United States District Court, D. Kansas
DAVID J. TACEY, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
KATHRYN H. VRATIL United States District Judge
J. Tacey appeals the final decision of the Commissioner of
Social Security denying his claim for a period of disability
and disability insurance benefits under Title II of the
Social Act, 42 U.S.C. §§ 401 et seq. For reasons
set forth below, the Court reverses the judgment of the
30, 2012, plaintiff filed an application for a period of
disability and disability insurance benefits under Title II
of the Social Security Act. He alleged that his disability
began on April 15, 2012. See Tr. 10, 90. On August
13, 2012, the agency denied plaintiff's claim. On January
11, 2013, the agency denied plaintiff's claim on
reconsideration. On November 25, 2013, an Administrative Law
Judge (“ALJ”) held a hearing. See Tr.
35-76. On March 6, 2014, the ALJ found that plaintiff was not
under a disability as defined in the Social Security Act. Tr.
29. On April 27, 2015, the Appeals Council denied
plaintiff's request for review, adopting the ALJ judgment
as the final decision of the Social Security Commissioner.
Tr. 1-2. Plaintiff appealed to this Court the final decision
of the Commissioner.
Standard Of Review
Court reviews the Commissioner's decision to determine
whether it is “free from legal error and supported by
substantial evidence.” Wall v. Astrue, 561
F.3d 1048, 1052 (10th Cir. 2009); see 42 U.S.C.
§ 405(g). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Wall, 561 F.3d at 1052;
Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).
It requires “more than a scintilla, but less than a
preponderance.” Wall, 561 F.3d at 1052;
Lax, 489 F.3d at 1084. Whether the
Commissioner's decision is supported by substantial
evidence is based on the record as a whole. Washington v.
Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994). Evidence
is not substantial if it is “overwhelmed by other
evidence in the record or constitutes mere conclusion.”
Grogan v. Barnhart, 399 F.3d 1257, 1261-62 (10th
Cir. 2005). To determine if the decision is supported by
substantial evidence, the Court will not reweigh the evidence
or retry the case, but will examine the record as a whole,
including anything that may undercut or detract from the
Commissioner's findings. Flaherty v. Astrue, 515
F.3d 1067, 1070 (10th Cir. 2007).
Framework For Analyzing Claims Of Disability
bears the burden of proving disability under the SSA.
Wall, 561 F.3d at 1062. Plaintiff is under a
disability if he has a physical or mental impairment which
prevents him from engaging in any substantial gainful
activity, and which is expected to result in death or to last
for a continuous period of at least 12 months. Thompson
v. Sullivan, 987 F.2d 1482, 1486 (10th Cir. 1993)
(citing 42 U.S.C. § 423(d)(1)(A)).
Commissioner uses a five-step sequential process to evaluate
disability. 20 C.F.R. § 404.1520; Wilson v.
Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010) (citing
Williams v. Bowen, 844 F.2d 748, 750 (10th Cir.
1988)). In the first three steps, the Commissioner determines
(1) whether plaintiff has engaged in substantial gainful
activity since the alleged onset, (2) whether he has a severe
impairment or combination of impairments and (3) whether the
severity of any impairment is equivalent to one of the listed
impairments that are so severe as to preclude substantial
gainful activity. 20 C.F.R. § 404.1520(c), (d); see
Williams, 844 F.2d at 750-51. If plaintiff satisfies
steps one, two and three, the Commissioner will automatically
find him disabled. If plaintiff satisfies steps one and two
but not three, the analysis proceeds to step four.
four, the ALJ must make specific factual findings regarding
plaintiff's abilities in three phases. See Winfrey v.
Chater, 92 F.3d 1017, 1023-25 (10th Cir. 1996). First,
the ALJ determines plaintiff's physical and mental
residual functioning capacity (“RFC”).
Id. at 1023. Second, the ALJ determines the physical
and mental demands of plaintiff's past relevant work.
Id. Third, the ALJ determines whether despite the
mental and/or physical limitations found in phase one,
plaintiff has the ability to meet the job demands found in
phase two. Id.; Henrie v. U.S. Dep't of
Health & Human Servs., 13 F.3d 359, 361 (10th Cir.
1993). If plaintiff satisfies step four, i.e. if
plaintiff shows that he is not capable of performing past
relevant work, the burden shifts to the Commissioner to
establish that plaintiff is capable of performing other work
in the national economy. Williams, 844 F.2d at
following is a brief summary of the evidence presented to the
has a history of neck and back pain. See Tr. 603-26,
708-13, 739-41. In 1983, plaintiff suffered a left clavicle
fracture in a motor-cross racing accident. Tr. 592. In 1984,
plaintiff had surgery to repair his right AC joint after
separating his shoulder. Tr. 600.
1997, plaintiff had a cervical laminectomy at levels C3-6.
Ex. 1F at 2. From December of 1997 through March of 1999,
plaintiff received physical therapy for his neck pain.
Beginning in 1999, various doctors have treated
plaintiff's neck pain with epidural steroid injections
(“ESIs”). From January of 2000 until the present,
Dr. Melanie Smith has treated him for pain with chiropractic
techniques which plaintiff found beneficial.
2009 to 2013, Dr. Daniel Bruning and Dr. Jonathan French
treated plaintiff for neck, shoulder and back pain. On
February 11, 2009, plaintiff reported that to relieve
constant pain he had taken Advil, Aleve, Naproxen, Etodolac
and Hydrocodone. Dr. Bruning diagnosed plaintiff with
cervicalgia, cervical disc displacement, spondylosis,
stenosis and post-laminectomy syndrome. Dr. Bruning
administered a series of ESIs. Ex. 6F at 60. Plaintiff
followed up with Dr. Bruning twice in February of 2009 and
reported that the injections resulted in minimal to 30 per
cent pain relief. Id. at 54, 56.
April of 2010, plaintiff underwent radio frequency
(“RF”) ablation treatment. On June 22, 2010,
plaintiff told Dr. French that he was doing very well and was
“at least 50% better.” Ex. 9F at 59-63. Plaintiff
also reported he was very active: he swam three times a week,
bicycled 60 miles a week and played golf and basketball.
Plaintiff stated that he experienced pain “only after
being very physically active.” Id.
July of 2010 and May of 2011, Dr. Bruning administered
several ESIs to plaintiff for lower back, hip and buttock
pain. See Ex. 6F at 42, 71. Plaintiff generally
reported that the ESIs relieved from 40 to 70 per cent of his
pain for several months at a time.
8, 2011, Dr. French performed RF ablation on plaintiff's
lumbar spine. On August 1, 2011, plaintiff reported that his
low back and neck pain was 50-60 per cent better. Ex. 5F at
134-37. Dr. French noted that plaintiff had 5/5 strength in
all muscle groups. Dr. French continued plaintiff on Naproxen
for pain and Flexeril for a muscle relaxer.
November 30, 2011, Dr. Bruning administered a lumbar ESI. On
December 1, 2011, Dr. French noted that plaintiff was doing
quite well, although he had a flare of pain after playing 36
holes of golf, for which Dr. Bruning had given him the most
recent ESI. Ex. 5F at 42.
December 28, 2011, plaintiff reported that he had 65 per cent
improvement in pain over the last three weeks but still had
some low back and leg pain. Dr. Bruning administered another
March and April of 2012, Dr. French treated plaintiff with
additional RF ablation. Beginning in March of 2012, plaintiff
reported consistent pain improvement. See Ex. 5F at
of 2012, plaintiff told Dr. Bruning that his medical
insurance had expired and that he would seek medical care at
the VA. Ex. 6F at 63.
September of 2012, plaintiff told Dr. French that he was very
pleased with his pain relief and only rarely used Naproxen,
Flexeril or Tramadol for pain. Ex. 10F at 6-7. He reported
that he was still an avid golfer. On December 20, 2012, Dr.
French administered ESI.
March 30, 2013, Dr. French performed RF ablation on
plaintiff's lumbar spine. On April 11, 2013, plaintiff
obtained a TENS unit to treat pain. Ex. 14F at 29-30. On May
9, 2013, plaintiff stated that he did intense aerobic
exercise several times a week.
August 1, 2012, Dr. Sara Ackermann conducted a consultative
physical examination of plaintiff. Ex 8F. Dr. Ackermann
diagnosed plaintiff with diabetes, osteoarthritis,
degenerative disk disease, radiculopathy and a history of
acoustic neuroma. She opined that plaintiff could work at a
light level of physical exertion with certain limitations in
overhead lifting due to a limited range of shoulder and
cervical spine motion. She concluded that in an eight-hour
workday, plaintiff could sit for one to two hours at a time,
stand for two to three hours at a time and walk for three to
four hours at a time. He could lift and carry 25 pounds
frequently and 30 pounds occasionally. Ex. 8F at 4.
September of 2012, the VA assessed plaintiff with a combined
service-connected disability rating of 80 per cent as of
February 15, 2011 based on the following conditions: right
and left upper extremity radiculopathy; degenerative disc
disease/cervical spine; osteoarthritis right shoulder;
residual fracture of left clavicle; degenerative disc
disease/osteoarthritis lumbar spine; osteoarthritis right
knee; osteoarthritis, right hip; and left lower extremity
radiculopathy. Ex. 1E, 2E.
October 9, 2012, Dr. Paul Kindling, state agency medical
consultant, opined on plaintiff's RFC as follows:
claimant can lift and/or carry ten pounds frequently, 20
pounds occasionally; stand and/or walk for a total of four
hours and sit for a total of about six hours in an eight-hour
workday; frequently climb ramps/stairs; never climb
ladders/ropes/scaffolds; occasionally stoop, kneel, crouch
and crawl; ...