United States District Court, D. Kansas
KEITH L. SLAUGHTER, 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 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, alleging disability beginning May 24, 2009. (R. 18, 147-48). In due course, Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. He alleges the Administrative Law Judge (ALJ) erred in multiple respects in her decision, and that the decision is unsupported by substantial record evidence. Specifically, he argues that the ALJ ignored his depression and failed in her duty to develop the record regarding mental impairments, that she "failed to adequately accommodate Plaintiff's limited education, " that she failed to accord sufficient weight to the third-party statement of Plaintiff's mother, that she failed to include certain residual functional capacity (RFC) limitations suggested by record evidence, that she improperly relied upon Plaintiff's activities of daily living, and that she improperly relied upon conservative treatment to discount Plaintiff's allegations of disability.
The Commissioner argues to the contrary, that substantial record evidence supports the ALJ's decision. She argues that the ALJ specifically considered Plaintiff's depression, but did not find any limitations resulting from it and that there was no duty to further develop the record regarding mental impairments because an ALJ is entitled to rely upon the claimant's counsel to structure and present his case, and counsel in this case represented to the ALJ that the record was complete. She argues that the ALJ properly considered Plaintiff's limited education and that even if the ALJ had failed to consider limited education, that failure would be harmless error because the Medical-Vocational Guidelines note that, for a younger individual such as Plaintiff, even illiteracy and an inability to communicate in English have little significance. The Commissioner notes that the ALJ considered and specifically discussed the third-party statement of Plaintiff's mother, and that more is not required under the law of the Tenth Circuit. She argues that the ALJ's RFC assessment is supported by substantial record evidence, that she properly considered Plaintiff's activities of daily living, and properly relied upon the fact that Plaintiff had only conservative treatment to discount Plaintiff's allegations.
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 finds no error in the decision below. Plaintiff's arguments primarily assert that the ALJ accorded insufficient weight to that record evidence which tends to support a finding that Plaintiff is disabled, and excessive weight to record evidence tending to support a finding that Plaintiff is not disabled. To the extent that Plaintiff seeks to have the court reweigh the record evidence and substitute its judgment for that of the Commissioner, the court notes that it may not do so. Bowman , 511 F.3d at 1272; accord, Hackett , 395 F.3d at 1172. Moreover, Plaintiff must demonstrate the error in the ALJ's rationale or finding; the mere fact that there is 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. [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) (same). Therefore, where, as in this case, the ALJ has reached a reasonable conclusion that is supported by substantial evidence in the record, the court will not reweigh the evidence and reject that conclusion even if it might have reached a contrary conclusion in the first instance.
Contrary to Plaintiff's assertion that the ALJ ignored Plaintiff's depression, the ALJ specifically cited Dr. Lyche's diagnosis of depression. (R. 26) (citing "[a] Swope Health Services treatment note, " Ex. 12F/7-8 (R. 410-11)). This note is the only mention of depression the court was able to find in a 532 page record containing 216 pages of medical records. The diagnosis was made by Dr. Lyche at Plaintiff's first recorded visit with Dr. Lyche, the stated reason for that appointment was "Neck pain and headaches, " depression is not mentioned in any of Dr. Lyche's other treatment notes, and Dr. Lyche did not treat Plaintiff for depression. Yet, the ALJ specifically noted that diagnosis in her decision.
Plaintiff's assertion that he "was not only diagnosed with, but treated for, depression and he was noted to have an abnormal affect or low mood on multiple occasions" (Pl. Br. 15) (citing R. 323, 328, 363, 410-11, 414, 422, 430), is not supported by the record. With the exception of Dr. Lyche's treatment note cited above, each of the records cited by Plaintiff is merely a passing reference in one of Plaintiff's treatment notes regarding affect or mood. As noted above, Dr. Lyche did not treat Plaintiff for depression. Moreover, none of the records cited by Plaintiff reveal treatment for depression or any other mental impairment. One of the records cited by Plaintiff is a "Neurosurgery Physical Examination" in which an unnamed examiner merely circled the statement "low mood" on a pre-printed form. (R. 363).
The remaining citations merely note in passing-a poor affect (R. 323), a frustrated affect (R. 327),  or a flat affect. (R. 414, 422, 430). The record at R. 323, in context, does not even support Plaintiff's assertion that he has a poor affect. That record is a report by Dr. Galate, in which he noted that Plaintiff has a "poor affect, " but Dr. Galate also noted that Plaintiff's "affect does not appear to be appropriate for his situation." (R. 323). The ALJ summarized that treatment note, and stated that Dr. Galate recognized inconsistencies throughout Plaintiff's exam, that Plaintiff shows poor effort on testing, and that "Waddell's is 4/5 today." (R. 24) (citing Ex. 2F/4-6 (R. 323-25)). A fair reading of Dr. Galate's note reveals that Dr. Galate found Plaintiff was, at best, exaggerating his symptoms and limitations. In addition to the findings specifically cited by the ALJ, the note reveals that Plaintiff "had a completely invalid Functional Capacity Exam" which showed "manipulated effort" by Plaintiff, that there was "breakaway weakness in all major muscle groups ...