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Mitchell v. Colvin

United States District Court, Tenth Circuit

October 28, 2013

JAYSON MITCHELL, Plaintiff,
v.
CAROLYN W. COLVIN, [1] Acting Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

JOHN W. LUNGSTRUM, UNITED STATES DISTRICT JUDGE

Plaintiff seeks review of a decision of the Commissioner of Social Security (hereinafter Commissioner) denying Supplemental Security Income (SSI) benefits under sections 1602, and 1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 1381a, and 1382c(a)(3)(A) (hereinafter the Act). Finding error in the ALJ’s evaluation of Plaintiff’s allegations of symptoms, the court ORDERS that the decision shall be REVERSED and that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) REMANDING the case for further proceeding consistent with this opinion.

I. Background

Plaintiff applied for SSI alleging disability beginning April 1, 2009.[2] (R. 13, 119-21). In due course, Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. He alleges that the Administrative Law Judge (ALJ) erred in evaluating the medical opinions; and in evaluating the credibility of Plaintiff’s allegations of symptoms resulting from his impairments.

The court’s review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Section 405(g) of the Act 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). 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).

The Commissioner uses the familiar five-step sequential process to evaluate a claim for disability. 20 C.F.R. §§ 404.1520, 416.920; 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 residual functional capacity (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 v. Barnhart, 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).

The court finds that remand is necessary because substantial record evidence does not support the ALJ’s credibility determination. Because remand is necessary in any case, the court will not reach Plaintiff’s arguments with regard to the medical opinions. He may make these arguments before the Commissioner on remand.

II. The Credibility Determination

The ALJ determined that Plaintiff’s allegations of the severity of symptoms resulting from his impairments is not credible in general terms because the allegations lack support from the objective medical evidence, from Plaintiff’s medications or other treatment, and from Plaintiff’s activities. (R. 18-20). Plaintiff claims that the ALJ’s consideration of Plaintiff’s activities constitutes reliance merely upon the sporadic performance of work or household tasks, that the ALJ erroneously relied upon Plaintiff’s alleged noncompliance with taking his insulin, and that in discussing Plaintiff’s treatment the ALJ did not demonstrate Plaintiff’s allegations were not credible but “just noted ways in which Mitchell has been compliant with medical treatment.” (Pl. Br. 20). He then explains how, in his view, a proper evaluation of the evidence would yield a finding that his allegations are credible. Id. at 21-24. The Commissioner argues that the ALJ properly considered Plaintiff’s credibility. She argues that, contrary to Plaintiff’s assertion, the ALJ considered all of the medical evidence in making his credibility determination, and that because of a needle phobia Plaintiff did not take the full amount of insulin recommended and would not administer a second shot to himself which weighs against his credibility. (Comm’r Br. 5-6). She argues that although the ALJ recognized that Plaintiff’s treating physician instructed him to discontinue use of his continuous positive airway pressure (CPAP) machine, he also noted that Plaintiff took medication that helped him stay awake during the day and reduced the time he spent napping. Id. 6-7. The Commissioner also argues that substantial record evidence supports the credibility determination, and that the ALJ’s findings should be upheld. Id. at 7-8. In his reply brief, Plaintiff argues that his needle phobia is a proper basis to excuse his noncompliance with full insulin treatment and “should not weigh against his credibility.” (Reply 1).

A. Standard for Evaluating the ALJ’s Credibility Determination

The court’s review of an ALJ’s credibility determination is deferential. 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. However,

[b]ecause a credibility assessment requires consideration of all the factors “in combination, ” [] when several of the factors relied upon by the ALJ are found to be unsupported or contradicted by the record, [a court is] precluded from weighing the remaining factors to determine whether ...

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