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Bruce v. Colvin

United States District Court, D. Kansas

July 14, 2015

THOMAS LEE BRUCE, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

JOHN W. LUNGSTRUM, District Judge.

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 ALJ's credibility analysis, the court ORDERS 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 with this decision.

I. Background

Plaintiff applied for SSI, alleging disability beginning April 20, 2011. (R. 32, 200). Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. Plaintiff argues that the Administrative Law Judge (ALJ) erred in her residual functional capacity (RFC) assessment. Plaintiff asserts that the ALJ erred in this regard in evaluating the treatment records of his treating physician, Dr. Ericksen; erroneously weighed the opinion of the non-treating consultant, Dr. Henderson; did not adequately explain her RFC findings; ignored certain factors suggesting Plaintiff's allegations of pain were credible; and did not adequately explain her evaluation of Plaintiff's mental impairments.

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 she 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). 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 he has a severe impairment(s), and whether the severity of his 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 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 at step four whether, in light of the RFC assessed, claimant can perform his 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 did not affirmatively link her credibility determination to the record evidence. Because this error requires remand and a renewed RFC assessment, the court will not address the other errors alleged in Plaintiff's Brief. He may renew his argument in this regard to the Commissioner on remand.

II. The ALJ Did Not Affirmatively Link Her Credibility Determination to the Record Evidence

Plaintiff's treating physician, Dr. Ericksen, ordered an MRI of Plaintiff's spine, which was completed shortly before the ALJ hearing in this case, but Plaintiff had not had a follow-up visit and Dr. Ericksen would not release the results of the MRI until after he discussed them with Plaintiff. At the hearing, on January 29, 2013, Plaintiff asked the ALJ to leave the record open for one week so that he might submit into the record the MRI findings and Dr. Ericksen's notes of the follow-up visit, which was scheduled for the day after the hearing. The ALJ agreed, and the records were submitted and admitted as Exhibit 26F (R. 565-68). Dr. Ericksen found that the MRI revealed a congenitally narrow spinal canal, a disc bulge at L5-S1 impinging on the neural foramen, and neural foraminal stenosis bilaterally at L4-L5. (R. 567). Dr. Ericksen recommended epidural injections, but they were not performed because Plaintiff was "having insurance issues." (R. 568).

Plaintiff discussed these facts in his brief, and argued that the ALJ did not consider them in his credibility determination:

These were, moreover, impairments for which Plaintiff could not afford treatment and for which Plaintiff reported that Dr. Ericksen mentioned both the injections and possible surgery. These were impairments from which Plaintiff sought relief and was prescribed narcotic pain medication. The ALJ did not consider these pain factors, which require express consideration. The ALJ is not free to ignore factors favorable to ...

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