United States District Court, D. Kansas
TED L. ARTZER, Plaintiff,
CAROLYN W. COLVIN,  Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
JOHN W. LUNGSTRUM, District Judge.
Plaintiff 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, alleging disability beginning June 30, 1999. (R. 16, 56). Plaintiff's date last insured for SSD benefits was September 30, 2006. (R. 16, 553). At a hearing on December 5, 2007, Plaintiff amended his onset date to June 15, 2004. (R. 520). Consequently, the relevant period for the court's review of the question of disability is June 15, 2004 through September 30, 2006. Plaintiff exhausted proceedings before the Commissioner and in July 2008 sought judicial review of the Commissioner's decision denying benefits. Artzer v. Astrue, Case No. 10-4088-JAR (D. Kan. July 28, 2010) (Complaint). In proceedings before Judge Robinson of this court, the Commissioner made a motion to remand, and the parties provided an "Agreed Order of Reversal and Remand Pursuant to Sentence Four of 42 U.S.C. § 405(g), " which the court entered. Id . (D. Kan. Feb. 22, 2011) (Doc. 16); see also, (R. 572-73) (all further citation to proceedings before Judge Robinson will be to copies of documents in the administrative record of this case).
On remand, a new Administrative Law Judge (ALJ) held another hearing, and issued another decision denying benefits. (R. 553-65). The Appeals Council declined to assume jurisdiction of the ALJ's decision and that decision became the "final decision of the Commissioner of Social Security after remand by the court." (R. 539-40). Plaintiff timely filed another complaint seeking judicial review of that decision. (Doc. 1).
Plaintiff claims the ALJ erred in her RFC assessment because she improperly evaluated the medical opinions, because the credibility determination is not supported by the record, and because she did not perform a function-by-function discussion of Plaintiff's abilities before expressing the RFC in terms of the exertional levels of work. He also claims the hypothetical question relied upon by the ALJ is not supported by the record, and the ALJ did not properly apply the Medical-Vocational Guidelines.
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 she 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; 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 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 addresses each allegation of error presented in Plaintiff's Brief, but it begins by considering the credibility determination because Plaintiff argues that the alleged error in the credibility findings demonstrates the error in evaluating Dr. Winkler's opinion.
II. The Credibility Determination
Plaintiff claims that the ALJ's credibility determination is not supported by the record. He argues that the record evidence supports the credibility of his allegations of symptoms, and that the reasons relied upon by the ALJ to discount Plaintiff's credibility actually support it. The Commissioner argues that substantial evidence supports the ALJ's credibility determination. She points out that the question is not whether Plaintiff experiences the symptoms complained of, but whether the severity of the symptoms is disabling. She points to record evidence supporting each of the reasons given by the ALJ to discount Plaintiff's allegations.
A. The ALJ's Credibility Findings
The ALJ noted that the first ALJ's decision was issued after Plaintiff's date last insured and "contains a detailed analysis of the medical evidence during the relevant period, " and that Plaintiff "has not submitted any new or material evidence [since then] that relates or dates back to the relevant period, " and consequently the ALJ "adopted and incorporat[ed] by reference the prior Administrative Law Judge's summary and analysis of the medical evidence" (R. 21-23) into her decision. (R. 558). She also summarized the record evidence and hearing testimony in her decision. (R. 556-57, 558-63). In this analysis, she included a summary and evaluation of Plaintiff's allegations of disabling symptoms resulting from his impairments, and determined that the allegations "are not credible" (R. 558), and "are less than fully credible." (R. 560).
The court discerns seven reasons given by the ALJ to discount Plaintiff's credibility: (1) "the objective evidence has been underwhelming and is not consistent with allegations of severe and unremitting pain" (R. 560); (2) clinical signs and findings were relatively normal during the relevant period, id.; (3) Plaintiff's medical treatment reveals that he responded well to carpal tunnel surgeries; that he was self-limiting during physical therapy, and that he was using mostly over-the-counter pain medication; (4) Plaintiff's activities are inconsistent with disabling pain; (5) Plaintiff's reports of activities in the medical record, in his reports to the Social Security Administration, and at the hearings have been inconsistent; (6) no physician opined that Plaintiff must lie down during the day and Plaintiff's function reports do not indicate such a need; and (7) Plaintiff's poor work history reflects negatively on his credibility. (R. 561).
As Plaintiff acknowledges, 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.
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"). Moreover, Plaintiff must demonstrate the error in the ALJ's rationale or finding; the mere fact that there is record evidence 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. We 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) (same). But, "[f]indings as to credibility should be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings." Huston ...