MICHAEL K. PRATT, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
John W. Lungstrum, United States 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, and at a supplemental hearing alleged that his disability began July 28, 2006. (R. 23, 97, 278-87). In due course, Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. He alleges the Administrative Law Judge (ALJ) failed to follow the treating physician rule and erred in evaluating the credibility of Plaintiff’s allegations of disabling symptoms. The Commissioner argues that the ALJ performed a proper credibility evaluation and properly considered and weighed the medical opinions. The court finds no error.
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 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).
Plaintiff claims that the reasons given by the ALJ are insufficient to support his negative credibility finding. He argues that he testified regarding limitations and his testimony is consistent with the record. The Commissioner argues that the ALJ’s credibility rationale is supported by substantial record evidence and that it is irrelevant that “other records could hypothetically support a different finding.” (Comm’r Br. 5).
The ALJ adopted the rationale and credibility analysis provided by another ALJ in an earlier decision in Plaintiff’s case to supplement his rationale and credibility analysis. (R. 31) (citing Exhibit 3A, pp. 10-11 (R. 147-48)). In the earlier decision, the ALJ found that Plaintiff’s allegations of symptoms are not credible. The court has identified seven reasons given in the earlier decision to find that Plaintiff’s allegations are not credible. (1) Plaintiff testified that he has back spasms which cause him to lose his balance, but the ALJ noted that he must not have reported this to his treating physicians because the allegation is not included in the medical records. (R. 147). (2) Plaintiff testified that his pain has been constant since its onset in December, 2005, but the record evidence at times reveals reports of improvement in the level of pain. Id. (3) Plaintiff testified that activity worsens his pain, but on several occasions he told Dr. Hempstead that walking, home exercises, and activity helped relieve his pain. (R. 148). (4) In August, 2008 Plaintiff told Dr. Nadler that his pain was improving due to injections and therapy, while at the same time telling Dr. Hempstead that his pain was markedly worse. Id. (5) While Plaintiff testified that he was unable to perform most household chores, he and his roommate both reported that Plaintiff “keeps the house tidy, does laundry, and food shops.” Id. (6) Plaintiff reported on several occasions that he was walking two miles a day. (7) In March 2008, Plaintiff requested that one of his physicians “provide a letter regarding the claimant’s mental ability to rejoin the Air Force which attests to the claimant’s belief in the improvement in his condition.” Id.
The ALJ provided a discussion of Plaintiff’s credibility in which he provided three additional reasons to find Plaintiff not credible:
Much of claimant’s testimony was exaggerated or embellished to make him appear more functionally limited that he actually is. For example, [(8)] he testified that he has used his cane “constantly” since 2006 “just about every time he has been upright.” However, following an office visit on April 23, 2008, Dr. Hempstead noted that claimant was ambulating without his cane (Exhibit 5F/20). At that same visit, Dr. Hempstead noted that claimant reported he was walking 2 miles a day, which is extremely inconsistent with his testimony pertaining to how far he has been able to walk since his alleged onset date (Exhibit 5F/18). [(9)] There is nothing in the record to show any medical need for claimant to lie down most of the day as he testified. [(10)] He testified that he only does a very limited amount of activities of daily living, such as limited cooking and washing dishes, and that he receives help from family members to do the rest. This might be true, but his lack of performing ...