Meyer v. Social Security Administration, Commissioner of
Filing
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MEMORANDUM AND ORDER - It is ordered that the Commissioner's final decision shall be REVERSED and that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) REMANDING this case for further proceedings consistent herewith. Signed by District Judge John W. Lungstrum on 08/14/2018. (ses)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LARRY D. MEYER,
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Plaintiff,
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v.
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NANCY A. BERRYHILL,
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Acting Commissioner of Social Security,
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Defendant.
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______________________________________)
CIVIL ACTION
No. 17-2459-JWL
MEMORANDUM AND ORDER
Plaintiff seeks review of a decision of the Acting Commissioner of Social Security
(hereinafter Commissioner) denying Disability Insurance Benefits (DIB) pursuant to
sections 216(i) and 223 of the Social Security Act, 42 U.S.C. §§ 416(i) and 423
(hereinafter the Act). Finding error in the ALJ’s consideration of Plaintiff’s allegations
of symptoms, the court ORDERS that the Commissioner’s final decision shall be
REVERSED and that judgment shall be entered pursuant to the fourth sentence of 42
U.S.C. § 405(g) REMANDING the case for further proceedings consistent with this
decision.
I.
Background
Plaintiff argues that the Administrative Law Judge (ALJ) erred in considering
Plaintiff’s allegations of disabling pain, failed to apply the correct legal standard when
weighing the medical opinions and improperly substituting his own personal medical
opinion, and erred in the hypothetical questioning of the vocational expert (hereinafter
VE). He seeks remand for an immediate award of DIB.
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); see also, Bowling v. Shalala,
36 F.3d 431, 434 (5th Cir. 1994) (The court “may not reweigh the evidence in the record,
nor try the issues de novo, nor substitute [the Court’s] judgment for the
[Commissioner’s], even if the evidence preponderates against the [Commissioner’s]
decision.”) (quoting Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988)). Nonetheless,
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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 he
has a severe impairment(s), and whether the severity of his 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 residual functional capacity (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, considering the RFC assessed, claimant can perform his
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
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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).
Plaintiff argues that the VE testimony “will allow this Court to outright reverse
this decision in its entirety and award Mr. Meyer SSDI benefits without the necessity of a
remand” (Pl. Br. 38) (emphasis added), and asks the court to “reverse the Secretary’s
[sic] denial and award Mr. Meyer Social Security disability benefits.” Id. at 39.
However, Plaintiff cites no authority for the proposition that the court may order remand
for payment of benefits based on VE testimony before the Commissioner, and does not
argue the authority or facts of this case which justify this court’s stepping in to direct an
administrative agency to reach a particular decision in a matter over which the agency has
been given jurisdiction in accordance with statute. Moreover, Plaintiff has waived this
argument because he provided no legal authority for it and did not develop it in his Brief.
Wall, 561 F.3d at 1066 (issue presented without developed argumentation is waived); see
also, Franklin Sav. Corp. v. U.S., 180 F.3d 1124, 1128 n.6 (10th Cir. 1999) (arguments
presented superficially are waived) (citing Sports Racing Servs., Inc. v. Sports Car Club
of America, Inc. 131 F.3d 874, 880 (10th Cir. 1997) (dismissing claims never developed,
with virtually no argument presented)). The court understands that there are (rare)
circumstances in which it is appropriate to remand for an immediate award of benefits,
but it is up to Plaintiff to cite the authority for such a result and to explain why this case
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meets the criteria justifying that result. He has not done so. Further, the court is without
jurisdiction to award SSDI benefits, which is the province of the Social Security
Administration. At best, the court might reverse the decision below and remand to the
Commissioner with directions to award benefits.
Remand is necessary because the court finds error in the ALJ’s consideration of
Plaintiff’s allegations of disabling pain. Therefore, consideration of Plaintiff’s remaining
arguments would constitute merely an advisory opinion which the court may not provide.
Plaintiff may make arguments he wishes in that regard to the Commissioner on remand.
II.
Discussion
Plaintiff argues that the ALJ’s consideration of his allegations of disabling pain is
insufficient. He argues that the ALJ did not adequately consider his testimony regarding
pain, and did not explain specifically how his statements are inconsistent with the
medical evidence. He argues that “[o]nce an objective medical basis for the existence of
pain has been shown, subjective evidence must be given at least some weight and cannot
be disregarded or minimized into nonexistence.” (Pl. Br. 13). He asserts that the ALJ
discounted Plaintiff’s subjective complaints solely because of a lack of objective
findings. Id. at 13-14. He argues that the medical evidence is contrary to the ALJ’s
findings regarding subjective pain, and supports Plaintiff’s allegations. Id. at 15-23
(explaining how, in his view, the treatment notes support his allegations). He argues that
the ALJ’s reliance on poor effort is not confirmed by the record cited, id. at 24-25, and
that there is no factual support for the finding that Plaintiff engages in moderate exercise
three days a week. Id. at 25-26.
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The Commissioner argues that the evidence supports the ALJ’s evaluation and that
Plaintiff does not show that his pain causes greater functional limitations than assessed.
She points out the ALJ acknowledged that the medical records contained both normal and
abnormal findings on physical examination at different times. (Comm’r Br. 4). She
argues that the ALJ’s explanation is appropriately specific regarding support for his
reasons to discount Plaintiff’s allegations and properly relied on the fact that Plaintiff
engaged in moderate exercise three days a week. Id. at 5. Finally, she explains her view
of the record evidence which supports the ALJ’s finding of inconsistencies. Id. at 6-8.
A.
The ALJ’s Findings Regarding Consistency
The ALJ explained the legal standard for evaluating Plaintiff’s allegations of
disabling pain. (R. 25-26) (citing 20 C.F.R. § 404.1529, SSR 96-4p, and SSR 16-3p). He
summarized Plaintiff’s allegations of disabling pain (R. 26), and stated his finding that
Plaintiff’s “statements concerning the intensity, persistence, and limiting effects of these
symptoms are not entirely consistent with the medical evidence and other evidence in the
record for the reasons explained in this decision.” Id. at 27. He summarized the evidence
regarding pain and then stated his conclusion: (R. 27-28).
In sum, although the record supports a finding that the claimant experiences
a bothersome constellations [sic] of symptoms due to his musculoskeletal
impairments, the cumulative medical evidence does not sufficiently support
his allegations to find that they preclude his performance of a range of light
work as described above. Although the claimant has a good work record in
the years preceding his alleged onset date of disability, it is outweighed by
the lack of objective support for his allegations found in the medical
evidence of record, evidence of his putting forth poor effort upon medical
testing, and his retained ability to engage in “moderate” exercise three days
per week. (Exhibits 14D; 4F/5; 5F/l, 3, 5, 7, 10, 11 [(R. 211-12, 417, 447,
449, 451, 453, 456-57])). After a careful review of the record, I find that
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the claimant’s allegations regarding the intensity, persistence, and limiting
effects of his impairments are not fully consistent with or supported by the
record.
(R. 28).
B.
Legal Standard for Evaluating Symptom Evidence
The Tenth Circuit has explained the analysis for considering subjective testimony
regarding disabling pain. Thompson v. Sullivan, 987 F.2d 1482, 1488 (10th Cir. 1993).
A claimant’s subjective allegation of pain is not sufficient in itself to
establish disability. Before the ALJ need even consider any subjective
evidence of pain, the claimant must first prove by objective medical
evidence the existence of a pain-producing impairment that could
reasonably be expected to produce the alleged disabling pain. This court
has stated: The framework for the proper analysis of Claimant’s evidence
of pain is set out in Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987). We
must consider (1) whether Claimant established a pain-producing
impairment by objective medical evidence; (2) if so, whether there is a
“loose nexus” between the proven impairment and the Claimant’s
subjective allegations of pain; and (3) if so, whether, considering all the
evidence, both objective and subjective, Claimant’s pain is in fact
disabling.
Thompson, 987 F.2d at 1488(citations and quotation omitted).
In evaluating symptoms, the court has recognized a non-exhaustive list of factors
which should be considered. Luna, 834 F.2d at 165-66; see also 20 C.F.R.
§ 404.1529(c)(3). These factors include:
the levels of medication and their effectiveness, the extensiveness of the
attempts (medical or nonmedical) to obtain relief, the frequency of medical
contacts, the nature of daily activities, 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.
Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (quoting Thompson, at 1489).
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The Commissioner has promulgated regulations suggesting relevant factors to be
considered in evaluating allegations of symptom which overlap and expand upon the
factors stated by the court: 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). In
Social Security Ruling 16-3p, the Commissioner clarified that the evaluation of a
claimant’s allegations of symptoms is not a credibility evaluation:
In evaluating an individual’s symptoms, our adjudicators will not assess an
individual’s overall character or truthfulness in the manner typically used
during an adversarial court litigation. The focus of the evaluation of an
individual’s symptoms should not be to determine whether he or she is a
truthful person. Rather, our adjudicators will focus on whether the
evidence establishes a medically determinable impairment that could
reasonably be expected to produce the individual’s symptoms and given the
adjudicator’s evaluation of the individual’s symptoms, whether the
intensity and persistence of the symptoms limit the individual’s ability to
perform work-related activities.
SSR 16-3p, Evaluation of Symptoms in Disability Claims, 2017 WL 5180304, *11 (Oct.
25, 2017) (applicable March 28, 2016); see also, 2016 WL 1119029 (Mar. 16, 2016); and
2016 WL 1237954 (Mar. 24, 2016)).
C.
Analysis
As noted above, the ALJ discounted Plaintiff’s allegations because of a lack of
objective support for his allegations, evidence of his putting forth poor effort upon
medical testing, and his retained ability to engage in “moderate” exercise three days per
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week. (R. 28). Plaintiff disagrees with each rationale. First, he argues that the medical
evidence is contrary to the ALJ’s findings regarding subjective pain, and supports
Plaintiff’s allegations. (Pl. Br. 15-23) (explaining how, in his view, the treatment notes
support his allegations). Plaintiff is correct that there is medical evidence, particularly
opinion evidence, which can be interpreted as consistent with and supportive of his
allegations. But, the evidence is supportive of the ALJ’s findings in this regard also.
Thus, the court must accept the ALJ’s view of the evidence. The mere fact that there is
evidence which might support a contrary finding will not establish error in the ALJ=s
determination. “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).
Next, he argues that the ALJ’s reliance on poor effort is not confirmed by the
record cited. (Pl. Br. 24-25). But, in fact it is. As the ALJ noted, treatment records from
October 28, 2013 reveal questionable effort during strength testing. (R. 28) (citing Ex.
3F); see (R. 408 “There is questionable effort on testing strength in his right arm
compared to the left.”). Plaintiff does not deny the ALJ’s understanding, but he points to
another finding on the same physical examination which he perceives as favorable to his
allegations. Such an argument suggests that the court should reweigh the evidence and
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reach a determination more favorable to disability, but it is prohibited from doing so. As
noted above, the court may “neither reweigh the evidence nor substitute [its] judgment
for that of the agency.” Bowman, 511 F.3d at 1272; accord, Hackett, 395 F.3d at 1172;
see also, Bowling, 36 F.3d at 434 (The court “may not reweigh the evidence in the
record, nor try the issues de novo, nor substitute [the Court’s] judgment for the
[Commissioner’s], even if the evidence preponderates against the [Commissioner’s]
decision.”) (quoting Harrell, 862 F.2d at 475).
The ALJ also cited two medical records which refer to a functional capacity
examination (FCE) which was invalid “due to the claimant’s poor effort on testing.” (R.
28) (citing Exs. 5F/1, 28F/14) (R. 447, 855). Plaintiff argues that “no indication exists in
the record as to why the results [of the FCE] were invalid.” Again, Plaintiff denies the
clear import of the record evidence. As the ALJ found, Dr. Galate’s record states that an
“FCE … dated 12/18/13 read out as an Invalid Effort,” (R. 447), and Dr. Swaim’s
summary states that “[t]he overall impression [on the FCE] was that Mr. Meyer provided
an invalid effort.” (R. 855). Each of these records support the ALJ’s finding “evidence
of his putting forth poor effort on medical testing.” (R. 28).
Attempting to distinguish “questionable effort,” and “invalid effort” from the
ALJ’s finding, Plaintiff adopts a hyper technical approach and argues that “nowhere in
the record is there any indication that Mr. Meyer ever gave ‘poor effort.’” (Pl. Br. 24).
Despite the niceties of Plaintiff’s argument and the fact that the ALJ did not use the
precise language of the record evidence, the record evidence supports the ALJ’s finding
of poor effort.
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Nevertheless, the court finds that remand is necessary because, as Plaintiff
suggests there is no factual support for the finding that Plaintiff “retained ability to
engage in ‘moderate’ exercise three days per week.” (R. 28). The first record cited by
the ALJ in this regard is Ex. 4F/5 (R. 417), which demonstrates that Plaintiff engages in
home exercise “on going x3wks.” This record indicates that Plaintiff had been engaging
in home exercise for three weeks, not three times per week. Exs. 5F/1 and 5F/10 are Dr.
Galate’s treatment records indicating “Exercise: Moderate.” (R. 447, 456). In Ex. 5F/3,
Dr. Galate stated, “The patient is comfortable with his home exercises, and is not
interested in any further work up or treatment at this time. The patient was advised of the
importance of continuing his stretching and home exercises.” (R. 449). In Ex. 5F/5, Dr.
Galate recorded “Exercise: Mild.” (R. 451). In Exs. 5F/7 and 5F/11, Dr. Galate
recorded, “Continue Home Exercise Program: The patient is comfortable with his home
exercises, and is not interested in any further work up or treatment at this time. The
patient was advised of the importance of continuing his stretching and home exercises.”
(R. 453 457). While these records suggest that Plaintiff has at times engaged in
“moderate” exercise and has been encouraged to continue with his home exercise
program, they also indicate that he has on at least one occasion reported only “mild”
exercise, that he was comfortable with what he was doing in his home exercise, and that
at one point in time he had only been doing home exercises for three weeks. They will
not support the ALJ’s finding that Plaintiff “retained [the] ability to engage in ‘moderate’
exercise three days per week.” (R. 28).
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While the record evidence supports some of the ALJ’s rationale in this regard, it
does not support the finding regarding an ability to exercise regularly. Because the
ability to engage in substantial gainful activity requires the ability to work on a sustained
basis, eight hours a day, five days a week, the error in this regard likely may have a
significant effect on Plaintiff’s ability to work. Therefore, remand is appropriate for the
Commissioner to properly and fully consider this issue.
IT IS THEREFORE ORDERED that the Commissioner’s final decision shall be
REVERSED and that judgment shall be entered pursuant to the fourth sentence of 42
U.S.C. § 405(g) REMANDING this case for further proceedings consistent herewith.
Dated August 14, 2018, at Kansas City, Kansas.
s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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