Stallings v. Social Security Administration
MEMORANDUM AND ORDER - It is ordered that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner's final decision. Signed by District Judge John W. Lungstrum on 04/07/2017. (ses)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LAVITA A. STALLINGS,
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
MEMORANDUM AND ORDER
Plaintiff seeks review of a decision of the Acting Commissioner of Social Security
(hereinafter Commissioner) denying Disability Insurance benefits (DIB) under 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 that decision.
Plaintiff applied for DIB, alleging disability beginning June 1, 2012. (R. 9, 108).
Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review
of the final decision denying benefits. She argues that the ALJ’s residual functional
capacity (hereinafter RFC) assessment is not supported by the record evidence, that he
erroneously relied on the opinion of the consultative examiner, Dr. White, and that he
improperly evaluated Plaintiff’s credibility.
The 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 he 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. 1988).
The 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). 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. 1989).
The 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 she
has a severe impairment(s), and whether the severity of her 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.
The Commissioner next evaluates steps four and five of the sequential process-determining at step four whether, in light of the RFC assessed, claimant can perform her
past relevant work; and at step five whether, when also considering the vocational factors
of age, education, and work experience, claimant 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).
The court addresses each argument in the order presented in Plaintiff’s Brief, and
finds no error in the ALJ’s decision.
Whether the Record Evidence Supports the RFC Assessed
Plaintiff first argues that “the substantial evidence of record supports a finding that
Ms. Stallings is unable to perform the standing and walking required of light work.” (Pl.
Br. 14). This is so, in Plaintiff’s view, because of her long history of degenerative joint
disease and osteoarthritis of the knees requiring injections and oral pain medication and
eventually resulting in a total replacement of her left knee, and because of her testimony
of missing at least two days at work each month. Id. She argues the ALJ implied that her
knee replacement “cured her bilateral knee pain and limitations,” but that after physical
therapy she was only “‘modified independent’ because she lacked functional knee
extension during her gait,” she had less than full range of motion and less than full
strength in her left leg, and had not “been able to traverse a single flight of stairs or walk a
distance without an assistive device.” Id. at 15 (citing R. 289, 290). Finally, she argues
that the ALJ should have limited her stooping and bending at the knees because before
her surgery she frequently reported pain with bending her knees, on her last physical
therapy appointment she could only bend her left knee 103 degrees, and she testified at
the hearing that she was limited in bending her knee. (Pl. Br. 15).
The Commissioner argues that the ALJ properly considered all of the evidence in
assessing RFC. She points to record evidence which supports the ALJ’s RFC assessment,
including minimal treatment; examination findings of abilities to squat and rise and
perform other postural movements without difficulty, no effusion, no knee instability, and
4/5 strength; examination findings before left knee replacement of near normal range of
motion, mild swelling, mild misalignment, ability to perform postural movements without
difficulty, and absence of effusion, reported relief with injections and oral medications;
improvement after left knee surgery with no instability; and normal alignment, no
instability, and only slightly reduced strength in the right knee. (Comm’r Br. 8-10).
In her Reply Brief, Plaintiff argues again that “the ALJ did not consider all of the
relevant evidence of record including Ms. Stallings[‘s] medical history, effects of
treatment, lay evidence, and recorded observations.” (Reply 1). She once again appeals
to her long history of osteoarthritis and osteoarthrosis, osteophyte spurring, patellar
grinding, and knee injections, id. at 2, and she argues that her knees were extremely
painful and that her right knee was doing worse after her left knee surgery. Id. at 3.
As is usually the situation in a Social Security disability case, the record evidence
here is equivocal. There is evidence supporting a finding of “disabled” and there is
evidence supporting a finding of “not disabled.” It is the ALJ’s duty to weight that
evidence and decide the issue of disability. It is not enough for the claimant to point to
evidence which is contrary to the ALJ’s decision and assert error. She must show that the
ALJ’s rationale is erroneous or that the record evidence cannot support the decision
reached. “The possibility of drawing two inconsistent conclusions from the evidence
does not prevent an administrative agency’s findings from being supported by substantial
evidence. [The court] may 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, 489 F.3d at 1084 (citations, quotations, and bracket
omitted); see also, Consolo v. Fed. Maritime Comm’n, 383 U.S. 607, 620 (1966) (same).
Here, Plaintiff has not shown erroneous reasoning or that the evidence cannot
support the ALJ’s decision. The fact that Plaintiff has pain in her knees, that she had a
knee replacement to help to alleviate that pain, or that she no longer has full strength or
range of motion does not require a finding of disability. What is required for disability is
evidence of functional limitations--whether caused by pain or by some other factor-which preclude all substantial gainful activity. The ALJ found that Plaintiff does not
have such limitations, and the record evidence supports his determination.
Plaintiff’s appeal to the notes of her last physical therapy session does not require a
different conclusion. Plaintiff’s argument that she was unable to “traverse a single flight
of stairs or walk a distance without an assistive device” (Pl. Br. 15) (citing R. 289), is
apparently based upon the outpatient physical therapy long term goals--that Plaintiff
would ambulate “community distances” with no assistive device and with no gait
deviations, and that Plaintiff would “go up/down 1 flight of stairs.” (R. 289). First, the
treatment note states with regard to going up and down a single flight of stairs that the
“goal [was] met.” Id. Plaintiff is simply wrong to argue based on this physical therapy
note that she was unable to traverse a single flight of stairs. With regard to being able to
ambulate “community distances” with no assistive device and with no gait deviations, the
treatment note indicates that the goal was “continued,” not that Plaintiff would never be
able to perform it. Moreover, the treatment note does not define “community distances,”
and Plaintiff has not shown that the ability to walk “community distances” or otherwise
without an assistive device is necessary to a finding that she is not disabled. Finally, and
most importantly, the ALJ discussed Plaintiff’s use of an assistive device and noted her
testimony that she never used an assistive device before her left knee surgery and that
“she uses a cane primarily for her right knee, but she admitted that no assistive device
was ever prescribed for her right knee.” (R. 14). He concluded, finding, “There is little
evidence that the claimant required an assistive device, except during her recovery from
knee surgery.” Id. at 15. Plaintiff shows no error in this finding.
Similarly, the physical therapy note’s reference to a “Modified Independent”
ambulation level with gait deviations due to lacking functional knee extension during gait
(R. 290) does not require limitations in addition to those assessed by the ALJ. The ALJ
found that Plaintiff can only occasionally climb ramps and stairs, and that she should
never climb ladders, ropes, or scaffolds, or crawl. (R. 12). The physical therapy notes
do not define “modified independent” ambulation level and do not specify what is lacking
in functional knee extension during gait. At that time, Plaintiff had demonstrated that she
was able to go up and down a flight of stairs, she was being released from physical
therapy, and from what the evidence shows she was mobile at least when using a cane.
While the evidence cited might be accepted as providing additional limitations, it does not
specify such limitations, such limitations are not apparent from the physical therapy notes
or from the other evidence, the ALJ may not speculate regarding what such non-specific
limitations are, and the evidence as a whole does not require such limitations.
Plaintiff’s argument that the ALJ did not consider all of the relevant evidence is
likewise unavailing. The decision reveals that the ALJ considered and provided a fair
summary of all of the record evidence. Although the ALJ did not specifically mention or
cite to every piece of evidence, that is not required, and Plaintiff does not point to
particular, material evidence that was ignored. The ALJ stated that he had carefully
considered all of the record evidence. (R. 9, 11, 12, 13). The court’s general practice is
to take a lower tribunal at its word when it says it has considered a matter. Hackett, 395
F.3d at 1172-73. Plaintiff presents no basis to depart from that practice here. For these
reasons, and based upon the court’s analysis below regarding the issues of credibility and
Dr. White’s medical opinion, the court finds no error in the ALJ’s RFC assessment.
Dr. White’s Medical Opinion
Plaintiff claims error in the ALJ’s evaluation of the report of a consultative
examination performed by Dr. White, arguing that it was a one-time examination
“without the benefit of any of Ms. Stallings’s prior medical record,” and that the ALJ
knew that merely ten months after Dr. White examined Ms. Stallings, she received a total
knee replacement. (Pl. Br. 16). The Commissioner notes that Dr. White examined
Plaintiff and concluded that she had no exertional limitations, but that the ALJ
nonetheless gave Plaintiff the benefit of the doubt, found that her knee impairments were
severe within the meaning of the Act, and assessed an RFC for a limited range of light
work. She points out that it is not error when an ALJ tempers the extremes of a medical
opinion for the benefit of a claimant. (Comm’r Br. 9-10) (citing Chapo v. Astrue, 682
F.3d 1285, 1288 (10th Cir. 2012)).
Plaintiff has shown no error in the ALJ’s evaluation of Dr. White’s opinion. As a
preliminary matter, the court notes that the evidence does not support Plaintiff’s assertion
that Dr. White formed his opinion without the benefit of prior medical records. Dr.
White’s report specifically states that he “reviewed the attached medical records.” (R.
232). The court will not merely accept Plaintiff’s assertion over the contrary statement of
The ALJ stated that he had “considered opinion evidence in accordance with the
requirements of 20 CFR 404.1527 and SSRs [(Social Security Rulings)] 96-2p, 96-5p, 966p and 06-3p” (R. 13), and Plaintiff does not argue otherwise. The ALJ summarized Dr.
White’s report of his examination of Plaintiff and explained the weight he accorded Dr.
White’s medical opinion. (R. 16). And, he explained that he accorded no weight to the
opinion of the single decisionmaker (SDM) who had decided the case at the initial level
for the state disability determination service. Id. Plaintiff points to no medical opinion
that was not evaluated. The ALJ found that Dr. White’s opinion was supported by his indepth examination and by the preponderance of the record medical evidence and that Dr.
White’s opinion regarding no limitations was therefore worthy of great weight. Id. He
stated that he nevertheless gave Plaintiff the benefit of the doubt regarding her severe
limitations and found she was restricted to light work, occasionally climbing ramps and
stairs, and never climbing ropes, ladders, or scaffolds, or crawling. Id. (citing RFC as
assessed in the decision). The fact that Plaintiff alleged pain in her knees and later
received a total knee replacement to relieve that pain requires a finding of disability only
if that pain was so severe as to produce physical or mental limitations precluding
substantial gainful activity. The ALJ found that it was not that severe, and the record
evidence supports his finding.
The Credibility Determination
Plaintiff claims the ALJ erred in evaluating the credibility of Plaintiff’s allegation
of symptoms resulting from her impairments. She argues this is so because the ALJ
mischaracterized her testimony, failed to accord appropriate weight to her “strong work
history,” failed to consider the reason for Plaintiff’s lack of medical treatment between
June 2012 and May 2014, and found, inconsistently, both that Plaintiff’s allegations are
only partially credible and that her willingness to undergo knee surgery suggests that her
symptoms were genuine. The Commissioner, argues that review of a credibility
determination is deferential, points to the reasons given by the ALJ to find Plaintiff’s
allegations only partially credible, and explains how that in her view those reasons are
supported by the record evidence. She seems to admit that the ALJ’s rationale relating to
secondary gain is erroneous, but argues that any error in that regard is harmless because
“the ALJ gave numerous valid reasons to support his subjective symptom assessment.”
(Comm’r Br. 18).
Standard for Evaluating Credibility1
The court’s review of an ALJ’s credibility determination is deferential. It is
generally treated as binding on review. Talley v. Sullivan, 908 F.2d 585, 587 (10th Cir.
1990); Broadbent v. Harris, 698 F.2d 407, 413 (10th Cir. 1983). “Credibility
determinations are peculiarly the province of the finder of fact” and will not be
overturned when supported by substantial evidence. Wilson, 602 F.3d at 1144; accord
Hackett, 395 F.3d at 1173.
Therefore, in reviewing an ALJ’s credibility determinations, the court will usually
defer to the ALJ on matters involving witness credibility. Glass v. Shalala, 43 F.3d 1392,
1395 (10th Cir. 1994); but see Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th Cir.
1993) (“deference is not an absolute rule”). “However, ‘[f]indings as to credibility should
The court notes that Plaintiff cites SSR 16-03p in her arguments regarding the
ALJ’s credibility determination. (Pl. Br. 17 & nn. 21, 22, 23, 24). The Commissioner
propagated SSR 16-03p regarding Evaluation of Symptoms in Disability Cases, dated
March 9, 2016. 2016 WL 1119029 (March 16, 2016). SSR 16-03p superseded SSR 967p, id. at *1, and was effective on March 28, 2016. 2016 WL 1237954 (March 24, 2016).
The case at issue here, however, was decided on March 24, 2015. (R. 17).
SSR 16-3p was not in effect when this case was decided, the court’s review is
directed to the final decision made by the agency, and the court may not make a de novo
determination of the case. Nguyen v. Shalala, 43 F.3d 1400, 1404 (10th Cir. 1994).
And, Plaintiff does not explain why SSR 16-03p should be applied to this case.
Moreover, although Plaintiff cites to SSR 16-03p, it does not appear she is attempting to
get the court to apply any rule of law not contained in SSR 96-7p. The court will apply
the law in effect when this case was decided by the ALJ.
be closely and affirmatively linked to substantial evidence and not just a conclusion in the
guise of findings.’” Wilson, 602 F.3d at 1144 (quoting Huston, 838 F.2d at 1133);
Hackett, 395 F.3d at 1173 (same).
The ALJ’s Credibility Determinaion
The ALJ determined Plaintiff’s allegations of limitations resulting from her
symptoms “are not entirely credible” (R. 13), and explained his rationale in that regard.
Id. at 13-16. He noted that despite examinations showing otherwise, Plaintiff alleged she
is unable to bend her knees and therefore is unable to carry anything up or down stairs.
Id. at 13. He specifically stated that he gave Plaintiff the benefit of the doubt and found
that her degenerative joint disease of the knees is a severe impairment within the meaning
of the Act. Id. at 14. He noted that at Dr. White’s examination Plaintiff reported knee
pain at a 10 out of 10, but was able to perform postural maneuvers without difficulty,
suggesting the pain allegation was exaggerated. Id. He noted the fact that Plaintiff
underwent surgery on her left knee “suggests that the symptoms were genuine,” but he
found this positive factor “is offset by the fact that the record reflects that the surgery was
generally successful in relieving the symptoms.” Id. The ALJ considered that Plaintiff
was using a cane at the hearing, but found “little evidence that the claimant required an
assistive device, except during her recovery from knee surgery.” (R. 15). The ALJ noted
that Plaintiff cared for her granddaughter at her home until August or September 2014
when the child began attending kindergarten, and that Plaintiff used her knee pain for
secondary gain in an attempt to remain off work after a workplace injury. Id. He
recognized that receipt of unemployment benefits is not dispositive of the ability to work,
but that Plaintiff’s receipt of such benefits provides the basis for an inference that Plaintiff
professed an ability to work while alleging disability. (R. 16).
Plaintiff primarily argues that the ALJ misunderstood and mischaracterized the
evidence, and therefore reached the wrong credibility determination. This is little more
than a request that the court reevaluate the credibility of Plaintiff’s allegations and
substitute its credibility determination for that of the ALJ. But, as noted above the court
may not reweigh the evidence and substitute its judgment for that of the Commissioner,
Bowman, 511 F.3d at 1272; accord, Hackett, 395 F.3d at 1172, and review of the ALJ’s
credibility determination is particularly deferential. Wilson, 602 F.3d at 1144.
In seeking such reconsideration, Plaintiff argues that she did not testify that she
could not bend her knee at all, but rather that bending her knee was limited, and that she
did not testify that she never saw swelling in her knees, but rather that she never really
knew they were swollen until medical personnel told her. (Pl. Br. 18). Plaintiff is
technically correct in both arguments, but she misses the point of the ALJ’s discussion.
The ALJ’s point is that the medical examinations, other than immediately following knee
surgery, showed little to no limitation in Plaintiff’s knee range of motion, whereas
Plaintiff testified she had little ability to bend her knees and was consequently unable to
carry anything up or down stairs. The evidence supports the ALJ’s finding. Moreover,
even if the ALJ did erroneously understand Plaintiff to argue that she could not bend her
knees at all, that error, if any, was invited by Plaintiff. In questioning the vocational
expert, Plaintiff’s counsel asked, “If one was unable to stoop or bend at the knees, would
they [sic] still be capable of performing” Plaintiff’s past work as a security guard, and the
expert responded that she would not. (R. 44) (emphasis added). Here, the ALJ found that
Plaintiff is able to perform her past work as a security guard, and it was necessary to
distinguish Plaintiff’s implied argument that she was unable to bend at the knees.
With regard to swelling in Plaintiff’s knees, the ALJ was correct in noting that the
knee swelling was so mild that, as Plaintiff admitted, she did not observe it independently
until the medical personnel noted it. The point the ALJ was making was not that Plaintiff
did not experience these symptoms to any degree, but that the symptoms were not as
severe as alleged, and that Plaintiff was exaggerating her symptoms and limitations.
Similarly, Plaintiff makes much of the ALJ’s note that Plaintiff “may have been
using her alleged knee pain for secondary gain” (R. 15) when she fell at work, and when
released to return to work refused to do so without a second opinion. But the record
supports the ALJ’s inference. While Plaintiff argues that it was “not unreasonable” to
seek a second opinion because her physician had her past medical records and took “new
x-rays which revealed chronic degenerative changes in both knees” (Pl. Br. 19), her
argument demonstrates the ALJ’s point, and that point is supported by the record
Plaintiff was working full-time when she fell and received a work injury, and she
continued to work for three months thereafter until her workplace closed. (R. 13). After
falling at work, she was seen by the workers compensation physician who prescribed 800
mg ibuprofen tablets and released her to return to work. (R. 188). She wanted a second
opinion and went to see her primary care physician who stopped the ibuprofen and
prescribed hydrocodone-acetaminophen tablets, explained to her that there was low
suspicion of fracture, but nevertheless ordered x-rays at Plaintiff’s request, and released
her to return to work as the workers compensation physician had done. (R. 189).
As Plaintiff admits, she had been working before her workplace fall despite pain
and treatment for degenerative joint disease in the bilateral knees. The workers
compensation physician treated her for the additional pain resulting from her workplace
fall, determined that the potential of further injury was minimal if any, and released her to
return to work. But, as the ALJ noted, Plaintiff used her knee pain for secondary gain to
remain off work until she received a second opinion. As Plaintiff argues, the x-rays taken
by her physician revealed degenerative changes in both knees, but that information was
already known to Plaintiff and to her physician, and was not the result of the workplace
fall. What is relevant in this context is that both physicians felt the low suspicion of
fracture did not justify knee x-rays, and when taken, the x-rays confirmed that “[t]he bony
structures appear intact and there is no evidence of fracture or displacement.” (R. 204).
While the ALJ specifically noted that the fact of seeking secondary gain “does not
determine the case at hand, it is relevant to the claimant’s credibility” (R. 15), and it is not
error to consider it in that regard.
Finally, the ALJ did not make inconsistent findings by recognizing that Plaintiff’s
willingness to undergo surgery suggests that her symptoms are genuine while finding that
her allegations of symptoms are only partially credible. As Plaintiff’s Brief suggests, the
ALJ should consider a non-exhaustive list of factors in determining the credibility of a
claimant’s allegations of limitations resulting from her impairments. (Pl. Br. 17); see also
Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (“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, and the consistency or
compatibility of nonmedical testimony with objective medical evidence”); 20 C.F.R.
§ 404.1529(c)(3)(i-vii) (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). It is clear that the ALJ here considered
evidentiary factors relevant to his credibility determination. Evidence in a Social Security
disability case rarely if ever points in but one direction, and the ALJ is to be commended
rather than condemned for discussing evidence which supports a finding contrary to his
Plaintiff has shown no error in the credibility determination. Giving it the
deference it is due, the court finds no error.
IT IS THEREFORE ORDERED that judgment shall be entered pursuant to the
fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner’s final decision.
Dated this 7th day of April 2017, at Kansas City, Kansas.
s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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