Schwindt v. Barnhart

Full title: LELA SCHWINDT, Plaintiff, v. JO ANNE B. BARNHART, Commissioner of Social…

Court: United States District Court, D. Kansas

Date published: Apr 9, 2004

Case No. 03-4134-RDR (D. Kan. Apr. 9, 2004)

Opinion

Case No. 03-4134-RDR.

April 9, 2004

MEMORANDUM AND ORDER

RICHARD ROGERS, Senior District Judge

This action is before the court to review defendant's denial of plaintiff's application for disability benefits.

Administrative law judge findings

The administrative law judge (ALJ) made the following findings in his 2003 decision denying plaintiff's application. Plaintiff is 45 years old. She has a 10^th grade education. She has previously worked as a dental assistant. Plaintiff has degenerative joint disease, degenerative disc disease, fibromyalgia, depression, morbid obesity and hypertension which are considered "severe" under Social Security regulations. These impairments do not meet the standards for any listed impairments in Appendix 1 of the relevant Social Security regulations. However, they do render plaintiff unable to perform any of her past relevant work. Plaintiff retains the residual functional capacity to perform a significant range of light work. She can lift/carry 30 pounds occasionally and 20 pounds frequently. She can stand/walk for 6 hours in an 8-hour workday. She can sit without limitation. She can occasionally climb, stoop, crouch, kneel and crawl. She is also able to understand, remember, and carry out routine step instructions and is able to respond appropriately to supervisors and co-workers in jobs that do not require independent decision-making. Therefore, she can perform such jobs as an assembly worker, a kitchen worker or a cashier.

The ALJ found that plaintiff's description of her pain and limitations was not credible in certain respects. He found that medical treatment records did not support plaintiff's description of the length of time she had suffered pain or her description of the severity of the pain or her estimation of the degree of functional limitation. The findings of a residual functional capacity examination by a Dr. Bolte and his report of symptom magnification also were cited in support of the ALJ's credibility analysis. In addition, the ALJ stated that he found nothing to substantiate plaintiff's claim that she had been prescribed a cane.

Defendant has adopted the ALJ's findings in making the decision to deny plaintiff's application for benefits. Plaintiff contends this decision must be reversed for several reasons.

Standards

We review defendant's decision "to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied."Doyal v. Barnhart, 331 F.3d 758, 760 (10^th Cir. 2003). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quotations and citation omitted). However, "[a] decision is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting it." Bernal v. Bowen, 851 F.2d 297, 299 (10^th Cir. 1988). A failure to apply the correct legal standards or demonstrate it was done is also grounds for reversal. Winfrey v. Chater, 92 F.3d 1017, 1019 (10^th Cir. 1996).

In general, a five-step process is used to determine whether disability benefits should be awarded. See Gossett v. Bowen, 862 F.2d 802, 805 (10^th Cir. 1988). First, a claimant must not be employed to obtain benefits. Second, a claimant must have impairments which are severe enough to limit basic work activities to obtain benefits. Third, a claimant whose impairments meet or equal the impairments listed in the regulations as warranting the award of benefits is presumed to be disabled. Fourth, a claimant who can perform work done in the past cannot obtain benefits. Finally, a claimant who cannot perform past work is considered disabled unless it is demonstrated by the defendant that the claimant can perform other work available in the national economy.

Step three evaluation

Plaintiff's first argument for reversal of the decision to deny benefits is that the ALJ failed to engage in an adequate discussion of the evidence and an explanation of the reasons for finding that plaintiff's impairments did not meet or equal the impairments listed in the regulations as preventing a person from engaging in substantial gainful activity and entitling a claimant to benefits. Plaintiff cites Clifton v. Chater, 79 F.3d 1007 (10^th Cir. 1996) where the Tenth Circuit stated:

In this case, the ALJ did not discuss the evidence or his reasons for determining that appellant was not disabled at step three, or even identify the relevant Listing or Listings; he merely stated a summary conclusion that appellant's impairments did not meet or equal any Listed Impairment. . . . Such a bare conclusion is beyond meaningful judicial review.

79 F.3d at 1009.

In this matter, it is undisputed that the ALJ did not identify a relevant Listing or Listings and only made a conclusory statement that plaintiff's impairments did not meet or equal any of the listed impairments. (Tr. 17). Nevertheless, defendant asserts that plaintiff's argument should be rejected as grounds for reversal because the ALJ did make an "exhaustive review of the medical evidence" and because plaintiff failed to carry her burden of demonstrating through medical evidence that her impairments did meet the criteria for one of the listed impairments.

The ALJ's review of the evidence did not include an analysis of the conclusions of Dr. Douglas Brown, as discussed in the next paragraph. Therefore, the review of the evidence was not "exhaustive" in that respect. Furthermore, in Clifton plaintiff's burden of proof was not a factor which excused the defendant's failure to follow the legal standards which are applied to these cases. Plaintiff's argument regarding defendant's step three analysis, by itself, might not always persuade the court to remand a decision to deny benefits. We note that the court in Clifton mentioned other concerns with the decision to deny benefits in the order of remand 79 F.3d at 1010. However, after a careful review of the record and a consideration of the other arguments made by plaintiff, the court believes defendant's failure to properly engage in a step three analysis or show the court that it was done, provides a reason to remand this case.

Dr. Brown's opinion

On February 13, 2003, Dr. Douglas Brown stated that plaintiff had chronic back pain and a probable herniated disc. He said that plaintiff had pain in both legs while walking, back spasms, and burning in the lower back and legs, as well as marked fatigue after walking. He said that plaintiff "probably" needed to lie down every 2 to 3 hours during an 8-hour day, take frequent bathroom breaks, and would be absent from work more than three times a month because of her impairments. He opined that plaintiff could not consistently complete a normal 8-hour workday and a 40-hour work week. Dr. Brown also added that the results of an MRI were pending. Dr. Brown's statements were sent to the ALJ after the January 29, 2003 administrative hearing upon plaintiff's claim but before his March 20, 2003 decision.

There is no reference to Dr. Brown's statements in the decision of the ALJ or the decision of the Appeals Council on the appeal plaintiff made from the ALJ's order.

While we find no support in the record for plaintiff's claim that Dr. Brown was a treating physician, we think it was error for the ALJ and the Appeals Council to ignore or not discuss his statements. See Clifton, 79 F.3d at 1010 ("in addition to discussing the evidence supporting his decision, the ALJ also must discuss the uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence he rejects);Barnett v. Apfel, 231 F.3d 687, 689 (10^th Cir. 2000) ("ALJ is charged with carefully considering all the relevant evidence and linking his findings to specific evidence"); Coleman v. Heckler, 572 F. Supp. 1089, 1090-91 (D.Colo. 1983) (remanding for consideration of doctor's report that claimant could not sit, stand or walk for more than an hour at a time and could not sit for more than three hours).

Pain and credibility determinations

In light of the previous findings, the court shall not discuss in depth the remaining arguments made by plaintiff. These arguments do raise some concerns. The court is troubled that the ALJ appeared to rely heavily upon plaintiff's alleged failure to pursue medical treatment as grounds to discount her claims of pain without addressing factors which might explain why that failure occurred. See Thompson v. Sullivan, 987 F.2d 1482, 1490 (10^th Cir. 1993); Teter v. Heckler, 775 F.2d 1104, 1106-07 (10^th Cir. 1985). In addition, the ALJ did not address plaintiff's activities of daily living in any detail in conjunction with his pain analysis, as required by 20 C.F.R. § 404.1529. Further, although the ALJ found that plaintiff suffered from depression, he did not consider and develop the record as to whether plaintiff's depression had an impact on her back pain. See Luna v. Bowen, 834 F.2d 161, 166 (10^th Cir. 1987).

Analysis of mental impairments and residual functional capacity

The court is also concerned that while the ALJ found that plaintiff suffered from depression, he did not order a consultative examination to develop the scanty record on this subject. See Hawkins v. Chater, 113 F.3d 1162, 1165 (10^th Cir. 1997). Moreover, the reliance upon the findings of Dr. Bolte, a nontreating physician who had limited contact with plaintiff, is a questionable basis for developing a conclusion regarding plaintiff's residual functional capacity. See Frey v. Bowen, 816 F.2d 508, 515 (10^th Cir. 1987).

Conclusion

For the above-stated reasons, the court shall reverse the defendant's decision to deny plaintiff's application for benefits and remand this matter under the fourth sentence of 42 U.S.C. § 405(g) for further proceedings in accordance with this memorandum and order.

IT IS SO ORDERED.