Taylor v. Social Security Administration Commissioner

Filing 34

MEMORANDUM AND ORDER affirming the decision of the Commissioner. Signed by Chief Judge J. Thomas Marten on 7/14/15. (mss)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
FREDERICK TAYLOR,
Plaintiff,
v.

Case No. 14-2218-JTM

CAROLYN W. COLVIN,
Acting Commissioner of Social Security
Defendant.

MEMORANDUM AND ORDER
Plaintiff Frederick Taylor seeks review of a final decision by defendant, the
Commissioner of Social Security (“Commissioner”), denying his application for
Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“the
Act”). Plaintiff alleges that the Commissioner erred in denying DIB because the
Administrative Law Judge (“ALJ”) failed to properly consider medical source opinions
and plaintiff’s credibility when determining plaintiff’s residual functional capacity
(“RFC”). As discussed below, the Commissioner’s decision is affirmed.
I. Background
On February 2, 2012, plaintiff filed for DIB under the Act, alleging disability
beginning December 1, 2010. His claims were based on a number of physical and
mental conditions. His claims were initially denied on March 13, 2012, and again on
reconsideration on May 9, 2012. Pursuant to plaintiff’s timely request, a hearing was
held before an ALJ on October 17, 2012.

At the hearing, plaintiff testified that his inflammatory bowel disease (“IBD”)
causes him extreme gas pain, flatulence, burping, loose stool, and five to six restroom
visits during each day. He also testified that his IBD flares up for a day or two one or
two times per month, requiring ten to twelve bathroom visits per day. He also testified
that his diabetes and sleep apnea were controlled medically.
In a decision dated November 2, 2012, the ALJ determined that plaintiff was not
disabled and had an RFC to perform sedentary work. The ALJ considered plaintiff’s
IBD and other physical and mental limitations, including knee and back pain, sleep
apnea, diabetes, and anxiety. Plaintiff timely filed this appeal, alleging that the ALJ
failed to properly consider plaintiff’s IBD symptoms when determining his RFC. 1
II. Legal Standard
This court reviews the ALJ’s decision under 42 U.S.C. § 405(g) to “determine
whether the factual findings are supported by substantial evidence and whether the
correct legal standards were applied.” Angel v. Barnhart, 329 F.3d 1208, 1209 (10th Cir.
2003). Substantial evidence is that which “a reasonable mind might accept as adequate
to support a conclusion.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010) (citation
omitted). “Substantial evidence requires more than a scintilla but less than a
preponderance.” Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004) (citation
omitted). The court’s role is not to “reweigh the evidence or substitute its judgment for
the Commissioner’s.” Cowan v. Astrue, 552 F.3d 1182, 1185 (10th Cir. 2008). The

Only plaintiff’s IBD related complaints are at issue in this appeal. Plaintiff does not otherwise
challenge the ALJ’s RFC determination.
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possibility that two inconsistent conclusions may be drawn from the evidence does not
preclude a finding that the Commissioner’s decision was based on substantial evidence.
Zoltanski, 372 F.3d at 1200.
An individual is under a disability only if he can “establish that [he] 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.” Brennan v. Astrue, 501 F. Supp. 2d 1303, 1306-07 (D. Kan. 2007) (citing
42 U.S.C. § 423(d)). 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.” Barkley v. Astrue, 2010 WL 3001753, at *2 (D. Kan. July 28, 2010) (citing
Barnhart v. Walton, 535 U.S. 212, 217-22 (2002)).
Pursuant to the Act, the Social Security Administration has prescribed a five-step
sequential analysis to determine whether disability existed between the time of claimed
onset and the date the claimant was last insured under the Act. Wilson, 602 F.3d at 1139;
20 C.F.R. § 404.1520(a)(4). If the trier of fact finds at any point during the five steps that
the claimant is disabled or not disabled, the analysis stops. Reyes v. Bowen, 845 F.2d 242,
243 (10th Cir. 1988). The first three steps require the Commissioner to assess: (1)
whether the claimant has engaged in substantial gainful activity since the onset of the
alleged disability; (2) whether the claimant has a medically severe impairment or
combination of impairments; and (3) whether the severity of those impairments meets
or equals a listed impairment. Wilson, 602 F.3d at 1139 (citing Lax v. Astrue, 489 F.3d
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1080, 1084 (10th Cir. 2007)). If the impairments do not meet or equal a designated listing
in step three, the Commissioner then assesses the claimant’s RFC based on all medical
and other evidence in the record. 20 C.F.R. § 404.1520(e). RFC is the claimant’s ability
“to do physical and mental work activities on a sustained basis despite limitations from
her impairments.” Barkley, 2010 U.S. Dist. LEXIS 76220, at *5; see also 20 C.F.R. §§
404.1520(e), 404.1545. “RFC is not the least an individual can do despite his or her
limitations or restrictions, but the most.” SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996).
The Commissioner then proceeds to step four, where the RFC assessment is used to
determine whether the claimant can perform past relevant work. Lax, 489 F.3d at 1084;
20 C.F.R. § 404.1520(e). The claimant bears the burden in steps one through four of
proving disability that prevents performance of his past relevant work. 42 U.S.C. §
423(d)(5)(A); Lax, 489 F.3d at 1084.
If, as here, a claimant meets the burdens of steps one through four, “the burden
of proof shifts to the Commissioner at step five to show that the claimant retains
sufficient RFC to perform work in the national economy, given his age, education, and
work experience.” Lax, 489 F.3d at 1084 (brackets omitted).
III. Analysis
Plaintiff argues that the ALJ erred by (1) failing to find that plaintiff’s IBD is a
severe impairment and (2) failing to evaluate the credibility of plaintiff’s subjective
complaints of limitations caused by IBD.
Plaintiff’s argument that the ALJ erred at step two by failing to find that
plaintiff’s IBD is a severe impairment is irrelevant because the ALJ proceeded beyond
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step two. The ALJ satisfies the requirements of step two if he determines that the
claimant has a severe impairment and proceeds to step three. Oldham v Astrue, 509 F.3d
1254, 1256-57 (10th Cir. 2007). Here, the ALJ determined that plaintiff suffers from the
severe impairments of obesity and degenerative disk disease and proceeded to step
three, thereby fulfilling the requirements of step two. (Dkt. 23-1, at 20).
However, the severity of plaintiff’s alleged IBD symptoms impacts the RFC
determination. Accordingly, the court addresses plaintiff’s challenge of the ALJ’s RFC
determination.
A. The ALJ’s RFC determination is supported by substantial evidence in the record.
Plaintiff argues that the RFC determination is not supported by substantial
evidence in the record because the ALJ failed to evaluate plaintiff’s credibility, causing
the ALJ to fail to consider the full extent of plaintiff’s limitations caused by IBD.
The ALJ determines RFC by evaluating a claimant’s impairments that are
“demonstrable by medically acceptable clinical and laboratory diagnostic techniques,”
then weighing the evidence to determine the nature and severity of those impairments.
20 C.F.R. §§ 404.1527(a), 416.927(a). Such evidence may include medical opinions, other
opinions, and a claimant’s subjective complaints. Id.; see also Poppa v. Astrue, 569 F.3d
1167, 1170-71 (10th Cir. 2009).
1. Plaintiff’s Subjective Complaints
A claimant’s subjective complaints of debilitating pain are evaluated for
credibility under a three-step analysis that asks:

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(1) whether the claimant established a pain-producing impairment by
objective medical evidence; (2) if so, whether the impairment is reasonably
expected to produce some pain of the sort alleged (what we term a “loose
nexus”); and (3) if so, whether, considering all the evidence, both objective
and subjective, the claimant’s pain was in fact disabling.
Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166-67 (10th Cir. 2012) (citing Luna v. Bowen, 834
F.2d 161, 163-64 (10th Cir. 1987)). The ALJ “must consider the entire case record,
including the objective medical evidence” to determine whether plaintiff’s subjective
claims of debilitating pain are credible. SSR 96-7p, 1996 WL 374186, at *1 (July 2, 1996).
The ALJ should consider “a claimant’s persistent attempts to find relief for her pain and
her willingness to try any treatment prescribed,” regularity of contact with her doctor,
possible psychological disorders that may combine with physical problems, daily
activities, and daily dosage and effectiveness of medications. Keyes-Zachary, 695 F.3d at
1167.
The ALJ need not make a “formalistic factor-by-factor recitation of the evidence”
if he specifies evidence relied on in the credibility analysis. Id. (citing Qualls v. Apfel, 206
F.3d 1368, 1372 (10th Cir. 2000)). “[A] credibility determination ‘must contain specific
reasons for the finding on credibility, supported by the evidence in the case record’ and
be ‘sufficiently specific’ to inform subsequent reviewers of both the weight the ALJ gave
to a claimant’s statements and the reasons for that weight.” Hayden v. Barnhart, 374 F.3d
986, 992 (10th Cir. 2004) (quoting SSR 96-7p, 1996 WL 374186, at *4).
The ALJ noted that plaintiff complained of IBD flare-ups that can last from two
days to two weeks with pain, loose stool, and frequent bathroom trips, but that he “has
not had a flare-up in about a year.” (Dkt. 23-1, at 19). The ALJ then noted that the
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severity of plaintiff’s subjective complaints is not supported by objective medical
evidence or plaintiff’s reported activities. (Dkt. 23-1, at 26).
The ALJ discussed the objective medical evidence at length in the preceding
pages of the decision. (Dkt. 23-1, at 23-26). The objective evidence cited regarding IBD
included two visits to the emergency room for abdominal pain – one of which was
outside the time of alleged disability – resulting in diagnoses of colitis and enteritis and
the prescription of antibiotics and pain medication (Dkt. 23-1, at 339-40); diagnosis of
mild hemorrhoids (Dkt. 23-1, at 460); and plaintiff’s testimony that he had not had a
flare-up in about a year and did not take medication for IBD during the alleged
disability period (Dkt. 23-1, at 40-41). The ALJ further noted that plaintiff reported
attending university, vacuuming, doing the dishes, shopping, and lifting 20 pounds
without pain were inconsistent with any debilitating pain or symptoms. (Dkt. 23-1, at
22).
The ALJ’s narrative is thus sufficiently specific to inform a subsequent reviewer
that plaintiff’s subjective complaints of debilitating limitations caused by IBD were
discredited because they were inconsistent with objective medical evidence and
plaintiff’s reported activities. The ALJ adequately determined the credibility of
plaintiff’s subjective complaints when determining RFC.
2. The ALJ’s Understanding of Plaintiff’s Testimony
Plaintiff also argues that the ALJ misunderstood his subjective testimony
regarding the frequency of his bathroom visits. Specifically, plaintiff alleges that the ALJ
did not understand that plaintiff visits the bathroom five to six times during a normal
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workday and ten to twelve times per day several days per month. However, this
argument does not affect the ALJ’s credibility determination because it is otherwise
supported by substantial evidence in the record – in the form of objective medical
evidence and plaintiff’s reported activities – that would nevertheless remain
inconsistent with a different understanding of plaintiff’s bathroom visits.
The ALJ determined that the objective evidence and plaintiff’s reported activities
are inconsistent with those of one who is disabled under the Act. The credibility
determination does not turn on how many times plaintiff visits the restroom per
workday; it turns on whether one who attends university, vacuums, does dishes, shops,
does not take medication for IBD, and otherwise exhibits a medical history like
plaintiff’s can be credibly heard when he claims that his limitations are disabling. Thus,
plaintiff’s subjective reports of restroom visit frequency do not subvert the ALJ’s
credibility determination that is otherwise supported by substantial evidence in the
record. Remanding this case to require the ALJ to reconsider the frequency of plaintiff’s
bathroom visits would not alter the conclusion that the medical evidence and plaintiff’s
reported activities are inconsistent with those of a disabled person. The court should not
reverse for error that “would lead to warrantless remands needlessly prolonging
administrative proceedings.” Wall v. Astrue, 561 F.3d 1048, 1069 (10th Cir. 2009).

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IT IS ACCORDINGLY ORDERED this 14th day of July, 2015, that the
Commissioner’s decision is AFFIRMED.

s\ J. Thomas Marten
J. THOMAS MARTEN, JUDGE

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