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Eliason v. Berryhill

United States District Court, D. Kansas

April 18, 2018

DEBRAH KAY ELIASON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          Sam A. Crow, U.S. District Senior Judge

         This is an action reviewing the final decision of the Commissioner of Social Security denying the plaintiff disability insurance benefits. The matter has been fully briefed by the parties.

         I. General legal standards

         The court's standard of review is set forth in 42 U.S.C. § 405(g), which provides that "the findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." The court should review the Commissioner's decision to determine only whether the decision was supported by substantial evidence and whether the Commissioner applied the correct legal standards. Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994). Substantial evidence requires more than a scintilla, but less than a preponderance, and is satisfied by such evidence that a reasonable mind might accept to support the conclusion. The determination of 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 really constitutes mere conclusion. Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989). Although the court is not to reweigh the evidence, the findings of the Commissioner will not be mechanically accepted. Nor will the findings be affirmed by isolating facts and labeling them substantial evidence, as the court must scrutinize the entire record in determining whether the Commissioner's conclusions are rational. Graham v. Sullivan, 794 F.Supp. 1045, 1047 (D. Kan. 1992). The court should examine the record as a whole, including whatever in the record fairly detracts from the weight of the Commissioner's decision and, on that basis, determine if the substantiality of the evidence test has been met. Glenn, 21 F.3d at 984.

         The Social Security Act provides that an individual shall be determined to be under a disability only if the claimant can establish that they have a physical or mental impairment expected to result in death or last for a continuous period of twelve months which prevents the claimant from engaging in substantial gainful activity (SGA). The claimant's physical or mental impairment or impairments must be of such severity that they are not only unable to perform their previous work but cannot, considering their age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. § 423(d).

         The Commissioner has established a five-step sequential evaluation process to determine disability. If at any step a finding of disability or non-disability can be made, the Commissioner will not review the claim further. At step one, the agency will find non-disability unless the claimant can show that he or she is not working at a “substantial gainful activity.” At step two, the agency will find non-disability unless the claimant shows that he or she has a “severe impairment, ” which is defined as any “impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities.” At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled. If the claimant's impairment does not meet or equal a listed impairment, the inquiry proceeds to step four, at which the agency assesses whether the claimant can do his or her previous work; unless the claimant shows that he or she cannot perform their previous work, they are determined not to be disabled. If the claimant survives step four, the fifth and final step requires the agency to consider vocational factors (the claimant's age, education, and past work experience) and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy. Barnhart v. Thomas, 124 S.Ct. 376, 379-380 (2003).

         The claimant bears the burden of proof through step four of the analysis. Nielson v. Sullivan, 992 F.2d 1118, 1120 (10thCir. 1993). At step five, the burden shifts to the Commissioner to show that the claimant can perform other work that exists in the national economy. Nielson, 992 F.2d at 1120; Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993). The Commissioner meets this burden if the decision is supported by substantial evidence. Thompson, 987 F.2d at 1487.

         Before going from step three to step four, the agency will assess the claimant's residual functional capacity (RFC). This RFC assessment is used to evaluate the claim at both step four and step five. 20 C.F.R. §§ 404.1520(a)(4), 404.1520(e, f, g); 416.920(a)(4), 416.920(e, f, g).

         II. History of case

         On November 25, 2015, administrative law judge (ALJ) Alison K. Brookins issued her decision (R. at 17-28). Plaintiff alleges that she has been disabled since August 31, 2013 (R. at 17). Plaintiff is insured for disability insurance benefits through September 30, 2017 (R. at 19). At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity since the alleged onset date (R. at 19). At step two, the ALJ found that plaintiff has severe impairments (R. at 19). At step three, the ALJ determined that plaintiff's impairments do not meet or equal a listed impairment (R. at 22). After determining plaintiff's RFC (R. at 22), the ALJ found at step four that plaintiff is unable to perform past relevant work (R. at 26). At step five, the ALJ found that plaintiff could perform other work that exists in significant numbers in the national economy (R. at 27-28). Therefore, the ALJ concluded that plaintiff was not disabled (R. at 28).

         III. Did the ALJ err in her consideration of the opinions of Dr. Whitmer regarding plaintiff's migraine headaches?

         On November 19, 2013, Dr. Whitmer performed a consultative examination on the plaintiff (R. at 347-351). In his report, he discussed in some detail plaintiff's allegations and neurological reports regarding plaintiff's headaches (R. at 349-350). He diagnosed intractable migraine headaches (R. at 351). On September 10, 2014, Dr. Whitmer filled out an RFC questionnaire indicating that plaintiff, because of muscle and joint pain and headaches, could sit, stand, and/or walk for only five minutes at a time during an 8 hour workday; would need to shift positions at will from sitting, standing, or walking; and would need to take numerous unscheduled breaks during the workday (R. at 386-387).

         The ALJ stated that Dr. Whitmer's opinions are not consistent with the record, are conclusory, and are not supported with an explanation. The ALJ further noted that Dr. Whitmer indicated on the RFC form that he had treated plaintiff for 10 years (R. at 386), but the ALJ indicated that there is no evidence of any treatment or examination records prior to November 19, 2013. The ALJ also noted that plaintiff did not allege headaches as an impairment at the hearing. The ALJ gave little, if any, weight to his opinions (R. at 26). The ALJ gave great weight to the opinion of Dr. Coleman, a non-examining consulting physician (R. at 26).

         The ALJ never acknowledged that Dr. Whitmer was a treating physician for the plaintiff. The ALJ noted that plaintiff performed a consultative examination (R. at 24), and later indicated that she considered the opinions of Dr. Whitmer (R. at 26). The ALJ never mentioned the fact that Dr. Whitmer, subsequent to the November 19, 2013 examination, treated plaintiff on nine occasions, on December 18, 2013, March 18, 2014, May 2, 2014, June 12, 2014, December 8, 2014, March 4, 2015, June 1, 2015, June 12, 2015, and June 15, 2015 (R. at 355, 368, 438, 434, 431, 449, 492, 488, 469).[1] On eight of those occasions, the medical record stated that plaintiff had migraines-virdigo [sp?] very bad (R. at 433, 436, 440, 357, 363, 371, 451, 490). She was treated for severe migraine headaches on June 12, 2014 (R. at 436). On June 15, 2015, Dr. Whitmer indicated that neurologically she does have a lot of problems with headaches (R. at 470), and gave an impression of chronic migraine headaches (R. at 471). Plaintiff was also seen on June 12, 2015 for a headache (R. at 489). Thus, although there is no evidence ...


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