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Zenner v. Saul

United States District Court, D. Kansas

September 26, 2019

DEBRA JEAN ZENNER, Plaintiff,
v.
ANDREW M. SAUL, [1] Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          HONORABLE J. THOMAS MARTEN, UNITED STATES DISTRICT COURT

         Plaintiff 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.

         History of the Case

         Zenner 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.).

         Dr. 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 ordered.

         Zenner 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.

         The 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).

         In 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).

         On 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.

         On 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.

         Legal Standard

         The 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.

         A 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 (2002)).

         The 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. ...


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