Burnett v. Colvin

• Decision Date: 21 January 2015
• Docket Number: Case No. 13-2485
• Parties: SHENETTA L. BURNETT, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — District of Kansas

SHENETTA L. BURNETT, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

Case No. 13-2485

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

January 21, 2015

MEMORANDUM AND ORDER

Plaintiff Shenetta Burnett seeks disability insurance benefits pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq. An Administrative Law Judge ("ALJ") found that plaintiff was not disabled, which stands as the final decision of the Commissioner of Social Security ("Commissioner"). Plaintiff contends the ALJ erred in evaluating the credibility of her subjective allegations, assessing her residual function capacity ("RFC"), and relying upon vocational expert testimony to find her not disabled. For the reasons stated below, the court remands the case for reconsideration consistent with this opinion.

I. Legal Standard

The court must determine whether the Commissioner's final decision is "free from legal error and supported by substantial evidence." Walls v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Accordingly, this court applies a two-pronged review of the ALJ's decision: (1) Are the factual findings supported by substantial evidence in the record? (2) Did the ALJ apply the correct legal standards? Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citation omitted). "Substantial evidence" is a term of art, meaning "more than a mere scintilla" and "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Hunter v. Astrue, 321 F. App'x789, 792 (10th Cir. 2009) (quoting Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007)). When evaluating whether the standard has been met, the court is limited; it may neither reweigh the evidence nor replace the ALJ's judgment with its own. Bellamy v. Massanari, 29 F. App'x 567, 569 (10th Cir. 2002) (citing Kelley v. Chater, 62 F.3d 335, 337 (10th Cir. 1995)). On the other hand, the court must examine the entire record—including any evidence that may detract from the ALJ's decision. Jarmillo v. Massanari, 21 F. App'x 792, 794 (10th Cir. 2001) (citing Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994)).

II. Analysis

Plaintiff is a forty-two-year-old woman with two years of college education and has engaged in past work as a warehouse worker, laser operator, machine operator, and day care worker. Plaintiff filed an application for disability insurance benefits based primarily on seizures, diabetes, mellitus, retinopathy, hypertension, asthma, chest pain (following an myocardial infarction), obesity, and memory loss. Plaintiff alleges she became disabled in August 2010.

The ALJ considered plaintiff's claim and concluded that her allegations of disabling symptoms were not credible. The ALJ also determined that plaintiff retained the RFC to perform sedentary work but had a limited ability to push and pull with the left upper extremity; could not reach with the left upper extremity; and could occasionally climb, balance, stoop, kneel, crouch, and crawl. Plaintiff was also limited to simple work at a specific vocational preparation ("SVP") level of three or less as defined in the Dictionary of Occupational Titles ("DOT"). Relying on vocational expert ("VE") testimony, the ALJ concluded that plaintiff could perform work that exists in significant numbers in the national economy, including work as a telephone solicitor, credit card processor, and room service order clerk.

A. Plaintiff's Credibility

The ALJ considered plaintiff's own statements about her impairments, the medical evidence, her daily activities, her use of medication, and a statement from a prior employer in evaluating the credibility of her subjective allegations. (Doc. 3-1 at 26-30.) The ALJ concluded that plaintiff's statements concerning the intensity, persistence, and limiting effects of her symptoms were not entirely credible. (Id. at 30.) The ALJ based his credibility determination on the following findings:

• Plaintiff stopped working for reasons other than her medical conditions.

• The medical evidence did not support plaintiff's contention that she had a stroke.

• The ALJ considered plaintiff's purported noncompliance with medication and concluded that her medical conditions improved with treatment.

• Plaintiff underrepresented her activities of daily living.

Plaintiff claims these findings are erroneous. First, plaintiff first argues the ALJ erroneously found that she stopped working for reasons other than her medical conditions. Plaintiff worked at Last Word, Inc. ("Last Word") from 2005 until December 5, 2009, and then at MarTech beginning in June 2010. Plaintiff alleges that she had to stop working in August 2010 due to side effects from her medications. (Id. at 148.) In assessing plaintiff's credibility, the ALJ noted that the record contained an employer statement that plaintiff presented no problems as an employee and that plaintiff stopped working because she was "laid off due to [a] slowdown in work." (Id. at 30 and 169.) However, the court believes the ALJ was referring to plaintiff's prior former employer Last Word—not MarTech—because the employer statement came from Last Word. In fact, at the hearing, plaintiff admitted she was laid off from Last Word because the business was shutting down, but there is no evidence in the record that she stopped working for MarTech for that reason. The court believes the ALJ's credibility determination on this basis is unsupported by the record.

Second, plaintiff claims the ALJ improperly found the medical evidence did not support plaintiff's contention that she had a stroke. The ALJ found: "Although she testified she had a stroke in November 2011, the medical evidence does not support this was the problem. Rather, she had a crisis due to noncompliance with medications." (Id.) There appears to the court to be some sort of confusion as to the date of the alleged stroke. The ALJ referenced November 2011, but the medical records reflect plaintiff was hospitalized from November 3, 2010 to November 7, 2010 for "hypertensive urgency vs subcortical stroke" due to left side weakness/paralysis. (Id. at 259.) The court notes that plaintiff also was hospitalized in November 2011, which could have caused some confusion. In any event, while a medical report dated November 4, 2010 showed plaintiff's heart was normal, as were her head CTs, it was noted during this hospital stay that her diabetes mellitus, hypertension and seizure disorder were very poorly controlled, perhaps resulting in a possible stroke due to a hypertensive urgency. (Id. at 245.) The magnetic resonance imaging ("MRI") of plaintiff's brain on November 10, 2010 revealed "chronic small vessel ischemic disease is likely." (Id. at 232 and 235.) At discharge, it was recommended she use a walker, and she was walking with a "stiff" gait. (Id. at 278.)

The Commissioner notes that the medical records indicate plaintiff "[didn't] feel she [was] having a stroke" at the time and argues that her symptoms were likely related to high blood pressure. (Doc. 11 at 6 (citing Doc. 3-1 at 258).) However, plaintiff is not a medical professional. Whether a "stroke" or a "crisis," plaintiff experienced sudden-onset left-sided weakness, and there appears to be no inconsistency that would undermine plaintiff's credibility as to the severity of her alleged symptoms. Indeed, subsequent examinations confirmed left sided weakness (id. at 288), even as late as January 2011, (id. at 316). To the extent the ALJ made a credibility determination based on plaintiff's allegations of a "November 2011" stroke, that determination is not supported by the record.

Third, the ALJ questioned plaintiff's credibility due to her "noncompliance" with her medications. Troubling for the court is the fact that the ALJ failed to inquire about the circumstances surrounding plaintiff's purported noncompliance. See 20 C.F.R. §§ 404.1530(a), 416.930(a); Burnside v. Apfel, 223 F.3d 840, 843-44 (8th Cir. 2000) (holding that, before a claimant is denied benefits because of a failure to follow a prescribed course of treatment, an inquiry must be conducted into the circumstances surrounding the failure, and a determination must be made whether compliance would restore a claimant's ability to work or sufficiently improve the claimant's condition).

For example, the Tenth Circuit has recognized that affordability may explain a claimant's failure to seek or comply with treatment. Swanson v. Barnhart, 190 F. App'x 655, 657 (10th Cir. 2006); Walker v. Callahan, 990 F. Supp. 1283, 1287 (D. Kan. 1997) ("[T]he fact that a person may not seek medical treatment may be attributable to a lack of financial resources, and may not be an indication that the claimant's testimony regarding the extent of his disability is not credible.") (citation omitted). In this case, there is evidence in the record that plaintiff was unable to consistently take her medications due to costs. (Doc. 3-1 at 789, 794 and 796.) The ALJ should have conducted an inquiry and determined whether plaintiff's noncompliance was justified because she could not afford her medications. Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th Cir. 1993); see also Powell v. Shalala, No. 93-4004-SAC, 1993 WL 500839, at *10 (D. Kan. Nov. 8, 1993) ("On remand, the Secretary should consider whether the plaintiff had a justifiable excuse (such as lack of financial resources) for not pursuing treatment.").

The ALJ also failed to consider whether plaintiff's purported noncompliance was the result of side effects of some of her medications. For example, there is evidence in the record that plaintiff was not able to take Clonidine for her hypertension due to the drowsiness it caused her. (Doc. 3-1 at 348.) The ALJ should have inquired into the circumstances concerning why plaintiff was purportedlynoncompliant with her medications and determined whether she had a justifiable excuse. Thomas, 987 F.2d at 1490.

Fourth, the ALJ stated that plaintiff underrepresented...