Eliason v. Social Security Administration, Commissioner of

Filing 15

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 4/18/18. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DEBRAH KAY ELIASON,
Plaintiff,
vs.

Case No. 17-1060-SAC

NANCY A. BERRYHILL,
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

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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
substantial gainful activity (SGA).
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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
their previous work, they are determined not to be disabled.
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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 November 25, 2015, administrative law judge (ALJ) Alison

K. Brookins issued her decision (R. at 17-28).

Plaintiff

alleges that she has been disabled since August 31, 2013 (R. at
17).

Plaintiff is insured for disability insurance benefits
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through September 30, 2017 (R. at 19).

At step one, the ALJ

found that plaintiff has not engaged in substantial gainful
activity since the alleged onset date (R. at 19).

At step two,

the ALJ found that plaintiff has severe impairments (R. at 19).
At step three, the ALJ determined that plaintiff’s impairments
do not meet or equal a listed impairment (R. at 22).

After

determining plaintiff’s RFC (R. at 22), the ALJ found at step
four that plaintiff is unable to perform past relevant work (R.
at 26).

At step five, the ALJ found that plaintiff could

perform other work that exists in significant numbers in the
national economy (R. at 27-28).

Therefore, the ALJ concluded

that plaintiff was not disabled (R. at 28).
III.

Did the ALJ err in her consideration of the opinions of

Dr. Whitmer regarding plaintiff’s migraine headaches?
On November 19, 2013, Dr. Whitmer performed a consultative
examination on the plaintiff (R. at 347-351).

In his report, he

discussed in some detail plaintiff’s allegations and
neurological reports regarding plaintiff’s headaches (R. at 349350).

He diagnosed intractable migraine headaches (R. at 351).

On September 10, 2014, Dr. Whitmer filled out an RFC
questionnaire indicating that plaintiff, because of muscle and
joint pain and headaches, could sit, stand, and/or walk for only
five minutes at a time during an 8 hour workday; would need to
shift positions at will from sitting, standing, or walking; and
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would need to take numerous unscheduled breaks during the
workday (R. at 386-387).
The ALJ stated that Dr. Whitmer’s opinions are not
consistent with the record, are conclusory, and are not
supported with an explanation.

The ALJ further noted that Dr.

Whitmer indicated on the RFC form that he had treated plaintiff
for 10 years (R. at 386), but the ALJ indicated that there is no
evidence of any treatment or examination records prior to
November 19, 2013.

The ALJ also noted that plaintiff did not

allege headaches as an impairment at the hearing.
little, if any, weight to his opinions (R. at 26).

The ALJ gave
The ALJ gave

great weight to the opinion of Dr. Coleman, a non-examining
consulting physician (R. at 26).
The ALJ never acknowledged that Dr. Whitmer was a treating
physician for the plaintiff.

The ALJ noted that plaintiff

performed a consultative examination (R. at 24), and later
indicated that she considered the opinions of Dr. Whitmer (R. at
26).

The ALJ never mentioned the fact that Dr. Whitmer,

subsequent to the November 19, 2013 examination, treated
plaintiff on nine occasions, on December 18, 2013, March 18,
2014, May 2, 2014, June 12, 2014, December 8, 2014, March 4,
2015, June 1, 2015, June 12, 2015, and June 15, 2015 (R. at 355,

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368, 438, 434, 431, 449, 492, 488, 469).1

On eight of those

occasions, the medical record stated that plaintiff had
migraines-virdigo [sp?] very bad (R. at 433, 436, 440, 357, 363,
371, 451, 490).

She was treated for severe migraine headaches

on June 12, 2014 (R. at 436).

On June 15, 2015, Dr. Whitmer

indicated that neurologically she does have a lot of problems
with headaches (R. at 470), and gave an impression of chronic
migraine headaches (R. at 471).

Plaintiff was also seen on June

12, 2015 for a headache (R. at 489).

Thus, although there is no

evidence that Dr. Whitmer treated or examined her prior to
November 19, 2013, the evidence clearly shows that Dr. Whitmer
treated her on numerous occasions after that date.

The

treatment records repeatedly diagnose migraines; on some of
those occasions, he treated her for migraines or headaches.
However, the ALJ, in finding that migraine headaches were
not a severe impairment, made the following statement:
There are no functional limitations that
have been imposed by any treatment provider
and no indication in the record that the
claimant’s history of migraine headaches or
history of hypertension causes more than a
minimal limitation upon the claimant’s
ability to perform basic work activities.
(R. at 20, emphasis added).

Plaintiff argues that this

statement by the ALJ is clearly erroneous (Doc. 12 at 8).

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On the March 18, 2014 visit, plaintiff was seen by another medical source as Dr. Whitmer was out of the office (R.
at 370).
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Following Dr. Whitmer’s initial evaluation of plaintiff on
November 19, 2013, the medical records clearly indicate that he
was plaintiff’s treatment provider and saw her on nine occasions
between December 18, 2013 and June 15, 2015.

The statement that

there are no functional limitations that have been imposed by
any treatment provider because of plaintiff’s migraine headaches
is clearly erroneous.

Dr. Whitmer was plaintiff’s treatment

provider and Dr. Whitmer imposed physical limitations on
plaintiff due to plaintiff’s migraine headaches.
Furthermore, although the ALJ stated that Dr. Whitmer’s RFC
findings are conclusory, those findings must be considered in
light of his November 19, 2013 evaluation and the extensive
treatment records from December 2013 through June 2015.

The ALJ

never acknowledged that Dr. Whitmer treated plaintiff from
December 2013 through June 2015.

The ALJ only acknowledged that

Dr. Whitmer saw plaintiff on June 1, 2015.

References to other

medical treatment notes in 2015 make no mention of who plaintiff
was seeing for medical care (R. at 24-25), and the ALJ makes no
reference to the medical care that plaintiff received from Dr.
Whitmer in 2013 and 2014 after the initial evaluation.
In the case of Winick v. Colvin, 674 Fed. Appx. 816, 819821 (Jan. 4, 2017), the ALJ erred by considering one of the
physicians as an examining source rather than a treating source.
The ALJ mistakenly assumed that Dr. Ganzell had only examined
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the claimant twice and had not treated him; however, the record
showed multiple treatment visits over an extended period of
time.

The court held as follows:
Had the ALJ properly analyzed Dr. Ganzell's
opinion as a treating rather than an
examining physician's opinion, he would have
been obligated to follow the procedure for
weighing a treating physician's opinion. See
Mays v. Colvin, 739 F.3d 569, 574 (10th Cir.
2014). This procedure requires the ALJ to
“first consider whether the opinion is wellsupported by medically acceptable clinical
and laboratory diagnostic techniques” and
“consistent with other substantial evidence
in the record.” Id. If the opinion does not
meet either of these criteria, it is not
entitled to controlling weight, but the ALJ
must still give it deference and weigh it
using the appropriate factors. Id.; see also
20 C.F.R. §§ 404.1527(c), 416.927(c)
(identifying factors to be considered).
The Commissioner argues that the ALJ's error
was harmless because the ALJ provided
reasons for discounting Dr. Ganzell's
opinion that would have applied even if he
had analyzed the opinion as a treating
source opinion… But we cannot treat this
error as harmless. To do so would ignore the
ALJ's duties not only to determine whether
to assign a treating physician's opinion
controlling weight, but to give deference to
a treating physician's opinion even if he
does not assign it controlling weight. Mays,
739 F.3d at 574. The exercise of such
deference might have changed the relative
weight assigned to all the medical opinions,
including the non-examining consultants to
whose opinions the ALJ assigned great
weight.
Moreover, in assigning weight to a medical
opinion, the ALJ is required to consider
factors such as the frequency of treatment,
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the length of the treatment relationship,
and the nature and extent of the treatment
relationship. See 20 C.F.R. §§
404.1527(c)(2)-(3), 416.927(c)(2)-(3). The
ALJ's analysis of these factors in this case
rested on a flawed premise. He mistakenly
assumed that Dr. Ganzell had only examined
Mr. Winnick twice and had not treated him
for his psychological impairments. But Dr.
Ganzell's psychotherapeutic relationship
with Mr. Winnick included multiple treatment
visits over an extended period of time… We
cannot repair the deficiencies in the ALJ's
analysis by inserting our own judgment
concerning Dr. Ganzell's treatment
relationship with Mr. Winnick. The weighing
of such factors is the ALJ's job, not ours.
See, e.g., Allen v. Barnhart, 357 F.3d 1140,
1145 (10th Cir. 2004) (court may supply
missing dispositive finding only where “no
reasonable administrative factfinder,
following the correct analysis, could have
resolved the factual matter in any other
way.”). We must therefore remand to the
Commissioner for a proper analysis of Dr.
Ganzell's treating physician's opinion.
The court’s holding in Winick governs the outcome of this
case.

The ALJ’s finding that no functional limitations have

been imposed by any treatment provider because of migraine
headaches is clearly erroneous.

Dr. Whitmer was plaintiff’s

treatment provider, and he opined that plaintiff had functional
limitations because of migraine headaches.

The court cannot

treat this error as harmless, for the reasons set forth in
Winick.

The court must therefore remand to the Commissioner for

a proper analysis of Dr. Whitmer’s treating physician’s opinions
and his extensive treatment notes.

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When this case is remanded, the ALJ should also consider
Dr. Whitmer’s treatment notes regarding plaintiff’s anxiety.
This issue was discussed by Dr. Whitmer on December 18, 2013,
May 2, 2014, and December 8, 2014 (R. at 357, 440, 432-433).

On

May 2, 2014, Dr. Whitmer noted a history of chronic anxiety (R.
at 440).

On December 8, 2014, Dr. Whitmer found plaintiff

having a lot of depression and anxiety (R. at 432).

He

diagnosed depression with anxiety which is not being controlled
with medication (R. at 433).
IV.

Did the ALJ err in her evaluation of plaintiff’s

credibility?
Plaintiff has also asserted error by the ALJ in evaluating
plaintiff’s credibility.

The court will not address this issue

because it may be affected by the ALJ’s resolution of the case
on remand after the ALJ considers the medical records and
opinions of Dr. Whitmer as a treating source.

See Robinson v.

Barnhart, 366 F.3d 1078, 1085 (10th Cir. 2004).
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 18th day of April 2018, Topeka, Kansas.

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