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Seiber v. Colvin

United States District Court, D. Kansas

September 30, 2014

LORI ANN SEIBER, 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 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, the court ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the decision.

I. Background

Plaintiff applied for SSD, alleging disability beginning November 1, 2008. (R. 19, 306). In due course, Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. She alleges the Administrative Law Judge (ALJ) erred in evaluating the opinions of the medical care providers and experts and in determining that her condition is not equivalent to Listing 11.09 for Multiple Sclerosis, and she alleges his credibility determination is neither linked to, nor supported by, the record evidence. Finally, she argues that the ALJ's residual functional capacity (RFC) assessment does not comport with Social Security Ruling (SSR) 96-8p, and is not supported by substantial record evidence.

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 he 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 relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales , 402 U.S. 389, 401 (1971); see also, 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 she has a severe impairment(s), and whether the severity of her 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 her 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 jobs in the economy 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. Because the ALJ's credibility determination necessarily affects the evaluation of the medical opinions and the determination whether Plaintiff's condition is equivalent to Listing 11.09, the court begins with consideration of the ALJ's credibility determination. It then considers the evaluation of the opinions of the record medical sources because that evaluation affects the next consideration-whether Plaintiff's condition is equivalent to Listing 11.09. Finally, the court will consider whether the ALJ's RFC assessment comports with SSR 96-8p and is supported by the record evidence.

II. The Credibility Determination

Plaintiff claims the ALJ failed to link his credibility determination with the record evidence, but made conclusions in the guise of findings, and thereby erred in failing to apply controlling law as expressed in Kepler v. Chater , 68 F.3d 387, 391 (10th Cir. 1995).[1] She argues the record evidence does not support the credibility determination.

The Commissioner argues that the ALJ properly evaluated the credibility of Plaintiff's allegations of disabling symptoms. Citing Hackett , 395 F.3d at 1173, the Commissioner argues that the credibility determination should be affirmed because it is sufficiently detailed and supported by substantial evidence.

A. Standard for Evaluating Credibility

The court's review of an ALJ's credibility determinations is deferential. They 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 bears the burden to show error in the ALJ's credibility 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. 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 v. Astrue , 489 F.3d 1080, 1084 (10th Cir. 2007) (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 v. Bowen , 838 F.2d 1125, 1133 (10th Cir. 1988). Therefore, 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. The ALJ's Findings

The ALJ's credibility analysis occupied pages 5 through 7 of the decision. (R. 23-25). He concluded that Plaintiff is lacking in credibility, and gave nine reasons for that conclusion. (R. 25). (1) She "highly exaggerated her symptoms at the hearing, " testifying that she cannot stand more than two minutes. Her limitations are not supported by (2) treatment notes or by (3) examining or reviewing physicians. (4) She sought sporadic treatment in 2009 and 2010 and minimal treatment in 2011. (5) Her daily activities are quite good. (6) Plaintiff occasionally refuses to take medications which have been effective in controlling both her symptoms and the progression of her disease. (7) Although Plaintiff's medications cause side effects, the treatment notes do not reflect limitations from the medications which are greater than the RFC assessed. (8) The medical record contains several instances where Plaintiff's memory, speech, attention, and concentration are intact. (9) There is minimal objective diagnostic or clinical evidence to support Plaintiff's allegations of a great deal of fatigue. (R. 25).

C. Analysis

Giving the ALJ's credibility determination the deference it is due, it is sufficiently detailed and is supported by substantial evidence. Plaintiff merely takes a strained view of the record and of her testimony and attempts to show that the ALJ's reasons are not supported by the record evidence. In her very first argument, she asserts that, contrary to the ALJ's example of exaggeration, she "did not testify that she cannot not [sic] stand for more than two minutes.'" (Pl. Br. 45). The record which is at the heart of this controversy is Plaintiff's hearing testimony in response to her attorney's questions concerning Dr. Fortune's report regarding her abilities to walk, stand, and sit. (R. 96-97).

Q. Okay. You were also seen by a Dr. Fortune at Exhibit 12F. He said, and I can't tell if he's saying this or he's saying that you did. He said she can walk one mile slowly. Would you have told him that?
A. I doubt it. I don't even really remember that visit, but I don't think so.
Q. Can you walk a mile?
A. If I was forced to, maybe.
Q. Do you walk?
A. I haven't done it in a long time?
Q. Do you walk very much?
A. No. You mean like outside? No.
Q. So you limit your ...

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