United States District Court, D. Kansas
MEMORANDUM AND ORDER
HONORABLE J. THOMAS MARTEN, UNITED STATES DISTRICT COURT
Debra Jean Zenner filed an application for Title II
disability and disability insurance benefits on January 13,
2014, claiming a disability beginning on October 15, 2012.
The claim was initially denied by the Social Security
Administration and was denied again upon reconsideration.
Zenner than requested and received a hearing in front of
Administrative Law Judge (ALJ) David Page. The hearing was
held on February 25, 2016 in Wichita, Kansas. Additional
written evidence was submitted both before and after the
hearing. ALJ Page issued an unfavorable written decision on
May 24, 2017, finding that although Zenner suffered from
multiple severe impairments, she was not disabled within the
relevant Social Security framework because she retained the
residual functional capacity to engage in certain light,
unskilled occupations prevalent in the national economy.
Zenner filed a timely appeal with the Appeals Council, which
found no basis for granting Zenner’s request for
review. Zenner now appeals to this court, arguing that the
ALJ failed to give the opinion of Zenner’s treating
physician appropriate weight.
of the Case
has a master’s degree in special education and worked
as a teacher’s aide, teacher, and special education
teacher from 2001 – 2012. (Tr. 75, 251). She testified
that she had been seeing Dr. Barclay, her family doctor, for
20 years. (Tr. 41). In late August 2010, Zenner was
hospitalized with pneumonia. (Tr. 1F, 2F). On October 15,
2010, Zenner reported to Dr. Barclay’s office for
re-check of pneumonia and fatigue; she reported feeling
generally unwell, having no energy and no ability to return
to work. (Tr. 4F). Notes from office visits on October 18,
October 20, and October 25 indicate fatigue, polymyalgia,
polyarthralgia and body aches. (Tr. 4F). Dr. Barclay’s
notes on October 25 indicate that numerous tests were done
and that he “believes all of these symptoms are related
to a post-infectious etiology.” (Id.). Zenner
returned for a follow-up on November 16, 2010 for fatigue and
polymyalgia and reported that she wasn’t doing any
better but had been able to work. (Id.).
Barclay’s treatment notes from 2011 show that Zenner
made office visits on March 22, April 12, May 2, May 4, July
6, July 20, September 14, October 6, October 11, November 8,
and November 28. (Tr. 4F). The notes on eight of those eleven
visits reflect complaints of pain on Zenner’s part
including complaints of joint pain at multiple sites, back
pain, knee pain, neck pain, and headaches. The records show
that Zenner had seen a rheumatology specialist who believed
she had fibromyalgia, and notes that more tests had been
visited Dr. Barclay’s office five times in 2012. (Tr.
4F). The notes from each of those visits reflect pain,
polyarthralgia, fatigue, and fibromyalgia. On March 6, 2012,
the treatment notes indicate polyarthralgia and polymyalgia
for an unclear reason, that “did seem to follow a viral
or mycoplasma illness about 18 months ago and she has been
miserable since then.” The notes further indicated
“she is bothered by pain in hips, forearms, and knees,
” “she is not performing well at work and has
been written up by her boss, ” and “exam reveals
tenderness in shoulders, arms, and legs.” On August 2,
2012, the treatment notes state “Patient says that
Savella didn’t help her fibromyalgia pain” and
that Zenner was contemplating leaving her job due to her pain
and lack of energy.
records reflect three visits in 2013, two of which note pain
in multiple locations. Dr. Barclay’s notes on June 7,
2013 discuss chronic pain in Zenner’s arms and right
hip, trouble getting to and staying asleep, chronic fatigue,
and stiffness/swelling of the joints of her arms and hands.
(Tr. 4F). In 2014, Zenner visited Barclay on February 6, May
1, August 6, and October 22. (Tr. 4F, 5F). The notes from all
but one of those visits mention back and joint pain,
polyarthralgia, bilateral knee pain, carpal tunnel pain, and
neck pain. The notes from May 1, 2014 reflect that an x-ray
of Zenner’s knees did reveal some patellofemoral
problems but no arthritis. (Tr. 5F). On October 22, Dr.
Barclay noted “neck pain shooting down her right
shoulder” and that she was “incapable of working
at this time.” He further noted that she had not abused
her pain medications in the past and was willing to sign a
pain medication agreement. (Tr. 7F).
2015, Zenner visited Dr. Barclay on February 10, May 7, July
2, and October 26. Dr. Barclay’s records from each of
those visits reflect evaluation of Zenner’s pain
medications as well as Dr. Barclay’s attempts to
address back pain and knee joint pain. (Tr. 10F). On October
26, 2015, Dr. Barclay noted that she “continues to have
severe generalized pain with GERD and low back pain and
polyarthralgia, ” and “she requires multiple meds
per day and is unable to work outside the home at this time
in a meaningful way.” (Tr. 10F). The last visit to Dr.
Barclay in the record presented to the ALJ was on January 22,
2016, where he noted “left side sciatica that is
getting worse.” (Tr. 10F).
February 23, 2016, Dr. Barclay signed a medical source
statement (MSSP) indicating that Zenner was suffering pain in
her hips, knees, elbows, shoulders, back, and left-side
sciatica, that her pain was severe and throughout many
joints. (Tr. 12F). He notes that Zenner had post-infectious
polyarthralgia, an abnormal MRI on her knees and leftside
spine, and that her pain medications could cause drowsiness
and poor focus. He advised limitations including, but not
limited to, substantial breaks due to pain, chronic fatigue,
muscle weakness, and the adverse side effects of her
medications; that she elevate her legs 50% of the time due to
sciatica, that she would be off-task 25 percent of the time,
and that she would need to be off work or leave work early
more than four days per month.
April 12, 2016, Dr. James Henderson performed a consultative
exam. (Tr. 14F). Although Dr. Henderson found Zenner had a
normal range of motion, he did note back and neck pain as
well as shoulder, hip, and knee pain consistent with Dr.
Barclay’s records and report.
Social Security Act provides that the court must accept the
factual findings of the Commissioner if they are supported by
substantial evidence. 42 U.S.C. § 405(g).
“Substantial evidence” is “such evidence as
a reasonable mind might accept to support the
conclusion.” Barkley v. Astrue, 2010 WL
3001753 at *1 (D. Kan. July 28, 2010) (citing Castellano
v. Sec. of Health & Human Servs., 26 F.3d 1027, 1028
(10th Cir. 1994)). Evidence is insubstantial when
it is overwhelmingly contradicted by other evidence.
O’Dell v. Shalala, 44 F.3d 855, 858 (10th Cir.
1994). The court must “neither reweigh the evidence nor
substitute [its] judgment for that of the [ALJ].”
Bowman v. Astrue, 511 F.3d 1270, 1272
(10thCir. 2008) (quoting Casias v. Sec. of
Health & Human Servs., 933 F.3d 799, 800
(10th Cir. 1991)). But, the court must determine
whether the Commissioner’s final decision is
“free from legal error and supported by substantial
evidence.” Wall v. Astrue, 561 F.3d 1048, 1052
(10th Cir. 2009). An ALJ’s decision must be affirmed
where it is supported by the evidence as a whole, even if the
court may have reached a different result on the record.
Ellison, 929 F.2d at 536.
claimant is disabled if she suffers from a physical or mental
impairment which stops the claimant “from engaging in
substantial gainful activity and is expected to result in
death or to last for a continuous period of at least twelve
months.” Brennan v. Astrue, 501 F.Supp.2d
1303, 1306-07 (D. Kan. 2007) (citing 42 U.S.C. §
423(d)). The impairment “must be severe enough that she
is unable to perform her past relevant work, and further
cannot engage in other substantial gainful work existing in
the national economy, considering her age, education, and
work experience.” Barkley, 2010 WL 3001753 at
*2 (citing Barnhart v. Walton, 535 U.S. 212, 217-22
Social Security Administration has established a five-step
sequential evaluation process to determine whether an
individual is disabled. Wilson v. Astrue, 602 F.3d
1136, 1139 (10th Cir. 2010); see also 20
C.F.R. §404.1520(a)). The steps are to be followed in
order and are designed so that if a claimant is determined to
be or not to be disabled at any step of the process, the
evaluation will end at that step. Barkley, 2010 WL
3001753 at *2. Steps one through three ask the ALJ to assess
(1) whether the claimant has engaged in substantial gainful
activity since the onset of the alleged disability; (2)
whether the claimant has a severe, or combination of severe,
impairments; and (3) whether the severity of those
impairments meets or equals a designated list of impairments.
Lax v. Astrue, 489 F.3d 1080, 1084 (10th
Cir. 2007); see also Barkley, 2010 LW 3001753 at *2
(citing Williams v. Bowen, 844 F.2d 748, 751
(10th Cir. 1988)). If the impairment or
combination of impairments does not meet or equal a listed
impairment, then the ALJ must determine the claimant’s
“residual functional capacity” (RFC). The
claimant’s RFC is the ability “to do physical and
mental work activities on a sustained basis despite
limitations from her impairments.” Barkley,
2010 WL 3001753 at *2; see also 20 C.F.R.