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Eastman v. Colvin

United States District Court, District of Kansas

November 25, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



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.

I. Background

Plaintiff applied for SSD and SSI, alleging disability beginning June 28, 2010. (R. 18, 176-88). Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the decision denying benefits. She alleges the Administrative Law Judge (ALJ) erroneously evaluated the medical source opinions and provided a narrative discussion which failed to adequately link the functional limitations in the medical source opinions with the residual functional capacity (RFC) limitations assessed. She also argues that the ALJ’s RFC assessment is not supported by substantial evidence; is not based upon a proper consideration of the third-party opinion of Plaintiff’s mother or of the credibility of Plaintiff’s allegations of symptoms; and failed to account for all of the limitations assessed by the ALJ.

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).

Although Plaintiff’s Brief begins with an allegation of error in evaluating the medical source opinions, the court will begin by considering the alleged error in evaluating the credibility of Plaintiff’s allegations of symptoms resulting from her impairments. This is necessary because the ALJ relied upon his credibility determination, in part, in discounting the opinions of Plaintiff’s treating counselors--Mr. Schoenthaler[1]and Mr. McCullough.

II. 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”). “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, 838 F.2d at 1133); Hackett, 395 F.3d at 1173 (same).

Plaintiff claims the ALJ improperly disregarded her “statements regarding the intensity [and] persistence of pain and physical and mental limitations.” (Pl. Br. 39). In her Brief, Plaintiff summarized her testimony at the hearing, id. at 39-40, and argued that the “ALJ failed to discuss most of these statements from [Plaintiff]’s testimony and only relied on her Function Report she completed in December 2010.” Id. at 40. The Commissioner argues that the ALJ properly evaluated the credibility of Plaintiff’s allegations of disabling symptoms. She points out the ALJ’s rationale for discounting the credibility of Plaintiff’s allegations, and explains how, in her view the record evidence supports those findings. (Comm’r Br. 8-12).

As the Commissioner suggests, in Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987), the Tenth Circuit set out the framework for the proper analysis of a claimant’s allegations of symptoms. In Thompson v. Sullivan, 987 F.2d 1482, 1488 (10th Cir. 1993), a case dealing specifically with pain, that court explained:

A claimant’s subjective allegation of pain is not sufficient in itself to establish disability. Before the ALJ need even consider any subjective evidence of pain, the claimant must first prove by objective medical evidence the existence of a pain-producing impairment that could reasonably be expected to produce the alleged disabling pain. This court has stated: The framework for the proper analysis of Claimant’s evidence of pain is set out in Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987). We must consider (1) whether Claimant established a pain-producing impairment by objective medical evidence; (2) if so, whether there is a “loose nexus” between the proven impairment and the Claimant’s subjective allegations of pain; and (3) if so, whether, considering all the evidence, both objective and subjective, Claimant’s pain is in fact disabling.

Thompson, 987 F.2d at 1488(citations and quotation omitted).

The ALJ’s credibility analysis spans more than five pages of his decision. (R. 24-29). It begins with an explanation of the legal standard applied. (R. 24). Plaintiff does not argue that the ALJ did not apply the correct legal standard. In his analysis, the ALJ determined that Plaintiff’s allegations are not credible and explained his bases for doing so. He found that with regard to mental impairments the record documents only sporadic disruptions in mood and affect; that treatment for Plaintiff’s mental impairments--psychotropic medications and supportive therapy--is inconsistent with her allegations of profound psychological symptoms (R. 25); that in seeking treatment for fibromyalgia Plaintiff “presented with abnormalities in her range of motion, stability, strength and tone, gait, and station on a very inconsistent basis;” that Plaintiff has deliberately exaggerated the severity of her fibromyalgia pain (R. 26); that Plaintiff has not exhausted her options for treatment of alleged constant, intractable pain and was not recommended for more significant treatment; that Plaintiff’s allegations of fatigue are inconsistent with the record which shows that she has not presented “upon examination with any notable fatigue or other medical signs consistent with daytime hypersomnolence;” that despite Plaintiff’s allegations of constant and numerous side effects from medication, the medical records document only some constipation in September 2010 (R. 27); that despite Plaintiff’s allegations of limited, conservative treatment due to financial limitations, she had medical insurance for at least part of the relevant period, she has at least some disposable income to finance medical care, and she “sought and received routine treatment throughout the relevant period with such frequency as to belie her purported inability to seek more significant treatment measures (R. 27-28); the ALJ discounted Plaintiff’s allegation that she was given medical advice to use a cane, because the medical treatment notes do not record such advice and Plaintiff did not use a cane when she reported for various physician appointments at the request of the agency; Plaintiff made inconsistent statements regarding accommodations received when taking college classes online; Plaintiff was able to work before her alleged onset date despite having the impairments of which she now complains (R. 28); and, “[f]inally, the claimant reported being able to engage in a variety of daily activities that demonstrate an ability to perform at least a range of sedentary work within the limitations identified at Finding Five.” (R. 29).

Plaintiff’s argument that the ALJ failed to discuss most of her testimony is belied by the ALJ’s summary of those allegations. That summary is rather extensive:

The claimant alleged an inability to work due to a combination of mental and physical impairments, including depression, anxiety, PTSD, and Fibromyalgia. The claimant indicated that all of the aforementioned medical conditions predate her alleged onset date of disability, but that she sustained a workplace injury wherein she fell from a ladder on that date, which purportedly exacerbated all of her conditions to a disabling level of severity. (Exhibit 3E/9; Claimant’s Testimony). Regarding her various mental impairments, the claimant reported that she experiences persistent symptoms of dysphoria and anxiety. “I constantly break down into tears and have anxiety attacks.” (Exhibit 6E/1; Claimant’s Testimony). The claimant testified that the anxiety attacks happen once per day, are associated with feelings of intense fear and chest tightness, and last for up to 45 minutes at a time. (Claimant’s Testimony). She also reported that her PTSD results in flashbacks. She alleged that her Fibromyalgia causes “[e]xtreme pain and fatigue [that] make it physically impossible for [her] to function.” (Exhibit 6E/1). She testified that she hurts from “head to toe, ” but that her pain is most significant in her right hip and right leg. (Claimant’s Testimony). The claimant alleged that her combined medical conditions limit her abilities to lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs, remember things, complete tasks, concentrate, use her arms, and get along with others. She specifically alleged that she cannot lift any weight at all; cannot squat; and can stand, walk, and sit for only a “little” while at a time. The claimant further elaborated by indicating she can walk for only ten minutes at a time. (Exhibit 6E/6). As to her mental ...

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