Kinnard v. Social Security Administration, Commissioner of

Filing 14

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 11/28/2017. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ANNI ANITA KINNARD,

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

CIVIL ACTION
No. 17-1004-JWL

MEMORANDUM AND ORDER

Plaintiff seeks review of a decision of the Acting Commissioner of Social Security
(hereinafter Commissioner) denying Supplemental Security Income (SSI) benefits under
sections 1602 and 1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 1381a and
1382c(a)(3)(A) (hereinafter the Act). Finding error in the Administrative Law Judge’s
(ALJ) evaluation of the medical source opinions, 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, consistent proceedings.
I.

Background

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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 SSI benefits, alleging disability beginning November 1, 2012.
(R. 12, 165). Plaintiff exhausted proceedings before the Commissioner, and now seeks
judicial review of the final decision denying benefits. Plaintiff argues that the ALJ erred
in weighing the medical opinions of the consultative examiners and the “other” medical
source opinion of her nurse practitioner.
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.
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); see also, Bowling v. Shalala,
36 F.3d 431, 434 (5th Cir. 1994) (The court “may not reweigh the evidence in the record,
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nor try the issues de novo, nor substitute [the Court’s] judgment for the
[Commissioner’s], even if the evidence preponderates against the [Commissioner’s]
decision.”) (quoting Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988)). 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. § 416.920; 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
assesses claimant’s residual functional capacity (RFC). 20 C.F.R. § 416.920(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 at step four whether, in light of the RFC assessed, claimant can perform her
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past relevant work; and at step five 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 erroneously evaluated
the medical source opinions.2
II.

Discussion
Plaintiff claims the ALJ’s reasons for discounting the opinions of the consultative

examiners and of her nurse practitioner are insufficient. This is so in Plaintiff’s view
because in discounting Dr. Allen’s opinion the ALJ did not explain how Plaintiff’s
different presentation at Dr. Hackney’s examination should discount Dr. Allen’s
examination, because Dr. Allen formed her opinion while accounting for the problems
with Plaintiff’s presentation and Plaintiff’s lack of effort at the examination, and because

2

Although nurse practitioner Coleman is not an “acceptable medical source” within
the meaning of the regulations and her opinion is not technically a “medical opinion,” she
is a medical source and hers is an “other” medical source opinion. SSR 06-3p.
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the ALJ erred in finding that an inability to perform job-related functions cannot be
inferred from Plaintiff’s not being “used to” demonstrating the self-discipline and
organization necessary to most jobs. With regard to discounting Dr. Hackney’s opinion,
Plaintiff argues that Dr. Hackney specifically considered the difference between
Plaintiff’s presentation at his examination and its inconsistencies with Dr. Allen’s
examination when formulating his opinion, and although the ALJ found Dr. Hackney’s
opinion inconsistent with the other record evidence he did not point to any specific
inconsistencies. Finally, she argues that the ALJ’s reasons for discounting nurse
practitioner Coleman’s opinion are erroneous because he did not cite specific activities
engaged in by Plaintiff which are inconsistent with the opinion, he ignored those of Ms.
Coleman’s treatment notes which are consistent with her opinions, and he did not point to
specific evidence demonstrating that the global assessment of functioning (GAF) score
assessed by Ms. Coleman is inconsistent with her opinion regarding functioning.
The Commissioner begins her argument by pointing out that the ALJ considered
the inconsistencies in Plaintiff’s statements, noting that Dr. Hackney found her to be
exaggerating and malingering, was passive-aggressive and uncooperative, and she
provided information to Dr. Allen which was quite different than that which she provided
to him. (Comm’r Br. 7). The Commissioner noted that Dr. Allen’s assessment was
similar to Dr. Hackney’s, specifically that she questioned Plaintiff’s effort, and noted
Plaintiff was vague. The Commissioner argues that “[t]he ALJ appropriately considered
the results of these two examinations when he found that Plaintiff’s statements were
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inconsistent with the rest of the record.” (Comm’r Br. 8). She argues that “Plaintiff does
not contest the ALJ’s findings regarding the consistency of her statements, and has
therefore waived any such argument.” Id. The court perceives this as an argument that
Plaintiff cannot contest the ALJ’s finding that her “statements concerning the intensity,
persistence and limiting effects of [her] symptoms are not entirely credible.” (R. 17).
The Commissioner next argues that the ALJ reasonably discounted portions of
each of the medical source opinions. She argues that Plaintiff’s exaggerations and
inconsistent statements justify rejecting the psychologists’ opinions that Plaintiff cannot
do a job or get along with others. (Comm’r Br. 10). She argues that “it was valid for the
ALJ to consider evidence that Plaintiff’s symptoms were not as disabling as she alleged
when deciding what weight to accord medical opinions,” because “here Dr. Hackney
found Plaintiff was malingering, that she overstated her symptoms, and that she refused to
perform on testing.” (Comm’r Br. 11) (citing Riviera v. Colvin, 629 F. App’x 842, 845
(10th Cir. 2015)). She argues that it was appropriate to discount the opinions because
they were inconsistent with the other record evidence, the objective findings, and
Plaintiff’s treatment notes. Id. She argues that the state agency psychologists also noted
the inconsistencies and their opinions bolster the ALJ’s findings. Id. at 13. Finally, she
argues that Ms. Coleman’s extreme opinions are inconsistent with her treatment notes and
with the GAF score assessed, and that the ALJ reasonably relied upon the fact that
Plaintiff’s activities are inconsistent with Ms. Coleman’s opinion.
A.

The ALJ’s Findings
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As the Commissioner’s Brief suggests, the ALJ found Plaintiff’s allegations of
symptoms “are not entirely credible,” and he explained his reasons for that finding,
including “that there are inconsistencies between the claimant’s allegations and the
medical evidence of record.” (R. 20). Moreover, Plaintiff does not claim error in that
finding and the time for doing so is past.
What Plaintiff challenges is the ALJ’s evaluation of the medical source opinions
regarding Plaintiff’s mental impairments and mental functioning, and the court
summarizes that evaluation here. First, the ALJ considered the opinions of the state
agency psychological consultants, including Dr. Blum, who had reviewed the record
evidence including the consultative examination reports of Dr. Allen and Dr. Hackney
and he gave the opinion of Dr. Blum some weight. He explained why he had partially
discounted Dr. Blum’s opinion:
Subsequent records as well as hearing testimony offered by the claimant
support a finding that the claimant cannot tolerate close “over-the-shoulder”
supervision, and may occasionally interact with colleagues if meetings are
brief and task oriented. The claimant may work in environments that do not
require more than rudimentary literacy. Thus, this assessment is more
restrictive than that of the State agency medical consultant but is more
consistent with the record as a whole.
(R. 21-22).
The court includes the ALJ’s complete evaluation of Dr. Allen’s and Dr.
Hackney’s psychological consultation reports:
In reaching this conclusion, the undersigned has considered the written
opinion of Molly Allen, Psy.D., who opined that the claimant would be able
to make simple work task decisions. In addition, Dr. Allen opined that the
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claimant was “unused” to demonstrating the self-discipline and organization
necessary in most job settings, and would thus have a difficult time being
able to understand, carry out, and remember instructions; work at a
reasonable pace, respond appropriately to supervision and coworkers,
handle expectable pressures in a work setting (Exhibit 1F/3). Overall, Dr.
Allen’s opinion is afforded little weight.
Dr. Allen’s findings are inconsistent with the claimant’s manipulative
presentation at the evaluation performed by Dr. Hackney less that one
month later (discussed above) and with the overall record. Further, Dr.
Allen noted that it was “possible that the claimant may be overstating how
much she cannot do” (Exhibit 1F/3). Similarly, while Dr. Allen opined that
the claimant was “unused to” performing a number of job-related functions,
the overall evidence does not support a finding that the claimant could not
reasonably over a short-time learn those functions in order to sufficiently
perform simple work tasks. An inability to perform job-related functions
cannot be inferred from the claimant’s being unused to doing so.
Similarly, consultative evaluator Gary Hackney, Ph.D. opined that the
claimant could not maintain an adequate relationship with coworkers or
supervisors. In addition, Dr. Hackney opined that while the claimant could
understand and perform simple tasks, she would not be able to keep a work
schedule with average performance demands (Exhibit 3F/6). Dr. Hackney’s
opinion is afforded little weight.
As discussed above, Dr. Hackney indicated during his evaluation with the
claimant that she “literally would not allow me to measure her abstract
reasoning, or judgmental skills as she would not cooperate on those subtests
... she did everything possible to look much worse than she is. She put forth
little effort and actively avoided the correct answers whenever she possibly
could” (Exhibit 3F/6). During the evaluation with Dr. Hackney, the
claimant denied hallucinations and anxiety attacks, but endorsed them less
than three weeks earlier on consultative evaluation with Dr. Allen (Exhibit
1F). Similarly, the claimant told Dr. Hackney she held two jobs in her
lifetime each lasting six months (Exhibit 3F/4), while she reported to Dr.
Allen her longest held job was only two weeks (Exhibit 1F/1). These
inconsistencies and manipulative behaviors cast doubt on the validity of the
claimant’s test results and credibility. Thus, as the opinion of Dr. Hackney
lacks support from treatment notes or objective findings and is not
consistent with the other evidence of record, it is given little weight.

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(R. 22).
Finally, the ALJ explained that he had accorded only little weight to Ms.
Coleman’s opinion because he found it inconsistent with reports of Plaintiff’s activities
showing a greater capacity, inconsistent with Ms. Coleman’s treatment notes, and
inconsistent with the GAF score Ms. Coleman assessed showing only moderate
limitations. (R. 23). He also noted that Ms. Coleman is not an acceptable medical source.
Id.
B.

Analysis

The court finds error in the ALJ’s evaluation of the medical source opinions for
three primary reasons. First, the court finds that the circumstances of this case make it
inappropriate for the ALJ to discount the opinions of the consultative psychologists,
particularly the opinion of Dr. Hackney, on the basis of Plaintiff’s manipulative and
passive-aggressive presentation, exaggeration, malingering, deliberate lack of effort, and
refusal to appropriately engage in testing during the examinations. As the Commissioner
suggests, each of these behaviors is a valid reason to find Plaintiff’s allegations of
symptoms less-than-credible, and the ALJ appropriately did so. (R. 17). And Plaintiff
does not argue otherwise. And, as the Commissioner argues, it is appropriate in the
proper case to discount a medical source opinion because it is based on the plaintiff’s
subjective complaints which have been found to be incredible, or where there is reason to
believe the plaintiff “gamed” the examination, or where the medical source missed or
ignored certain evidence contrary to his or her opinion. However, this is not that case.
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Here, Plaintiff has been found incredible in part because of the behaviors noted
above, and this is evidence she may have tried to “game” the examinations. However, Dr.
Allen and Dr. Hackney do not appear to have been ignorant of or otherwise to have
ignored these behaviors. In fact, each of them believed that Plaintiff did not give her best
effort or was otherwise not forthright in her presentation or conduct. And they stated they
took those facts into consideration when they formed their opinions, included those facts
when they prepared their reports, and explained that their opinions accounted for those
behaviors. Therefore, in order to discount the psychologists’ opinions on the basis of
Plaintiff’s behavior, it would be necessary to explain some way in which the
psychologists misunderstood Plaintiff’s behavior or point to evidence which was missed
or evidence of a psychological or other medical principle which was missed or misapplied
by the psychologists. The ALJ did not do that.
In reference to Dr. Hackney’s opinion, the ALJ stated that these “behaviors cast
doubt on the validity of the claimant’s test results and credibility” (R. 22), and uses this as
one basis to discount Dr. Hackney’s opinion. However, a fair reading of Dr. Hackney’s
report reveals that he also doubted Plaintiff’s credibility and found that the IQ test score
of 44 was not valid. As the ALJ acknowledged, Dr. Hackney noted that the results of the
test were a full scale IQ score of 44, and he discussed Plaintiff’s “total lack of
cooperation” and other serious shortcomings when taking the test. (R. 281). He then
summarized his evaluation of the test results:

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Dr. Allen estimated that [Ms. Kinnard] was functioning at the borderline
range of intelligence. I have placed her at the high mental retardation range
to low borderline range of intelligence level. Given these two estimates,
one can see how little effort she put into the WAIS-IV test when given to
her.
(R. 281) (emphasis added). By comparing the IQ test results negatively to his and Dr.
Allen’s estimates, there can be no doubt that Dr. Hackney found the IQ test results
invalid. While some of the ALJ’s other reasons to discount Dr. Hackney’s opinion
(“lacks support from treatment notes or objective findings and is not consistent with the
other evidence of record”) may be supported by record evidence, neither the ALJ’s
decision nor the Commissioner’s Brief identify such evidence particularly. Moreover, at
least the objective findings of both Dr. Allen’s examination and Dr. Hackney’s
examination tend to be consistent with Dr. Hackney’s opinion, and those opinions along
with Ms. Coleman’s opinion are, at least in a broad sense, consistent record evidence
suggesting disability. The court does not mean to suggest that these medical source
opinions must be given significant weight on remand, but if they are to be discounted, the
Commissioner must give specific reasons which are supported by the record evidence.
Second, as the ALJ acknowledged, Dr. Allen opined that Plaintiff “is quite unused
to demonstrating the self-discipline and organization necessary in most job settings, and
would thus have a difficult time being able to understand, carry out, and remember
instructions; work at a reasonable pace, respond appropriately to supervision and
coworkers, [and] handle expectable pressures in a work setting.” (R. 274). The ALJ
rejected this opinion, reasoning that:
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while Dr. Allen opined that the claimant was “unused to” performing a
number of job-related functions, the overall evidence does not support a
finding that the claimant could not reasonably over a short-time learn those
functions in order to sufficiently perform simple work tasks. An inability to
perform job-related functions cannot be inferred from the claimant’s being
unused to doing so.
(R. 22).
It is true that one would expect that an individual with no mental impairments
could learn the abilities to understand, carry out, and remember instructions; work at a
reasonable pace, respond appropriately to supervision and coworkers, and handle
expectable pressures in a work setting, sufficiently to perform simple work tasks, and that
she would not be unable to do so merely because she is not “used to” doing so. What the
ALJ’s reasoning ignores is that Plaintiff is not an individual without mental impairments.
He specifically found that she has “schizoaffective disorder, major depressive disorder,
generalized anxiety disorder, and learning disorder not otherwise specified.” (R. 14)
(bolding omitted, emphasis added). Moreover, Dr. Allen provided a “rule out” diagnosis
of borderline intellectual functioning. (R. 274). Dr. Allen is a psychologist qualified to
opine with regard to the functionally limiting effects of missing self-discipline and
organization and not being “used to” performing the mental functions listed, whereas the
ALJ and this court are not. Therefore if he is to discount Dr. Allen’s medical opinion, he
must point to some error in Dr. Allen’s process or reasoning, or to evidence in the record
or admissible psychological authority which is contrary to Dr. Allen’s finding. To rely
upon what he or some other lay observer believes one could reasonably learn over a short

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period of time, without evidentiary support, is to substitute his medical judgment for that
of the psychologist. While it is the ALJ’s position to assess RFC based on all of the
evidentiary record, and in doing so he must weigh the medical opinions, he may not reject
the opinion of a medical professional merely because he disagrees with it or because he
believes the medical professional simply misdiagnosed the condition. Winfrey v. Chater,
92 F.3d 1017, 1022-23 (10th Cir. 1996).
Finally, in discounting the medical source opinions as inconsistent with the record
as a whole, the ALJ has excluded the medical source opinions from the record as a whole
and has ignored the remaining portions of the record which do support a finding of
disability. In a case such as this where the ALJ has rejected all of the relevant medical
source opinions formulated by those who have treated or examined the plaintiff, it
becomes more important that the ALJ (or at least the Commissioner in her arguments
before the court) point to specific contrary or inconsistent evidence, and to explain why
that record evidence which supports those medical source opinions is less persuasive or
less significant than the contrary or inconsistent evidence. Where the evidence is
equivocal, and it usually is, it is for the ALJ not the court to weigh the evidence. But, he
must explain the bases for his findings, and he may not merely ignore the evidence which
is contrary to his decision.
Remand is necessary for the Commissioner to appropriately weigh the medical
source opinions.

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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 28th day of November 2017, at Kansas City, Kansas.

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

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