United States District Court, D. Kansas
MEMORANDUM AND ORDER
ERIC
F. MELGREN UNITED STATES DISTRICT JUDGE.
Plaintiff
Connie Cook seeks review of a final decision by Defendant,
the Commissioner of Social Security, denying her application
for disability insurance benefits and supplemental social
security income. Cook alleges error by the administrative law
judge (“ALJ”). Specifically, she contends that
neither the ALJ's residual functional capacity
(“RFC”) assessment nor his credibility analysis
were supported by substantial evidence. Having reviewed the
record, and as described below, the Court disagrees and
affirms the order of the Commissioner.
I.
Factual and Procedural Background
In
March 2013, Connie Cook applied for disability insurance
benefits and supplemental social security income. She claimed
disability due to glaucoma, Meniere's disease,
depression, high cholesterol, and hearing loss. The alleged
onset date of the disability was December 21, 2012, when Cook
was 57 years old. Her application was denied initially and
upon reconsideration. Cook then asked for a hearing before an
ALJ.
ALJ
James Harty held an administrative hearing on January 7,
2015. Cook appeared and testified at that hearing, as did
Melissa Brassfield-an impartial vocational expert. Cook
requested a supplemental hearing that was held on September
16, 2015. Cook testified again at the supplemental hearing.
Dr. Ronald Devere-an impartial medical expert-and Cynthia
Younger-an impartial vocational expert-also appeared and
testified at the supplemental hearing. Cook was represented
by counsel at both hearings.
The ALJ
issued a written decision on November 20, 2015. The ALJ found
that Cook had not engaged in substantial gainful activity
since the alleged onset date. The ALJ found that Cook
suffered from the following severe impairments: Meniere's
disease, bilateral hearing loss, and hypothyroidism. In
addition to those severe impairments, the ALJ also found that
Cook suffered from glaucoma, diabetes mellitus, and left
cerebellopontine angle meningioma, status post craniotomy.
But the ALJ determined that these impairments were
non-severe. The ALJ further determined that Cook's
medically determinable mental impairment of major depressive
disorder was also non-severe. The ALJ went on to find that
Cook did not have an impairment, or combination of
impairments, that met or medically equaled the severity of
one of the listed impairments in 20 C.F.R. Part 404, Subpart
P, Appendix 1.
Next,
the ALJ found that Cook had the RFC to perform light work as
defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b),
except that she could lift and carry 40 pounds occasionally
and 25 pounds frequently. Additionally, the ALJ found that
Cook could sit, stand and/or walk for 6 hours in an 8-hour
workday. According to the ALJ, Cook could not climb ladders,
ropes, or scaffolds, but could tolerate occasional exposure
to dangerous moving machinery and unprotected heights.
Given
Cook's RFC, the ALJ found that she was capable of
performing her past relevant work as a dental hygienist.
Thus, the ALJ concluded that Cook had not been under a
disability from December 21, 2012, through the date of the
decision.
Cook
requested a review of the hearing with the Appeals Council,
which was denied on January 27, 2016. Accordingly, the
ALJ's November 2015 decision became the final decision of
the Commissioner. Cook filed a Complaint in this Court. She
argues that the ALJ's RFC assessment was not based on
substantial evidence. Additionally, she contends that the
ALJ's credibility analysis was not supported by
substantial evidence. She seeks reversal of the ALJ's
decision and remand for a new administrative hearing. She
also seeks the award of her costs and reasonable
attorney's fees. Because Cook has exhausted all
administrative remedies available, this Court has
jurisdiction to review the decision.
II.
Legal Standard
Judicial
review of the Commissioner's decision is guided by the
Social Security Act which provides, in part, that the
“findings of the Commissioner of Social Security as to
any fact, if supported by substantial evidence, shall be
conclusive.”[2] The Court must therefore determine whether
the factual findings of the Commissioner are supported by
substantial evidence in the record and whether the ALJ
applied the correct legal standard.[3] “Substantial evidence
is more than a scintilla, but less than a preponderance; in
short, it is such evidence as a reasonable mind might accept
to support the conclusion.”[4] The Court may “neither
reweigh the evidence nor substitute [its] judgment for that
of the [Commissioner].”[5]
An
individual is under a disability only if she “can
establish that she has a physical or mental impairment which
prevents her from engaging in substantial gainful activity
and is expected to result in death or to last for a
continuous period of at least twelve
months.”[6] This impairment “must be severe
enough that she is unable to perform her past relevant work,
and further cannot engage in other substantial gainful work
existing in the national economy, considering her age,
education, and work experience.”[7]
The
Social Security Administration has established a five-step
sequential evaluation process for determining whether an
individual is disabled.[8] The steps are designed to be followed
in order. If it is determined at any step of the evaluation
process that the claimant is or is not disabled, further
evaluation under a subsequent step is
unnecessary.[9]
The
first three steps of the sequential evaluation require the
ALJ To assess: (1) whether the claimant has engaged in
substantial gainful activity since the onset of the alleged
disability; (2) whether the claimant has a severe, or
combination of severe, impairments; and (3) whether the
severity of those severe impairments meets or equals a
designated list of impairments.[10] If the impairment does
not meet or equal one of these designated impairments, the
ALJ must then determine the claimant's residual
functional capacity (“RFC”), which is the
claimant's ability “to do physical and mental work
activities on a sustained basis despite limitations from
[her] impairments.”[11]
Upon
assessing the claimant's RFC, the ALJ moves on to steps
four and five, which requires the ALJ to determine whether
the claimant can either perform her past relevant work or
whether she can generally perform other work that exists in
the national economy, respectively.[12]The claimant bears the
burden in steps one through four to prove a disability that
prevents performance of her past relevant work.[13] The burden
then shifts to the ALJ at step five to show that, despite the
claimant's alleged impairments, the claimant could
perform other work in the national economy.[14]
III.
Analysis
A.
The ALJ's RFC assessment is supported by substantial
evidence.
Cook
argues that the ALJ's RFC assessment is flawed. She
points to the fact that the RFC assessment does not include
sufficient limitations for vertigo attacks despite the
ALJ's finding that Meniere's disease was a severe
impairment. According to Cook, the medical records
demonstrate that unpredictable vertigo attacks accompanied
her Meniere's disease. And so Cook argues that it was
inconsistent for the ALJ to find that her Meniere's
disease was a severe impairment while failing to include
limitations for the accompanying vertigo attacks.
Specifically, she notes the absence of unscheduled breaks as
result of Cook's unpredictable, likely vertigo attacks.
Cook claims that “each medical opinion indicated that
Cook would experience some limitation from vertigo
attacks.” Therefore, Cook contends that the ALJ's
RFC does not accurately reflect her limitations, and thus,
remand is required. In response, the Commissioner contends
that the ALJ's RFC finding is supported by substantial
evidence. As the Commissioner puts it, “there were
widely divergent views on the effects of [Cook's] vertigo
on her function. The ALJ discussed all of these medical
opinions in the RFC finding, comparing them to each other,
and weighing them accordingly.”
The
opinions and records of three doctors are relevant to
Cook's asserted vertigo-related limitations: (1) Dr.
Kryzer, who treated Cook's Meniere's disease; (2) Dr.
Scheufler, who was Cook's primary care physician, and (3)
Dr. Devere, a non-examining medical expert. The Court will
summarize their respective contributions to the record, and
the weight assigned to them by the ALJ.
Because
Dr. Kryzer treated Cook's Meniere's disease, he
contributed the most evidence related to her Meniere's
disease and the related vertigo spells. In January 2013, Dr.
Kryzer's notes indicated that Cook's Meniere's
disease was stable and her vertigo spells were controlled. In
March 2013, Kryzer wrote that Cook had a long history of
Meniere's disease and that she “was treated with a
chemical labyrinthectomy in 2010 that has fairly controlled
the vertigo spells, but she still does have episodes of
lightheadedness, dizziness, and imbalance.” A year
later, on March 10, 2014, Dr. Kryzer once again noted that
Cook's Meniere's disease was stable and that her
vertigo spells seemed controlled. And yet, two days later,
Dr. Kryzer completed a questionnaire regarding Cook's
vertigo. Dr. Kryzer stated that Cook had vertigo attacks
about twice a week, lasting between 30 and 60 minutes per
attack.[15] In the questionnaire, Dr. Kryzer
indicated that Cook's impairment would produce good and
bad days, and that she would miss three or more days of work
per month. Still, Dr. Kryzer opined that Cook was capable of
low stress work.
Because
Dr. Scheufler was Cook's primary care physician, he
cautioned that “Meniere's Disease is a clinical
diagnosis and I would refer you again to Dr. Kryzer's
notes.” Still, in August 2013, Dr. Scheufler wrote that
Cook's “condition had worsened” with regard
to her Meniere's disease and meningioma repair. In
November 2013, Dr. Scheufler again noted that Cook's
Meniere's disease had been bothering her, and commented
that she had “attacks 2-3 times a week, occasionally to
the point of emesis (vomiting) and it can lay her up for as
long as a couple of days.” Dr. Scheufler also commented
that Cook struggled with balance and became dizzy. Dr.
Scheufler claimed that Cook's prognosis was completely
unpredictable because she “could do fine for weeks and
then have a severe attack just out of the blue.”
Ultimately, Dr. Scheufler's opinion was that Cook was
disabled and unable to work because of the nature of her
attacks.
Dr.
Devere, a non-examining medical expert, also weighed in on
Cook's condition. After reviewing Cook's medical
records, he opined that Cook's Meniere's disease had
caused “intermittent 30 minute attacks of
vertigo” two or three times a week. But Dr. Devere also
noted that those attacks were more controlled by January
2013. Dr. Devere ultimately concluded that Cook had the
ability to perform a range of light work.
The ALJ
assigned mixed weight to the various opinions of Dr. Kryzer.
He assigned the greatest weight to Dr. Kryzer's medical
source statement dated March 19, 2013. In that statement, Dr.
Kryzer noted that a chemical labyrinthectomy had fairly
controlled Cook's vertigo spells. The ALJ noted that this
opinion was well-supported by the record and included careful
consideration of Cook's allegations. On the other hand,
the ALJ was far less convinced by the March 2014
questionnaire, in which Dr. Kryzer opined that Cook would be
absent from work three times a month and suffer bi-weekly
vertigo attacks. The ALJ found that the March 2014 opinion
was “inconsistent with Dr. Kryzer's own treatment
records and the claimant's actual activities of daily
living.” Accordingly, the ALJ assigned very little
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