United States District Court, D. Kansas
APRIL L. LICATA, Plaintiff,
NANCY A. BERRYHILL,  Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
W. LUNGSTRUM, UNITED STATES DISTRICT JUDGE
seeks review of a decision of the Acting Commissioner of
Social Security (hereinafter Commissioner) denying Disability
Insurance benefits (DIB) under sections 216(i) and 223 of the
Social Security Act. 42 U.S.C. §§ 416(i) and 423
(hereinafter the Act). Finding error in the Administrative
Law Judge's (ALJ) credibility determination, the court
ORDERS that the 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.
applied for DIB, alleging disability beginning September 4,
2012. (R. 42, 192). Plaintiff exhausted proceedings before
the Commissioner, and now seeks judicial review of the final
decision. She claims a multitude of errors in the ALJ's
residual functional capacity (RFC) assessment, arguing that
he erred in finding that fibromyalgia is not a medically
determinable impairment in the circumstances of this case,
that he failed to specifically identify RFC limitations
resulting from her migraine headaches, that he erred in
determining the credibility of Plaintiff's allegations of
pain, and that he failed to adequately explain the bases for
discounting Dr. Luinstra's medical opinion.
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
he 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.
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.
Commissioner uses the familiar five-step sequential process
to evaluate a claim for 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)). “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
she has a severe impairment(s), and whether the severity of
her 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.
Commissioner next evaluates steps four and five of the
sequential process--determining whether, in light of the RFC
assessed, claimant can perform her past relevant work; and
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).
court finds that remand is necessary because the ALJ failed
to adequately explain his credibility determination or to
affirmatively link it to the record evidence. Consequently,
the court need not and does not address the remaining
allegations of error. Although the court harbors serious
doubt whether the ALJ erred in his step two evaluation of
fibromyalgia, on remand the Commissioner would be well served
to once again apply step two of the evaluation process.
expressed the bases for his finding that Plaintiff's
allegations of symptoms are “only partially
The claimant has continued to complain of pain in the wrists,
shoulders, and arms (Exhibit 1F). However, she reported to
her doctor that she had been encouraged in the past to have
carpal tunnel surgery in the past [sic], but had declined.
She continued to work at jobs that required significant
typing, which only worsened the symptoms. Despite her
continued pain, she also advised her doctor that she would
prefer no medications while at other times she was requesting
narcotic medications (Exhibit 1F). Even Dr. Luinstra stated
he did not sense narcotics are reasonable in this condition.
In addition, the claimant reported to Dr. Luinstra that she
had obtained relief from her pain with Tramadol, a
non-narcotic medication, Ibuprofen, heat, ice and a wrist
brace. She had had an epidural steroid injection, and
reported it had helped with her pain. Testing has been kept
to a minimum, with x-ray and MRI as the primary testing
performed. There were no electromyography/nerve conduction
studies done to confirm the diagnoses of carpal tunnel
syndrome or cubital tunnel syndrome, and range of motion was
normal. Her activities of daily living appear to be greater
than she would like one to believe given her alleged level of
claims the ALJ erred in his credibility determination because
he did not inquire or evaluate the reasons Plaintiff declined
carpal tunnel surgery; did not explain why Plaintiff's
credibility was hurt when she continued to work at jobs
requiring significant typing; did not consider the reasons
Plaintiff wanted to avoid pain medication; abstracted Dr.
Luinstra's statement that he did not sense that narcotics
are reasonable in this condition without recognizing that Dr.
Luinstra limited his statement to “this time, ”
and frequently prescribed narcotic medication on other
occasions; found Plaintiff's request for narcotic
pain medications to be drug-seeking behavior without an
evidentiary basis in the medical records; relied on evidence
of pain relief from seven months before her alleged onset
date; failed to consider that although Plaintiff had an
epidural steroid injection that helped with her pain, it
helped only briefly; substituted his own medical judgment for
that of Plaintiff's physicians in suggesting that
electromyography or nerve conduction studies should have been
done to confirm the diagnoses of carpal tunnel or cubital
tunnel syndromes; ...