United States District Court, D. Kansas
MEMORANDUM AND ORDER
ERIC F. MELGREN, District Judge.
Plaintiff John Iiams ("Plaintiff") seeks review of a final decision by Defendant, the Commissioner of Social Security ("Commissioner"), denying his applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act, respectively, and attorney's fees. In his pleadings, Plaintiff alleges three assignments of error concerning the assessment of his residual functional capacity: (1) a failure to properly weigh the opinions of the state examiners, (2) a failure to properly weigh the opinion of Plaintiff's treating source, and (3) credibility issues. Upon review, the Court finds that the Commissioner's decision was supported by substantial evidence contained in the record. As such, the decision of the Commissioner is affirmed.
I. Factual and Procedural Background
Plaintiff's relevant medical issues date back to July 11, 2008, when Plaintiff saw his family physician complaining that his right arm had not been working for the past week. An examination found that Plaintiff could not raise his right arm at all, nor could he move it forward or backward. He also held his right arm down to his side with his palm facing outward. However, Plaintiff's doctor noted that "when [Plaintiff was] not aware of it, he use[d] the arm without any difficulty." An x-ray showed no acute bony fracture, dislocation, or bony destruction. In October 2008, Plaintiff underwent an x-ray of his cervical spine. The scan showed a straightening of the spine with narrowing of the disc spaces at the C4-C7 vertebrae and anterior hyperostotic changes at the C3-T1 vertebrae.
The balance of Plaintiff's medical record consists of his numerous visits to chiropractor Gerald Kauffman, DC ("Kauffman"), who Plaintiff saw approximately twice per week from April 2009 through late 2011. Kauffman diagnosed Plaintiff with a frozen shoulder. From July 2010 through March 2011, when asked to rate his pain on a scale of one to nine, Plaintiff indicated that his neck pain was a two, and his mid and lower back pain was a one. Kauffman noted that Plaintiff had some swelling of the tissues, muscle spasms, taut and tender fibers, pain upon palpation, hypomobility of the vertebra, and a decrease in the normal range of motion. In mid-March 2011, and without explanation, Plaintiff's pain ratings changed as follows: neck pain at a six, neck pain radiating into right arm at a seven, mid back pain at a four, low back pain at a seven, and low back pain radiating into the right leg at an eight. Kauffman's narrative commentary did not reflect any reason for these changes, nor did it describe any additional symptoms. In May 2011, Plaintiff's mid back pain decreased to a four, where it remained through at least August 2011.
Plaintiff filed for both DIB and SSI on June 10, 2010, alleging disability beginning May 2, 2010. His claims were denied initially on September 14, 2010, and upon reconsideration on October 7, 2010. Plaintiff timely filed a request for an administrative hearing, which took place on September 27, 2011, before Administrative Law Judge Michael Shilling ("ALJ Shilling"). Plaintiff, represented by counsel, appeared and testified.
At the time of the hearing, Plaintiff was sixty years old and lived alone. Plaintiff testified that he graduated high school and took a course when he began employment with a hospital. When asked what prevented him from returning to work, Plaintiff cited the pain in his shoulder as well as leg and foot numbness. Plaintiff indicated that he injured his right shoulder while moving a cement birdbath and this injury resulted in adhesive capsulitis, or frozen shoulder. He sought treatment with his chiropractor, Kauffman, and testified that no one had ever discussed with him additional treatment options. Plaintiff testified that he did not take any type of pain medication, including over-the-counter remedies, but did use BioFreeze on his leg and ice to relieve the pain in his right shoulder. He noted that his chiropractic sessions provided temporary relief. Plaintiff testified that Kauffman discussed surgery but allegedly told Plaintiff that the surgery was "experimental" and "very expensive" and would involve breaking Plaintiff's collarbone.
With regard to activities of daily living, Plaintiff testified that he could cook, do yard work, and drive, although not on the highway. He indicated that his adult daughter took care of most of his household chores, including laundry. Plaintiff also noted that he had difficulty getting dressed and undressed and limited himself to one shower per week due to his shoulder pain. He testified that he could lift ten to fifteen pounds with his left arm, sit for an hour at a time, and stand for thirty to forty minutes at a time. Plaintiff indicated that he did not use a sling to help stabilize his shoulder but used a cane for walking longer distances.
In addition to Plaintiff's testimony, ALJ Shilling also sought the testimony of Vocational Expert Alissa Smith ("VE Smith") to determine how, if at all, Plaintiff's impairments and limitations affected his ability to return to the workforce. VE Smith described Plaintiff's past work as a psychiatric aide as semi-skilled and typically performed at a medium level, although she noted that Plaintiff performed this job more at a heavy level of exertion. The VE described Plaintiff's past work as a security guard as semi-skilled and light, and his past work as a hotel housekeeper as unskilled and light. Based on this testimony, and upon his review of Plaintiff's entire record, ALJ Shilling asked the VE a series of hypothetical questions that included varying degrees of limitation on actions such as lifting, walking, standing, sitting, climbing, pushing/pulling, balancing, and reaching. Plaintiff's counsel did not pose any hypothetical questions.
On November 1, 2011, ALJ Shilling issued his decision, finding that Plaintiff suffered from a variety of severe impairments, including right shoulder pain, coronary artery disease, and obesity. Despite these findings, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. ALJ Shilling concluded that Plaintiff retained the residual functional capacity to perform medium work, as that term is defined under Social Security Regulations, with the following limitations and/or exceptions: (1) only occasionally lift and/or carry fifty pounds and frequently lift and or carry twenty-five pounds; (2) stand and walk for six hours out of an eight-hour workday; (3) sit for six hours out of an eight-hour workday; (4) frequently balance, stoop, crouch, crawl, and climb stairs; (4) occasionally climb ropes, scaffolds, or ladders; and (5) frequently engage in overhead reaching and handling. The ALJ therefore concluded that Plaintiff had not been under a disability since May 1, 2010, the alleged onset date, through the date of his decision.
Given this unfavorable result, Plaintiff sought reconsideration of ALJ Shilling's decision from the Appeals Council. The Council denied review on April 12, 2013. As such, the ALJ's November 2011 decision became the final decision of the Commissioner.
On June 10, 2013, Plaintiff filed a Complaint in the United States District Court, District of Kansas seeking reversal and the immediate award of benefits or, in the alternative, a remand to the Commissioner for further consideration. Plaintiff also seeks attorney's fees. Given Plaintiff's exhaustion of all administrative remedies, his claim is now ripe for review before this Court.
II. Legal Standard
Judicial review of the Commissioner's decision is guided by the Social Security Act (the "Act") which provides, in part, that the "findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." The court must therefore determine whether the factual findings of the Commissioner are supported by substantial evidence in the record and whether the ALJ applied the correct legal standard. "Substantial evidence is more than a scintilla, but less than a preponderance; in short, it is such evidence as a reasonable mind might accept to support the conclusion." The court may "neither reweigh the evidence nor substitute [its] judgment for that of the [Commissioner]."
An individual is under a disability only if he can "establish that [he] has a physical or mental impairment which prevents [him] from engaging in substantial gainful activity and is expected to result in death or to last for a continuous period of at least twelve months." This impairment "must be severe enough that [he] is unable to perform [his] past relevant work, and further cannot engage in other substantial gainful work existing in the national economy, considering [his] age, education, and work experience."
Pursuant to the Act, the Social Security Administration has established a five-step sequential evaluation process for determining whether an individual is disabled. The steps are designed to be followed in order. If it is determined, at any step of the evaluation process, that the claimant is or is not disabled, further evaluation under a subsequent step is unnecessary.
The first three steps of the sequential evaluation require the Commissioner to assess: (1) whether the claimant has engaged in substantial gainful activity since the onset of the alleged disability; (2) whether the claimant has a severe, or combination of severe, impairments; and (3) whether the severity of those severe impairments meets or equals a designated list of impairments. If the impairment does not meet or equal one of these designated impairments, the ALJ must then determine the claimant's residual functional capacity, which ...