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Howell v. Berryhill

United States District Court, D. Kansas

March 8, 2017

TAMMY J. HOWELL, Plaintiff,
v.
NANCY A. BERRYHILL, [1]Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          John W. Lungstrum United States District Judge

         Plaintiff seeks review of a decision of the Acting Commissioner of Social Security (hereinafter Commissioner) denying Disability Insurance benefits (DIB) 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 in the Administrative Law Judge's (ALJ) decision, the court ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner's final decision.

         I. Background

         Plaintiff applied for DIB, alleging disability beginning March 8, 2012. (R. 17, 159). Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. She argues that the ALJ erred in assessing her residual functional capacity (RFC) because he erroneously evaluated the evidence regarding her impairments (including fibromyalgia, neck pain, migraine headaches, and drowsiness) and the resulting limitations; he failed to consider Plaintiff's activities in light of her impairment of fibromyalgia and factors that tend to support her credibility, and failed to conduct his pain analysis properly; and because he erroneously discounted the medical opinions of her treating physicians, Dr. Brooks and Dr. Ferguson.

         The court's review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). 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 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; 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).

         The court addresses the alleged errors in the order presented in Plaintiff's Brief.

         II. Evidence Regarding Impairments and Resulting Limitations

         Plaintiff claims the ALJ relied on irrelevant evidence to discount limitations resulting from her fibromyalgia. (Pl. Brief 4-7). She then points to record evidence which in her view supports a finding that her allegations of limitations are consistent with fibromyalgia and are therefore credible. Id. at 7-8. Regarding Plaintiff's neck impairment, she concedes that Dr. Reddy read an MRI to show flattening of the thecal sac without cord impingement, but claims the ALJ erred in finding no evidence of nerve root impingement. Id. at 9. Next, she argues that the ALJ's findings do not contradict certain diagnoses, that the ALJ did not characterize the findings precisely as the medical sources characterized them, the ALJ's findings are not inconsistent with Plaintiff's testimony, and are not as significant as the ALJ perceived them to be. (Pl. Br. 9-10). She argues that the ALJ's evaluation of her neck pain merely picked and chose evidence to support his decision without considering the evidence as a whole. Id. at 11. Plaintiff acknowledges that the state agency non-examining physician opined that her migraine headaches are not severe and that the ALJ also found they did not result in significant work-related limitations. Id. But she argues that the ALJ did not properly consider the record evidence to show migraines as a severe impairment, and in any case failed to consider her migraines in combination with her other impairments. Id. at 12. Finally, she claims that the ALJ did not consider Plaintiff's drowsiness “at all.” Id.

         The Commissioner argues that the ALJ reasonably considered Plaintiff's impairments and the limitations resulting therefrom. (Comm'r Br. 3). She argues that Plaintiff does not point to additional limitations revealed by the record evidence regarding fibromyalgia or any other impairments. Id. at 7-8. She argues that Plaintiff's argument “asks the [c]ourt to reconsider the record evidence and reach a different conclusion” more favorable to her, “which the [c]ourt may not do under a substantial evidence review standard.” Id. at 8-9 (citing Newbold v. Colvin, 718 F.3d 1257, 1262 (10th Cir. 2013); Lax, 489 F.3d at 1084; Nguyen v. Shalala, 43 F.3d 1400, 1403 (10th Cir. 1994); Pickup v. Colvin, No. 14-5095, 606 F. App'x 430, 433-34 (10th Cir. April 6, 20-15)).

         In a Reply Brief longer than her initial Brief, Plaintiff reiterated her arguments and explained how in her view the ALJ and the Commissioner misunderstood, misapplied, and mischaracterized the record evidence. (Reply 1-11).

         The problem with Plaintiff's allegations of error in evaluating the evidence regarding her impairments and the resulting limitations is that it ignores the standard for judicial review of a Social Security decision and the rationale of the decision at issue. Judicial review of a Social Security decision begins with the decision at issue and asks whether that decision applied the correct legal standard and whether the record evidence supports the findings in that decision. 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, 489 F.3d at 1084 (citations, quotations, and bracket omitted); see also, Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966).

         The evidence to which Plaintiff cites in her argument that the ALJ relied upon irrelevant evidence to discount limitations resulting from fibromyalgia is from the ALJ's summary of the evidence in his RFC assessment. (Pl. Br. 4, 7) (citing R. 24). As Plaintiff tacitly acknowledges, that evidence is relevant at least to rheumatoid arthritis (Pl. Br. 4) (“the ALJ . . . correctly discounted the role of rheumatoid arthritis in Plaintiff's symptoms”), to which Plaintiff testified at the hearing. (R. 46, 48). Moreover, despite Plaintiff's contrary protestations, the evidence cited is relevant to the central issue discussed by the ALJ, whether Plaintiff “retains relatively good functional abilities.” (R. 24). Plaintiff asserts that the ALJ merely selected findings to support his decision. But, other than her testimony and her reports to medical sources, she does not point to evidence that she does not have relatively good functional abilities, and she points to no evidence that was ignored by the ALJ.

         Plaintiff's argument that her “testimony is consistent with her fibromyalgia” (Pl. Br. 8) is correct. But the facts that Plaintiff has fibromyalgia, an impairment which can produce the symptoms she alleges, and that there is a “loose nexus” between fibromyalgia and Plaintiff's subjective allegations of symptoms does not require that the Commissioner accept Plaintiff's allegations. Rather, it requires that the ALJ consider all the evidence, both objective and subjective, and determine whether Plaintiff's symptoms are in fact disabling. Thompson v. Sullivan, 987 F.2d 1482, 1488 (10th Cir. 1993) (explaining the framework presented in Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987) for evaluating a claimant's allegations of symptoms). That is precisely the framework the ALJ applied in this case, and the court will more fully address the credibility determination later.

         In her argument regarding neck impairment, Plaintiff acknowledges that Dr. Reddy stated that he agreed with the findings of the MRI of Plaintiff's cervical spine which showed “flattening of the thecal sac, without cord impingement.” (Pl. Br. 9) (quoting Ex. 3F, p.1 (R. 277)). She takes issue with the ALJ's conclusion, after summarizing the relevant treatment note, that the MRI “indicated that the claimant's spinal stenosis while impacting the thecal sac, resulted in no evidence of cord compression or nerve root impingement.” (R. 23) (citing Ex. 3F, p.1 (R. 277)) (emphasis added).

         Plaintiff acknowledges that Dr. Reddy found flattening of the thecal sac but no cord impingement. But she argues that “the ALJ incorrectly reports that Dr. Reddy stated there was no evidence of nerve root impingement. Nerve root compression was reported to be shown on that MRI by Dr. Parks (C4-5, C5-6) at R.436 and by the agency reviewing physician at R. 82, 97.” (Pl. Br. 9) (emphases added). Plaintiff's argument misunderstands the ALJ's conclusion and has shown no error in his evaluation of the evidence. The ALJ summarized the MRI results in Dr. Reddy's treatment note: “An MRI of the claimant's cervical spine, performed on February 24, 2011, found multilevel cervical spondylosis, most prominent at ¶ 5-6 and C6-7, resulting in central canal and neural foraminal stenosis.” (R. 23). This summary is supported by the record (R. 277), and Plaintiff takes no issue with it. The ALJ then stated his finding, “This imaging indicated that the claimant's spinal stenosis while impacting the thecal sac, resulted in no evidence of cord compression or nerve root impingement.” (R. 23). Plaintiff accepts the ALJ's finding that there is no evidence of cord compression, but argues that Dr. Reddy did not state there was no evidence of nerve root impingement. She is correct. But, neither did Dr. Reddy state there was evidence of nerve root impingement. He simply did not address the issue. That fact cannot make the ALJ's finding erroneous. The ALJ found no evidence of nerve root impingement, he did not find no evidence of nerve compression. (R. 23). Moreover, ...


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