United States District Court, D. Kansas
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) pursuant to 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.
argues that the “ALJ Improperly Evaluated
[Plaintiff's] Credibility” (Pl. Br. 10) (bolding
omitted); relied on a faulty residual functional capacity
(RFC) assessment, id. at 13-16; and failed properly
to weigh the medical opinion evidence. Id. at 16-17.
court's review is guided by the Act. Wall v.
Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Section
405(g) of 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 factual findings are
supported by substantial evidence in the record and whether
she 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); see also, Bowling v. Shalala, 36
F.3d 431, 434 (5th Cir. 1994) (The court “may not
reweigh the evidence in the record, nor try the issues de
novo, nor substitute [the Court's] judgment for the
[Commissioner's], even if the evidence preponderates
against the [Commissioner's] decision.”) (quoting
Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir.
1988)). 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
he has a severe impairment(s), and whether the severity of
his 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
process--determining at step four whether, considering the
RFC assessed, claimant can perform his past relevant work;
and at step five whether, when also considering the
vocational factors of age, education, and work experience, he
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 considers the issues in order as they would present
when applying the sequential evaluation process. Therefore,
despite the order the issues appear in Plaintiff's Brief,
the court considers the ALJ's evaluation of the medical
opinion evidence before it considers the allegedly faulty RFC
The ALJ's Consideration of Plaintiff's Allegations of
argues that in evaluating his allegations of symptoms the ALJ
did not acknowledge his consistent work history or “his
continued attempts to work after he became disabled”
(Pl. Br. 11) and failed adequately to recognize Dr.
Clark's observations that his symptoms were consistent
with Machado-Joseph disease. Id. at 12. He argues
that “[w]hen assessing a claimant's credibility,
the focus of the ALJ should not be whether the claimant is a
truthful person; instead, the focus is whether the evidence
of record establishes a medical impairment ‘that could
reasonably be expected to produce the individual's
symptoms.'” Id. (quoting Soc. Sec.
Ruling (SSR) 16-3p, 2017 WL 5180304 at *11 (S.S.A. Oct.
25, 2017)). He argues that “the ALJ failed to provide
any specific reasons supported by the evidence of record to
support” his evaluation of Plaintiff's allegations
of symptoms, and his rationale “was no more than a
single, conclusory, boilerplate statement: ‘the
claimant's statements concerning the intensity,
persistence and limiting effects these symptoms [sic] are not
supported by medical evidence nor any probative evidence, and
are not credible to the extent they are inconsistent with the
above residual functional capacity assessment.'”
Id. at 12-13 (purportedly quoting R. 17). The
Commissioner responds that the ALJ reasonably discounted
Plaintiff's allegations of symptoms because they were not
supported by objective medical evidence, were inconsistent
with his reported activities, and there was a gap in
treatment history. (Comm'r Br. 5-6). She argues that
contrary to Plaintiff's argument the ALJ discussed his
reasons for discounting Plaintiff's allegations.
Id. at 6-8. In his Reply Brief Plaintiff argues that
“the ALJ has misconstrued the evidence and failed to
consider the entire record in reaching his credibility
findings.” (Reply 2).
Standard for Evaluating Allegations of
Tenth Circuit has explained the analysis for considering
subjective testimony regarding symptoms. Thompson v.
Sullivan, 987 F.2d 1482, 1488 (10th Cir. 1993) (dealing
specifically with pain).
A claimant's subjective allegation of pain is not
sufficient in itself to establish disability. Before the ALJ
need even consider any subjective evidence of pain, the
claimant must first prove by objective medical evidence the
existence of a pain-producing impairment that could
reasonably be expected to produce the alleged disabling pain.
This court has stated: The framework for the proper analysis
of Claimant's evidence of pain is set out in Luna v.
Bowen, 834 F.2d 161 (10th Cir. 1987). We 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.
Thompson, 987 F.2d at 1488(citations and quotation
evaluating a claimant's allegations of symptoms, the
court has recognized a non-exhaustive list of factors which
should be considered. Luna, 834 F.2d at 165-66;
see also 20 C.F.R. § 404.1529(c)(3).
These factors include:
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,