United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW, U.S. DISTRICT SENIOR JUDGE
an action reviewing the final decision of the Commissioner of
Social Security denying the plaintiff supplemental security
income payments. The matter has been fully briefed by the
General legal standards
court's standard of review is set forth in 42 U.S.C.
§ 405(g), which provides that "the findings of the
Commissioner as to any fact, if supported by substantial
evidence, shall be conclusive." The court should review
the Commissioner's decision to determine only whether the
decision was supported by substantial evidence and whether
the Commissioner applied the correct legal standards.
Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994).
Substantial evidence requires more than a scintilla, but less
than a preponderance, and is satisfied by such evidence that
a reasonable mind might accept to support the conclusion. The
determination of 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 really constitutes
mere conclusion. Ray v. Bowen, 865 F.2d 222, 224
(10th Cir. 1989). Although the court is not to reweigh the
evidence, the findings of the Commissioner will not be
mechanically accepted. Nor will the findings be affirmed by
isolating facts and labeling them substantial evidence, as
the court must scrutinize the entire record in determining
whether the Commissioner's conclusions are rational.
Graham v. Sullivan, 794 F.Supp. 1045, 1047 (D. Kan.
1992). The court should examine the record as a whole,
including whatever in the record fairly detracts from the
weight of the Commissioner's decision and, on that basis,
determine if the substantiality of the evidence test has been
met. Glenn, 21 F.3d at 984.
Social Security Act provides that an individual shall be
determined to be under a disability only if the claimant can
establish that they have a physical or mental impairment
expected to result in death or last for a continuous period
of twelve months which prevents the claimant from engaging in
substantial gainful activity (SGA). The claimant's
physical or mental impairment or impairments must be of such
severity that they are not only unable to perform their
previous work but cannot, considering their age, education,
and work experience, engage in any other kind of substantial
gainful work which exists in the national economy. 42 U.S.C.
Commissioner has established a five-step sequential
evaluation process to determine disability. If at any step a
finding of disability or non-disability can be made, the
Commissioner will not review the claim further. At step one,
the agency will find non-disability unless the claimant can
show that he or she is not working at a “substantial
gainful activity.” At step two, the agency will find
non-disability unless the claimant shows that he or she has a
“severe impairment, ” which is defined as any
“impairment or combination of impairments which
significantly limits [the claimant's] physical or mental
ability to do basic work activities.” At step three,
the agency determines whether the impairment which enabled
the claimant to survive step two is on the list of
impairments presumed severe enough to render one disabled. If
the claimant's impairment does not meet or equal a listed
impairment, the inquiry proceeds to step four, at which the
agency assesses whether the claimant can do his or her
previous work; unless the claimant shows that he or she
cannot perform their previous work, they are determined not
to be disabled. If the claimant survives step four, the fifth
and final step requires the agency to consider vocational
factors (the claimant's age, education, and past work
experience) and to determine whether the claimant is capable
of performing other jobs existing in significant numbers in
the national economy. Barnhart v. Thomas, 124 S.Ct.
376, 379-380 (2003).
claimant bears the burden of proof through step four of the
analysis. Nielson v. Sullivan, 992 F.2d 1118, 1120
(10thCir. 1993). At step five, the burden shifts
to the Commissioner to show that the claimant can perform
other work that exists in the national economy.
Nielson, 992 F.2d at 1120; Thompson v.
Sullivan, 987 F.2d 1482, 1487 (10th Cir.
1993). The Commissioner meets this burden if the decision is
supported by substantial evidence. Thompson, 987
F.2d at 1487.
going from step three to step four, the agency will assess
the claimant's residual functional capacity (RFC). This
RFC assessment is used to evaluate the claim at both step
four and step five. 20 C.F.R. §§ 404.1520(a)(4),
404.1520(e, f, g); 416.920(a)(4), 416.920(e, f, g).
History of case
11, 2014, administrative law judge (ALJ) James Harty issued
his decision (R. at 16-29). Plaintiff alleges that he has
been disabled since December 3, 2012 (R. at 16). At step one,
the ALJ found that plaintiff has not engaged in substantial
gainful activity since December 6, 2012, the application date
(R. at 18). At step two, the ALJ found that plaintiff had a
severe combination of impairments (R. at 18). At step three,
the ALJ determined that plaintiff's impairments do not
meet or equal a listed impairment (R. at 19). After
determining plaintiff's RFC (R. at 22), the ALJ found at
step four that plaintiff is unable to perform any past
relevant work (R. at 27). At step five, the ALJ found that
plaintiff could perform other jobs that exist in significant
numbers in the national economy (R. at 28). Therefore, the
ALJ concluded that plaintiff was not disabled (R. at 29).
Did the ALJ err in his analysis of plaintiff's
framework for the proper analysis of evidence of pain is that
the Commissioner must consider (1) whether claimant
established a pain-producing impairment by objective medical
evidence; (2) if so, whether there is a “loose
nexus” between the proven impairment and the
claimant's subjective allegations of pain; and (3) if so,
whether considering all the evidence, both objective and
subjective, claimant's pain is in fact disabling.
Kepler v. Chater, 68 F.3d 387, 390-91 (10th Cir.
1995); Thompson v. Sullivan, 987 F.2d 1482, 1488-89
(10th Cir. 1993); Luna v. Bowen, 834 F.2d 161,
163-65 (10th Cir. 1987). If an impairment is reasonably
expected to produce some pain, allegations of disabling pain
emanating from that impairment are sufficiently consistent to
require consideration of all relevant evidence. For example,
an impairment likely to produce some back pain may reasonably
be expected to produce severe back pain in a particular
claimant. Luna, 834 F.2d at 164. Symptoms can
sometimes suggest a greater severity of impairment than is
demonstrated by objective and medical findings alone. Direct
medical evidence of the cause and effect relationship between
the impairment and the degree of claimant's subjective
complaints need not be produced. Luna, 834 F.2d at
165. The absence of an objective medical basis for the degree
of severity of pain may affect the weight to be given to the
claimant's subjective allegations of pain, but a lack of
objective corroboration of the pain's severity cannot
justify disregarding those allegations. When determining the
credibility of pain testimony the ALJ should consider the
levels of medication and their effectiveness, the
extensiveness of the attempts (medical or nonmedical) to
obtain relief, the frequency of medical contacts, the nature
of daily activities, subjective measures of credibility that
are peculiarly within the judgment of the ALJ, the motivation
of and relationship between the claimant and other witnesses,
and the consistency or compatibility of nonmedical testimony
with objective medical evidence. Thompson, 987 F.2d
determinations are peculiarly the province of the finder of
fact, and a court will not upset such determinations when
supported by substantial evidence. However, findings as to
credibility should be closely and affirmatively linked to
substantial evidence and not just a conclusion in the guise
of findings. Kepler v. Chater, 68 F.3d 387, 391
(10th Cir. 1995). Furthermore, the ALJ cannot ignore evidence
favorable to the plaintiff. Owen v. Chater, 913
F.Supp. 1413, 1420 (D. Kan. 1995).
analyzing evidence of pain, the court does not require a
formalistic factor-by-factor recitation of the evidence. So
long as the ALJ sets forth the specific evidence he relies on
in evaluating the claimant's credibility, the ALJ will be
deemed to have satisfied the requirements set forth in
Kepler. White v. Barnhart, 287 F.3d 903,
909 (10th Cir. 2002); Qualls v. Apfel, 206 F.3d
1368, 1372 (10th Cir. 2000). Furthermore, the ALJ need not
discuss every relevant factor in evaluating pain testimony.
Bates v. Barnhart, 222 F.Supp.2d 1252, 1260 (D. Kan.
2002). An ALJ must therefore explain and support with
substantial evidence which part(s) of claimant's
testimony he did not believe and why. McGoffin v.
Barnhart, 288 F.3d 1248, 1254 (10th Cir. 2002). It is
error for the ALJ to use standard boilerplate language which
fails to set forth the specific evidence the ALJ considered
in determining that a claimant's complaints were not
credible. Hardman v. Barnhart, 362 F.3d 676, 679