant light work as a shirt
presser and a laundry sorter (R. at 18).

Thus, the question

before the court is whether the impairments noted by Dr. Schmidt
could impact plaintiff’s ability to perform those jobs.
Light work requires a good deal of walking or standing.
C.F.R. § 404.1567(b).

20

The job of shirt presser requires the

ability to frequently (from 1/3 to 2/3 of the time) reach,
handle and finger.

1991 WL 673023; DICOT 363.685-026.

The job

of laundry sorter requires the ability to reach and handle
frequently, and the ability to finger occasionally (up to 1/3 of
the time).

1991 WL 672991; DICOT 361.687-014.

Dr. Schmidt indicated that because of plaintiff’s
arthralgia, or joint pain, she had some limited range of motion
in her hands and knees and some stiffness present on movement;
she also had limited endurance and weakness.

These limitations,

if accurate, raise legitimate questions about her ability to
reach, handle and finger frequently, and her ability to stand
and/or walk a good deal.

There is no evidence before the court

that a person with the limitations described by her treating
physician could perform past relevant work as a shirt presser or
a laundry sorter.

The court cannot speculate regarding the
13

impact of the limitations set forth by Dr. Schmidt on
plaintiff’s RFC or her ability to perform past relevant work.
Therefore, this case shall be remanded in order for the ALJ to
consider the impact of plaintiff’s arthralgia on her ability to
work.
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 31st day of March 2017, Topeka, Kansas.

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

14