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Marks v. Colvin

United States District Court, D. Kansas

March 30, 2015

CONNIE MARKS, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

J. THOMAS MARTEN, Chief District Judge.

Plaintiff Connie Marks has applied for Social Security disability and supplemental security income benefits. Her application was denied by the Administrative Law Judge (ALJ) on September 27, 2012, a decision affirmed by the Appeals Council on August 29, 2013.The plaintiff appeals from the decision of the Commissioner. For the reasons provided herein, the decision of the Commissioner is affirmed.

Plaintiff-claimant Marks was born on August 16, 1976. She has stated that she became disabled beginning April 30, 2008 due to the combined effects of various ailments, including obesity, arthritis, and sleep apnea. Marks has limited education and has held only part-time jobs. The detailed facts of the case, which are incorporated herein, are set forth independently in the ALJ's opinion (Dkt. 9, Tr. 11-25), and the brief of Marks (Dkt. 14, at 3-20) and within the argument portion of the Commissioner's response (Dkt. 19, at 3-9).

The ALJ determined that Marks had the severe impairments of obesity, sacroiliac arthritis, sleep apnea, and hypothyroidism or Graves' disease. However, none of the listed impairments meets or exceeds the severity of the listed impairments in 20 CFR Pat1 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926). (Tr. 13-15). The ALJ found that Marks also suffers from hypertension, hearing loss, cellulitis, adjustment disorder, and depression, but these are not severe in nature. (Tr. 11-12). Ultimately, the ALJ determined that Marks had the residual functional capacity (RFC) to do sedentary work, in that she can lift ten pounds occasionally, and smaller weights frequently. She can stand or walk a total of two hours, and sit for at least six. She can occasionally climb, stoop, kneel, crouch, and crawl. She can perform tasks not involving exposure to temperature extremes and not involving the operation of motorized vehicles. Marks can perform simple, unskilled work involving routine, repetitive tasks. (Tr. 16).

The Commissioner determines whether an applicant is disabled pursuant to a five-step sequential evaluation process (SEP) pursuant to 20 C.F.R. §§ 404.1520 and 416.920. The applicant has the initial burden of proof in the first three steps: she must show that she is engaged in substantial gainful activity, that she has a medically-determinable, severe ailment, and whether that impairment matches one of the listed impairments of 20 C.F.R. pt. 404, subpt P., app. 1. See Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989). If a claimant shows that she cannot return to her former work, the Commissioner has the burden of showing that she can perform other work existing in significant numbers in the national economy. 20 C.F.R. § 404.1520(f). See Channel v. Heckler, 747 F.2d 577, 579 (10th Cir. 1984).

The court's review of the Commissioner's decision is governed by 42 U.S.C. 405(g) of the Social Security Act. Under the statute, the Commissioner's decision will be upheld so long as it applies the "correct legal standard, " and is supported by "substantial evidence" of the record as a whole. Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994).

Substantial evidence means more than a scintilla, but less than a preponderance. It is satisfied by evidence that a reasonable mind might accept to support the conclusion. The question of whether substantial evidence supports the Commissioner's decision is not a mere quantitative exercise; evidence is not substantial if it is overwhelmed by other evidence, or in reality is a mere conclusion. Ray, 865 F.2d at 224. The court must scrutinize the whole record in determining whether the Commissioner's conclusions are rational. Graham v. Sullivan, 794 F.Supp. 1045, 1047 (D. Kan. 1992).

This deferential review is limited to factual determinations; it does not apply to the Commisioner's conclusions of law. Applying an incorrect legal standard, or providing the court with an insufficient basis to determine that correct legal principles were applied, is grounds for reversal. Frey v. Bowen, 816 F.2d 508, 512 (10th Cir. 1987).

The plaintiff argues that the ALJ erred by preferring the testimony of the vocational expert over Social Security Rulings, such as S.S.R. 83-14, which hold that an inability to stoop causes a significant erosion in employment opportunities. However, plaintiff fails to support a fundamental element of this claim of error - that she was in fact unable to stoop. The ALJ did not find that Marks was precluded from stooping, rather, based upon a consideration of the entire record, he found that she could do so occasionally. This determination was predicated in part on the ALJ's finding of the plaintiff's limited credibility. Yet plaintiff's initial Appeal Brief does not challenge the ALJ's credibility assessment. (Dkt. 14, at 21-26).

Insead, the initial appeal brief presents an entirely different argument - that the ALJ erred in considering the specific testimony of the vocational expert, instead of finding S.S.R. 83-14 decisive on the issue of the erosion of the job base.

As the Commissioner notes in its Response, plaintiff presents no authority for the contention that an ALJ must consider Social Security Rulings as decisive, ignoring the more particularized testimony of a vocational expert. Indeed, the Rulings themselves contemplate the use of such testimony. See SSR 83-14, 1983 WL 31254, at *4 (vocational testimony may be helpful even in ostensibly "obvious' types of cases"); SSR 96-9p, 1996 WL 374185, at *8 ("Consultation with a vocational resource may be particularly useful for cases where the individual is limited to less than occasional stooping."). See also Thomas v. Barnhart, 147 F.Appx. 755, 758 (10th Cir. Sep. 2, 2005) (finding that a vocational expert's testimony that a claimant could still perform certain sedentary jobs despite an inability to stoop constituted substantial evidence on which the ALJ could rely). "The whole point of vocational testimony is to go beyond facts already established through publications eligible for judicial or administrative notice and provide an alternative avenue of proof." Rogers v. Astrue, 312 F.Appx. 138, 142, (10th Cir. Feb. 17, 2009) (citing Gay v. Sullivan, 986 F.2d 1336, 1340 (10th Cir. 1993)).

Here, the vocational expert testified that, even if plaintiff could never stoop, light work still existed which she could perform. (Tr. 58-59).

Plaintiff's Reply brief (Dkt. 20) does mention the issue of credibility, but only indirectly and in passing. Thus, the brief argues that "improperly promoted perceptions regarding Claimant's credibility... do not automatically infect" the opinions from various medical sources ( id. at 7), without ever showing how the ALJ's credibility assessment was erroneous. See also id. at 8 (condemning "the attempt to color Ms. Marks as a complete and unrestrained liar") (emphasis by plaintiff). But the ALJ does not assume any such "automatic infection." Rather, the opinion accurately observes that there were substantial reasons for finding that plaintiff had limited credibility, and plaintiff's conclusory attempts to gloss over these problems provides no basis for reversal.

Because plaintiff never develops any argument against the ALJ's credibility assessment, as opposed to simply asserting it in summary fashion, any claim of error is waived. See Coffland v. Colvin, No. 13-1030-JWL, 2014 WL 1571797, at *5 (D. Kan. Apr. 17, 2014) (plaintiff waived review of ALJ's credibility determination"by failing to develop any argument with regard to it"). Even assuming the argument was not waived, the court finds no basis for disturbing that assessment. The ALJ found inconsistencies in plaintiff's subjective reports of her impairments. Although she claimed her impairments limited her sight, the ALJ noted the record fails to indicate that she ever sought treatment for her vision. (Tr. 17-18, 244). She claimed a history of asthma which does not appear in the medical record. (Tr. 18). Plaintiff reported difficulty sleeping, but did not use a continuous positive airway pressure device (CPAP) prescribed for her. The ALJ further found that plaintiff's extremely sporadic work history indicated a lack of motvation for work. (Tr. 16-17). The ALJ also noted that while plaintiff claimed she could not work after becoming disabled in April, 2008, there was evidence that she continued working in 2008 and 2009. (Tr. 17). ...


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