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Licata v. Berryhill

United States District Court, D. Kansas

June 27, 2017

APRIL L. LICATA, Plaintiff,
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.



         Plaintiff 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.

         I. Background

         Plaintiff 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, [2] 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.

         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 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. 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. § 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.

         The 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).

         The 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.

         II. Discussion

         The ALJ expressed the bases for his finding that Plaintiff's allegations of symptoms are “only partially credible:”

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 pain.

(R. 51-52).

         Plaintiff 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;[3] 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; ...

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