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Sales v. Berryhill

United States District Court, D. Kansas

December 18, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff Rhonda Sales seeks review of a final decision by Defendant, the Acting Commissioner of Social Security (“Commissioner”), finding that she is no longer disabled and thus no longer entitled to disability insurance benefits under Title II of the Social Security Act (“the Act”). Sales alleges that the administrative law judge (“ALJ”) erred in assessing her residual functioning capacity (“RFC”) and in assessing her credibility. Finding that the Commissioner's decision was supported by substantial evidence and followed the proper legal standards, the Court affirms.

         I. Factual and Procedural Background

         Sales was born in 1977, completed a GED, and previously worked as a retail cashier, last working in 2003. In 2008, an ALJ determined that she was disabled due to depression, migraine headaches, and disorders of the knee, hip, back, and neck. Sales's impairments limited her to a reduced range of sedentary work, and her migraines meant she would miss more than 12 days of work per year. A vocational expert testified at the hearing that there were no jobs which would allow an employee to miss more than one day a month.

         In July of 2012, the Social Security Administration (“SSA”) reviewed Sales's claim and determined that her condition had improved and she was no longer disabled. Sales requested a hearing in front of an ALJ, who found her no longer disabled. After the Appeals Council ordered a second hearing, ALJ Michael Mance ruled on August 26, 2015, that Sales had experienced medical improvement of her impairments and was no longer disabled. He found that, as of July 1, 2012, Sales had medically determinable impairments of migraines and chronic pain syndrome. He found Sales's subjective complaints about her pain only partially credible, based on a discrepancy between the objective medical evidence and the alleged severity of her back pain and migraines, her refusal to try treatment options other than narcotic painkilling drugs, and her level of activity in her daily life.

         The ALJ gave great weight to the psychological opinions of the state agency psychological consultants, Drs. Rebecca Miles, Robert Blum, and Richard Maxfield, who concluded that Sales had no significant mental or psychological impairments. The ALJ gave great weight to the medical opinion of Dr. Paul Kindling, a non-examining state agency medical consultant. The ALJ did not give significant weight to the medical opinion of Dr. Maria Palmeri, Sales's treating physician at the time, because her opinions were based primarily on Sales's subjective complaints, not the objective medical findings. Dr. Palmeri had concluded that Sales's impairments mostly prevent her from engaging in gainful employment. The ALJ found that Sales had an RFC which limited her to a range of sedentary work (largely in line with Dr. Kindling's assessment) and that there were a number of jobs in the national economy which her impairments would not prevent her from holding.

         The Appeals Council denied Sales's request for rehearing, rendering the ALJ's decision the final decision of the Commissioner. Sales timely appealed that decision to this Court.

         II. Legal Standard

         Judicial review of the Commissioner's decision is guided by the Act, which provides that the findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive.[1] 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.[2] “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.”[3] The Court may “neither reweigh the evidence nor substitute [its] judgment for that of the [Commissioner].”[4]

         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.”[5] 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.”[6]

         After the Commissioner finds a claimant disabled, the Commissioner will periodically review the claimant's continued entitlement to disability benefits.[7] The Commissioner uses an eight-step process for determining whether a claimant remains entitled to benefits.[8] If at any step the ALJ finds the claimant disabled or not disabled, the inquiry stops; otherwise, the ALJ continues through the steps of the process.[9] The first step requires the ALJ to determine whether the claimant has been engaged in substantial gainful activity; if so, the claimant is no longer disabled.[10] At step two the ALJ determines whether the claimant has an impairment or combination of impairments which meet or medically equal one of the listed impairments in the regulations; if so, the claimant is still disabled.[11] At step three the ALJ determines whether there has been medical improvement to the claimant's impairments. If there has been medical improvement, the ALJ continues to step four; if there has been no improvement, the ALJ continues to step five.[12] At step four the ALJ determines whether the medical improvement is related to the claimant's ability to work. If it is not related to the claimant's ability to work, the ALJ continues to step five; if it is, the ALJ continues to step six.[13] At step five the ALJ determines whether one of a number of listed exceptions applies, resulting in the claimant's disability ending despite no medical improvement in the claimant's impairments.[14] At step six the ALJ determines whether all of the claimant's current impairments in combination are severe and significantly limit her ability to do basic work activities; if they are not severe, the claimant is not disabled.[15] At step seven the ALJ assesses the claimant's RFC and determines whether the claimant can perform her past work; if she can, she is not disabled.[16] Finally, at step eight the ALJ determines whether the claimant can do other work in the national economy, given her RFC, age, education, and experience. If the claimant can perform other work, she is not disabled; if she cannot, her disability continues.[17]

         III. Analysis

         Sales alleges that the ALJ's assessment of her RFC and his determination of her credibility were unsupported by the substantial evidence of the record as a whole. The Court disagrees.

         A. RFC Findings

         Sales first argues that the ALJ's RFC determination is flawed because he failed to address her migraines or account for the number of days of work she would miss each month. She points out that one of the primary reasons for the Commissioner's 2008 conclusion that she was disabled was the amount of time she would miss each month because of her migraines. Sales argues that her migraines are still severe and frequent enough to prevent her from getting and keeping a job. Because the ALJ did not mention any functional limitations from her migraines in his RFC determination, Sales argues that the RFC is unsupported by substantial evidence.

         What Sales fails to acknowledge in her argument is that, while the actual RFC did not account for her migraines, the ALJ did explain his evaluation of her alleged migraines in his discussion of her RFC. The ALJ noted that Sales's own descriptions of the frequency and duration of her migraines are contradictory.[18] At different times, Sales has claimed that her headaches last two to three days and that they last seven to ten days. Whatever the frequency and duration of her headaches, the ALJ found that they were not as debilitating as Sales claimed. He supported this conclusion by pointing out that Sales did not show signs of weight loss, dehydration, or muscle weakness from spending days at a time in bed. The ALJ also noted that there was no indication of an underlying neurological cause for her headaches and that Sales did not complain of migraines during many of her primary care appointments. The record also indicates that at least one doctor who examined Sales believed her headaches were not migraines, but were instead tension-style headaches. Furthermore, at least one doctor noted that narcotic painkillers were not a proper treatment for migraines. Because the record contains more than a scintilla of evidence[19] to support the ALJ's finding regarding Sales's migraines, the Court holds that it was supported by substantial evidence.

         Sales next attacks the ALJ's RFC determination by arguing that he improperly weighed the medical opinions of Dr. Kindling and Dr. Palmeri. Dr. Kindling completed a physical RFC assessment form as a nonexamining agency medical consultant; he concluded that Sales could perform a range of light work, as defined by 20 C.F.R. § 404.1567(b).[20] Dr. Palmeri completed a medical source statement as Sales's current treating physician; she concluded that Sales's condition prevented her from lifting more than ten pounds, sitting or standing for more than 20 minutes, and, ultimately, engaging in gainful employment.

         The ALJ gave great weight to Dr. Kindling's opinion, because it was based on and consistent with the evidence in the record; he also noted that Dr. Kindling is familiar with the disability determination process and the relevant regulations. The ALJ did not give significant weight to the opinion of Dr. Palmeri, because it was unsupported by any objective medical findings and seemed to be based primarily on Sales's subjective complaints. But the ALJ ultimately concluded that Sales had the capacity to perform a range of sedentary work, as defined by 20 C.F.R. § 404.1567(a).[21]

         Sales argues that the ALJ should not have given Dr. Kindling's opinion great weight because it did not include any limitations due to her migraines, it was merely an advisory opinion, and Dr. Kindling did not examine or treat Sales. Sales is wrong in her claim that Dr. Kindling, like the ALJ, did not account for her migraines in his RFC determination. Dr.

         Kindling specifically mentions that one of Sales's treating physicians was skeptical of her self-diagnosis of migraines and that this doctor instead diagnosed her with tension headaches. The treating physician was skeptical partly because Sales claimed she was using hydrocodone to treat her headaches, but migraines are not treated with opioids. Dr. Kindling concluded that her headaches were not migraines, yet they added to her general pain picture. He accounted for Sales's headaches, but because he concluded that they were not migraines, he disagreed with Sales and Dr. Palmeri on whether Sales would need to miss multiple days of work each month. Because Dr. Kindling's opinion comported with the medical evidence in the record, the ALJ was permitted to give it great weight.

         Sales's argument that Dr. Kindling's opinion does not constitute substantial evidence, as it was merely an advisory opinion and he did not examine or treat her, is without merit. Sales does not cite to any case law, statute, or regulation to support her argument that an agency medical consultant's opinion should not be considered substantial evidence because it is “only a preliminary, advisory, or partial opinion.” The ALJ is required to consider the opinions of government agency medical consultants.[22] These consultants, like Dr. Kindling, are “highly qualified and experts in Social Security disability evaluation.”[23] While Dr. Kindling did not examine Sales, he reviewed the medical record in her case and came to a conclusion about her RFC based on her medical history. Dr. Kindling's opinion, considered with the rest of the medical record on which he relied, constitutes substantial evidence supporting the ALJ's decision.

         Sales argues that the ALJ erred in not giving Dr. Palmeri's opinion controlling weight, as she was Sales's treating physician at the time of the ALJ's decision. However, the opinion of a treating physician is only entitled to controlling weight when it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.”[24] Here, the ALJ noted that Dr. Palmeri's opinion was not supported by any objective medical evidence, but was instead based primarily off of Sales's subjective complaints, and that Dr. Palmeri's conclusions were inconsistent with the other evidence in the record, specifically Sales's statements concerning her level of daily activity at home and ability to manage household chores. In essence, Sales wants the Court to reweigh the evidence that the ALJ considered; however, the Court is not permitted to do so.[25] Because the ALJ found that Dr. Palmeri's opinion was neither well-supported by medically acceptable techniques nor consistent with the rest of the record evidence, his decision not to give it controlling weight was proper.

         Sales further argues that, after deciding not to give Dr. Palmeri's opinion controlling weight, the ALJ failed to explain why he did not give it significant weight, using the list of factors in 20 C.F.R. § 404.1527. These factors are: (1) length of treatment relationship and frequency of examination; (2) nature and extent of treatment relationship; (3) supportability; (4) consistency with the record as a whole; (5) specialization of the treating physician; and (6) other factors.[26]

         Sales claims that the ALJ addressed none of these factors, but that is patently untrue. The ALJ specifically stated that Dr. Palmeri's opinion was unsupported by objective medical findings and was inconsistent with the record as a whole, including Sales's own descriptions of her daily activities. Although the ALJ did not systematically review Dr. Palmeri's opinion according to each specific factor, the law does not require him to do so.[27] The ALJ's decision just needs to be “sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight.”[28] Here, the ALJ articulated his reasons for not giving Dr. Palmeri's opinion significant weight. Accordingly, the ALJ complied with the proper legal standard for weighing treating medical source opinions.

         Sales next makes two arguments which merit minimal consideration. First, she argues that, because Dr. Kindling's opinions are not substantial evidence and the ALJ rejected Dr. Palmeri's opinions, the ALJ should have further developed the record. However, because the Court held that Dr. Kindling's opinions are entitled to the weight that the ALJ gave them, this argument is moot. Second, she argues that the ALJ failed to identify the significance of the date (July 1, 2012) he chose for when her disability ended. As the Commissioner pointed out in her Brief, the ALJ concluded that Sales was no longer disabled as of July 1, 2012, because that is the date when the SSA reviewed Sales's disability determination and found she was no longer disabled.

         Sales's last argument challenging the ALJ's RFC determination involves the consulting psychological opinions of Dr. Blum and Dr. Maxfield. Relying on the psychological evaluation conducted by Dr. Miles, Dr. Blum and Dr. Maxfield each concluded that Sales had either mild or no limitations in the four broad functional areas set out in the regulations[29] (restriction of activities of daily living; difficulties in maintaining social functioning; difficulties in maintaining concentration, persistence, or pace; and, episodes of decompensation).[30] The ALJ gave great weight to the opinions of all three psychologists, and then made his own determinations as to Sales's limitations in each of the four broad areas. He found that ...

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