Brown v. Commissioner of the Social Security Administration

Filing 22

MEMORANDUM OPINION AND ORDER -- Having reviewed the medical evidence of record, the transcript of the administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties, the undersigned magistrate judge REVERSES the Commissioner's decision and REMANDS the case for further administrative findings. Signed by Magistrate Judge Shon T. Erwin on 2/15/17. (mc)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JACQUELINE BROWN,
Plaintiff,
v.
NANCY A. BERRYHILL, 1 Acting
Commissioner of the Social Security
Administration,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Case No. CIV-16-517-STE

MEMORANDUM OPINION AND ORDER
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of
the final decision of the Commissioner of the Social Security Administration denying
Plaintiff’s application for supplemental security income under the Social Security Act.
The Commissioner has answered and filed a transcript of the administrative record
(hereinafter TR. ____). The parties have consented to jurisdiction over this matter by
a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
The parties have briefed their positions, and the matter is now at issue. Based
on the Court’s review of the record and the issues presented, the Court REVERSES
the Commissioner’s decision and REMANDS the case for further administrative
findings.

Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule
25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for
Acting Commissioner Carolyn W. Colvin as the defendant in this suit. No further action
needs to be taken to continue this suit by reason of the last sentence of section 205(g) of
the Social Security Act, 42 U.S.C. § 405(g).
1

I.

PROCEDURAL BACKGROUND
Plaintiff’s application for supplemental security income was denied initially and

on reconsideration. Following two hearings, an Administrative Law Judge (ALJ) issued
an unfavorable decision. (TR. 11-20). The Appeals Council denied Plaintiff’s request
for review. (TR. 1-3). Thus, the decision of the ALJ became the final decision of the
Commissioner.
II.

THE ADMINISTRATIVE DECISION
The ALJ followed the five-step sequential evaluation process required by agency

regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); 20
C.F.R. § 416.9520. At step one, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity since April 30, 2012, the application date. (TR. 13). At step
two, the ALJ determined Ms. Brown had the following severe impairments: cervical
stenosis and degenerative disc disease of the neck, chronic low back pain, chronic
shoulder pain, and polysubstance abuse in remission. (TR. 13). At step three, the ALJ
found that Plaintiff’s impairments did not meet or medically equal any of the
presumptively disabling impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix
1 (TR. 14).
At step four, the ALJ found that Plaintiff had no past relevant work. (TR. 19).
The ALJ further concluded that Ms. Brown had the residual functional capacity (RFC)
to:
[P]erform less than a full range of light work as defined in 20 C.F.R.
404.1567(b). The claimant can lift 20 pounds on an occasional basis and
10 pounds on a frequent basis. The claimant can stand/walk six hours
2

out of an eight-hour workday; and sit six hours out of an eight-hour
workday. The claimant cannot engage in crawling. The claimant can
engage in occasional overhead reaching and occasional fingering with
the non-dominant right hand.
(TR. 14).
Based on the finding that Ms. Brown had no past relevant work, the ALJ
proceeded to step five. There, he presented several limitations to a vocational expert
(VE) to determine whether there were other jobs in the national economy that Plaintiff
could perform. (TR. 46-47). Given the limitations, the VE identified three jobs from the
Dictionary of Occupational Titles (DOT). (TR. 47). The ALJ adopted the testimony of
the VE and concluded that Ms. Brown was not disabled based on her ability to perform
the identified jobs. (TR. 20).
III.

ISSUES PRESENTED
On appeal, Plaintiff alleges the ALJ erred in: (1) evaluating the opinion from a

treating physician and (2) the credibility analysis.
IV.

STANDARD OF REVIEW
This Court reviews the Commissioner’s final “decision to determin[e] whether

the factual findings are supported by substantial evidence in the record and whether
the correct legal standards were applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th
Cir. 2010). “Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. (quotation omitted).
While the court considers whether the ALJ followed the applicable rules of law
in weighing particular types of evidence in disability cases, the court will “neither

3

reweigh the evidence nor substitute [its] judgment for that of the agency.” Vigil v.

Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (internal quotation marks omitted).
V.

ERROR IN THE EVALUATION OF A TREATING PHYSICIAN’S OPINION
As alleged by Ms. Brown, the ALJ committed legal error in considering the

opinion from treating physician, Dr. Mark Winchester.
A.

ALJ’s Duty in Evaluating a Treating Physician’s Opinion

An ALJ’s evaluation of a treating physician’s opinion is sequential. First, the ALJ
must determine whether a treating physician’s opinion is entitled to “controlling weight.”

Krausner v. Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011). In doing so, the ALJ must
consider whether the opinion is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques.” SSR 96–2p, at *2 (July 2, 1996) (quotations
omitted). If the answer to this question is “no,” then the inquiry at this stage is
complete. If the ALJ finds that the opinion is well-supported, he must then confirm
that the opinion is consistent with other substantial evidence in the record. Id. If the
opinion is deficient in either of these respects, then it is not entitled to controlling
weight. Id.
If the ALJ declines to give the treating physician’s opinion “controlling weight,” the
ALJ must examine particular factors and explain the amount of weight assigned. See SSR
96–2p, at *5. These factors include: (1) the length of the treatment relationship and
the frequency of examination; (2) the nature and extent of the treatment relationship,
including the treatment provided and the kind of examination or testing performed;
(3) the degree to which the physician’s opinion is supported by relevant evidence; (4)
4

consistency between the opinion and the record as a whole; (5) whether or not the
physician is a specialist in the area upon which an opinion is rendered; and (6) other
factors brought to the ALJ’s attention which tend to support or contradict the opinion.

Krausner v. Astrue, 638 F.3d at 1330, 20 C.F.R § 416.927. Although the ALJ need not
explicitly discuss each factor, the reasons stated must be “sufficiently specific” to
permit meaningful appellate review. See Oldham v. Astrue, 509 F.3d 1254, 1258 (10th
Cir. 2007); SSR 96-2p, at *5.
If the ALJ rejects the opinion completely, he must give “specific, legitimate
reasons” for doing so. Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003)
(internal citations omitted).
B.

Dr. Winchester’s Opinion

Dr. Winchester treated Plaintiff from September 2013 to March of 2014. (TR.
348-352, 357-359). On September 8, 2013, Dr. Winchester completed a Medical
Source Opinion of Residual Functional Capacity form for Ms. Brown. There, Dr.
Winchester opined that Ms. Brown could:


stand and/or walk for less than two hours;



frequently lift and/or carry less than 10 pounds;



reach, push, and pull with both upper extremities for less than two hours;
and



grasp, handle, finger, or feel with both hands for less than two hours.

5

(TR. 348, Exhibit 11F). Dr. Winchester based these opinions on: (1) diagnoses that
Ms. Brown suffered from degenerative disc disease and spinal stenosis and (2)
additional findings that Plaintiff had leg weakness and abnormal reflexes. (TR. 348).
The ALJ acknowledged Dr. Winchester’s opinion, but then effectively rejected
it, stating:
The findings of Dr. Winchester regarding the claimant’s physical
limitations are far in excess of what is supported by the record. The
Administrative Law Judge therefore assigns little weight to the
conclusions of Dr. Winchester in Exhibit 11F.
(TR. 17).
C.

Error in the Consideration of Dr. Winchester’s Opinion

As stated, the initial determination the ALJ must make is whether the treating
physician's medical opinion “is to be accorded ‘controlling weight,’ on the matter to
which it relates.” Krausner v. Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011). To make
this determination, the ALJ:
must first consider whether the opinion is well-supported by medically
acceptable clinical and laboratory diagnostic techniques. If the answer to
this question is ‘no,’ then the inquiry at this stage is complete. If the ALJ
finds that the opinion is well-supported, he must then confirm that the
opinion is consistent with other substantial evidence in the record. [I]f
the opinion is deficient in either of these respects, then it is not entitled
to controlling weight.

Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (quotations omitted); see
also § 416.927(d)(2).
Here, the ALJ obviously declined controlling weight to Dr. Winchester’s opinion,
instead affording the opinion “little weight.” (TR. 17). But the ALJ did not state whether

6

Dr. Winchester’s opinion was “well-supported by medically acceptable clinical and
laboratory diagnostic techniques,” or whether the opinion was consistent with other
substantial evidence in the record. A finding at this stage was necessary, especially
because Dr. Winchester’s opinion was: (1) supported by medically acceptable clinical and
laboratory diagnostic techniques and (2) consistent with other substantial evidence in the
record. See Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003) (“In this case,
the ALJ obviously did not give Dr. Rowland’s opinion controlling weight, but he did not
articulate a reason. A finding at this stage ... is necessary so that we can properly
review the ALJ’s determination on appeal”).
First, Dr. Winchester referenced an MRI in his treatment notes which revealed
“degenerative changes with bulging discs, most pronounced at C5-C6 with protruding
disc lateralizing to the right.” (TR. 352, 369). These findings are consistent with Dr.
Winchester’s opinion concerning Ms. Brown’s functional limitations which the ALJ had
disregarded.
Second, Dr. Winchester’s findings are consistent with other substantial evidence
in the record, including:


a March 2010 MRI which showed bulging discs with spondylitic and
discogenic changes which contributed to moderate to severe neural
foraminal stenosis;



July 2010 findings from examining physician Dr. Bill Buffington that Plaintiff
had reduced external and internal rotation in her right shoulder, reduced
flexion of her cervical spine, pain with flexion, extension and rotation in her
cervical spine, an inability to manipulate small objects with her nondominant right hand, and an inability to grasp tools such as a hammer;

7



June 2012 findings from consultative examiner Dr. Robin Hall that Plaintiff
had reduced extension and flexion in her back, and reduced extension and
flexion of her cervical spine, and pain with flexion and extension in her
cervical spine;



June 2012 findings from treating physician Dr. Joshi Bharat that Ms. Brown
suffered from a “Neck Disorder,” not otherwise specified;



a December 2012 opinion from Dr. Catherine White which diagnosed
Plaintiff with an acquired deformity of back or spine and referred her to an
orthopedic surgeon;



a May 2013 Medical Source Opinion of Residual Functional Capacity
completed by Certified Physician Assistant Anita Tanner, which made
findings that Ms. Brown suffered from leg weakness, abnormal reflexes,
ulnar nerve distribution numbness, and also cited the 2012 MRI findings
which showed degenerative disc disease and stenosis;



May 2013 treatment notes from Ms. Tanner which diagnosed muscle
spasm, lower back pain, and acquired deformity of back or spine; and



Dr. Winchester’s own treatment notes from September 2013 through
March 2014 which diagnosed degenerative disc disease and scoliosis.

(TR. 297-298, 305-307, 309, 319, 322, 333, 339, 346, 350, 352, 359).
Even though the ALJ decided to decline controlling weight to Dr. Winchester’s
opinion, the opinion was “still entitled to deference and must be weighed using all of
the [relevant] factors.” Watkins, 350 F.3d at 1300. (quotation omitted); see SSR 962p, at *4) (“[A]djudicators must remember that a finding that a treating source medical
opinion is not well-supported by medically acceptable clinical and laboratory diagnostic
techniques or is inconsistent with the other substantial evidence in the case record
means only that the opinion is not entitled to ‘controlling weight,’ not that the opinion
should be rejected.”). Although the ALJ stated that he gave the ALJ’s opinion “little
weight,” he actually outright rejected Dr. Winchester’s opinion, as the RFC does not
8

reflect any of Dr. Winchester’s opinions regarding Plaintiff’s functional abilities. Compare
TR. 14 (RFC) with TR. 348 (Dr. Winchester’s opinion).
When an ALJ completely rejects a treating physician’s opinion, he must provide
“specific, legitimate reasons” for doing so. Watkins, 350 F.3d at 1300. Here, however,
the ALJ’s only stated reason for rejecting Dr. Winchester’s opinion was that it was “far
in excess of what [wa]s supported by the record.” (TR. 17). Other than that statement,
the ALJ does not explain how he believed Dr. Winchester’s opinion “far exceeded”
those offered by other medical professionals. See TR. 17. Indeed, as evidenced by the
recitation of medical evidence above, Dr. Winchester’s opinion was supported by other
record evidence, not in excess of it.
If the ALJ believed that Dr. Winchester’s opinion was in “far excess” of what
was otherwise supported by the record, the ALJ should have cited specific examples
or pointed to evidence in the record which would have validated a disregard for Dr.
Winchester’s opinion. In the decision, the ALJ cited the 2010 MRI and the opinions
from Drs. Buffington, Bharat, and White, but he made no findings as to whether he
believed the opinions or what weight he accorded them. See TR. 14-16. The ALJ relied
on Dr. Hall’s opinion, by way of according “great weight” to the opinion of State Agency
consultative examiner Dr. Luther Woodcock who, in turn, relied on the opinion of Dr.
Hall. See TR. 15-16, 313-319. But Dr. Hall’s findings of reduced extension and flexion
in her back and neck, with pain, reduced flexion of her cervical spine, and pain with
flexion and extension in her cervical spine would support Dr. Winchester’s opinion who
made similar findings. See TR. 348, 350, 351, 352, 359. Finally, the ALJ dismissed Ms.
9

Tanner’s opinion, stating that it was inconsistent with the credible evidence of record.
(TR. 16). But the ALJ failed to state with what evidence Ms. Tanner’s opinion was
inconsistent or otherwise expound on this rationale. Ms. Tanner’s opinion mirrored that
offered by Dr. Winchester. Compare TR. 333 with TR. 348. And as discussed, Dr.
Winchester’s opinion was fully supported by the record. See supra.
In evaluating Dr. Winchester’s opinion, the ALJ stated only that the opinion was
“far in excess of what is supported by the record.” (TR. 17). But because the ALJ failed
to explain or identify: (1) what the claimed inconsistencies were between Dr.
Winchester’s opinion and the other substantial evidence in the record or (2) how Dr.
Winchester’s opinion “far exceeded” other opinions, the ALJ’s reason for rejecting that
opinion is not “sufficiently specific” to enable this court to meaningfully review his
findings. Watkins, 350 F.3d at 1300 (quotation omitted). Additionally, without further
clarification, the reason given by the ALJ for not giving Dr. Winchester’s opinion
controlling weight or any lesser weight does not appear to have been supported by
substantial evidence. As a result, remand is warranted for re-evaluation of Dr.
Winchester’s opinion.
VI.

ERROR IN THE CREDIBILITY ANALYSIS
As alleged by Ms. Brown, the ALJ’s credibility determination lacked substantial

evidence.
A.

The Administrative Law Judge’s Duty in Assessing Credibility

As part of the disability determination, the ALJ had to consider the evidence and
decide whether he believed Ms. Brown’s subjective complaints. See SSR 96-7p, at *110

2 (July 2, 1996). In doing so, the ALJ had a duty to make specific findings and link
them to substantial evidence. See Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995)
(noting the duty to “closely and affirmatively link[ ]” credibility findings to substantial
evidence); SSR 96-7p, at *4 (noting the duty to provide “specific reasons for the weight
given to the individual’s statements” “articulated in the determination or decision” in a
manner “sufficiently specific to make clear to the individual and to any subsequent
reviewers the weight” given “to the individual’s statements and the reasons for that
weight”).
Besides objective evidence, the ALJ may consider certain factors in evaluating
a claimant’s credibility, including:


The individual’s daily activities;



The location, duration, frequency, and intensity of the individual's
pain or other symptoms;



Factors that precipitate and aggravate the symptoms;



The type, dosage, effectiveness, and side effects of any
medication the individual takes or has taken to alleviate pain or
other symptoms;



Treatment, other than medication, the individual receives or has
received for relief of pain or other symptoms;



Any measures other than treatment the individual uses or has
used to relieve pain or other symptoms; and



Any other factors concerning the individual’s functional limitations
and restrictions due to pain or other symptoms.

11

Id. at 3; Keyes-Zachary, 695 F.3d 1156, 1167 (10th Cir. 2012). However, “an ALJ is
not required to address each factor in his decision.” Duncan v. Colvin, 608 Fed Appx.
566, 578 (10th Cir. 2015).
B.

Plaintiff’s Allegations of Pain and Related Limitations

At the hearing, Ms. Brown testified that she had: (1) constant daily pain in her
neck which radiated into her shoulders, (2) pain in her middle spine area, (3) difficulty
holding on to things, (4) constant numbness in three fingers on each hand, and (5)
constant numbness in the sides of her thighs. (TR. 62-63, 64-65, 72). According to
Plaintiff, these impairments caused difficulties in her ability to sit, stand, walk, and lift.
(TR. 62-63). Specifically, Plaintiff stated that she could: (1) lift no more than 5 pounds,
(2) walk for about 5-10 minutes at one time, (3) stand for about 5-10 minutes at one
time, and (4) sit for about 10-15 minutes at one time. (TR. 62-63). Plaintiff also
testified that her fingers “lock up” and get stuck which causes pain. (TR. 64).
Ms. Brown also testified that her physical impairments limited her daily activities.
For example, Plaintiff stated that some mornings she was unable to hold a hair dryer
above her head. (TR. 62). She also stated they she and her fiancé cooked together,
but sometimes the cooking pan was too heavy for her to lift and her fiancé would have
to reach things on high shelves because she could not reach overhead. (TR. 66). Ms.
Brown stated that her fiancé did the sweeping, vacuuming and general housekeeping
and she was limited to doing only light feather dusting. (TR. 66). Plaintiff stated she
was unable to take out trash or to do laundry because it was too heavy and hard for
her to lift the laundry soap or laundry basket. (TR. 66-67). Ms. Brown stated that she
12

shopped for groceries, but needed help with that chore from her fiancé. (TR. 67).
Plaintiff stated that she played on the computer some, but not for long because of her
inability to use the mouse for long. (TR. 67). Plaintiff testified she did some crafts and
went to church, but she had difficulty standing and sitting in church. (TR. 69).
C.

Error in the ALJ’s Credibility Determination

In evaluating Plaintiff’s credibility, the ALJ stated:
The Administrative Law Judge finds that the claimant suffers from
medically determinable impairments which could reasonably be expected
to cause the pain and discomfort which the claimant alleges. The
Administrative Law Judge however, finds that the claimant’s statements
concerning the intensity, persistence, and limiting effects of these
symptoms are not entirely credible[.]
(TR. 18). The ALJ then listed 9 reasons to discount Ms. Brown’s credibility:
1. A lack of gastrointestinal, respiratory, neurological, or cardiac
impairment;
2. Findings from Dr. Buffington that Plaintiff had full range of motion in the
lumbar spine and hips, no neurological deficits, normal speech, and some
decreased neck flexion, but full range of motion in all other joints;
3. Findings from Dr. Hall that Plaintiff had intelligible speech, no hearing
deficits, normal thought processes and vision, clear lungs, regular heart
rate, no sensory deficient or edema, clubbing, or cyanosis, normal hand
skills and tactile manipulation of objects, safe and stable gait without
assistive devices;
4. Findings from Dr. Bharat that Plaintiff had no arm or leg weakness, no
problems walking, and no past hospitalizations;
5. Findings from Dr. Woodcock that Ms. Brown could perform light work
with limitations in her ability to reach, but with no visual, communicative,
postural, or environmental limitations;
6. Plaintiff’s ability to perform personal care items, prepare meals for herself
and her fiancé, do light housekeeping, drive a car and do grocery
13

shopping, use the computer, do crafts, and socialize on the computer
and phone and at church;
7. Plaintiff’s statement that she was able to walk one-half mile without rest;
8. Plaintiff’s admission that in December 2012, she had used crack cocaine
and methamphetamines within the past year; and
9. Plaintiff’s statement that when she is active, her pain and discomfort is
lessened.
(TR. 18). In sum, the ALJ stated:
[Plaintiff’s] impairments and their associated symptoms do not preclude
all work activity. The record shows some decreased back extension and
flexion and decreased neck extension and flexion, but full range of
motion in all other joints. The claimant’s gait is safe and normal without
the use of assistive devices. The claimant has a recent history of use of
methamphetamine and crack cocaine. She has stated that she feels
better when she is more active. The claimant’s impairments, although
limiting, do not support a conclusion that the claimant is unable to
engage in all work activity.
(TR. 19).
Ms. Brown alleges that several of the rationales cited by the ALJ lack support in
the record, rendering the credibility analysis as a whole lacking in substantial evidence.
Specifically, Plaintiff argues the ALJ: (1) improperly relied on medical evidence not
related to her alleged impairments, (2) improperly relied on past drug use to discount
her credibility, (3) omitted evidence related to Plaintiff’s functional abilities and daily
activities, and (4) failed to consider Plaintiff’s attempts to seek medical care and her
use of prescription medication. (ECF No. 16:8-10). The Court agrees with Ms. Brown
and concludes that the credibility analysis lacks substantial evidence.

14

First, Plaintiff alleges that the ALJ improperly relied on evidence not related to
Plaintiff’s alleged impairments to discount her credibility. (ECF No. 16:8). For example,
in rationales 1-5, the ALJ relied on:
1. A lack of gastrointestinal, respiratory, neurological, or cardiac
impairment;
2. Findings from Dr. Buffington that Plaintiff had full range of motion in the
lumbar spine and hips, no neurological deficits, normal speech;
3. Findings from Dr. Hall that Plaintiff had intelligible speech, no hearing
deficits, normal thought processes and vision, clear lungs, regular heart
rate, no sensory deficient or edema, clubbing, or cyanosis;
4. Findings from Dr. Bharat that Plaintiff had no arm or leg weakness, no
problems walking, and no past hospitalizations; and
5. Findings from Dr. Woodcock that Ms. Brown had no visual,
communicative, postural, or environmental limitations.
(TR. 18). As noted by Plaintiff, her impairments related to functional limitations and
pain in her neck and back. Thus, the ALJ’s findings regarding areas that Plaintiff did
not allege disability would not be relevant to her claims of neck and back pain. See

Pickup v. Colvin, 606 F. App'x 430, 433 (10th Cir. 2015) (“[T]he purpose of a credibility
analysis is to assess the credibility of the claimant's allegations of impairment.”).
Second, Plaintiff alleges that the ALJ selectively relied on and mischaracterized
her activities of daily living. (ECF No. 16:8-9). According to the ALJ, Ms. Brown was
able to perform personal care items, prepare meals for herself and her fiancé, do light
housekeeping, drive a car and do grocery shopping, use the computer, do crafts, and
socialize on the phone and at church. (TR. 18). It appears as though the ALJ garnered

15

this information from functional reports from Ms. Brown dated May 17, 2012 and
October 31, 2012. See TR. 249-256, 267-75. But the ALJ misrepresented the
information in the functional reports, omitting critical details. Additionally, at the
September 20, 2013 hearing, Ms. Brown testified regarding her abilities in these areas
which contradicted the ALJ’s findings.
First, in the functional reports, Ms. Brown listed multiple problems in the area
of “personal care items,” including difficulty putting on shirts, getting out of the tub,
holding a hair dryer, washing her hair, putting on makeup, and holding utensils. (TR.
250, 268). As far as preparing meals for herself, Plaintiff wrote that she mainly ate
prepared meals, was able to microwave meals, and that she was unable to cut foods
without her hands cramping. (TR. 251, 269). Regarding housekeeping, Plaintiff stated
that she did “very limited cleaning,” could not lift laundry, and needed help moving
furniture, lifting things, washing pans, doing laundry, and cleaning floors. (TR. 251,
269). In the May 17, 2012 report, Plaintiff stated that she drove, but in the October
31, 2012 report, she stated that she did not drive, because she had no driver’s license.
(TR. 252, 270).
Second, at the September 20, 2013 hearing, Ms. Brown testified:


she is sometimes unable to hold a hair dryer,



she is unable to prepare meals by herself, that she and her fiancé do
that together because she is sometimes unable to lift pans or reach
overhead for items on an upper shelf,



her fiancé does the vacuuming, sweeping, take out the trash, laundry
and general housekeeping and that her housekeeping is limited to
dusting with a feather duster,
16



she is unable to go grocery shopping by herself, and that her fiancé
helps her,



her use on the computer is limited because she is unable to use a mouse
for very long, and



although she does attend church, she has difficulty with sitting and
standing while there.

(TR. 62, 66, 67).
As noted by Plaintiff, the ALJ’s reliance on her ability to perform certain daily
activities is not entirely accurate, as it omits details related to Plaintiff’s abilities in these
areas. In Sitsler v. Astrue, 410 F. App’x 112 (10th Cir. 2011), the Tenth Circuit Court
of Appeals held that this type of selective and misleading review of Plaintiff’s daily
activities is impermissible. In Sitsler, the claimant argued that the ALJ mischaracterized
the extent of his daily activities, ignoring particular qualifications and limitations.

Sitsler, 410 F. App’x at 117. In discounting the plaintiff’s credibility, the ALJ relied on
the plaintiff’s activities of daily living, stating that he could care for his personal needs,
care for his small children, perform household chores, drive, and go shopping. Id. at
114. In contrast, however, the record actually reflected that the claimant had to have
help in caring for his children, he only made simple meals, his ability to perform
household chores was limited to a few minutes, his shopping was limited, and he drove
very little. Id. at 117. Noting that the ALJ’s analysis was “selective and misleading,”
the Court stated that “an ALJ cannot use mischaracterizations of a claimant’s activities
to discredit his claims of disabling limitations.” Id.; see Talbot v. Heckler, 814 F.2d

17

1456, 1462, 1464 (10th Cir. 1987) (noting that the ALJ improperly based his conclusion
that claimant could do light work on a mischaracterization of his activities).
As in Sitsler, the ALJ here mischaracterized the extent of Ms. Brown’s daily
activities, ignoring the numerous qualifications and limitations to which she reported
and testified. Thus, the Court concludes that the ALJ’s evaluation of plaintiff's credibility
was flawed by his selective and misleading review of the evidence.
Third, although not specifically challenged by Plaintiff, the ALJ cited Plaintiff’s
ability to walk one-half mile without resting. (TR. 18). Plaintiff made this statement in
in the May 17, 2012 functional report. (TR. 254). But in the October 31, 2012 report
and later at the hearing, she stated that she could only walk 5-10 minutes before
stopping. (TR. 62-63, 272).
Fourth, the ALJ relies on a statement made by Plaintiff in December 2012 that
she had admitted to using crack cocaine and methamphetamine within the last year.
(TR. 18).

However, in relying on this reason, the ALJ failed to explain how he

concluded that past substance abuse justified a finding that Plaintiff was not credible.
The ALJ’s decision appears to assume that the mere fact of substance abuse indicates
a propensity to exaggerate or to lie about the severity of symptoms. But “[t]his
conclusion does not inevitably follow from the fact of substance abuse, and the
decision does not explain what facts in this record support the conclusion that plaintiff's
supposed substance abuse makes it more likely her allegations are not credible.” Cann

v. Astrue, 2009 WL 536565, at *5 (D. Kan. Mar. 3, 2009).

18

Finally, Plaintiff alleges that the ALJ failed to consider her use of prescription
pain medication when evaluating her credibility. (ECF No. 16: 10). The ALJ noted that
“there is no indication that claimant experiences the side effects of medication which
significantly diminishes her residual functional capacity.” (TR. 18). Even so, the ALJ
failed to acknowledge Ms. Brown’s use of pain medication, which can bolster credibility
by showing that a claimant is willing to seek relief for her impairments. See Keyes–

Zachary v. Astrue, 695 F.3d 1156, 1167 (10th Cir. 2012).
In sum, the Court concludes that substantial evidence does not support the
majority of the reasons given by the ALJ to discount Ms. Brown’s credibility.
Because a credibility assessment requires consideration of all the factors
“in combination,” [ ] when several of the factors relied upon by the ALJ
are found to be unsupported or contradicted by the record, [a court is]
precluded from weighing the remaining factors to determine whether
they, in themselves, are sufficient to support the credibility
determination.

Bakalarski v. Apfel, 1997 WL 748653, *3 (10th Cir. 1997) (emphasis in original).
Accordingly, remand is necessary for the Commissioner to properly evaluate Plaintiff’s
credibility.
VII.

SUMMARY
In sum, the Court concludes that the ALJ erred in his evaluation of Dr.

Winchester’s opinion and in assessing Plaintiff’s credibility. As a result, remand is
warranted.

19

ORDER
Having reviewed the medical evidence of record, the transcript of the
administrative hearing, the decision of the ALJ, and the pleadings and briefs of the
parties, the undersigned magistrate judge REVERSES the Commissioner’s decision
and REMANDS the case for further administrative findings.
ENTERED on February 15, 2017.

20