United States District Court, D. Kansas
THERESA L. HULING, 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 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, the court ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner's decision.
Plaintiff applied for SSD and SSI, alleging disability beginning June 15, 2009. (R. 25, 146, 155). She exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. She alleges that the Administrative Law Judge's (ALJ) credibility determination is not supported by substantial record evidence; that the decision is also not supported by substantial record evidence because the ALJ did not link his residual functional capacity (RFC) assessment to any record medical evidence; and that the ALJ failed in his duty to develop the record. The court will consider each issue in the order in which it was raised in Plaintiff's Brief.
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 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).
Plaintiff claims the credibility determination is not supported by substantial record evidence. She argues that the ALJ's primary basis for finding her allegations not credible was a lack of objective evidence. She also recognizes that the ALJ considered her activities of daily living and discussed two particular incidents which reveal inconsistencies between Plaintiff's alleged limitations and her physical abilities. The Commissioner argues that the ALJ properly evaluated the credibility of Plaintiff's allegations of symptoms. She argues that he properly considered several credibility factors in addition to the objective medical evidence-including improvement with treatment, conservative treatment, daily activities, and specific activities undertaken by Plaintiff which are inconsistent with her allegations of limitations.
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"). "However, [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 (same).
With regard to the ALJ's finding of a lack of objective evidence, Plaintiff argues that factor is not determinative of credibility, and that the Commissioner may not discount Plaintiff's allegation of symptoms solely because the objective medical evidence does not substantiate those allegations. She also points to evidence of a disc bulge, of mild to moderate foraminal stenosis, and of a pedicle screw extending into a foramen, and argues that the objective evidence does support her allegations of symptoms.
Plaintiff is correct that a lack of objective evidence to corroborate the severity of allegations of pain is, by itself, insufficient to reject Plaintiff's allegations of pain. Luna v. Bowen , 834 F.2d 161, 164-66 (10th Cir. 1987). The court in Luna required "consideration of evidence beyond laboratory and test results whenever a loose nexus is established between the pain-causing impairment and the pain alleged." Id. at 165 (emphasis added). An ALJ may not require medical corroboration of the alleged severity of Plaintiff's pain. However, the objective medical evidence (or lack thereof) is a factor in step three of the framework of Luna, wherein the decision maker is to consider "all the evidence, both objective and subjective, " in making his credibility determination. Thompson , 987 F.2d at 1488 (emphasis added).
Lack of support in the objective evidence, in examination findings, and in the treatment notes for the degree of limitations alleged by Plaintiff was the first factor considered by the ALJ in his credibility determination. (R. 31-33). But contrary to Plaintiff's assertion, the court does not view that factor as the primary factor in the ALJ's analysis. Rather, the ALJ acknowledged the framework required by the regulations in evaluating the credibility of Plaintiff's allegations, noting that he must determine if the record evidence shows (1) an impairment that could reasonably be expected to produce the symptoms (pain) (2) alleged by Plaintiff, and if so, he must evaluate the intensity, persistence, and limiting effects of those symptoms (3) based on a consideration of the entire case record. (R. 31) (numbering illustrates correlation with the Luna framework).
After noting that the objective evidence in this case does not support the severity of the limitations alleged by Plaintiff, the ALJ recognized that even so "a claimant's symptoms can sometimes suggest a greater level of severity of impairment than can be shown by the objective medical evidence alone." (R.33). The ALJ then noted the regulatory factors for evaluating credibility, and began to discuss his credibility determination in light of those ...