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Huffman v. Colvin

United States District Court, Tenth Circuit

September 20, 2013

CAROLYN W. COLVIN, [1] Acting Commissioner of Social Security, Defendant.


John W. Lungstrum United States District Judge.

Plaintiff seeks review of a decision of the Commissioner of Social Security (hereinafter Commissioner) denying Social Security Disability(SSD) benefits and Supplemental Security Income (SSI) benefits under sections 216(i), 223, 1602, and 1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 416(i), 423, 1381a, and 1382c(a)(3)(A) (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.

I. Background

Plaintiff applied for SSD and SSI in August, 2009, alleging disability beginning May 15, 2005. (R. 10, 129-42). The applications were denied initially and upon reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge (ALJ). (R. 10, 73-76, 93-99).[2] Plaintiff’s request was granted, and Plaintiff appeared with counsel for a hearing before ALJ James Harty on November 17, 2010. (R. 10, 29-31). At the hearing, testimony was taken from Plaintiff and from a vocational expert, and Plaintiff amended her alleged onset date to January 1, 2008. (R. 10, 36, 29-72). On February 15, 2011, ALJ Harty issued his decision. (R. 10-23). He determined that Plaintiff had engaged in substantial gainful activity after her amended alleged onset date between February and June, 2009, but not thereafter. (R. 12). He determined that Plaintiff has severe impairments of status post four back surgeries, and chronic pain, but that her insomnia, obesity, carpal tunnel syndrome, gastroenteritis, hypertension, anxiety, and depression are not severe impairments within the meaning of the Act. (R. 13-14).

The ALJ determined that Plaintiff has the RFC for a range of sedentary work limited by the need to alternate sitting and standing, and only occasionally to push or pull with the lower extremities, and by other significant postural, environmental, and mental limitations. (R. 15). He determined Plaintiff’s allegations of symptoms resulting from her impairments are not credible. (R. 16-18). He evaluated the medical opinions of Dr. Peloquin, Dr. Malik, Dr. Hsu, and Dr. Goering, and accorded them limited weight, little weight, some weight, and substantial weight, respectively. (R. 19-21). He determined that Plaintiff is unable to perform any of her past relevant work, but that when considering her age, education, work experience, and RFC, there are jobs that exist in significant numbers in the economy that Plaintiff can perform, represented by jobs such as administrative support worker, order clerk, production checker, and wire wrapper. (R. 22-23). He concluded that Plaintiff is not disabled within the meaning of the Act, and denied her applications. (R. 23).

Plaintiff requested review of the ALJ’s decision by the Appeals Council, and submitted a Representative Brief detailing the bases for requesting review. (R. 6, 320-21). The Council issued an order making the Representative Brief a part of the administrative record, and considered that brief in deciding whether to grant review. (R. 1-2, 4). The Council found that the brief did not provide a basis for changing the ALJ’s decision, found no reason under the rules of the Social Security Administration to review the decision, and denied Plaintiff’s request for review. (R. 1-2). 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 of that decision. (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 she can establish that she has a physical or mental impairment which prevents her 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 she is not only unable to perform her past relevant work, but cannot, considering her 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);[3] 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 she has a severe impairment(s), and whether the severity of her 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 her 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 in this case at step two of the process by determining that right carpal tunnel syndrome and obesity are not severe impairments within the meaning of the Act, and erred in his RFC assessment by incorrectly evaluating the credibility of Plaintiff’s allegations of symptoms and by discounting the medical opinion of Dr. Peloquin, her treating physician. The Commissioner argues that the ALJ properly evaluated Plaintiff’s right carpal tunnel syndrome and obesity, and that substantial evidence supports the RFC assessed by the ALJ, including his evaluation of Dr. Peloquin’s treating source opinion and his evaluation of the credibility of Plaintiff’s allegations. The court finds no error in the decision at issue. It usually addresses issues raised by claimants in the order they would be reached in applying the sequential evaluation process. However, because the ALJ’s credibility determination in this case affected the step two evaluation of Plaintiff’s right carpal tunnel syndrome and obesity, the court begins with review of the ALJ’s credibility determination.

III. The Credibility Determination

Plaintiff claims the ALJ applied the incorrect legal standard in his credibility determination and thereby failed to provide a reason to reject Plaintiff’s testimony regarding the effects of right carpal tunnel syndrome and her testimony regarding the side effects of medication. (Pl. Br. 24-28). The Commissioner argues that the ALJ properly discounted the credibility of Plaintiff’s allegations. The Commissioner argues that the medical evidence doesn’t support Plaintiff’s allegations, that Plaintiff’s medication improved her symptoms, that Plaintiff continued to work for nearly three years after her original alleged onset date, that while Plaintiff was seeking disability she applied for unemployment insurance and certified that she was willing and able to work, and that Plaintiff’s allegations are inconsistent with her activities of daily living. (Comm’r Br. 10-13).

A. Standard for Evaluating the ALJ’s Credibility Determination

The court’s review of ALJs’ credibility determinations is deferential. Their credibility determinations are generally treated as binding on review. Talley v. Sullivan, 908 F.2d 585, 587 (10th Cir. 1990); Broadbent v. Harris, 698 F.2d 407, 413 (10th Cir. 1983). “Credibility determinations are peculiarly the province of the finder of fact” and will not be overturned when supported by substantial evidence. Wilson, 602 F.3d at 1144; accord Hackett, 395 F.3d at 1173. Therefore, in reviewing the ALJ’s credibility determinations, the court will usually defer to the ALJ on matters involving witness credibility. Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994); but see Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th Cir. 1993) (“deference is not an absolute rule”). “However, ‘[f]indings as to credibility should be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings.’” Wilson, 602 F.3d at 1144 (quoting Huston v. Bowen, 838 F.2d 1125, 1133 (10th Cir. 1988)); Hackett, 395 F.3d at 1173 (same).

The Tenth Circuit has explained the analysis for evaluating subjective testimony regarding symptoms. Thompson, 987 F.2d at 1488 (dealing specifically with pain).

A claimant’s subjective allegation of pain is not sufficient in itself to establish disability. Before the ALJ need even consider any subjective evidence of pain, the claimant must first prove by objective medical evidence the existence of a pain-producing impairment that could reasonably be expected to produce the alleged disabling pain. This court has stated: The framework for the proper analysis of Claimant’s evidence of pain is set out in Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987). We must consider (1) whether Claimant established a pain-producing impairment by objective medical evidence; (2) if so, whether there is a “loose nexus” between the proven impairment and the Claimant’s subjective allegations of pain; and (3) if so, whether, considering all the evidence, both objective and subjective, Claimant’s pain is in fact disabling.

In evaluating credibility, the Luna court noted a list of factors the Tenth Circuit had recognized which should be considered in credibility determination, and recognized that the Secretary of Health and Human Services had also noted several factors for consideration. Luna, 834 F.2d at 165-66 (citing Polaski v. Heckler, 751 F.2d 943, 948 (8th Cir. 1984), judgment vacated on other grounds sub nom Bowen v. Polaski, 476 U.S. 1167 (1986)). The Luna court recognized that “no such list can be exhaustive.” Id. at 166. The factors recognized by courts in the Tenth Circuit include:

the levels of medication and their effectiveness, the extensiveness of the attempts (medical or nonmedical) to obtain relief, the frequency of medical contacts, the nature of daily activities, subjective measures of credibility that are peculiarly within the judgment of the ALJ, the motivation of and relationship between the claimant and other witnesses, and the consistency or compatibility of nonmedical testimony with objective medical evidence.

Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (quoting Thompson, 987 F.2d at 1489). Subsequent to Luna and Polaski, the Secretary promulgated regulations explaining factors considered in evaluating credibility which overlap and expand upon the factors stated by the court: Daily activities; location, duration, frequency, and intensity of symptoms; factors precipitating and aggravating symptoms; type, dosage, effectiveness, and side effects of medications taken to relieve symptoms; treatment for symptoms; measures plaintiff has taken to relieve symptoms; and other factors concerning limitations or restrictions resulting from symptoms. Evaluation of Symptoms, Including Pain, 56 Fed. Reg. 57, 928, 57, 941-43, 57, 944-46 (Nov. 14, 1991) (codified at 20 C.F.R. §§ 404.1529, 416.929).

B. The ALJ’s Credibility Determination

The ALJ explained that he had considered Plaintiff’s symptoms “based on the requirements of 20 CFR 404.1529 and 416.929 and SSRs [(Social Security Rulings)] 96-4p and 96-7p.” (R. 16). He then summarized the standard for evaluating credibility as set out in the regulations and rulings, and stated his finding that “the claimant’s statements concerning the intensity, persistence and limiting effects of [her] symptoms are not credible.” (R. 16). Over the next three and one-half pages of his decision, the ALJ discussed the evidence relating to his credibility determination and stated fourteen reasons for discounting the credibility of Plaintiff’s allegations. Id. at 16-19. Those reasons are: (1) The degree of limitation alleged by Plaintiff is not well-supported by objective medical evidence and examination findings; (2) after her most recent back surgery, Plaintiff was able to return to substantial gainful activity (R. 16); (3) Plaintiff demonstrated greater range of motion when observed putting her shoes back on than she demonstrated during her examination (R. 17) (citing Ex. 6F at p.2 (R. 547)); (4) Although Plaintiff’s gait is described as uncomfortable and antalgic, she testified she can ambulate without a cane; (5) Plaintiff has not provided evidence that the limitations she observes in her daily activities are medically necessary; (6) the severity of pain alleged by Plaintiff is not consistent with the reduction in her pain medication; (7) the severity of pain Plaintiff described to her treatment providers is inconsistent with the severity alleged in her testimony (R. 17); (8) Plaintiff testified to drowsiness and forgetfulness as medication side effects, but did not report memory or concentration difficulties in her function report; (9) Plaintiff’s allegation that she must rest three to six times a day is not supported by record evidence of medical necessity; (10) Plaintiff worked during the period of alleged disability without taking three to six breaks a day to rest or recline; (11) during the period of time that she now alleges she was disabled, Plaintiff certified for unemployment compensation that she was willing and able to work; (12) Plaintiff testified that when receiving unemployment compensation she applied for sedentary jobs, thus suggesting an ability to perform sedentary work; (13) Plaintiff returned to work after each back surgery, and does not show that her medical condition has worsened thereafter; and (14) Plaintiff’s last job ended for failure to follow company procedures, not because she was unable to do the work. (R. 18).

C. Analysis

Plaintiff has not shown that the ALJ applied the incorrect legal standard to his credibility determination. Plaintiff quotes Kepler for the proposition that credibility findings must be affirmatively linked to substantial record evidence. (Pl. Br. 24). She argues that the ALJ must explain and support with substantial evidence the parts of Plaintiff’s evidence he does not believe and why. Id. at 25 (citing McGoffin v. Barnhart, 288 F.3d 1248, 1254 (10th Cir. 2002)). Finally, she quotes White for the proposition that the requirement that credibility findings be affirmatively linked to substantial evidence can only be met if the ALJ “sets forth the specific evidence he relies on in evaluating the claimant’s credibility.” Id. (quoting White, 287 F.3d at 909).

Plaintiff’s argument appears to ignore the evidence discussed by the ALJ on pages 4-12 of his decision (R. 13-21) and the fourteen reasons given by the ALJ to discount the credibility of Plaintiff’s allegations. (R. 16-19). With but one exception which will be addresses hereinafter, Plaintiff does not point to error in the evidence discussed by the ALJ, and does not argue that the fourteen reasons are erroneous. Rather, she points to her testimony regarding carpal tunnel syndrome and to her testimony that she has significant drowsiness and forgetfulness as side effects from her pain medications, and argues that the ALJ failed to provide adequate reasons to reject that specific testimony. Plaintiff appears to be working from the premise that the ALJ must provide an individual reason to discount each allegation made by a claimant, but she does not cite to authority for that premise. Moreover, the court is aware of no such authority.

The cases cited by Plaintiff will not carry the burden necessary for the premise suggested. As noted above, in eight pages of his decision the ALJ supported his credibility findings with substantial evidence from the record, as required by Broadbent, and set forth the specific evidence he relied upon as required by White. (R. 13-21). He affirmatively linked those findings to that evidence as required in Kepler, by discussing his ...

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