Douglass v. Social Security Administration, Commissioner of

Filing 16

MEMORANDUM AND ORDER. It is ordered that the judgment of the Commissioner is REVERSED, and that judgment be entered in accordance with the fourth sentence of 42 U.S.C. Sec. 405(g) REMANDING the case for further proceedings consistent with the Memorandum and Order. Signed by District Judge Eric F. Melgren on 11/27/2013. (alm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CASS W. DOUGLASS, II,
Plaintiff,

vs.

Case No. 2:12-CV-02258-EFM

MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

MEMORANDUM AND ORDER
Plaintiff Cass Douglass seeks review of a final decision by the Commissioner of Social
Security (“Commissioner”) denying his application for disability and disability insurance
benefits under Title II of the Social Security Act. Plaintiff claims that the Commissioner’s
decision should be reversed because the ALJ’s credibility determination and RFC assessment are
unsupported by substantial evidence in the record and because the ALJ did not meet his burden
to prove that other work exists in the national economy that Plaintiff is able to perform. Because
the Court finds that the Commissioner’s decision was not supported by substantial evidence, the
Court reverses and remands this case for further consideration.

I.

Factual and Procedural Background

Plaintiff was born in 1975 and received a high school diploma in 1994. Prior to his
alleged disability, Plaintiff worked as a heating and air conditioning installer. Plaintiff did not
engage in substantial gainful activity during the period of review.
In his applications for disability and supplemental security income, Plaintiff alleged a
disability onset date of July 20, 2006. Plaintiff’s insured status expired on September 30, 2007.
Plaintiff alleged disability during this time period due to deep vein thrombosis, superficial
phlebitis, and painful blood clots. The agency denied Plaintiff’s application both initially and
upon reconsideration. Plaintiff subsequently requested a hearing before an ALJ.
The ALJ held an administrative hearing on September 1, 2010, at which Plaintiff was
represented by counsel. During the hearing, Plaintiff testified regarding his medical conditions.
The ALJ also heard testimony from a vocational expert who testified regarding work that
Plaintiff could perform at the sedentary exertion level based on Plaintiff’s age, education, and
work history. On September 22, 2010, the ALJ issued his decision finding that Plaintiff was not
under a “disability” as defined in the Social Security Act because he could perform other work.
Plaintiff sought reconsideration of the ALJ’s decision, which the Appeals Council denied on
March 2, 2012.

Accordingly, the ALJ’s decision stands as the final decision of the

Commissioner and this Court has jurisdiction to review the decision.
II.

Legal Standard

Pursuant to 42 U.S.C. § 405(g), “[t]he findings of the Commissioner of Social Security as
to any fact, if supported by substantial evidence, shall be conclusive.” Upon review, the Court
must determine whether substantial evidence supports the factual findings and whether the ALJ

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applied the correct legal standard.1

“Substantial evidence is such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion. It requires more than a
scintilla, but less than a preponderance.”2 The Court is not to reweigh the evidence or substitute
its opinion for the ALJ.3 The Court must examine the record as a whole, including whatever in
the record detracts from the ALJ’s findings, to determine if the ALJ’s decision is supported by
substantial evidence.4 Evidence is not substantial if it is overwhelmed by other evidence or if it
is a mere conclusion.5
To establish a disability, a claimant must demonstrate a physical or mental impairment
that has lasted, or can be expected to last, for a continuous period of twelve months and an
inability to engage in any substantial gainful work existing in the national economy due to the
impairment.6 The ALJ uses a five-step sequential process to evaluate whether a claimant is
disabled.7 The claimant bears the burden during the first four steps.8
In steps one and two, the claimant must demonstrate that he is not presently engaged in
substantial gainful activity and that he has a medically severe impairment or combination of
impairments.9 “At step three, if a claimant can show that the impairment is equivalent to a listed
1

Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).

2

Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (internal quotation marks omitted).

3

Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008).

4

Wall, 561 F.3d at 1052 (citing Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007)).

5

Id. (citing Grogan v. Barnhart, 399 F.3d 1257, 1261–62 (10th Cir. 2005)); see also Gossett v. Bowen,
862 F.2d 802, 805 (10th Cir. 1988).
6

42 U.S.C. § 1382c(3)(A); see also id. § 423(d)(1)(A).

7

20 C.F.R. § 404.1520(a); see also Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010).

8

Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).

9

Id.

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impairment, he is presumed to be disabled and entitled to benefits.”10 If, however, the claimant
does not establish an impairment at step three, the process continues. The ALJ assesses the
claimant’s residual functioning capacity (“RFC”), and at step four, the claimant must
demonstrate that his impairment prevents him from performing his past work.11

The

Commissioner has the burden at the fifth step to demonstrate that work exists in the national
economy within the claimant’s RFC.12 The RFC assessment is used to evaluate the claim at both
steps four and five.13
III.

Analysis

The ALJ determined that Plaintiff satisfied steps one through four of the sequential
process. At steps one and two, the ALJ found Plaintiff was not engaged in substantial gainful
activity and that he had the medically “severe” impairment of superficial phlebitis. At step three,
the ALJ determined that Plaintiff’s condition did not meet or equal a listed impairment. After
formulating Plaintiff’s RFC, the ALJ found under step four that Plaintiff was unable to perform
any past relevant work. At step five, the ALJ determined that Plaintiff could perform the jobs of
credit checker and surveillance systems security monitor. For that reason, the ALJ concluded
that Plaintiff was not disabled under the Social Security Act.
Plaintiff argues that the ALJ erred because he formulated the RFC before making the
credibility finding and because the credibility determination is not supported by substantial
evidence. Plaintiff also argues that the ALJ’s RFC determination is not supported by substantial
10
11

Id.
Id.; see also 20 C.F.R. § 416.920(a)(4)(iv).

12

Id.; see also 20 C.F.R. § 416.920(a)(4)(v).

13

See 20 C.F.R. § 404.1520(a)(4)(iv)–(v).

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evidence. Finally, Plaintiff argues that the ALJ erred in relying on the vocational expert’s
testimony in finding that Plaintiff could perform work existing in the national economy.
A.

Credibility Determination

Credibility 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.14 Furthermore, an ALJ cannot ignore evidence favorable to
the plaintiff.15
The Court will affirm an ALJ’s credibility determination that does not rest on mere
boilerplate language but instead is linked to specific findings of fact fairly derived from the
record.16 Although the Court will not reweigh the evidence or substitute its judgment for that of
the ALJ, the ALJ’s conclusions must be reasonable and consistent with the evidence.17 The
Court cannot displace the ALJ’s choice between two fairly conflicting views even though the
Court may have justifiably made a different choice.18
When evaluating a claimant’s allegations of pain, the ALJ must consider (1) whether
claimant established a pain-producing impairment by objective medical evidence, (2) whether
there is a “loose nexus” between the proven impairment and the claimant’s subjective allegations
of pain, and (3) whether considering all the evidence, both objective and subjective, claimant’s
14

Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995).

15

Owen v. Chater, 913 F. Supp. 1413, 1420 (D. Kan. 1995).

16

White v. Barnhart, 287 F.3d 903, 909–10 (10th Cir. 2002).

17

Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005); White, 287 F.3d at 905, 908; see also
Glenn v. Shalala, 21 F.3d 983, 988 (10th Cir. 1994).
18

Oldham v. Astrue, 509 F.3d 1254, 1257–1258 (10th Cir. 2007).

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pain is in fact disabling.19 Factors that may be relevant in assessing the claimant’s testimony
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, subject 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.20
Here, the ALJ found that Plaintiff’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms but that Plaintiff’s “statements concerning
the intensity, persistence and limited effects of these symptoms are not credible to the extent they
are not credible with the above residual functional capacity assessment.” Plaintiff contends that
this language suggests that the ALJ reversed the method of analysis and made the RFC
determination before making the credibility finding.

Plaintiff argues that the use of this

“standard boilerplate language” is error because the ALJ failed to set forth specific evidence the
ALJ considered in determining Plaintiff’s complaints were not credible.
The ALJ’s use of standardized language is not error and does not suggest that the ALJ
formulated the RFC before making the credibility determination. Plaintiff’s argument rests on a
Seventh Circuit decision, Bjornson v. Astrue,21 in which the court criticized the use of equivalent
standard language by the ALJ. However, the court in that case did not reverse and remand the

19

See Kepler, 68 F.3d at 390–91; Thompson v. Sullivan, 987 F. 2d 1482, 1488–89 (10th Cir. 1993); Luna
v. Bowen, 834 F.2d 161, 163–65 (10th Cir. 1987).
20

Thompson, 987 F.2d at 1489.

21

671 F.3d 640 (7th Cir. 2012).

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ALJ’s credibility determination on the use of standardized language alone.22 Instead, the court
considered the ALJ’s specific reasons for rejecting the ALJ’s credibility determination and found
they were not supported by substantial evidence.23 Accordingly, the Court finds that the ALJ’s
use of standard boilerplate language in this case is not, in and of itself, grounds for reversal.
Plaintiff also contends that the ALJ’s credibility determination is not supported by
substantial evidence. In making his credibility finding, the ALJ noted that the Plaintiff’s 2008
function report stated that Plaintiff performed the daily activities of driving his daughter to
school, caring for an infant, shopping at the grocery, and performing household chores. The
report also stated that Plaintiff elevated his legs before lunch and again in the afternoon. The
ALJ found these daily activities inconsistent with Plaintiff’s testimony at the hearing, where
Plaintiff stated that he elevated his legs six hours a day. The ALJ also found that Plaintiff’s
testimony at the hearing appeared to address his limitations as of September 2010, three years
after his date last insured.
The Court finds that the ALJ’s credibility determination is not supported by substantial
evidence.

While the ALJ need not address every Luna factor in making a credibility

determination, the ALJ essentially restricted his analysis to Plaintiff’s activities of daily living
and failed to correctly analyze the relevant evidence bearing on that single factor. According to
the regulations, activities such as taking care of oneself, household tasks, hobbies, therapy,
school attendance, club activities, or social programs are generally not considered substantial
gainful activity.24 Furthermore, “one does not need to be utterly or total incapacitated in order to
22

Id. at 645-46.

23

Id. at 646.

24

20 C.F.R. § 404.1572(c).

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be disabled.”25 This Court has previously found that the daily activities of caring for a four-yearold, performing household chores, and shopping for groceries were not enough to establish that a
claimant is not able to work full time and are not inconsistent with claims of disabling pain.26
Similarly, Plaintiff’s limited daily activities of driving his daughter to school, caring for
an infant, occasional shopping, and performing household chores are not inconsistent with his
claims of disabling pain. Moreover, the record shows that Plaintiff received help from his
mother and his oldest daughter during the day and that Plaintiff’s wife works part-time only
when his condition allows it. The Court also finds that the ALJ failed to fulfill his duty to solicit
testimony from Plaintiff regarding his daily activities during the relevant 2006-2007 time period.
Social Security proceedings “are inquisitorial rather than adversarial” and the ALJ has the duty
to “investigate the factors and develop the arguments both for and against granting benefits.”27
“This duty exists even when the claimant is represented by counsel.”28 Here, the ALJ directed
the questioning at Plaintiff’s hearing regarding Plaintiff’s condition. The ALJ could have placed
temporal parameters on the questions so that Plaintiff’s testimony reflected his limitations during
the relevant 2006-2007 time period if he felt it was necessary.
Accordingly, the Court finds that the ALJ’s credibility determination is not sufficiently
supported by the record. On remand, the ALJ should adequately develop the record and more
fully consider the evidence relevant to the various Luna factors.
25

Emerson v. Astrue, 2011 WL 1303345, at *8 (D. Kan. April 6, 2011); see also Anderson v. Apfel, 100
F. Supp. 2d 1278, 1289-90 (D. Kan. 2000) (finding that occasional gardening, riding a lawn mower, and fishing
were not substantial evidence that the claimant’s disability level were inconsistent with his claimed disability).
26

Emerson, 2011 WL 1303345, at *9.

27

Sims v. Apfel, 530 U.S. 103, 111 (2000) (citing Richardson v. Perales, 402 U.S. 389, 400-01 (1971)).

28

Baca v. Dept. of Health & Human Servs., 5 F.3d 476, 480 (10th Cir. 1993) (citing Baker v. Bowen, 886
F.2d 289, 292 n.1 (10th Cir. 1989))

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B.

RFC Assessment and Step 5

Because this Court concludes that the ALJ did not follow the correct legal standards
when making his credibility determination, the Court will not reach the remaining issues raised
in the petition. The ALJ’s RFC and evaluation of whether work exists in the national economy
within Plaintiff’s RFC assessment may be affected by the ALJ’s reconsideration of his credibility
determination in accordance with the Court’s preceding analysis
IT IS ACCORDINGLY ORDERED this 27th day of November, 2013, that judgment of
the Commissioner is REVERSED, and that judgment be entered in accordance with the fourth
sentence of 42 U.S.C. § 405(g) REMANDING the case for further proceedings consistent with
this memorandum and order.
IT IS SO ORDERED.

ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE

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