United States District Court, D. Kansas
TAMMY J. HOWELL, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
W. Lungstrum United States District Judge
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
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.
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.
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.
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.
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).
court addresses the alleged errors in the order presented in
Evidence Regarding Impairments and Resulting
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.
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)).
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).
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,
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.
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.
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).
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).