United States District Court, D. Kansas
MEMORANDUM AND ORDER
Crow, U.S. District Senior Judge
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.
General legal standards
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.
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.
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).
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.
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).
History of case
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).
Did the ALJ err in her consideration of the opinions of Dr.
Whitmer regarding plaintiff's migraine
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).
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).
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). 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 ...