Dennis v. Social Security Administration, Commissioner of

Filing 14

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 4/25/18. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MARY DENNIS,
Plaintiff,
vs.

Case No. 17-1203-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 and 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.
(10th Cir. 1994).

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

Substantial evidence requires more than a

1

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).
2

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.
3

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 March 25, 2016, administrative law judge (ALJ) Michael

R. Dayton issued his decision (R. at 11-21).

Plaintiff alleges

that she has been disabled since June 24, 2011 (R. at 11).
Plaintiff is insured for disability insurance benefits through
4

December 31, 2016 (R. at 13).

At step one, the ALJ found that

plaintiff has not engaged in substantial gainful activity since
the alleged onset date (R. at 13).

At step two, the ALJ found

that plaintiff has severe impairments (R. at 13).

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 17), the ALJ found at step four that
plaintiff is unable to perform past relevant work (R. at 20).
At step five, the ALJ found that plaintiff could perform other
work that exists in significant numbers in the national economy
(R. at 20).

Therefore, the ALJ concluded that plaintiff was not

disabled (R. at 21).
III.

Did the ALJ err by failing to adequately consider

plaintiff’s osteoarthritis of the right knee?
At step two, the ALJ discussed plaintiff’s allegations of
right knee pain, but stated that there was no objective evidence
of any acute or chronic condition.

The ALJ noted that medical

imagery showed osteoarthritic changes of both knees, but further
noted that there was no longitudinal record of limiting pain
that would support plaintiff’s testimony.

The ALJ further

stated that even if a medically determinable impairment existed,
it would be non-severe.

The ALJ found that there is no

indication in any medical opinion of limitation, and plaintiff
did not testify to a limitation from her knee condition (R. at
5

15).

In the ALJ’s RFC findings, the ALJ did not include any

physical limitations (R. at 17).
Dr. Timmerman, a state agency consulting physician, stated
on April 23, 2014, after reviewing the record, that plaintiff
had no physical limitations.

However, Dr. Timmerman did not

comment on plaintiff’s knee condition (R. at 93-94).

The ALJ

gave great weight to his opinions (R. at 19).
X-ray exams on July 10, 2015 indicated that plaintiff had
joint space narrowing of both knees as well as some
patellofemoral spurring.

Those findings were found to be

compatible with osteoarthritis.

The impression was

osteoarthritic changes of both knees involving all three
compartments.

There was no acute fracture or joint effusion (R.

at 489).
On August 20, 2015, Dr. Crutcher performed an evaluative
examination of the plaintiff.

He noted her allegation of knee

pain, but stated that she completed the entire exam without any
observed limitation or positive physical findings.

He found no

limitation of arm, leg, back and neck motion except that due to
body habitus.

His impression was that plaintiff had only

subjective limitations in her ability to sit, walk, stand and
lift without any objective findings.

No objective limitations

were noted on the exam (R. at 491-493).
weight to this opinion (R. at 15).
6

The ALJ gave great

Dr. Crutcher filled out a physical RFC assessment form, in
which he set out plaintiff’s limitations based solely on her
subjective complaints.

However, Dr. Crutcher reiterated that he

found no objective findings to support those limitations in his
exam (R. at 494-499).

The ALJ accorded no weight to plaintiff’s

subjective allegations of limitations because they were not
supported by Dr. Crutcher or the medical record (R. at 15).

Dr.

Crutcher was recontacted by the ALJ and asked to review the xray records, which were not before him when he conducted the
exam, and was asked to review this exhibit and provide a new RFC
assessment (R. at 318).

Dr. Crutcher declined to review the

medical record and make RFC findings, stating that it was
outside his domain of experience to review medical records and
make a determination from those and not for the exam date (R. at
501).
The question before the court is whether the ALJ erred by
not including limitations in plaintiff’s physical RFC because of
her right knee osteoarthritis, or, in the alternative, request a
consultative examination.

Consultative medical examinations may

be ordered by the ALJ when the information needed is not readily
available from medical treatment sources.
404.1512(f), 404.1519a(a)(1).

20 C.F.R. §§

The Commissioner has broad

latitude in ordering consultative examinations.

Nevertheless,

it is clear that, where there is a direct conflict in the
7

medical evidence requiring resolution, or where the medical
evidence in the record is inconclusive, a consultative
examination is often required for proper resolution of a
disability claim.

Similarly, where additional tests are

required to explain a diagnosis already contained in the record,
resort to a consultative examination may be necessary.

There

must be present some objective evidence in the record suggesting
the existence of a condition which could have a material impact
on the disability decision requiring further investigation.

The

claimant has the burden to make sure there is, in the record,
evidence sufficient to suggest a reasonable possibility that a
severe impairment exists.

When the claimant has satisfied this

burden in that regard, it then becomes the responsibility of the
ALJ to order a consultative examination if such an examination
is necessary or helpful to resolve the issue of impairment.

In

a counseled case, the ALJ may ordinarily require counsel to
identify the issue or issues requiring further development.

In

the absence of such a request by counsel, the court will not
impose a duty on the ALJ to order a consultative examination
unless the need for one is clearly established in the record.
The ALJ should order a consultative exam when evidence in the
record establishes the reasonable possibility of the existence
of a disability and the result of the consultative exam could
reasonably be expected to be of material assistance in resolving
8

the issue of disability.

Hawkins v. Chater, 113 F.3d 1162,

1166-1168, 1169 (10th Cir. 1997).
The evidence is clear from the x-rays that plaintiff had a
medically determinable impairment.

Although this evidence was

not before Dr. Crutcher when he performed his consultative
examination on the plaintiff, he was aware of her allegation of
knee pain, but stated that plaintiff had only subjective
limitations in her ability to sit, walk, stand and lift, but
without any objective findings.

He stated that he observed no

limitations or positive physical findings (R. at 492-494).
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

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
9

had the matter been before it de novo.

Oldham v. Astrue, 509

F.3d 1254, 1257-1258 (10th Cir. 2007).
The court does not find that a consultative examination was
required on the facts of this case.

Although there was evidence

that plaintiff had a medically determinable impairment of
osteoarthritis in both knees, a consultative examination
performed subsequent to the x-rays indicated no observed or
objective limitations or positive physical findings.

Thus, the

ALJ had before him medical evidence that plaintiff’s impairment
did not affect her ability to function.
reweigh the evidence.1

The court will not

The ALJ reasonably relied on the medical

opinions of Dr. Timmerman and Dr. Crutcher in finding that
plaintiff had no physical limitations, including any limitations
resulting from the osteoarthritis in her knees.

The court finds

that the balance of the ALJ’s analysis of the medical evidence
pertaining to plaintiff’s osteoarthritis of the knees and
whether she had any physical limitations is supported by
substantial evidence in the record.

Cf. Barnum v. Barnhart, 385

F.3d 1268, 1274 (10th Cir. 2004)(while the court had some
concerns about the ALJ’s reliance on plaintiff’s alleged failure
1

The court would note an ambiguity in Dr. Crutcher’s report. At one point, Dr. Crutcher stated that she was without
any limitation of arm, leg, back and neck motion except that due to body habitus (R. at 492). However, at another
point he stated that she completed the entire exam without any observed limitation or positive physical findings (R.
at 492). His final impression that that plaintiff had only subjective limitations, without any objective findings or
limitations (R. at 493). The court finds that the ALJ could reasonably conclude that Dr. Crutcher found that plaintiff
had no limitations in her ability to sit, walk, stand and lift with no objective findings, especially given the fact that
his findings were supported in the medical record, as there was no other medical evidence in the record that plaintiff
had any physical limitations.
10

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).
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 25th day of April 2018, Topeka, Kansas.

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

11