Licata v. Social Security Administration, Commissioner of

Filing 21

MEMORANDUM AND ORDER - It is ordered that the Commissioner's decision shall be REVERSED and that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) REMANDING the case for further proceedings consistent herewith. Signed by District Judge John W. Lungstrum on 06/27/2017. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

APRIL L. LICATA,

)
)
Plaintiff,
)
)
v.
)
)
)
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
)
)
Defendant.
)
________________________________________ )

CIVIL ACTION
No. 16-1323-JWL

MEMORANDUM AND ORDER

Plaintiff seeks review of a decision of the Acting Commissioner of Social Security
(hereinafter Commissioner) denying Disability Insurance benefits (DIB) under sections
216(i) and 223 of the Social Security Act. 42 U.S.C. §§ 416(i) and 423 (hereinafter the
Act). Finding error in the Administrative Law Judge’s (ALJ) credibility determination,
the court ORDERS that the decision shall be REVERSED and that judgment shall be
entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) REMANDING the case for
further proceedings consistent with this decision.
I.

Background

1

On Jan. 20, 2017, Nancy A. Berryhill became Acting Commissioner of Social
Security. In accordance with Rule 25(d)(1) of the Federal Rules of Civil Procedure, Ms.
Berryhill is substituted for Acting Commissioner Carolyn W. Colvin as the defendant. In
accordance with the last sentence of 42 U.S.C. § 405(g), no further action is necessary.

Plaintiff applied for DIB, alleging disability beginning September 4, 2012. (R. 42,
192). Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial
review of the final decision. She claims a multitude of errors in the ALJ’s residual
functional capacity (RFC) assessment, arguing that he erred in finding that fibromyalgia
is not a medically determinable impairment in the circumstances of this case,2 that he
failed to specifically identify RFC limitations resulting from her migraine headaches, that
he erred in determining the credibility of Plaintiff’s allegations of pain, and that he failed
to adequately explain the bases for discounting Dr. Luinstra’s medical opinion.
The court’s review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052
(10th Cir. 2009). Section 405(g) of the Act provides that in judicial review “[t]he
findings of the Commissioner as to any fact, if supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). The court must determine whether the ALJ’s factual
findings are supported by substantial evidence in the record and whether he applied the
correct legal standard. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); accord,
White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001). Substantial evidence is more than
a scintilla, but it is less than a preponderance; it is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.

2

The court understands that the determination of medically determinable
impairments occurs at step two of the sequential evaluation process used by the
Commissioner, and the RFC assessment occurs after step three but before step four of the
process. 20 C.F.R. § 404.1520. But, for reasons unexplained in her Social Security Brief,
Plaintiff included this argument within the portion of her Brief captioned “The ALJ
Erroneously Determined Plaintiff’s Residual Functional Capacity at Step 4.” (Pl. Br. 4).
2

389, 401 (1971); see also, Wall, 561 F.3d at 1052; Gossett v. Bowen, 862 F.2d 802, 804
(10th Cir. 1988).
The court may “neither reweigh the evidence nor substitute [its] judgment for that
of the agency.” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting
Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)); accord,
Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). Nonetheless, the
determination 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 constitutes mere conclusion. Gossett, 862 F.2d at 804-05; Ray v.
Bowen, 865 F.2d 222, 224 (10th Cir. 1989).
The Commissioner uses the familiar five-step sequential process to evaluate a
claim for disability. 20 C.F.R. § 404.1520; Wilson v. Astrue, 602 F.3d 1136, 1139 (10th
Cir. 2010) (citing Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)). “If a
determination can be made at any of the steps that a claimant is or is not disabled,
evaluation under a subsequent step is not necessary.” Wilson, 602 F.3d at 1139 (quoting
Lax, 489 F.3d at 1084). In the first three steps, the Commissioner determines whether
claimant has engaged in substantial gainful activity since the alleged onset, whether she
has a severe impairment(s), and whether the severity of her impairment(s) meets or equals
the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt.
P, App. 1). Williams, 844 F.2d at 750-51. After evaluating step three, the Commissioner

3

assesses claimant’s RFC. 20 C.F.R. § 404.1520(e). This assessment is used at both step
four and step five of the sequential evaluation process. Id.
The Commissioner next evaluates steps four and five of the sequential process-determining whether, in light of the RFC assessed, claimant can perform her past relevant
work; and whether, when also considering the vocational factors of age, education, and
work experience, claimant is able to perform other work in the economy. Wilson, 602
F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In steps one through four the burden is on
Plaintiff to prove a disability that prevents performance of past relevant work. Blea v.
Barnhart, 466 F.3d 903, 907 (10th Cir. 2006); accord, Dikeman v. Halter, 245 F.3d 1182,
1184 (10th Cir. 2001); Williams, 844 F.2d at 751 n.2. At step five, the burden shifts to
the Commissioner to show that there are jobs in the economy which are within the RFC
assessed. Id.; Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).
The court finds that remand is necessary because the ALJ failed to adequately
explain his credibility determination or to affirmatively link it to the record evidence.
Consequently, the court need not and does not address the remaining allegations of error.
Although the court harbors serious doubt whether the ALJ erred in his step two evaluation
of fibromyalgia, on remand the Commissioner would be well served to once again apply
step two of the evaluation process.
II.

Discussion
The ALJ expressed the bases for his finding that Plaintiff’s allegations of

symptoms are “only partially credible:”
4

The claimant has continued to complain of pain in the wrists, shoulders, and
arms (Exhibit 1F). However, she reported to her doctor that she had been
encouraged in the past to have carpal tunnel surgery in the past [sic], but
had declined. She continued to work at jobs that required significant
typing, which only worsened the symptoms. Despite her continued pain,
she also advised her doctor that she would prefer no medications while at
other times she was requesting narcotic medications (Exhibit 1F). Even Dr.
Luinstra stated he did not sense narcotics are reasonable in this condition.
In addition, the claimant reported to Dr. Luinstra that she had obtained
relief from her pain with Tramadol, a non-narcotic medication, Ibuprofen,
heat, ice and a wrist brace. She had had an epidural steroid injection, and
reported it had helped with her pain. Testing has been kept to a minimum,
with x-ray and MRI as the primary testing performed. There were no
electromyography/nerve conduction studies done to confirm the diagnoses
of carpal tunnel syndrome or cubital tunnel syndrome, and range of motion
was normal. Her activities of daily living appear to be greater than she
would like one to believe given her alleged level of pain.
(R. 51-52).
Plaintiff claims the ALJ erred in his credibility determination because he did not
inquire or evaluate the reasons Plaintiff declined carpal tunnel surgery; did not explain
why Plaintiff’s credibility was hurt when she continued to work at jobs requiring
significant typing; did not consider the reasons Plaintiff wanted to avoid pain medication;
abstracted Dr. Luinstra’s statement that he did not sense that narcotics are reasonable in
this condition without recognizing that Dr. Luinstra limited his statement to “this time,”
and frequently prescribed narcotic medication on other occasions;3 found Plaintiff’s

3

The court notes that most of the record evidence which Plaintiff cites in support of
this assertion consists of citations to exhibit 6F, which is not a treatment record from Dr.
Luinstra at all, but is a one-page case analysis from a state agency physician, Dr. Geis.
(R. 386). The court attempted to locate records corresponding to Plaintiff’s citations but
was unable to do so. Plaintiff’s last citation in this string was to page 77 of exhibit 6F (Pl.
Br. 10), but the administrative record simply does not contain any medical record (or
5

request for narcotic pain medications to be drug-seeking behavior without an evidentiary
basis in the medical records; relied on evidence of pain relief from seven months before
her alleged onset date; failed to consider that although Plaintiff had an epidural steroid
injection that helped with her pain, it helped only briefly; substituted his own medical
judgment for that of Plaintiff’s physicians in suggesting that electromyography or nerve
conduction studies should have been done to confirm the diagnoses of carpal tunnel or
cubital tunnel syndromes; found normal range of motion for Plaintiff’s cervical spine;
failed to cite evidence of specific daily activities which were “greater than she would like
one to believe given her alleged level of pain;” and did not consider evidence which
tended to support Plaintiff’s credibility. (Pl. Br. 8-15).
The Commissioner argues that the ALJ properly discounted Plaintiff’s allegations
of symptoms based on inconsistencies. Specifically, she argues that the records were
inconsistent with complaints of disabling pain, and her ability to engage in daily activities
exceeded her alleged limitations, noting that she “could unload the dishwasher, wash and
fold clothes, sweep the kitchen, and help cook meals at least three times per week.”
(Comm’r Br. 12). She argues that the ALJ included RFC “limitations to account for
Plaintiff’s medically determinable impairments,” that the court should give the ALJ’s
credibility findings “special deference,” id. (quoting Lax, 489 F.3d at 1089), and that
Plaintiff argues merely that the evidence cited by the ALJ could support a different

other exhibit for that matter) containing 77 pages or more. Counsel is cautioned to ensure
his citations are accurate.
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interpretation. Id. (citing Lax, 489 F.3d at 1084). In her Reply Brief, she reiterates her
arguments and asserts that the Commissioner did not respond to them. (Reply 12-16).
A.

Standard for Evaluating Credibility

The court’s review of an ALJ’s credibility determination is deferential. It is
generally treated as binding on review. Talley v. Sullivan, 908 F.2d 585, 587 (10th Cir.
1990); Broadbent v. Harris, 698 F.2d 407, 413 (10th Cir. 1983). “Credibility
determinations are peculiarly the province of the finder of fact” and will not be
overturned when supported by substantial evidence. Wilson, 602 F.3d at 1144; accord
Hackett, 395 F.3d at 1173.
Therefore, in reviewing the ALJ’s credibility determinations, the court will usually
defer to the ALJ on matters involving witness credibility. Glass v. Shalala, 43 F.3d 1392,
1395 (10th Cir. 1994); but see Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th Cir.
1993) (“deference is not an absolute rule”). “However, ‘[f]indings as to credibility should
be closely and affirmatively linked to substantial evidence and not just a conclusion in the
guise of findings.’” Wilson, 602 F.3d at 1144 (quoting Huston v. Bowen, 838 F.2d 1125,
1133 (10th Cir. 1988)); Hackett, 395 F.3d at 1173 (same).
B.

Analysis

This is one of those instances where even affording the credibility determination
due deference, the court must find error. The ALJ’s credibility findings, quoted above,
are little more than conclusions in the guise of findings. The ALJ did not link his findings
to the record evidence, and the Commissioner points the court to little evidence discussed
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elsewhere in the decision tending to support the findings. Like the ALJ, she cites to no
specific inconsistencies in the record evidence, and the daily activities she cites do not
suggest an ability to perform the activities required by light work. Although she argues
that an ALJ’s credibility determination is worthy of special deference and that the ALJ
assessed RFC limitations to account for Plaintiff’s impairments, she does not cite to
evidence supporting the credibility determination, Plaintiff’s allegations of limitations
resulting from her impairments are contrary to the RFC limitations assessed, and a
credibility determination is not worthy of acceptance carte blanche.
Moreover, as Plaintiff points out, in his credibility determination the ALJ relied on
the fact that carpal tunnel surgery had been recommended but declined by Plaintiff and he
did not discuss the Frey factors to determine whether Plaintiff’s refusal was justified.
See, Frey v. Bowen, 816 F.2d 508, 517 (10th Cir. 1987) (discussing four factors used
when considering whether a refusal to follow recommended treatment is justified). The
ALJ also relied on certain “facts” suggesting incredibility--such as pain relief from
epidural steroid injections--without discussing limitations on those facts as revealed in the
record evidence. And, the ALJ’s reliance on the failure to use electromyography or nerve
conduction studies to confirm the diagnoses of carpal tunnel or cubital tunnel syndromes
is a classic example of an ALJ substituting his medical judgment for that of a physician.4

4

The court notes that Plaintiff also alleges error in the ALJ’s finding of “normal
range of motion for the cervical spine” (Pl. Br. 14), apparently based on the same
sentence in which the ALJ relied on the lack of electromyography or nerve conduction
studies. That sentence states: “There was no electromyography/nerve conduction studies
8

Winfrey v. Chater, 92 F.3d 1017, 1022-23 (10th Cir. 1996) (finding the ALJ erred in
substituting his own medical judgment for that of Dr. Spray when he relied on his own
opinion that the Minnesota Multiphasic Personality Inventory-2 was not a proper basis for
a diagnosis of somatoform disorder). All of these errors in the credibility determination
require remand for a proper consideration of Plaintiff’s allegations of limitations resulting
from symptoms of her impairments.
IT IS THEREFORE ORDERED that the Commissioner’s decision shall be
REVERSED and that judgment shall be entered pursuant to the fourth sentence of 42
U.S.C. § 405(g) REMANDING the case for further proceedings consistent herewith.
Dated this 27th day of June 2017, at Kansas City, Kansas.

s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge

done to confirm the diagnoses of carpal tunnel syndrome or cubital tunnel syndrome, and
range of motion was normal.” (R. 52). The ALJ did not find normal range of motion in
Plaintiff’s cervical spine. In context, there can be no doubt the ALJ’s finding relates to
carpal tunnel and/or cubital tunnel syndromes, and therefore relates to range of motion in
Plaintiff’s upper extremities, not her cervical spine. As further support for this natural
reading, the ALJ had already noted that at her consultative examination Plaintiff “had
pain in the cervical region with slight reduction in range of motion. (R. 51) (emphasis
added) (citing Ex 2F); see also (R. 365) (cervical spine left rotation 70 degrees--10
degrees less than normal range of 80 degrees).
9