Olsen v. Social Security Administration, Commissioner of
Filing
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MEMORANDUM AND ORDER: The judgment be entered in accordance with sentence four of 42 U.S.C. § 405(g) affirming the Commissioner's decision. Signed by U.S. District Senior Judge Sam A. Crow on 12/30/14. (msb)
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF KANSAS
CHERI L. OLSEN,
Plaintiff,
Vs.
No. 13-2424-SAC
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
MEMORANDUM AND ORDER
This is an action reviewing the final decision of the defendant
Commissioner of Social Security ("Commissioner") that denied the claimant
Cheri L. Olsen’s (“Webb”) Title II application for disability insurance benefits
under the Social Security Act (“Act”). Olsen alleged a disability onset set date
of November 30, 2007, based on a combination of impairments. Olsen
remained insured through June 30, 2011, so her disability must be established
on or before that date. The administrative law judge (“ALJ”) filed her decision
on May 1, 2012, finding that Olsen was not under a disability through June 30,
2011. (Tr. 31-41). With the Appeals Council’s denial of Olsen’s request for
review, the ALJ’s decision stands as the Commissioner’s final decision. The
administrative record (Dk. 3) and the parties= briefs are on file pursuant to D.
Kan. Rule 83.7.1 (Dks. 4, 9 and 10), the case is ripe for review and decision.
STANDARD OF REVIEW
The court's standard of review is set forth in 42 U.S.C. ' 405(g),
which provides that the Commissioner=s finding "as to any fact, if supported by
substantial evidence, shall be conclusive." The court also reviews Awhether the
correct legal standards were applied.@ Hackett v. Barnhart, 395 F.3d 1168,
1172 (10th Cir. 2005). Substantial evidence is that which Aa reasonable mind
might accept as adequate to support a conclusion.@ Richardson v. Persales,
402 U.S. 389, 401 (1971) (quotation and citation omitted). AIt requires more
than a scintilla, but less than a preponderance.@ Lax v. Astrue, 489 F.3d 1080,
1084 (10th Cir. 2007) (citation omitted). The review for substantial evidence
Amust be based upon the record taken as a whole@ while keeping in mind
Aevidence is not substantial if it is overwhelmed by other evidence in the
record.@ Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (internal
quotation marks and citations omitted). In its review of Awhether the ALJ
followed the specific rules of law that must be followed in weighing particular
types of evidence in disability cases, . . . [the court] will not reweigh the
evidence or substitute . . . [its] judgment for the Commissioner=s.@ Lax, 489
F.3d at 1084 (internal quotation marks and citation omitted).
The court's duty to assess whether substantial evidence exists:
"is not merely a quantitative exercise. Evidence is not substantial 'if it is
overwhelmed by other evidence--particularly certain types of evidence (e.g.,
that offered by treating physicians)--or if it really constitutes not evidence but
mere conclusion.'" Gossett v. Bowen, 862 F.2d 802, 805 (10th Cir. 1988)
(quoting Fulton v. Heckler, 760 F.2d 1052, 1055 (10th Cir. 1985)). At the
same time, the court Amay not 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.@ Lax v. Astrue, 489 F.3d
at 1084 (internal quotation marks and citation omitted). The court will
Ameticulously examine the record as a whole, including anything that may
undercut or detract from the ALJ=s findings in order to determine if the
substantiality test has been made.@ Wall v. Astrue, 561 F.3d at 1052 (internal
quotation marks and citation omitted).
By statute, a disability is the Ainability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to . . . last for a continuous period of not
less than 12 months.@ 42 U.S.C. ' 423(d)(1)(A). An individual "shall be
determined to be under a disability only if his physical or mental impairment or
impairments are of such severity that he is not only unable to do 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)(2)(A).
A five-step sequential process is used in evaluating a claim of
disability. Bowen v. Yuckert, 482 U.S. 137, 140 (1987). The first step entails
determining whether the Aclaimant is presently engaged in substantial gainful
activity.@ Wall v. Astrue, 561 F.3d at 1052 (internal quotation marks and
citation omitted). The second step requires the claimant to show she suffers
from a Asevere impairment,@ that is, any Aimpairment or combination of
impairments which limits [the claimant=s] physical or mental ability to do basic
work activities.@ Barnhart v. Thomas, 540 U.S. 20, 24 (2003) (internal
quotation marks and regulatory citations omitted). At step three, the claimant
is to show her impairment is equivalent in severity to a listed impairment. Lax,
489 F.3d at 1084. “If a claimant cannot meet a listing at step three, she
continues to step four, which requires the claimant to show that the
impairment or combination of impairments prevents him from performing his
past work.” Id. Should the claimant meet her burden at step four, the
Commissioner then assumes the burden at step five of showing “that the
claimant retains sufficient RFC [residual functional capacity] to perform work
in the national economy” considering the claimant’s age, education, and work
experience. Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010) (internal
quotation marks and citation omitted). Substantial evidence must support the
Commissioner’s showing at step five. Thompson v. Sullivan, 987 F.2d 1482,
1487 (10th Cir. 1993).
ALJ’S DECISION
At step one, the ALJ found that, the claimant Olsen had not
engaged in substantial gainful activity from her alleged onset date through her
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last insured date of disability. At step two, the ALJ found the following severe
impairments:
“lumbar spondylosis; major depressive disorder; DAA [drug
and alcohol addiction] in remission.” (Tr. 33). At step three, the ALJ did not
find that the impairments, individually or together, equaled the severity of the
Listing of Impairments. Before moving to steps four and five, the ALJ
determined that Olsen had the residual functional capacity (“RFC”) to perform:
a limited range of light work as defined in 20 CFR 404.1567(b). She
could sit six hours out of an 8-hour day; stand/walk 4 hours out of an
8-hour day with normal breaks; and lift/carry up to 10 lbs. frequently
and 20 lbs. occasionally. She was precluded from using foot pedals and
could not use her lower extremities for repetitive movements. She could
not climb ladders, ropes, or scaffolds; she could occasionally climb
stairs, bend, balance, stoop, kneel, crouch, or crawl; she was precluded
from work around unprotected heights. She could perform moderately
complex tasks, following 3 to 5 step instructions; she was precluded
from jobs requiring hypervigilence; she should not have been in charge
of safety operations of others; she was precluded from intense
interpersonal interactions (i.e. should not be taking complaints or in
situations like those encountered by law enforcement or emergency
personnel); and she could occasionally travel to unfamiliar locations.
(Tr. 35). At step four, the ALJ found the claimant was unable to perform her
past relevant work. (Tr. 39). At step five, the vocational expert provided
testimony from which the ALJ concluded that, “[c]onsidering the claimant’s
age, education, work experience, and residual functional capacity, the
claimant had acquired work skills from past relevant work that were
transferable to other occupations with jobs existing in significant numbers in
the national economy.” Id.
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ISSUE ONE:
ERRONEOUS ASSESSMENT OF RFC
For the most part, the court will address the plaintiff’s arguments
in the order she has made them. First is the contention that the ALJ’s decision
fails to cite and discuss the evidence supporting the mental limitations used for
the RFC finding. “The RFC assessment must include a narrative discussion
describing how the evidence supports each conclusion citing specific medical
facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities,
observations).” Social Security Ruling (SSR) 96-8p, 1996 WL 374184, at *7
(S.S.A. July 2, 1996). Observing that the ALJ made highly specific and
narrowly tailored limitations on mental RFC, the plaintiff disputes that these
findings address all of her mental limitations in the medical record and
challenges the findings as not supported by substantial evidence. Specifically,
she faults the ALJ’s decision for not discussing the reasons for excluding the
state agency medical consultant Dr. Witt’s findings of a moderate functional
limitation in maintaining concentration, persistence or pace (Tr. 350) and a
moderate limitation of the ability to get along with coworkers (Tr. 337), as well
as, the consulting examining psychiatrist Dr. Pulcher’s findings of
“[a]daptibility and persistence would appear to be limited both by her
depression and by her self-reported fibromyalgia.” (Tr. 370).
In completing the Psychiatric Review Technique (“PRT”), Dr. Witt
recorded a global rating of a moderate limitation on the general category of
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concentration, persistence and pace. (Tr. 350). And on the Mental Residual
Functional Capacity Assessment (“MRFCA”), under the general category of
“Sustained Concentration and Persistence,” Dr. Witt marked the function of
ability to carry out detailed instructions as moderately limited and marked no
other functions as so limited. (Tr. 336). Thus, there is no inconsistency
between Dr. Witt’s PRT and MRFCA, and his completion of the two forms
explains his opinion on this moderate limitation. See Chrismon v. Colvin, 531
Fed. Appx. 893, 898 (10th Cir. Aug. 21, 2013). The ALJ’s RFC finding did
account for the plaintiff’s limitation with detailed instructions, and it is
consistent with Dr. Witt’s MRFCA assessment and PRT findings.
“[T]he ALJ, not a physician, is charged with determining a
claimant’s RFC from the medical record.” Howard v. Barnhart, 379 F.3d 945,
949 (10th Cir. 2004) (citations omitted). “[T]here is no requirement in the
regulations for a direct correspondence between an RFC finding and a specific
medical opinion on the functional capacity in question.” Chapo v. Astrue, 682
F.3d 1285, 1288 (10th Cir. 2012). Dr. Witt did mark on the MRFCA a moderate
limitation on the plaintiff’s ability to get along with coworkers. (Tr. 337). On
the other hand, Dr. Pulcher found from his examination of Olsen that her
“[a]bility to work with others without distraction from psychological symptoms
would appear to be grossly intact.” (Tr. 370). Thus, it was for the ALJ to
determine RFC from these opinions. In the same way, the ALJ noted and
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necessarily weighed Dr. Pulcher’s opinion on Olsen’s “adaptability and
persistence” being limited which he attributed both to her depression and to
“self-reported myalgia,” the latter of which was not confirmed by Dr. Jones’
trigger point examination. (Tr. 370).
The ALJ’s decision expressly recognizes that the mental RFC
assessment used at steps four and five involves a more detailed assessment.
(Tr. 34-35). The administrative record includes Dr. Witt’s assessment of
Olsen’s mental RFC which finds moderate limitations on the ability to
understand and carry out detailed instructions, the ability to get along with
coworkers or peers, and the ability to travel in unfamiliar places or use public
transportation. (Tr. 336-37). The ALJ summarized the findings of the
consultative examining psychiatrist, Dr. Pulcher, which included his diagnosis
of major depressive disorder, severe and recurrent, and his opinion that Ms.
Olsen “was able to understand and carry out simple instructions; [and] work
with others without distraction from psychological symptoms.” (Tr. 370). The
ALJ discussed Dr. Monaco’s mental Medical Source Statement (MSS) and
incorporated them in the RFC determination “to the extent that they are
supported by the record.” (Tr. 37). The ALJ plainly gave little weight to Dr.
Monaco’s opinion which included mental diagnoses not otherwise found in the
record. The ALJ’s credibility finding on Dr. Monaco will be discussed later. The
plaintiff has not shown that the ALJ’s RFC findings for Olsen lack sufficient
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correspondence with the medical evidence of record. The findings place limits
on the complexity of instructions, responsibility for safety of others, duties
requiring “hypervigilence,” intense interpersonal interactions, and travel to
unfamiliar locations. Even if the ALJ did not make express credibility findings
as to Dr. Witt and Dr. Pulcher, the ALJ plainly credited the findings of Dr. Witt
who was the state agency medical consultant. (Tr. 34). Moreover, Dr. Witt’s
mental RFC assessment is generally consistent with Dr. Pulcher’s findings
which were reviewed and cited in Dr. Witt’s assessment. (Tr. 352). The court
finds that the ALJ did separately discuss Olsen’s mental limitations and
evaluated the relevant medical evidence. Although all the evidence of record
must be considered, the “ALJ does not have to discuss every piece of
evidence.” Frantz v. Astrue, 509 F.3d 1299, 1303 (10th Cir. 2007) (citation
omitted). Though this discussion could not be described as comprehensive, it
is procedurally adequate and appears to be supported by substantial evidence.
See Wells v. Colvin, 727 F.3d 1061, 1069 (10th Cir. 2013).
The plaintiff next argues the ALJ erred in not giving more
evidentiary weight to the opinions of her treating physician, Dr. Monaco,
concerning both her mental and physical limitations. The plaintiff complains
the ALJ did not follow the proper standards in according “little great weight” to
Dr. Monaco’s source statement, in incorporating some of Dr. Monaco’s
opinions on mental limitations but excluding others without explanation, and in
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failing to interpret Dr. Monaco’s findings on mental limitations as “generally
consistent” with the opinions of Dr. Witt and Dr. Pulcher. (Dk. 4, pp. 22-23).
The ALJ has a “duty to give consideration to all the medical
opinions in the record” and “must also discuss the weight he assigns to such
opinions.” Keyes–Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir.2012).
“Under the ‘treating physician rule,’ the Commissioner will generally give
greater weight to the opinions of sources of information who have treated the
claimant than of those who have not.” Hackett v. Barnhart, 395 F.3d 1168,
1173 (10th Cir. 2005) (citation omitted). In evaluating a treating physician’s
opinion, the ALJ’s initial step is to “consider whether the opinion is
well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is consistent with the other substantial evidence in the record.”
Pisciotta v. Astrue, 500 F.3d 1074, 1077 (10th Cir. 2007). If the opinion meets
this step, then it “must be given controlling weight.” Krauser v. Astrue, 638
F.3d 1324, 1330 (10th Cir. 2011). If it is fails this standard, then the opinion is
not entitled to controlling weight. Id. “But even if he determines that the
treating physician’s opinion is not entitled to controlling weight, the ALJ must
then consider whether the opinion should be rejected altogether or assigned
some lesser weight.” Pisciotta, 500 F.3d at 1077. A treating physician’s opinion
is “still entitled to deference and subject to weighing under the relevant
factors.” Mays v. Colvin, 739 F.3d 569, 574 (10th Cir. 2014) (citing 20 C.F.R.
10
§ 404.1527). These factors include:
(1) the length of the treatment relationship and the frequency of
examination; (2) the nature and extent of the treatment relationship,
including the treatment provided and the kind of examination or testing
performed; (3) the degree to which the physician's opinion is supported
by relevant evidence; (4) consistency between the opinion and the
record as a whole; (5) whether or not the physician is a specialist in the
area upon which an opinion is rendered; and (6) other factors brought to
the ALJ's attention which tend to support or contradict the opinion.
Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003) (quoting Drapeau
v. Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001)). An ALJ is not required to
discuss each of these factors, but the decision must 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.” Oldham v.
Asture, 509 F.3d 1254, 1258 (10th Cir. 2007) (internal quotation marks and
citations omitted). Nothing more is required than for the ALJ to provide “good
reasons in his decision for the weight he gave to the treating sources’
opinions.” Id. “Finally, if the ALJ rejects the opinion completely, he must then
give ‘specific, legitimate reasons' for doing so.” Watkins, 350 F.3d at 1301
(citing Miller v. Chater, 99 F.3d 972, 976 (10th Cir. 1996) (quoting Frey v.
Bowen, 816 F.2d 508, 513 (10th Cir.1987)). The court reviews “the
Commissioner’s decision to determine whether it is free from legal error and
supported by substantial evidence.” Krauser v. Astrue, 638 F.3d 1324, 1326
(10th Cir. 2011).
The ALJ’s decision reveals that little weight was given Dr.
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Monaco’s opinion, as it was not consistent with the administrative record and
was not supported by his treatment records. The ALJ specifically noted as
examples that Dr. Monaco’s treatment records fail to document any medical
basis for prescribing the need for elevating legs, for ascribing more limitations
to the right leg, and for diagnosing vertigo. (Tr. 37). The ALJ noted that the
treatment records “reflect primarily refills of prescriptions for pain
medications, with some attention paid to her complaints of depression.” (Tr.
36). The ALJ highlighted from the records:
In November 2008, the claimant told Dr. Monaco that she had been fired
from her job at JoAnn’s Fabrics because a routine background check
revealed her remote history of narcotic use. Exhibit 2F/28. She reported
depression since that time. Dr. Monaco continued her prescription for
Fentanyl for pain and Adderall for attention deficit disorder. In July 2009,
the claimant told Dr. Monaco that she continued to be depressed with no
motivation and suicidal thoughts. She reported that her chronic back
pain kept her from “meaningful work.” Dr. Monaco’s chart note also
indicates that the claimant told him she would not “abuse medications
anymore,” and as a result suffers at time with her pain. Dr. Monaco
continued her Fentanyl prescription but limited the number of
Hydrocodone not to exceed an average of two per day over a month, to
prevent potential for addiction. Chart notes in November 2009 mention
that Prozac had helped her to be not suicidal, but the resulting 20 lb.
weight gain had worsened her joint pain and she continued to report that
she could not function well enough to get a job. Exhibit 2F. Although he
noted that Dr. Nabil had made a diagnosis of bipolar disorder in the
remote past, Dr. Monaco continued to diagnose depression and
adjustment reaction. See Exhibit 7F/1.
(Tr. 36). The ALJ quoted and summarized what Dr. Monaco described as his
clinical findings to support the limitations identified in source statements. The
ALJ concluded they were so lacking of “objective findings” as to “undercut[] the
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physician’s assertion of limitation.” (Tr. 37).
As demonstrated above, the ALJ’s decision fairly shows that
controlling weight was not given Dr. Monaco’s opinion and that the ALJ
articulated sufficient grounds for this conclusion. The ALJ’s decision describes
Dr. Monaco’s treatment records as showing primarily Olsen’s subjective
reports and complaints. (Tr. 36). Subjective reports are not “medically
acceptable clinical and laboratory diagnostic techniques” and may justify
according less than controlling weight to a treating physician’s opinion.
Langley v. Barnhart, 373 F.3d 1116, 1120 (10th Cir. 2004). The ALJ’s
summary of Dr. Monaco’s treatment records indicates she looked at the length
and frequency of the treating relationship, as well as its nature and extent,
including the treatment provided. The ALJ identified from the records when
Olsen reported depression to Dr. Monaco and when Prozac was prescribed to
help with suicidal concerns. The ALJ’s findings on Dr. Monaco’s opinions are
supported specifically by the treatment records, but they are also sustained by
Dr. Pulcher’s opinion that Olsen’s alleged “memory problems and
concentration issues” were not consistent with her abilities demonstrated in
Dr. Pulcher’s interview. (Tr. 36, 370). The decision adequately demonstrates
that the ALJ considered Dr. Monaco’s opinion under the proper legal standards
and that the ALJ incorporated Dr. Monaco’s opinions to the extent they were
consistent with his treatment records and the other evidence of record.
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Because Dr. Monaco’s opinion on the extent of the plaintiff’s limitations is
inconsistent with the other medical evidence, is not supported by his treatment
records, and is open to questioning for the lack of objective clinical findings,
the ALJ did not err in weighing Dr. Monaco’s opinion and substantial evidence
sustains the ALJ’s decision.
Finally, the plaintiff contends the ALJ’s RFC analysis is inadequate
in being based only on that part of the medical record which supports it. The
ALJ’s decision shows all of the medical evidence was considered and
adequately discussed under the required legal standards. Employing the
deferential standard of review, the court concludes that substantial evidence
supports the RFC finding and that the ALJ applied the correct legal standards
for evaluating medical evidence.
ISSUE TWO: ERRONEOUS CREDIBILITY FINDING OF PLAINTIFF’S
COMPLAINTS OF SYMPTOMS
The plaintiff contends the ALJ’s credibility determination is
factually inaccurate and inadequate to meet the applicable legal standard.
Specifically, the record does not sustain the ALJ’s inferences of medication
abuse or possible drug-seeking behavior. Nor does the occasional act of
walking a dog sustain an inference that the claimant can perform substantial
gainful employment at the stated RFC level. The ALJ’s stated reason for
discounting the third party statement from claimant’s mother is neither logical
nor representative of the proper legal standards. Finally, the ALJ’s credibility
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findings demonstrate the ALJ relied on isolated parts of the record and are not
supported by substantial evidence.
Tenth Circuit “precedent does not require a formalistic
factor-by-factor recitation of the evidence . . . [s]o long as the ALJ sets forth
the specific evidence he relies on in evaluating the claimant's credibility.”
Poppa v. Astrue, 569 F.3d 1167, 1171 (10th Cir. 2009) (internal quotation
marks and citation omitted). The Commissioner has promulgated regulations
identifying factors relevant in evaluating symptoms: daily activities; location,
duration, frequency and intensity of symptoms; factors precipitating and
aggravating symptoms; type, dosage, effectiveness and side effects of
medications taken to relieve symptoms; treatment for symptoms; measures
plaintiff has taken to relieve symptoms; and other factors concerning
limitations or restrictions resulting from symptoms. 20 C.F.R. §§
404.1529(c)(3)(i-vii), 416.929(c)(3)(i-vii). The ALJ’s decision does not lay out
these factors, but it does discuss several of them.
The ALJ found that the “claimant’s statements concerning the
intensity, persistence and limiting effects of these symptoms are not credible
to the extent they are inconsistent with” the RFC finding. (Tr. 37). The ALJ
based this credibility finding on the following factors:
extended conservative
treatment, terminating work for reasons unrelated to alleged disabling
condition, current levels of activity, drug-seeking behavior, inconsistencies in
15
the evidence, and the lack of objective medical evidence in support of her
statements. (Tr. 35-39). The ALJ noted that the Olsen has seen Dr. Monaco for
the last six or seven years and primarily received only refills of pain
medications “without further diagnostic workup or referrals.” (Tr. 36, 38). See
Hamlin v. Barnhart, 365 F.3d 1208, 1220 (10th Cir. 2004) (noting that in
evaluating credibility, ALJ may consider effectiveness of medications taken to
alleviate pain). While Olsen did see a psychiatrist in 2005, she “currently just
receives anti-depressant medication from her general practitioner,” and she
told the ALJ it had “been 3 or 4 years since she saw a mental health
professional.” (Tr. 38). See Wall v. Astrue, 561 F.3d 1048, 1069 (10th Cir.
2009) (holding that a history of conservative treatment undermines
allegations of disabling symptoms). The ALJ found the plaintiff’s complaints of
depression to Dr. Monaco began after her termination from JoAnn’s Fabrics
that happened in November of 2007 which is about the same time as her
alleged onset date of disability. The ALJ noted that the plaintiff told Dr. Monaco
that she was fired because a background check showed a distant history of
narcotic use. See Roggi v. Colvin, 2013 WL 5304084 at *12 (D. Kan. 2013)
(relevant credibility factor is the claimant’s “termination for reasons unrelated
to his ability to work”).
The ALJ did not just discuss the plaintiff occasionally walking her
dog, but noted the plaintiff told Dr. Pulcher that she had the ability “to drive, go
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to the grocery store; bathe; dress; clean; and do her laundry.” (Tr. 36). The
ALJ also highlighted the plaintiff’s later part-time employment at a craft store
from which she was terminated for excessive sick leave. It remains the
province of the ALJ to determine credibility by weighing and judging activity
levels and inconsistencies in those accounts. The court does not find the ALJ
here to have applied an erroneous legal standard in considering and weighing
this evidence.
The ALJ did discuss finding references in the record to “possible
drug-seeking behavior.” (Tr. 38). The court finds sufficient evidence of record
to support a determination that Olsen’s “credibility about her pain and
limitations was compromised by her drug-seeking behavior.” Poppa v. Astrue,
569 F.3d at 1172. Dr. Monaco’s treatment records from July 2009 state that a
limited supply of hydrocodone of “two daily average over a month” in order “to
prevent potential for addiction.” (Tr. 330). Later in 2009, the treatment
records show a prescribed rate of 1 tablet every 4 to 6 hours. (Tr. 328). In July
of 2010, the pharmacy refused to refill Olsen’s prescription and Olsen called
Dr. Monaco’s office for a prescription that would allow her to take 8 to 10 pills
daily. (Tr. 381). Dr. Monaco recorded, “we haven’t changed our rx for a long
time! Why is she taking more, or why is it an issue now?” (Tr. 381). In August
of 2010, Dr. Monaco’s records show he told Olsen that she needed “to start
titrating down” her hydrocodone as she would “not be allowed refills as often.”
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(Tr. 383). Later in August, Dr. Monaco’s office declined refill requests as
premature. (Tr. 385). A similar situation played out again in June of 2011, and
Dr. Monaco recorded concerns over acetaminophen toxicity risk. (Tr. 444,
446). This is sufficient evidence to support a finding of drug-seeking behavior.
Nor does the court find error in the ALJ’s consideration of the
claimant’s mother’s third-party statement that Olsen “spends all day on the
couch, depressed and does little in the way of household chores.” The evidence
that the ALJ relied on in discounting the plaintiff’s credibility similarly discredits
the mother’s opinion about the plaintiff’s limitations. Eastman v. Colvin, 2014
WL 6675058 at *12 (D. Kan. 2014) (citing Buckner v. Astrue, 646 F.3d 549,
559-60 (8th Cir. 2011)). This includes the factor that the claimant and Dr.
Monaco were satisfied with the medication regimen for treating the claimant’s
symptoms. The ALJ did not err in evaluating this evidence from a third party.
Finally, the plaintiff argues the ALJ impermissible culled the
evidence isolating and highlighting only that which supported the desired
credibility finding. The court disagrees. The ALJ’s decision is thorough in
summarizing and discussing the evidence on both sides of the credibility issue,
and the court is not convinced that the ALJ improperly screened the case for
evidence to reach a pre-determined result.
ISSUE THREE:
ERRONEOUS HYPOTHETICAL QUESTION
This issue simply recasts the plaintiff’s arguments already
18
addressed above. The plaintiff here challenges the hypothetical question asked
of the vocational expert as erroneously based only on the ALJ’s RFC finding.
The plaintiff challenges the questions as inadequate in not reflecting all of her
limitations as evidenced by Dr. Monaco’s opinion.
An ALJ must accept and include in his hypothetical questions only
those limitations supported by substantial evidence of record. Shepherd v.
Apfel, 184 F.3d 1196, 1203 (10th Cir. 1999) (“claimant's testimony . . ., by
itself, is insufficient to establish the existence of an impairment” for inclusion in
a hypothetical). The ALJ is not required to include in a hypothetical question
limitations “claimed by plaintiff but not accepted by the ALJ as supported by
the record.” Bean v. Chater, 77 F.3d 1210, 1214 (10th Cir. 1995).
Consequently, it is enough if the posed hypothetical question “adequately
reflected the impairments and limitations that were borne out by the
evidentiary record.” Newbold v. Colvin, 718 F.3d 1257, 1268 (10th Cir. 2013).
The ALJ here properly included in his hypothetical question only those
limitations she found to be credible from the evidence of record. Having
discounted the opinions of the treating physician and the credibility of the
plaintiff's pain complaints, the ALJ was not compelled to include these in his
question. The court is satisfied that the ALJ did not err in limiting his
hypothetical to those findings that are supported by substantial evidence.
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IT IS THEREFORE ORDERED that the judgment be entered in
accordance with sentence four of 42 U.S.C. § 405(g) affirming the
Commissioner’s decision.
Dated this 30th day of December, 2014, Topeka, Kansas.
s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge
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