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Reed v. Colvin

United States District Court, D. Kansas

September 16, 2014

DARIN W. REED, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

SAM A. CROW, Senior District Judge.

This is an action reviewing the final decision of the Commissioner of Social Security which denied plaintiff disability insurance benefits and supplemental security income payments. The matter has been fully briefed by the parties.

I. General Legal Standards

The court's standard of review is set forth in 42 U.S.C. § 405(g), which provides that "the findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." The court reviews the Commissioner's decision to determine only whether the decision was supported by substantial evidence in the record as a whole, and whether the Commissioner applied the correct legal standards. Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994). When supported by substantial evidence, the Commissioner's findings are conclusive and must be affirmed. Richardson v. Perales, 402 U.S. 389, 401 (1971).

Substantial evidence requires more than a scintilla, but less than a preponderance, and is satisfied by such evidence that a reasonable mind might accept to support the conclusion. Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). The determination of 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 really constitutes mere conclusion. Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989). But the standard "does not allow a court to 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. " Trimmer v. Dep't of Labor, 174 F.3d 1098, 1102 (10th Cir. 1999).

The claimant shall be determined to be under a disability only if he can establish that he has a physical or mental impairment expected to result in death or last for a continuous period of twelve months which prevents him from engaging in substantial gainful activity (SGA). The claimant's physical or mental impairment or impairments must be of such severity that he is not only unable to perform his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. § 423(d).

II. Procedural History

Plaintiff, when 36 years old, alleged disability due to fatigue, depression, and anxiety. Tr. 68-70. At step one, the administrative law judge (ALJ) found that plaintiff had not engaged in substantial gainful activity since May 5, 2005, the alleged onset date. The ALJ found at step two that the plaintiff had the following severe impairments: valvular heart disease, mitral valve insufficiency, aortal valve insufficiency secondary to bacterial endocarditis, mechanical valve replacement, affective mood disorder, and anxiety disorder. Tr. 13. At step three, the ALJ found that Plaintiff's impairments did not meet or equal the severity of a listed impairment.

The ALJ determined plaintiff's residual functional capacity (RFC) as follows:

... the claimant has the residual functional capacity to perform less than the full range of sedentary work... In particular, the claimant retains the ability to lift/carry 20 pounds occasionally and 10 pounds frequently, walk/stand for 2 hours out of an 8-hour workday, and sit for 6 hours out of an 8-hour workday. The claimant is limited to occupations that do not require the climbing of ladders, ropes, or scaffolds and which require only occasional climbing of stairs. The claimant is also limited to occupations that call for only occasional stooping, crouching, kneeling, or crawling. In addition, the claimant must avoid prolonged exposure to temperature extremes, chemicals, dust, fumes, noxious odors, humidity, and wetness. Finally, secondary to the claimant' mental disorders, the claimant is limited to occupations that do not demand attention to details or complicated job tasks/instructions.

Tr. 16.

At step four, the ALJ found the plaintiff unable to perform his past relevant work, but found at step five that Plaintiff could perform other sedentary, unskilled jobs that exist in significant numbers in the national economy such as credit checker, document preparer, and printed circuit board assembler. The ALJ thus determined Plaintiff is not disabled.

III. Issues

Plaintiff contends that the ALJ made errors of law and that his decision is not supported by substantial evidence.

A. Credibility

The ALJ found Plaintiff's complaints of disability not fully credible. When analyzing a claimant's subjective complaints, the ALJ may consider factors such as the extensiveness of a claimant's attempts to obtain relief, the consistency of non-medical testimony with objective medical evidence, and subjective measures of credibility that are peculiarly within the judgment of the ALJ. See 20 C.F.R. §§ 404.1529, 416.929; Hargis v. Sullivan, 945 F.2d 1482, 1489 (10th Cir. 1991) (citing Huston v. Bowen, 838 F.2d 1125, 1132 (10th Cir. 1988)).

Improvement with Treatment

The ALJ acknowledged that Plaintiff had experienced heart problems since 2006, but found that surgery had improved Plaintiff's symptoms. Tr. 17-20. Impairments that can be controlled by treatment, medication, or surgery are not disabling. See Kelley v. Chater, 62 F.3d 335, 338 (10th Cir. 1995). Plaintiff had a mitral valve replacement in May of 2006, after which he "improved a great deal" and reported feeling better than he had in a long time. Tr. 17, 432-37, 515. Plaintiff had an aortic valve replacement in July of 2008, after which he recovered well and showed no significant abnormalities in either prosthesis. Tr. 18, 884-91, 931, 934-35. In November of 2010, his heart tones were noted to be "crisp and unremarkable and quite regular." Tr. 18, 1090. The record supports the ALJ's finding that the surgeries significantly improved Plaintiff's heart condition. This warrants the ALJ's giving less credibility to Plaintiff's post-surgery disabling complaints.

ADL's

Plaintiff contends that the ALJ erred in finding no limitations in his activities of daily living (ADLs). The ALJ found:

As noted, the claimant has no limitations in terms of ability to perform various activities of daily living. The record indicates that the claimant is generally able to cook simple meals, go grocery shopping, handle his personal finances, sweep floors, dust, do some laundry, and mow his small yard. Additionally, the claimant testified that he often does little things around the house.' Indeed, following the claimant's 2006 valve replacement, claimant informed his treatment providers that he was busy making repairs on his new home. During an August 2007 examination at Valeo, the treatment provider recorded that the claimant appeared anxious to leave to go home and perform work that had become available to him (Exhibit 20F, p. 37). Overall, the claimant has described daily activities that are not limited to the extent one would expect, given the claimant's allegations of disabling symptoms and limitations.

Tr. 20. The nature of daily activities is one of many factors to be considered by the ALJ when determining the credibility of testimony regarding pain or limitations. Thompson v. Sullivan, 987 F.2d 1482, 1489 (10th Cir. 1993).

Plaintiff properly notes that sporadic performance does not establish that a person is capable of engaging in substantial gainful activity. But the ALJ's findings related to the issue of Plaintiff's credibility rather than to his ability to work. Plaintiff points to his ADL questionnaire, Tr. 329-333, as showing the lack of substantial evidence to support the ALJ's findings, but that questionnaire is the very evidence that the ALJ examined and found not fully credible.

That credibility finding is supported by substantial evidence. Nurse Practitioner Bachelor specifically noted that Plaintiff had a "very active life, " which involved "moving into a new house and making home repairs." Tr. 20, 513. Plaintiff reported occasional mild fatigue, but denied shortness of breath, dizzy spells, or chest discomfort. Tr. 513. Plaintiff reported exercising more in August 2010, Tr. 1071, 1085, and at the hearing in May 2011, he testified that he tried to keep himself busy with "little things around the house, " including sweeping, dusting, laundry, and mowing his small yard with a riding mower. Tr. 20, 63-64. Thus the ALJ was warranted in finding that Plaintiff was not as limited as he had alleged. See White v. Barnhart, 287 F.3d 903, 909 (10th Cir. 2001).

Work History

The ALJ found that Plaintiff's earnings record showed "a poor work history even prior to his alleged onset of disability date, "... "illustrat[ing] that the claimant has a lack of motivation to work, which has a negative effect on his credibility." Tr. 20. In the ten years before his alleged onset of disability, Plaintiff earned little more than $5, 000 in 1999 and 2004, earned ...


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