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R.T. v. Berryhill

United States District Court, D. Kansas

February 14, 2019

R.T., [1] Plaintiff,
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff filed this action for review of a final decision of the Commissioner of Social Security denying Plaintiff's application for social security disability benefits. The matter is fully briefed by the parties and the court is prepared to rule. (Docs. 10, 12, 13.) The Commissioner's decision is REVERSED and REMANDED for the reasons set forth herein.

         I. Standard of Review

         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 Commissioner's decision will be reviewed 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 as a reasonable mind might accept as adequate to support the conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971).

         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 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 Commissioner has established a five-step sequential evaluation process to determine disability. 20 C.F.R. § 404.1520; Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010). 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.” Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988). At step two, the agency will find non-disability unless the claimant shows that he or she has a severe impairment. 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. Id. at 750-51. If the claimant's impairment does not meet or equal a listed impairment, the agency determines the claimant's residual functional capacity (“RFC”). 20 C.F.R. § 404.1520(e). The 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(f), (g). At step four, the agency must determine whether the claimant can perform previous work. If a claimant shows that she cannot perform the previous work, 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. Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006). At step five, the burden shifts to the Commissioner to show that the claimant can perform other work that exists in the national economy. Id.; 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.

         II. History of Case

         A. Summary of the evidence.

         In discussing his findings, the ALJ reviewed the testimony and the medical evidence. Plaintiff reported that he lived independently, previously caring for his father who had recently passed away. Plaintiff performs household chores, makes meals, attends church on Sunday, drives a car, shops in stores, and plays video games. Plaintiff is able to care for himself and care for family pets. (R. 18, 35-36 41, 270-73, 570.) Plaintiff testified that he is unable to work due to knee and back pain and his morbid obesity. Plaintiff testified that he has difficulty walking up and down stairs, can only stand for 20 to 25 minutes at a time because of his knees and can only lift 15 pounds. (R. at 31, 37, 44.) Plaintiff testified that he has anger issues, significant anxiety and depression. (R. at 33, 40, 45.) The ALJ determined that Plaintiff's testimony regarding the intensity, persistence and limiting effects of the symptoms was not entirely consistent with the medical evidence and other evidence. Notably, the ALJ determined that Plaintiff's reported daily activities were inconsistent with allegations of debilitating pain and depression. (R. at 18.) Therefore, the testimony was considered to the extent that it could be consistent with other objective medical evidence. (R. at 17.)

         The medical records regarding physical impairments were limited. Plaintiff's BMI was determined to be 67.0 which meets the standard for obesity. The ALJ noted that SSR 02-1 states that obesity can cause limitations in functions such as standing, walking and lifting. Obesity can also cause other impairments to have greater limitations. In 2014, plaintiff had two visits with his primary care provider. Plaintiff complained of knee and back pain. The medical provider stated that “the best thing patient could do is lose a significant amount of weight.” (R. at 537.) The examination showed no tenderness to palpation nor deformity in the knees. In February 2015, x-rays of Plaintiff's knees showed minimal degenerative osteophyte formation without significant degenerative change. (R. at 541.) No. further x-rays have been taken although the record notes that no x-rays were taken due to his large size. (R. at 555.) In July 2015, x-rays of the spine were unremarkable. Plaintiff did not see his primary care physician again until June 2017, when he complained of knee and leg pain and a depressed mood. Plaintiff's physician started him on gabapentin for pain. (R. at 593.)

         In July and November 2015, Plaintiff had two consultative physical examinations by Travis Rump, D.O. Plaintiff reported a history of diabetes to Dr. Rump, but the record does not contain previous treatment for the condition. In July, the examination included the findings that Plaintiff had a wide-based gait; peripheral edema (trace or mild pitting); early erythema (redness) of the anterior shins; normal range of motion of all joints with no tenderness; negative straight leg raising bilaterally; no muscle spasms; normal grip strength; intact motor and sensory function; negative Romberg, a test for balance; no assistive device; mild difficulty with heel and toe walking; and moderate difficulty squatting. (R. at 17; 553-54). In November, Plaintiff still had a normal gait, but demonstrated limited bilateral knee flexion and reduced lumbar spine motion. (R. at 563.) It was also noted that Plaintiff had “moderate-severe difficulty with orthopedic maneuvers.” (R. at 565.)

         During the period after the onset date, the medical records concerning mental health treatment are limited. However, there were significant records regarding mental health treatment during the years 2000 to 2008. In June 2017, Plaintiff's physician prescribed Seroquel after his complaints of agitation and depression. Plaintiff informed his physician that he had previously been prescribed Seroquel and it helped with his symptoms. There are no records of hospitalizations or mental health emergency room visits.

         Plaintiff was evaluated by Stanley Mintz, Ph.D., at the request of the State agency. Dr. Mintz assessed Plaintiff with depressive disorder and generalized anxiety. Dr. Mintz found that although Plaintiff had a depressed mood and affect, Plaintiff showed intact formal judgment and reasoning capacity, fair immediate attention span, fair recent and remote memory, and could do simple math. (R. at 18.) Dr. Mintz opined that Plaintiff could understand simple and intermediate instructions, do unskilled work, has some difficulty ...

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