Kelley v. Social Security Administration, Commissioner of

Filing 19

MEMORANDUM AND ORDER: The judgment of the Commissioner is affirmed pursuant to the fourth sentence of 42 U.S.C. § 405(g). Signed by U.S. District Senior Judge Sam A. Crow on 7/22/14. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ANGELA K. KELLEY,
Plaintiff,
v.

Case No. 13-2237-SAC

CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
MEMORANDUM AND ORDER
This is an action reviewing the final decision of the Commissioner of
Social Security which denied plaintiff disability insurance benefits and
supplemental security income payments. The matter has been fully briefed
by the parties.
I. General legal standards
The 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 in the record as a whole, and whether the
Commissioner applied the correct legal standards. Glenn v. Shalala, 21 F.3d
983, 984 (10th Cir. 1994). When supported by substantial evidence, the

Commissioner’s findings are conclusive and must be affirmed. Richardson v.
Perales, 402 U.S. 389, 401 (1971).
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. Hackett v. Barnhart, 395 F.3d 1168,
1172 (10th Cir. 2005). 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). But the standard “does not allow a court to displace the agency’s
choice between two fairly conflicting views, even though the court would
justifiably have made a different choice had the matter been before it de
novo.” Trimmer v. Dep’t of Labor, 174 F.3d 1098, 1102 (10th Cir. 1999).
The claimant shall be determined to be under a disability only if he can
establish that he has a physical or mental impairment expected to result in
death or last for a continuous period of twelve months which prevents him
from engaging in substantial gainful activity (SGA). The claimant's physical
or mental impairment or impairments must be of such severity that he is not
only unable to perform his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial
gainful work which exists in the national economy. 42 U .S.C. § 423(d).

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The Commissioner has established a five-step sequential evaluation
process to determine disability. If at any step a finding of disability or nondisability 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 she is not working at a “substantial gainful activity.” At step two, the
agency will find non-disability unless the claimant shows that 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 her previous work. The claimant is determined not to be
disabled unless she shows she cannot perform her previous work. The fifth
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, 540 U.S. 20 (2003).
The claimant bears the burden of proof through step four of the
analysis. Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993). At step
five, the burden shifts to the Commissioner to show that the claimant can
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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.
II. Procedural History
Plaintiff filed applications for disability insurance benefits and SSI
alleging that at age 34 she became disabled due to fibromyalgia, chronic
fatigue syndrome, and depression. At step one, the administrative law judge
(ALJ) found that plaintiff had not engaged in substantial gainful activity since
June 26, 2009, her alleged onset date. The ALJ found at step two that the
plaintiff has severe impairments of degenerative joint disease of the cervical
spine, fibromyalgia, dysthymia, and anxiety, but found at step three that
those impairments did not meet or equal the severity of a listed impairment
presumed severe enough to render one disabled.
Accordingly, the ALJ determined plaintiff’s residual functional capacity
(RFC) as follows:
light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b) with
the ability to lift 20 pounds occasionally, 10 pounds frequently, sit 6
hours, stand 6 hours, and walk 6 hours in an 8 hour workday, never
climb ladders, ropes, or scaffolds, occasionally climb ramps or stairs,
stoop, crouch, kneel, and crawl; avoid concentrated exposure to
extreme cold, excessive vibration, hazardous machinery, and
unprotected heights; unskilled work only with no more than
occasional contact with the general public and co-workers.
Tr. 15. At step four, the ALJ found the plaintiff unable to perform her past
relevant work, but found at step five that Plaintiff could perform other jobs
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that exist in significant numbers in the national economy, including folding
machine operator, collator operator, and inserting machine operator. The
ALJ thus determined Plaintiff is not disabled.
III. RFC
Plaintiff primarily challenges the ALJ’s determination of her RFC.
A. Supervisors
Plaintiff first contends that the ALJ erred in imposing no limitations on
Plaintiff’s ability to interact with supervisors, although he imposed limitations
on her ability to interact with the general public and coworkers. (Tr. 15).
Plaintiff contends that this unexplained omission violates SSR 96-8p, which
requires the ALJ to identify the individual's functional limitations or
restrictions and assess his or her work-related abilities on a function-byfunction basis.
The ALJ’s decision does not specifically address Plaintiff’s ability to
interact with supervisors and does not state why the ALJ would impose
limitations on Plaintiff’s ability to interact with the general public and coworkers but not with supervisors. Defendant argues that this omission gives
rise to a reasonable inference that the ALJ found no limitations in this area.
Where all of the functions that the ALJ specifically addressed in the
RFC were those in which he found a limitation, a court can reasonably
believe that those functions that he omitted were those that were not
limited.
Fowler v. Astrue, No. 07-1270-JTM, 2009 WL 722019, at *3 (D. Kan. Mar.
18, 2009), citing Depover v. Barnhart, 349 F.3d 563, 567 (8th Cir. 2003).
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The Court agrees. See Roderick-Jones v. Astrue, 2009 WL 2913586, at 5, 6
(D.Kan. 2009).
Plaintiff presents no evidence that she had significant limitations in her
ability to respond to supervisors. See Pl.’s Br. at 14-15. See Collins v.
Chater, 108 F.3d 341, 1997 WL 82480, at *1 (10th Cir. Feb. 27, 1997)
(“[A]n impairment imposes a significant work-related limitation of function
when its effect on a claimant’s ability to perform basic work activities is
more than slight or minimal.”). Instead, the record includes Plaintiff’s
statements in her functional reports that she could follow written and spoken
instructions and that she got along pretty well with authority figures. Tr.
190, 191, 208, 209. The ALJ’s tacit conclusion that Plaintiff was not limited
in her ability to interact with supervisors is thus supported by the evidence.
B. Lumbar Degenerative Disc Disease
Plaintiff next contends that the ALJ should have included Plaintiff’s
lumbar degenerative disc disease in the RFC because objective findings
confirmed that this disease produced tenderness, spasm, and decreased
range of motion, warranting some limitations. See Tr. 400, 442, 448, 453,
454.
Although an ALJ is not required to include a claimant’s diagnoses in the
RFC, the functional limitations resulting from a claimant’s diagnosed
impairments must be included. See Social Security Ruling (SSR) 96-8p.

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The ALJ expressly considered Plaintiff’s report of a bulging disc in her
lower back, but found Plaintiff’s degenerative disc disease of the lumbar
spine to be “non-severe” because her MRI showed only mild degenerative
disc disease “that did not result in significant central spinal canal stenosis or
neural foraminal stenosis at any level.” (Tr.13). The ALJ noted that Plaintiff
exhibited tenderness and spasm in her lumbar spine, but found that
Plaintiff’s allegations regarding the limitations imposed by her impairments
were not supported by the evidence. Tr.16.
Plaintiff has not identified any functional limitations not already
included in the RFC that she believes should be imposed due to her lumbar
disease. The ALJ determined that Plaintiff’s severe and non-severe
impairments limited her to light work, lifting restrictions, occasional postural
movements, but no climbing of ladders, ropes, or scaffolds (Tr. 15). These
and other stated limitations sufficiently account for Plaintiff’s non-severe
lumbar impairment. See Howard v. Barnhart, 379 F.3d 945, 949 (10th Cir.
2004) (finding no error where claimant did not allege—and the medical
evidence did not suggest—functional limitations flowing from the impairment
other than those already acknowledged by the ALJ.).
C. Medical Opinions
Plaintiff next contends that the RFC is unsupported by the substantial
evidence of the record as a whole. Plaintiff focuses on the medical opinions.

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1. Medical Opinions - No Functional Limitations
The parties discuss four medical opinions of physical impairments,
three of which found no functional limitations. Dr. Goering concluded that
“[t]he [medically determinable impairment] is fibromyalgia, functional
limitations associated with this are not credible. Im[p]airment and
limitations determined not severe.” Tr. 354. Dr. Fortune, a consulting
examiner, concluded that Plaintiff “would have no limitations of sustained
work-related activities, including sitting, standing, walking, lifting, and
carrying objects.” Tr. 347. Dr. Jones, another consulting examiner, did not
mention any severe impairment or functional limitations. Tr. 290-292.
2. Medical Opinion - Functional Limitations
Dr. Corder, Plaintiff’s treating physician, is the sole physician who
found functional limitations of any kind. He submitted two medical source
statements which included his opinions that Plaintiff was limited to “less than
sedentary work” with postural activities limited to an occasional basis, that
she had several moderate to severe environmental limitations, and that she
would need to lie down for several hours during each workday. Tr. 456-57.
The ALJ gave Dr. Corder’s opinion “little weight.” Although a treating
physician’s opinion is generally entitled to controlling weight, “[i]t is error to
give an opinion controlling weight simply because it is the opinion of a
treating source if it is not well-supported by medically acceptable clinical and
laboratory diagnostic techniques or if it is inconsistent with other substantial
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evidence in the case record.” Purvis v. Colvin, No. 12-2364-SAC, 2013 WL
3147642, at *5 (D. Kan. June 19, 2013) (citing Watkins v. Barnhart, 350
F.3d 1297, 1300 (10th Cir. 2003)). Treating source medical opinions must
be weighed by use of the factors provided in 20 C.F.R. § 404.1527(d)(2),
but the ALJ need not expressly discuss all those factors in deciding what
weight to give a medical opinion. Oldham v. Astrue, 509 F.3d 1254, 1258
(10th Cir. 2007). After considering those factors, the ALJ must “give good
reasons” for the weight he ultimately assigns the opinion. Robinson v.
Barnhart, 366 F.3d 1078, 1082 (10th Cir. 2004).
The ALJ did so here, in stating the following reasons for giving Dr.
Corder’s opinion little weight: 1) Dr. Corder’s assessment of Plaintiff’s
limitations appeared to be almost exclusively based on Plaintiff’s subjective
complaints; 2) his examination report contained no functional examination of
the Plaintiff; 3) his opinions were inconsistent with the functional
examinations in the reports of both consultative physical examiners who
found her to have only minimal limitations based on her physical
impairments; and 4) his opinions were inconsistent with the Plaintiff’s daily
activities that include performing household chores. Plaintiff challenges each
of these reasons, so they are examined below.
a. Subjective Complaints / No Functional Examination
Plaintiff first contends that Dr. Corder’s opinion was not based solely
on Plaintiff’s subjective complaints but was also based on his own
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observations and exams. See Tr. 456 (indicating he believes Plaintiff’s
complaints of pain, and that objective evidence, i.e., tenderness, slow
movements, and hyperreflexia, demonstrates a condition which could
reasonably be expected to give rise to that degree of pain); Tr. 456-57
(noting plaintiff had lethargy and lack of alertness). But those observations
appear to relate more to the existence, rather than to the severity, of
Plaintiff’s impairment or the extent of her ability to function with that
impairment. The ALJ found that Dr. Corder’s examination reports contained
no functional examination of the Plaintiff, and Plaintiff does not challenge
that finding or suggest that Dr. Corder conducted any similar examination.
Plaintiff fails to show the Court any other testing, functional examination, or
other factual basis supporting Dr. Corder’s conclusions.
Plaintiff does not challenge the ALJ’s finding that “her allegations
regarding the limitations imposed by [her] impairments are not supported by
the evidence of record.” Tr. 16. A physician's reliance on a claimant's
subjective reports, which the ALJ separately determined not to be credible,
is a legitimate reason for discounting the weight given to a medical opinion.
Sitsler v. Astrue, 410 F. App'x 112, 119 (10th Cir. 2011); see also Oldham,
509 F.3d at 1259.
Fibromyalgia is a unique disease that is necessarily diagnosed largely
on the basis of the patients' reports and other symptoms. See Gilbert v.
Astrue, 231 F. App'x 778, 783 (10th Cir. 2007) (stating that the “cause or
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causes [of fibromyalgia] are unknown, there is no cure, and ... its symptoms
are entirely subjective.”). But even in the case of “subjective diseases” such
as fibromyalgia, neither the claimant's own word nor that of her treating
physician is conclusive to establish disability. See Social Security Ruling
(“SSR”) 12–2p, 2012 WL 3104869, at *2–*3 (noting that an ALJ “cannot
rely upon the physician's [fibromyalgia] diagnosis alone,” that medical
evidence “must document that the physician reviewed the person's medical
history and conducted a physical exam,” and that person met specific
diagnostic criteria). Under the Commissioner's regulations, an ALJ may
determine that chronic fatigue is a disabling condition only “when it is
accompanied by medical signs or laboratory findings.” SSR 99–2p, 1999 WL
271569, at *2. Russell v. Astrue, 506 Fed.Appx. 792, 794, 2012 WL
6720671, 2 (10th Cir. 2012). Similarly, before a person with fibromyalgia
(FM) may be found disabled, he must present “sufficient objective evidence”
to support that finding:
FM is a common syndrome. When a person seeks disability
benefits due in whole or in part to FM, we must properly consider the
person's symptoms when we decide whether the person has an MDI of
FM. As with any claim for disability benefits, before we find that a
person with an MDI of FM is disabled, we must ensure there is
sufficient objective evidence to support a finding that the person's
impairment(s) so limits the person's functional abilities that it
precludes him or her from performing any substantial gainful activity.
SSR 12-2P. See Wilson v. Astrue, 602 F.3d 1136, 1143 (10th Cir. 2010)
(“While the diagnoses of chronic fatigue syndrome and fibromyalgia may not
lend themselves to objective clinical findings, the physical limitations
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imposed by the symptoms of such illnesses do lend themselves to objective
analysis.”), quoting Boardman v. Prudential Ins. Co. of Am., 337 F.3d 9, 17
n. 5 (1st Cir. 2003).
Dr. Corder’s reports lack the requisite objective evidence and fail to
disclose the basis for his restrictions. Although “the lack of objective test
findings noted by the ALJ is not determinative of the severity of her
fibromyalgia,” Gilbert v. Astrue, 231 Fed.Appx. 778, 784, 2007 WL 1068104,
4 (10th Cir. 2007) (emphasis added), that lack is nonetheless relevant here.
An ALJ need not ignore reliable medical evidence in deference to subjective
reports; nor is it unreasonable to expect some supporting evidence to
buttress a claim of disability. An ALJ does not err in denying benefits where
a claimant establishes the presence of fibromyalgia, but fails to present
reasonable medical evidence concerning the severity of her condition or how
it affected her ability to work. Thus, it was not error for the ALJ to discount
Dr. Corder’s opinion for his reliance on subjective complaints.
b. Inconsistency with Other Physicians’ Functional Examinations
Regarding the ALJ’s second reason, the Plaintiff tacitly agrees that Dr.
Corder’s opinions were inconsistent with those of the consultative examiners
who conducted functional examinations and found Plaintiff to have no
functional limitations. To this, Plaintiff argues that the consultative
examiners’ opinions were also inconsistent with the ALJ’s conclusion, which
found some functional limitations. Plaintiff suggests that the ALJ should
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reject all the findings of the consultative examiners since the ALJ did not
adopt their conclusions of no functional limitations. But an ALJ is not
required to accept, in toto, any one medical opinion as to limitations, and
may properly find, from all the evidence of record, limitations greater than
those found by one physician or less than those found by another. See
Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012) (finding “no
requirement in the regulations for a direct correspondence between an RFC
finding and a specific medical opinion on the functional capacity in
question.”).
Plaintiff also suggests that the ALJ should have determined whether the
consulting physicians’ opinions outweighed the treating physician’s opinion –
not the other way around - yet provides no authority for this proposition.
The ALJ’s duty is to consider all the evidence, and the manner in which he
compares one doctor’s opinion to another is not formulaic. Here, the ALJ
fully discussed his reasons for his assignation of weight to the medical
opinions in accordance with the regulations, and Plaintiff's arguments
essentially ask this Court to reweigh the evidence, which this Court is not
empowered to do. See Oldham, 509 F.3d at 1257–58.
c. Activities of Daily Living
As to Plaintiff’s activities of daily living, Plaintiff offers only that her
ability to complete household chores on good days is not inconsistent with
her being disabled. But her daily activities are nonetheless relevant evidence
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to be considered by the ALJ. See Romero v. Colvin, __ Fed.Appx. __, 2014
WL 2210747 at 3 (10th Cir. 2014). And Plaintiff does not show the Court any
longitudinal record inconsistent with the ALJ’s finding that she can care for
her own home, clean and cook, care for her personal hygiene, do her
laundry, go shopping, and drive. See SSR 12-2P (“For a person with FM, we
will consider a longitudinal record whenever possible because the symptoms
of FM can wax and wane so that a person may have “bad days and good
days.”) Nor does Plaintiff point to any evidence in Dr. Corder’s treatment
notes to support his opinion that she cannot perform sedentary work.
Rather, the examination reports in the record demonstrate that Plaintiff was
more capable than Dr. Corder indicated. For the reasons stated above, the
ALJ's decision not to give controlling weight to Dr. Corder’s opinion was
adequately explained, is supported by substantial evidence, and is free from
legal error. The Court finds that the RFC is supported by substantial
evidence in the record.
IV. ALJ’s Duty to Develop the Record
Plaintiff also faults the ALJ for not developing the record by obtaining
more evidence as to Plaintiff’s functional limitations. Plaintiff asserts that no
medical evidence support the ALJ’s decision, requiring the ALJ to obtain a
consultative examination. But the Court has rejected Plaintiff’s premise that the ALJ is required to accept, in toto, either one medical opinion or
another.
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Additionally, it is the Plaintiff, not the Defendant, who bears the
burden to provide evidence of her functional limitations. Howard, 379 F.3d at
948. Although an ALJ has a duty at times to properly develop the record,
“the starting place must be the presence of some objective medical evidence
in the record suggesting that existence of a condition which could have a
material impact on the disability decision requiring further investigation.”
Hawkins v. Chater, 113 F.3d 1162, 1167 (10th Cir. 1997) (emphasis added).
Here, the ALJ reviewed two consultative examinations. Nothing in Plaintiff’s
arguments or the medical record as a whole suggests that claimant's
impairments required further investigation before the ALJ could determine
what functional limitations, if any, existed as a result of them.
V. Ability to Perform Other Work
Plaintiff contends that she cannot perform the jobs cited by the
vocational expert because “all three require the ability to repetitively and
frequently reach and handle.” Pl.’s Br. at 21. But Plaintiff cites no authority
in support of this conclusion. The vocational expert did not mention any such
requirements in her testimony, and Plaintiff’s attorney did not ask the
vocational expert any questions about reaching and handling. Tr. 36-40.
Nor does the record as a whole show any significant limitations in
Plaintiff’s ability to reach and handle. See e.g., Tr. 190 (Plaintiff’s statements
in her function report do not note any problems with reaching or using her
hands); Tr. 27-28 (Plaintiff testified at the hearing that she could not work
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due to a back impairment, but did not mention any limitations in reaching or
handling); Tr. 33-34 (Plaintiff testified at the hearing that she could lift two
gallons of milk); Tr. 291, 348, 354 (Medical records show that Plaintiff had
55 to 85 pounds of grip strength in her right hand and 35 to 65 pounds in
her left hand and preserved dexterity); Tr. 347 (Dr. Fortune concluded that
Plaintiff could handle coins, doorknobs, and buttons with no problems and
could handle fine tools and small parts). The vocational expert’s testimony,
coupled with the record as a whole, sufficiently supports the ALJ’s finding
that Plaintiff retained the RFC to make a successful adjustment to perform
the jobs cited by the vocational expert .
IT IS THEREFORE ORDERED that the judgment of the Commissioner is
affirmed pursuant to the fourth sentence of 42 U.S.C. § 405(g).
Dated this 22nd day of July, 2014, at Topeka, Kansas.

s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

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