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Ford v. Colvin

United States District Court, D. Kansas

September 22, 2014

SAMUEL D. FORD, Plaintiff,
v.
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 and Supplemental Security Income (SSI) benefits under sections 216(i), 223, 1602, and 1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 416(i), 423, 1381a, and 1382c(a)(3)(A) (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.

I. Background

Plaintiff applied for SSD and SSI, alleging disability beginning March 2, 2010. (R. 12, 125-35). In due course, Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. He argues that the decision is not supported by substantial record evidence because the Administrative Law Judge (ALJ) gave erroneous reasons to discount Plaintiff's credibility; because the ALJ did not adequately account for Plaintiff's difficulty concentrating as opined by his treating physician, Dr. Schroeppel; because the ALJ erroneously rejected the opinion of Plaintiff's counselor that he is moderately limited in the abilities to interact with the public, to accept instruction and respond appropriately to criticism from supervisors, and to get along with coworkers or peers; and because the ALJ failed to adequately develop the record regarding mental limitations.

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, 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 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 the ALJ applied the correct legal standard, and that her factual findings are supported by substantial evidence in the record. Therefore, it finds no error as alleged in Plaintiff's brief. Although Plaintiff's Brief does not appear to have been arranged in any particular order, the court will address each alleged error as that issue would arise when applying the sequential evaluation process. Moreover, while the ALJ's duty to develop the record could affect the analysis at any point in the process, Plaintiff argues that the ALJ erred in that regard because she did not further develop the record after she determined to discount Dr. Schroeppel's and LPC (Licensed Professional Counselor) Roberts's opinions. Therefore, the court will address the duty to develop the record after it considers the ALJ's evaluation of the opinions of Dr. Schroeppel and of Mr. Roberts. The court begins with the ALJ's credibility determination.

II. Credibility

Plaintiff claims the credibility determination is unsupported by substantial record evidence because the ALJ erroneously relied upon findings of fact which are erroneous, irrelevant, or improper in a credibility determination. (Pl. Br. 12-14). The Commissioner argues that the ALJ properly evaluated Plaintiff's credibility in an exceptionally thorough manner, and that Plaintiff discusses only some of the reasons relied upon by the ALJ. The court agrees with the Commissioner and finds no error in the ALJ's credibility determination.

A. Standard for Evaluating Credibility

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"). Plaintiff must demonstrate the error in the ALJ's rationale or finding; the mere fact that the record contains 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). 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.'" Wilson , 602 F.3d at 1144 (quoting Huston v. Bowen , 838 F.2d 1125, 1133 (10th Cir. 1988)); Hackett , 395 F.3d at 1173. Where 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.

B Analysis

The court notes that the ALJ began her credibility analysis on page 7 of her decision (R. 18), and reached her conclusion on page 10 (R. 21), in which she provided four reasons to discount the credibility of Plaintiff's allegations of disabling symptoms. (1) Plaintiff's statements indicate his current unemployment may not be the result of his impairments; (2) Plaintiff testified his latest employment ended because of incarceration, not disability; (3) Plaintiff did not seek treatment for his impairments until 2011 despite acknowledging their existence since 1992; and (4) Plaintiff has worked at the level of substantial gainful activity in the past in spite of his impairments. (R. 21). Each of the allegedly erroneous, irrelevant, or improper facts upon which Plaintiff's argument relies refers to the ALJ's discussion of evidence relating to her credibility analysis rather than to her credibility findings. Nevertheless, the court has considered how those alleged errors affected the credibility determination.

Plaintiff argues that the ALJ's reference to "gaps" in Plaintiff's mental health treatment was an improper reliance upon a failure to follow a prescribed course of treatment. As Plaintiff's brief suggests, the Tenth Circuit has found that before an ALJ may rely on a claimant's failure or refusal to follow prescribed treatment, she must consider "four elements: (1) whether the treatment at issue would restore claimant's ability to work; (2) whether the treatment was prescribed; (3) whether the treatment was refused; and, if so, (4) whether the refusal was without justifiable excuse." Frey v. Bowen , 816, F.2d 508, 517 (10th Cir. 1987) (the Frey test). However, the Frey test applies only in those situations where a claimant has failed or refused to follow prescribed treatment. The Tenth Circuit has recognized that the test does not apply in those situations where the ALJ considers what attempts the claimant has made to relieve his allegedly disabling symptoms, and determines that a paucity or a lack of such attempts suggests that the symptoms are not as severe as alleged by the claimant. See, Qualls v. Apfel , 206 F.3d 1368, 1372 (10th Cir. 2000) ("the ALJ properly considered what attempts plaintiff made to relieve his pain-including whether he took pain medication-in an effort to evaluate the veracity of plaintiff's contention that his pain was so severe as to be disabling"); Allen v. Apfel, No. 99-3249 , 2000 WL 796081, *3 (10th Cir. June 21, 2000).

Here, the first record of treatment for physical problems shows that Plaintiff reported to the University of Kansas Hospital, Emergency Department on April 24, 2011 complaining of generalized joint and body pain related to a gunshot wound received in 1992. (R. 300). The first record of treatment for mental problems was on January 31, 2011, when Plaintiff reported for an intake evaluation at the Wyandot Center. (R. 288-92). On April 14, 2011, Plaintiff was discharged because he did not complete his treatment, and that note indicates he dropped out of service. (R. 287). In July 2011, he restarted services (R. 275-81), and was again discharged on November 28, 2011. Again, the note indicates he dropped out of service, but it also indicates that Plaintiff said he "would not be able to pay his fee for tx [(treatment)]." (R. 274). In her summarization of the medical records, the ALJ stated that Plaintiff began mental health treatment in January 2011 and was discharged after three months because he did not participate in services, but that he restarted services in July 2011. She also stated that Plaintiff's "lack of treatment [for physical problems] prior to April 2011, ... fail[s] to support the extent and severity of the symptoms and limitations that he alleges." (R. 19).

In stating her reasons for discounting the credibility of Plaintiff's allegations, the ALJ stated that Plaintiff "did not seek treatment for his impairments until 2011 even though they have been present since 1992." (R. 21). In context, this finding relates only to treatment for Plaintiff's physical impairments, since it was his gunshot wounds which he received in 1992. None of the four reasons given by the ALJ for discounting Plaintiff's credibility relate to Plaintiff's "gaps" in mental health treatment. Therefore, the ALJ did not erroneously rely upon Plaintiff's alleged refusal to follow prescribed mental health treatment to discount the credibility of his allegations. Moreover, even if the ALJ were also relying upon Plaintiff's failure to pursue mental health treatment until 2011, that failure also relates only to the fact that before 2011 Plaintiff made no attempts to seek relief from his allegedly disabling mental limitations. That cannot be a failure or refusal to follow prescribed treatment because Plaintiff was not prescribed mental health treatment until he first sought treatment in January 2011. Contrary to Plaintiff's assertions, the ALJ did not rely upon "gaps" in mental health treatment to discount the credibility of Plaintiff's allegations of symptoms. Rather, she merely summarized the course of Plaintiff's mental health treatment after he began that treatment, which was not until January 2011.

Plaintiff's credibility argument addresses none of the four reasons specifically relied upon by the ALJ to discount Plaintiff's credibility. Rather, he points to certain findings made in the ALJ's evaluation of the record evidence, and argues that the record evidence better supports a different finding than that made by the ALJ. Plaintiff's argument in that regard constitutes little more than a request for the court to re-weigh the evidence and substitute its judgment for that of the ALJ. As noted above, the court may not do so. Bowman , 511 F.3d at 1272; accord, Hackett , 395 F.3d at 1172. And, as noted above, the fact that the record evidence might also support a different finding than that reached by the ALJ is irrelevant to the court's review, because the court may not displace the agency's choice ...


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