BRIAN D. GROOM, Plaintiff,
CAROLYN W. COLVIN,  Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
John W. Lungstrum United States District Judge
Plaintiff, appearing before the court pro se, seeks review of a decision of the Commissioner of Social Security (hereinafter Commissioner) denying Social Security disability (SSD) benefits under sections 216(i) and 223 of the Social Security Act. 42 U.S.C. §§ 416(i) and 423 (hereinafter the Act). Finding no error in the Commissioner’s final decision, the court ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING that decision.
Plaintiff applied for SSD benefits on November 23, 2009, alleging disability beginning April 30, 2009. (R. 10, 118-26). The application was denied initially and upon reconsideration, whereupon Plaintiff requested a hearing before an Administrative Law Judge (ALJ). (R. 10, 76-77, 87-89). Plaintiff’s request was granted, and Plaintiff appeared without representation and testified at a hearing before ALJ Michael R. Dayton on November 23, 2010. (R. 10, 28-30). At the hearing, testimony was also taken from Norma Jean King a witness for Plaintiff, and from Cindy Younger a vocational expert. (R. 10, 28-75).
On January 28, 2011, ALJ Dayton issued his decision applying the Commissioner’s five-step sequential evaluation process and finding at step one that although Plaintiff worked after his alleged onset date the work activity did not rise to the level of substantial gainful activity. (R. 12). He found at step two that Plaintiff has severe impairments including “degenerative disc disease of the cervical and lumbar spines and a history of carpal tunnel syndrome.” (R. 12-15). At step three he found that Plaintiff’s condition does not meet or medically equal any Listed Impairment; and specifically found that Listing 1.02 is not met because the record does not demonstrate an “extreme” limitation in the ability to ambulate effectively or to perform fine and gross movements effectively, and that Listing 1.04 is not met because the record does not demonstrate “nerve root compression or other findings that would satisfy the criteria of listing 1.04.” (R. 15-16).
Before proceeding to the fourth step of the process, the ALJ assessed Plaintiff’s residual functional capacity (RFC) and found that he is able to perform a range of light work as defined in 20 C.F.R. § 404.1567(b), further limited by the need to avoid concentrated exposure to vibrations and workplace hazards, and the ability to climb ladders, ropes, and scaffolds only occasionally. (R. 16-20). In assessing RFC, the ALJ considered the credibility of Plaintiff’s allegations of symptoms resulting from his impairments, and found his “statements concerning the intensity, persistence and limiting effects of these symptoms are not credible.” (R. 17). He also considered the medical opinions, according “little weight” to the non-treating source opinion of Dr. Smith, a psychologist who examined Plaintiff, and “significant weight” to the non-examining source opinions of Dr. Wilkinson and Dr. Coleman, a state agency psychological consultant and medical consultant, respectively, who reviewed the record and opined regarding Plaintiff’s abilities and limitations. (R. 14, 19). Finally, he considered the written lay opinions provided by Mr. Dyke and Mr. Geeting and the lay opinion testimony of Ms. King at the hearing, and accorded them “little weight.” (R. 19-20).
The ALJ found at step four of the sequential evaluation process that Plaintiff has past relevant work as a sporting goods sales clerk, and that based upon the RFC assessed, Plaintiff is still able to perform that work, not as he actually performed it, but as it is generally performed in the national economy. (R. 20.) Although the ALJ might have ended his analysis at step four and found Plaintiff not disabled on that basis, he continued his analysis and made an alternative finding at step five that, considering Plaintiff’s age, education, work experience, and RFC, other jobs exist in significant numbers in the national economy that Plaintiff can perform, represented by light jobs such as an injection-molding-machine tender or a subassembler; and by sedentary jobs such as a semiconductor bonder, or a microfilming document preparer. (R. 20-22).
Because he found that there are jobs in the economy that Plaintiff can perform, the ALJ found that Plaintiff is “not disabled” within the meaning of the Act. (R. 22). Consequently, he denied Plaintiff’s application for SSD benefits. Id. Plaintiff requested Appeals Council review of the ALJ’s decision, and submitted briefs and additional evidence explaining his reasons for disagreeing with the decision. (R. 6). The Council made the additional evidence a part of the administrative record in the case and considered it in deciding whether to review the decision. (R. 1-5). Nevertheless, it determined that the additional evidence “does not provide a basis for changing the Administrative Law Judge’s decision” (R. 2), found no reason under the rules of the Social Security Administration to review the decision, and denied Plaintiff’s request for review. (R. 1). Therefore, the ALJ’s decision became the final decision of the Commissioner; (R. 1); Blea v. Barnhart, 466 F.3d 903, 908 (10th Cir. 2006); and Plaintiff now seeks judicial review. (Doc. 1).
II. Legal Standard
The court’s jurisdiction and review are guided by the Act. Weinberger v. Salfi, 422 U.S. 749, 763 (1975) (citing 42 U.S.C. § 405(g)); Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (same); Brandtner v. Dep’t of Health and Human Servs., 150 F.3d 1306, 1307 (10th Cir. 1998) (sole jurisdictional basis in social security cases is 42 U.S.C. § 405(g)). Section 405(g) of the Act provides for review of a final decision of the Commissioner made after a hearing in which the plaintiff was a party. It also provides that in judicial review “[t]he findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). The court must determine whether the ALJ’s factual findings are supported by substantial evidence in the record and whether he applied the correct legal standard. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); accord, White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001). Substantial evidence is more than a scintilla, but it is less than a preponderance; it is such evidence as a reasonable mind might accept to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Wall, 561 F.3d at 1052; Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir. 1988). The court may “neither reweigh the evidence nor substitute [its] judgment for that of the agency.” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)); accord, Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005).
When deciding if substantial evidence supports the ALJ’s decision, the mere fact that there is evidence in the record which might support a contrary finding will not establish error in the ALJ’s determination. “The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s findings from being supported by substantial evidence. [The court] may not displace the agency’s choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.” Lax, 489 F.3d at 1084 (citations, quotations, and bracket omitted); see also, Consolo v. Fed. Maritime Comm’n, 383 U.S. 607, 620 (1966) (defining substantial evidence as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, ” and noting that “the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.”). Nonetheless, the determination whether substantial evidence supports the Commissioner’s decision is not simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by other evidence or if it constitutes mere conclusion. Gossett, 862 F.2d at 804-05; Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).
An individual is disabled only if he can establish that he has a physical or mental impairment which prevents him from engaging in any substantial gainful activity, and which is expected to result in death or to last for a continuous period of at least twelve months. Knipe v. Heckler, 755 F.2d 141, 145 (10th Cir. 1985) (quoting identical definitions of a disabled individual from both 42 U.S.C. §§ 423(d)(1) and 1382c(a)(3)(A)); accord, Lax, 489 F.3d at 1084. The claimant’s impairments must be of such severity that he is not only unable to perform his past relevant work, but cannot, considering his age, education, and work experience, engage in any other substantial gainful work existing in the national economy. 42 U.S.C. § 423(d)(2)(A).
The Commissioner uses a five-step sequential process to evaluate disability. 20 C.F.R. § 404.1520 (2010); Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010) (citing Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)). “If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary.” Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In the first three steps, the Commissioner determines whether claimant has engaged in substantial gainful activity since the alleged onset, whether he has a severe impairment(s), and whether the severity of his impairment(s) meets or equals the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt. P, App. 1). Williams, 844 F.2d at 750-51. After evaluating step three, the Commissioner assesses claimant’s RFC. 20 C.F.R. § 404.1520(e). This assessment is used at both step four and step five of the sequential evaluation process. Id.
The Commissioner next evaluates steps four and five of the sequential process--determining at step four whether, in light of the RFC assessed, claimant can perform his past relevant work; and at step five whether, when also considering the vocational factors of age, education, and work experience, claimant is able to perform other work in the economy. Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In steps one through four the burden is on Plaintiff to prove a disability that prevents performance of past relevant work. Blea, 466 F.3d 903, 907 (10th Cir. 2006); accord, Dikeman v. Halter, 245 F.3d 1182, 1184 (10th Cir. 2001); Williams, 844 F.2d at 751 n.2. At step five, the burden shifts to the Commissioner to show that there are jobs in the economy which are within the RFC assessed. Id.; Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).
Plaintiff claims the ALJ erred at step three in finding that his impairments do not meet or medically equal the severity of a listed impairment, erred in weighing the opinions of Dr. Smith and Dr. Coleman, erred in evaluating the credibility of Plaintiff’s allegations of symptoms resulting from his impairments, and erred in assessing his RFC.Plaintiff also “is requesting to use the date 11-23-2008, for a starting date of disability as opposed to the April 1, 2009, the date the SSA placed on his application for disability as they [assessed] it from the last day the plaintiff worked full time.” (Pl. Br. 23). The Commissioner argues that the ALJ properly found that the severity of Plaintiff’s impairments does not meet or medically equal a Listed Impairment, that he properly considered the record medical opinions, that he performed a proper credibility evaluation, and that he properly assessed RFC based upon all of the relevant record evidence. She also argues that the ALJ properly determined Plaintiff’s alleged onset date and that Plaintiff should not be allowed to amend his alleged onset date.
The court finds no error in the ALJ’s evaluation. It begins it analysis by considering the ALJ’s step three evaluation and then proceeds to consider the RFC assessment and the components thereof--evaluation of credibility and evaluation of the opinion evidence. Because the court finds no error in the Commissioner’s determination that Plaintiff is not disabled, the alleged date of disability onset is moot, and the court does not consider the parties’ arguments regarding the alleged onset date of disability.
III. Step Three Determination
Plaintiff argues that “there is no standard or Appendix or application that shows an exact list of what ‘meets or equals’ a listed impairment. However, there is a law that defines what is expected should a non-listed impairment exist. The plaintiff will break this law down into seven segments to find a point of ‘meet or equal.’” (Pl. Br. 8, ¶34). He then applies 20 C.F.R. § 404.1505(a) in seven steps to assert that as a matter of law his condition “meets or equals” a medical condition that precludes light work, and further, that because he is over fifty years of age, the ALJ should have found him disabled. (Pl. Br. 9-14). He then argues that in any case his condition meets Listing 1.04 for lumbar spinal stenosis, spondylolisthesis, or degenerative disc disease “that runs the entire length of his spine.” Id. at 14-17. The Commissioner argues that the ALJ properly found that Plaintiff’s condition does not meet or medically equal a Listed Impairment because although the record demonstrates a diagnosis of cervical spinal stenosis while he was still working before his alleged onset date, Plaintiff does not point to record evidence showing a diagnosis of lumbar spinal stenosis, and in any case he cannot show nerve root compression or the inability to ambulate effectively as is required to meet Listing 1.04. (Comm’r Br. 12-13). Further, the Commissioner argues, the ALJ considered and explained why Plaintiff’s condition does not meet or equal the criteria of other impairments in Listings 1.02 and 1.04. Id. at 13-14.
A. Standard for Evaluating Step Three and Listing 1.04
The Commissioner has provided a “Listing of Impairments” which describes certain impairments that she considers disabling. 20 C.F.R. § 404.1525(a); see also, Pt. 404, Subpt. P, App. 1 (Listing of Impairments). If plaintiff’s condition meets or equals the severity of a listed impairment, that impairment is conclusively presumed disabling. Williams, 844 F.2d at 751; see Bowen v. Yuckert, 482 U.S. 137, 141 (1987) (if claimant’s impairment “meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled”). However, plaintiff “has the burden at step three of demonstrating, through medical evidence, that his impairments ‘meet all of the specified medical criteria’ contained in a particular listing.” Riddle v. Halter, No. 00-7043, 2001 WL 282344 at *1 (10th Cir. Mar. 22, 2001) (quoting Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (emphasis in Zebley)); see also, Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993) (burden shifts to Commissioner only at step five). “An impairment that manifests only some of [the listing] criteria, no matter how severely, does not qualify” to meet or equal the listing. Zebley, 493 U.S. at 530. Medical equivalence to a listing may be established by showing that the claimant’s impairment(s) “is at least equal in severity and duration to the criteria of any listed impairment.” 20 C.F.R. § 404.1526(a). The determination of medical equivalence is made without consideration of vocational factors of age, education, or work experience. 20 C.F.R. § 404.1526(c).
“The [Commissioner] explicitly has set the medical criteria defining the listed impairments at a higher level of severity than the statutory standard. The listings define impairments that would prevent an adult, regardless of his age, education, or work experience, from performing any gainful activity, not just ‘substantial gainful activity.’” Zebley, 493 U.S. at 532-33 (emphasis in original) (citing 20 C.F.R. § 416.925(a) (1989)). The listings “streamlin[e] the decision process by identifying those claimants whose medical impairments are so severe that it is likely they would be found disabled regardless of their vocational background.” Yuckert, 482 U.S. at 153. “Because the Listings, if met, operate to cut off further detailed inquiry, they should not be read expansively.” Caviness v. Apfel, 4 F.Supp.2d 813, 818 (S.D. Ind. 1998).
Listing 1.04 deals with disorders of the spine:
1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture) resulting in compromise of a nerve root (including the cauda equina) or the spinal cord.
A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine); or
B. Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue biopsy, or by appropriate medically acceptable imaging, manifested by severe burning or painful dysesthesia, resulting in the need for changes in position or posture more than once every 2 hours; or
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate effectively, as defined in 1.00B2b.
20 C.F.R., Pt. 404, Subpt. P, App. 1.
As Listing 1.04 quoted above reveals, the criteria of Listing 1.04 include (I) a disorder of the spine, which causes compromise of (1) a nerve root, or (2) the spinal cord, with either (A) nerve root compression, (B) spinal arachnoiditis, or (C) lumbar spinal stenosis. The criteria of Listing 1.04A (nerve root compression) are: (i) neuro-anatomic distribution of pain, (ii) limitation of motion of the spine, (iii) motor loss accompanied by either (a) sensory loss, or (b) reflex loss, and (if the lower back is involved) (iv) positive straight-leg raising, either while (a) sitting or (b) supine. Listing 1.04B requires the presence of spinal arachnoiditis which is (i) confirmed by (a) operative note or (b) tissue biopsy, and which is (ii) manifested by (a) severe burning or (b) painful dysesthesia, and which (iii) produces the need to change (a) position or (b) posture more frequently than every two hours. Finally, the criteria of Listing 1.04C are lumbar spinal stenosis (i) resulting in pseudoclaudication, (ii) established by findings on appropriate medically acceptable imaging, (iii) manifested by (a) chronic nonradicular pain and (b) weakness, and (iv) resulting in inability to ambulate effectively.
First, the court notes that in his primary argument Plaintiff applies the incorrect law to decide that his condition meets or equals a condition which precludes light work. As Plaintiff appears to recognize, 20 C.F.R. § 404.1505(a) is the “basic definition of disability.” 20 C.F.R. 404.1505. Moreover, Plaintiff quotes Soc. Sec. Ruling (SSR) 00-4p for the proposition that, “To determine whether an individual applying for disability benefits . . . is disabled, we follow a 5-step sequential evaluation process.” (Pl. Br. 6, ¶26); see also, SSR 00-4p West’s Soc. Sec. Reporting Serv., Rulings 243 (Supp. 2012). Plaintiff also quotes the five step sequential evaluation process as stated in SSR 00-4p. (Pl. Br. 6-7). This process was promulgated by the Commissioner in notice and comment rulemaking codified at 20 C.F.R. 404.1420, and has been accepted as the standard for evaluating disability in the Tenth Circuit for many years. E.g., Newbold v. Colvin, — F.3d —, —, 2013 WL 2631530 (10th Cir. 2013); Wilson, 602 F.3d at 1139; Williams, 844 F.2d at 750; Talbot v. Heckler, 814 F.2d 1456, 1460 (10th Cir. 1987).
Whether the claimant’s impairment(s) meets or equals the severity of an impairment listed in Appendix 1 of Subpart P, of 20 C.F.R. Part 404 is the determination which is made at step three of the five-step sequential evaluation process. 20 C.F.R. § 404.1520(a)(4)(iii). Moreover, the regulations define “medical equivalence” to a listed impairment in 20 C.F.R. § 404.1526. Although Plaintiff is correct that there is no “exact list of what ‘meets or equals’ a listed impairment” (Pl. Br. 8), he is mistaken when he asserts that there is no standard, appendix, or application to make that determination. 20 C.F.R., Pt. 404, Subpt. P, App. 1 contains the Listing of Impairments, which provides the criteria to be met for each Listed Impairment, and 20 C.F.R. § 404.1526 explains the standard to be applied to determine medical equivalence--whether the Listing is equaled. Therefore, Plaintiff’s attempted application of the definition of disability from 20 C.F.R. § 404.1505 to make the step three “meets or equals” determination is erroneous. Nonetheless, Plaintiff’s appeal to Listing 1.04 is appropriate, and the court will determine whether the ALJ properly determined that Listing 1.04 is not met or equaled in the circumstances of this case.
In his step three analysis, the ALJ noted that Plaintiff has musculoskeletal impairments. (R. 15); see also (R. 12) (finding degenerative disc disease--a back disorder enumerated in Listing 1.04). But, he found that Plaintiff “does not have an “extreme” limitation in the ability to ambulate effectively.” Id. He went on to explain that, “Although the claimant has a severe back impairment, there is no evidence that at any time the claimant has been unable to walk without the use of a walker, canes, or crutches or that he has an extreme limitation in the ability to ambulate effectively.” Id. With regard to Listing 1.04A (nerve root compression), the ALJ noted that listing was not met because Plaintiff “does not have one of the listed disorders . . . in conjunction with evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss, and, in connection with the lumbar spine impairment, also a positive straight leg raising test (sitting and supine).” (R. 16) (emphasis in original).
Plaintiff properly does not argue that Listing 1.04B (spinal arachnoiditis) is met here because there is simply no record evidence of such an impairment. However, he specifically argues that Listing 1.04C (lumbar spinal stenosis) is met (Pl. Br. 14, 15, 18), and in his Reply Brief he suggests that Listing 1.04A (nerve root compression) is met. (Pl. Reply 5-6). The problem with Plaintiff’s arguments is that he does not demonstrate that all of the criteria for either Listing 1.04A or 1.04C are met as Zebley requires.
Listing 1.04C requires lumbar spinal stenosis (ii) established by findings on appropriate medically acceptable imaging, (i) resulting in pseudoclaudication, (iii) manifested by (a) chronic nonradicular pain and (b) weakness, and (iv) resulting in inability to ambulate effectively. To establish Listing 1.04C plaintiff points to an x-ray report showing chronic grade 1 spondylolisthesis at L5-S1 with sclerosis, but stating that the “remainder of the lumbar spine is normal.” (Pl. Br. 8) (quoting R. 510). Plaintiff asserts, without citation to any authority, that grade 1 spondylolisthesis equates to a 25% closure of the spinal canal, and that his “lack of ability to ambulate was documented as being ‘antalgic’ by Dr. Milton H. Landers” in May 2008. (Pl. Br. 15) (citing R. 440). He then asserts that “This means the plaintiff has met the requirements of 20 CFR Part 404, Subpart P, Appendix 1, 1.04C and 1.00(B)(2)(b).” Id. 15. Contrary to Plaintiff’s assertion, he has not established that all of the criteria of Listing 1.04C are met. First, he has not shown that grade 1 spondylolisthesis at L5-S1 equates to “lumbar spinal stenosis” or that the x-ray reports relied upon are “appropriate medically acceptable imaging” upon which such stenosis might be “established.” Moreover, he has not shown that an “antalgic” gait equates to an “inability to ambulate effectively, ” or that the “antalgic” gait referred to by Dr. Landers results from lumbar stenosis.
Even if the court were to assume that these four facts had been established by Plaintiff, and that the pain and weakness testified by Plaintiff were “chronic nonradicular pain and weakness” sufficient to manifest lumbar spinal stenosis, Plaintiff has not shown pseudoclaudication resulting from lumbar spinal stenosis. Moreover, as the ALJ’s decision suggests, the regulations define “inability to ambulate effectively, ” as “an extreme limitation in the ability to walk . . . having insufficient lower extremity functioning . . . to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities.” 20 C.F.R., Pt. 404, Subpt. P, App. 1 § 1.00B(2)(b)(1)(emphasis added). The regulations explain:
To ambulate effectively, individuals must be capable of sustaining a reasonable walking pace over a sufficient distance to be able to carry out activities of daily living. They must have the ability to travel without companion assistance to and from a place of employment or school. Therefore, examples of ineffective ambulation include, but are not limited to, the inability to walk without the use of a walker, two crutches or two canes, the inability to walk a block at a reasonable pace on rough or uneven surfaces, the inability to use standard public transportation, the inability to carry out routine ambulatory activities, such as shopping and banking, and the inability to climb a few steps at a reasonable pace with the use of a single hand rail. The ability to walk independently about one's home without the use of assistive devices does not, in and of itself, constitute effective ambulation.
20 C.F.R., Pt. 404, Subpt. P, App. 1 § 1.00B(2)(b)(2). Plaintiff has not shown the extreme limitation in the ability to walk ...