Geary v. Social Security Administration, Commissioner of
MEMORANDUM AND ORDER affirming the Commissioner's decision. Signed by Chief Judge J. Thomas Marten on 9/30/14. (mss)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DOUGLAS LEW GEARY,
Case No. 13-4106-JTM
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
MEMORANDUM AND ORDER
Plaintiff Douglas Geary seeks review of a final decision by defendant, the
Commissioner of Social Security (“Commissioner”), denying plaintiff’s application for
Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (the
“Act”). Plaintiff alleges that the Commissioner’s determination of impairment and
residual functioning capacity (“RFC”) was not supported by substantial evidence. Upon
review, the court finds that the Commissioner’s decision is supported by substantial
evidence contained in the record. Accordingly, the Commissioner’s final decision on the
matter is affirmed.
A. Medical History
Plaintiff’s medical issues seem to date back to a work-related back injury in early
2000. Dkt. 14, at 2. He had back surgery to alleviate the problem in July of 2000. Dkt. 14,
at 2. After the surgery, plaintiff presented on several occasions to his primary physician,
Dr. Richard L. Hull, D.O., complaining of back pain. Dkt. 9-9, at 2-42. Dr. Hull noted on
July 3, 2003, that plaintiff had “incapacitating back pain” and was “incapacitated for
any job presently.” Dkt. 9-9, at 18. On July 22, 2003, Dr. Hull noted “good pain control”
and dramatically improved functional capacity. Dkt. 9-9, at 19. Plaintiff returned to
work in 2003, working as many as three part-time jobs at once between 2003 and 2009.
Dkts. 9-3, at 37; 14, at 3. Dr. Hull again noted improvement in plaintiff’s back pain on
February 3, 2004. Dkt. 9-9, at 36. Plaintiff continued seeing Dr. Hull for primary medical
care until February 17, 2006. Dkt. 9-8, at 5.
Plaintiff was terminated from his last job in August 2008 for poor attendance.
Dkt. 9-3, at 37. Plaintiff attributes his poor attendance to back and leg pain. Dkt. 9-3, at
37. However, an agent of the employer reported that plaintiff was fired because he was
unreliable. Dkt. 9-7, at 82. The employer’s agent specifically noted that plaintiff “always
had somewhere else he had to be” and “needed supervision or would fiddle the day
away.” Dkt. 9-7, at 82-83. The employer’s agent also noted that plaintiff frequently
arrived late, left early, and did not follow through with job duties even after being
shown what to do. Dkt. 9-7, at 81-83.
Plaintiff did not resume medical treatment until February 23, 2011, when he was
treated by Timothy Spears, D.O. Dkt. 9-10, at 2. Dr. Spears opined that “it would be
hard for [plaintiff] to work.” Dkt. 9-10, at 2. On March 5, 2011, a consulting medical
examination was performed for Disability Determination Services (“DDS”) by Shawn
Morrow, D.O. Dkt. 9-8, at 16-19. Dr. Morrow reported limited range of motion with
paravertebral spasms and “moderate to severe difficulty with orthopedic maneuvers.”
Dkt. 9-8, at 18. A consultative RFC assessment was performed by Dr. Nisha Singh, M.D.,
on April 8, 2011, which opined occasional postural limitations but no limitations when
reaching in all directions, handling, fingering, or feeling. Dkt. 9-8, at 22. On April 9,
2011, Kevin S. Hughes, D.O., read an MRI of plaintiff’s lumbar spine and noted
“[l]umbar degenerative disc disease worse at L4-L5 and L5-S1 with small bulging disk
at L5-S1.” Dkt. 9-8, at 33.
On June 8, 2011, plaintiff was examined by neurosurgeon Phillip Hylton, M.D., at
the University of Kansas Comprehensive Spine Center. Dkt. 9-8, at 38-41. Dr. Hylton
noted that plaintiff complained of whole spine pain from his neck to his feet, involving
both legs and both arms from shoulder to elbow. Dkt. 9-8, at 38. MRI testing showed
what Dr. Hylton classified as “mild-to-moderate degenerative changes at L4-L5 with no
neurologic compression,” and “moderate stenosis and postsurgical changes at L5-S1 to
the left, otherwise negative exam.” Dkt. 9-8, at 38. Dr. Hylton concluded that plaintiff
had no musculoskeletal abnormalities that required surgery, but that he had
“impressive comprehensive myofascial pain syndrome, which is rather diffuse.” Dkt. 98, at 39.
In a DDS consultative report on July 26, 2011, C.A. Parsons, M.D., concluded that
“there is not sufficient [medical records] to assess the [plaintiff’s] functioning prior to
DLI.” Dkt. 9-8, at 43. Plaintiff was subsequently treated by Kevin Latinis, M.D., on
September 26, 2011. Dkt. 9-9, at 48-49. Dr. Latinis diagnosed plaintiff with osteoarthritis,
low back pain, and fibromyalgia syndrome. Dkt. 9-9, at 49. However, Dr. Latinis noted
that plaintiff had no overt inflammatory arthritis in any of his extremities. Dkt. 9-9, at
48. Dr. Latinis also recorded that plaintiff arrived wearing a back corset, left wrist brace,
and bilateral knee braces. Dkt. 9-9, at 48. On October 18, 2011, plaintiff returned to Dr.
Spears, who prescribed a quad cane for instability and weakness. Dkt. 9-10, at 10. In
response to interrogatories dated April 3, 2012, Dr. Spears testified that plaintiff had
been disabled since at least February 2010. Dkt. 9-10, at 40.
Plaintiff claims he is only able to walk one hundred feet, that he needs assistance
doing errands and housework, and that his daily activities are limited to “waking up
depending on the day.” Dkt. 9-7, at 14-15. Plaintiff claims he experiences pain daily
from the time he gets up until the time he lays back down. Dkt. 9-7, at 13. Plaintiff’s
wife, Gina Veerkamp-Geary, submitted a Third Party Function Report on June 4, 2011.
Dkt. 9-7, at 72. Veerkamp-Geary similarly indicated that plaintiff has very limited daily
function because of pain; notably, that she has to help him put on socks, get onto his
feet, and bathe. Dkt. 9-7, at 73.
B. Procedural History
On October 5, 2010, plaintiff filed application for DIB with disability allegedly
beginning April 1, 2010. Dkt. 9-3 at 10. Plaintiff’s claim was denied on May 10, 2011, and
again upon reconsideration on July 27, 2011. Dkt. 9-3, at 10. Plaintiff timely filed a
request for an administrative hearing, which took place on May 23, 2012, before an
Administrative Law Judge (“ALJ”). Plaintiff, represented by counsel, appeared and
testified. Dkt. 9-3, at 29-65. The ALJ determined that plaintiff: was last insured on
September 30, 2010; did not engage in substantial gainful activity between April 1, 2010,
and September 30, 2010; suffered the severe impairments of myofascial pain
syndrome/fibromyalgia and disorders of the back; and did not have an impairment or
combination of impairments equal to a listed impairment. The ALJ then proceeded with
an RFC determination and concluded that, during the time in question, plaintiff had:
the residual functional capacity to perform sedentary work . . . involving
lifting and/or carrying 10 pounds occasionally and less than 10 pounds
frequently; walking and/or standing two hours out of an eight-hour
workday; and sitting for six hours out of an eight-hour workday. He can
occasionally climb stairs; but never climb ropes, scaffolds or ladders. The
claimant can occasionally balance, stoop, crouch, kneel and crawl. He
must avoid prolonged exposure to vibrating machinery. He must avoid
unprotected heights and moving machinery. Secondary to reported
chronic pain and potential side effects of medications, he is limited to jobs
that do not demand attention to details or complicated job tasks or
Dkt. 9-3 at 14. The ALJ’s narrative noted that his RFC determination was based on an
evaluation of all of plaintiff’s symptoms, the objective medical evidence, and all other
evidence in the record. Dkt. 9-3, at 14. The ALJ’s ruling stands as the Commissioner’s
final decision on the matter and is reviewable by this Court under 42 U.S.C. § 405(g).
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
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.
Zolantski, 372 F.3d at 1200.
An individual is under a disability only if he or she can “establish that [he] has a
physical or mental impairment which prevents [him] 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 U.S. Dist. LEXIS 76220, at *3 (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 severe or combination of severe
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 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 [his]
impairments.” Barkley, 2010 U.S. Dist. LEXIS 76220, at *5; see also 20 C.F.R. §§
404.1520(e), 404.1545. The Commissioner then proceeds to step four, where the RFC
assessment is used to determine whether the claimant can perform past relevant work.
20 C.F.R. § 404.1520(e); Lax, 489 F.3d at 1084. The claimant bears the burden in steps one
through four of proving disability that prevents performance of his past relevant work.
Lax, 489 F.3d at 1084; 42 U.S.C. § 423(d)(5)(A).
If 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).
Plaintiff argues that the RFC determination is improper because the ALJ erred in
(1) assessing the credibility of plaintiff’s subjective complaints, (2) determining whether
to grant controlling weight to the opinion of a treating physician, and (3) weighing the
opinion of plaintiff’s spouse.
A. Credibility of Claimant’s Subjective Complaints
A claimant’s subjective complaints of debilitating pain are evaluated for
credibility under a three-step analysis that asks:
(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 claimant’s daily activities, reported symptom
severity, treatment history, treatment side effects, precipitating or aggravating factors of
the claimed symptoms, work record, and other functional limitations are compared to
the other relevant evidence to determine the credibility of his complaints. 20 C.F.R. §§
404.1529(c), 416.929(c). The ALJ will also consider “a claimant’s persistent attempts to
find relief for [his] pain and [his] willingness to try any treatment prescribed,”
regularity of contact with his 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. Discontinuation of prescribed treatment
counts against the credibility of plaintiff’s subjective complaints. Romero v. Astrue, 242
Fed. Appx. 536, 543 (10th Cir. 2007) (citing Luna, 834 F.2d at 165). 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
The ALJ determined that plaintiff’s subjective complaints of debilitating pain
merited little weight because: (1) no objective evidence in the record indicates treatment
during the time in question or daily activity limitations; (2) medical records from after
the time in question do not support plaintiff’s reported symptom severity; and (3)
plaintiff’s work history did not accord with his claims of debilitating pain.
The record contains no treatment history during the time in question. Dkt. 9-3, at
26. Plaintiff received treatment for his alleged pain only before and after the time in
question. Although plaintiff attributes his non-treatment during the time in question to
a lack of insurance, the record does not indicate that plaintiff made any attempt to
obtain coverage or treatment during that time. Dkt. 9-3, at 16. Even if plaintiff’s claimed
daily activity limitations are taken as true, the lack of medical evidence from the time in
question makes it more difficult to attribute the severity of the limitations to one of the
established impairments. Plaintiff also testified that medications used during the time in
question caused him to feel “groggy,” but, again, there are no medical records from that
timeframe to support this claim. The lack of objective evidence from the time in
question weighs strongly against plaintiff’s subjective complaints of debilitating pain
during that time.
Plaintiff’s medical records from after the time in question do not strongly
support his subjective complaints of debilitating pain during the time in question.
Plaintiff’s first medical records after 2007 are from an office visit with Dr. Spears on
February 23, 2011, where he complained of severe “head to toe pain.” Dkt. 9-8, at 28.
However, Dr. Spears noted a normal musculoskeletal exam and diagnosed lower back
pain. Dkt. 9-8, at 28. On March 5, 2011, Dr. Morrow’s DDS consultative exam noted
some limited range of motion with paravertebral muscle spasms and moderate to
severe difficulty with orthopedic maneuvers, but subsequent visits with other
physicians and specialists noted no such limitations or musculoskeletal abnormalities.
No medical records from after 2007 suggest a need for further surgery, suggesting that
plaintiff’s back is not a source of debilitating pain. Dkts. 9-8, at 11-43, 73-76; 9-9, at 43-49;
9-10, at 2-41. For example, on June 8, 2011, Dr. Hylton, an orthopedic specialist,
specifically noted that plaintiff’s MRI results showed “absolutely no structural
surgically correctable abnormality” and no neurologic compression. Dkt. 9-8, at 38-39.
Further, Dr. Spears noted on March 6, 2012, that plaintiff had not been taking his
medication for fibromyalgia regularly, which weighs against the credibility of plaintiff’s
claims of debilitating pain. Dkt. 9-10 at 35. The objective medical evidence shows
inconsistent reports of pain, a lack of associated physiological diagnosis, and
suboptimal treatment compliance.
Finally, plaintiff claims to have stopped working in August 2008 due to his pain.
Dkt. 9-7, at 6. However, an agent of his former employer reported that he was actually
fired for a lack of reliability – he required constant supervision, or he would “fiddle the
day away,” he “always had somewhere else he had to be,” and he frequently arrived
late, left early, or did not come to work at all. Dkt. 9-7, at 83. This work history report is
inconsistent with plaintiff’s claims. In short, plaintiff’s subjective claims are not
supported by objective evidence from the time in question, are not supported by
reliable medical data after the fact, and his claims are inconsistent with other evidence
in the record. The ALJ’s determination that plaintiff’s subjective complaints should
receive little credibility is supported by substantial evidence.
B. Weighing a Treating Physician’s Opinion
The ALJ determines RFC by evaluating a claimant’s impairments that are
“demonstrable by medically acceptable clinical and laboratory diagnostic techniques,”
then weighing 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). Statements from physicians are considered “medical
opinions” for the RFC determination. 20 C.F.R. §§ 404.1527(a), 416.927(a).
Medical opinions are weighed by evaluating all relevant factors including: (1) the
length, nature, and extent of any examining or treatment relationship; (2) whether the
opinion source presents supporting evidence, such as medical signs and laboratory
results; (3) how well the source explains the opinion; (4) whether the opinion is
consistent with the record; (5) whether the source has a specialty related to the
claimant’s impairments; and (6) all other relevant factors of which the ALJ is aware that
may bear on what weight should be given to a medical opinion. 20 C.F.R. §§ 404.1527,
416.927; see Knight ex rel P.K. Colvin, 756 F.3d 1171, 1176-77 (10th Cir. 2014). “[T]he ALJ
must give good reasons in the notice of determination or decision for the weight he
ultimately assigns the opinion.” Knight, 756 F.3d at 1177 (quoting Watkins v. Barnhart,
350 F.3d 1297, 1300 (10th Cir. 2003)).
A treating physician’s statement is entitled to controlling weight if it is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques.”
Robinson v. Barnhart, 366 F.3d 1078, 1082 (10th Cir. 2004) (quoting SSR 96-2p, 1996 WL
374188, at *2). If the treating physician’s statement is not well-supported or is otherwise
inconsistent with substantial evidence on record, then it is not entitled to controlling
weight and is weighed as any other medical opinion. Id.
The ALJ determined that Dr. Spears’s opinion is not entitled to controlling
weight because (1) it is unsupported by clinical and laboratory testing; (2) it is
inconsistent with other evidence in the record; and (3) other relevant factors call its
reliability into question.
No objective medical evidence from the time in question exists, and therefore
cannot support Dr. Spears’s opinions. Evidence of clinical, laboratory, and medical
imaging testing from after the time in question indicate no musculoskeletal impairment
associated with extreme pain. Dr. Spears’s own clinical evaluations note normal
musculoskeletal findings. Dkts. 9-7, at 16-29; 9-10, at 2-37. While Dr. Spears had
prescribed plaintiff a cane and braces, Dr. Latinis and Dr. Hylton did not indicate a
need for any such support devices. Dkts. 9-8, at 37-41; 9-9, at 47-49. Rather, Dr. Hylton
noted that plaintiff had no neurologic compression, which provides no objective
evidentiary support for the need of a cane or lower extremity braces. Dkt. 9-8, at 38.
Dr. Spears’s opinion is inconsistent with other objective medical evidence in the
record. While Dr. Spears opined that plaintiff had “advanced degenerative disc disease”
based on an MRI dated April 9, 2011, Dr. Hylton read MRI results on June 8, 2011, as
showing only “mild-to-moderate degenerative” changes at L4-L5 with no disc
compression. Dkts. 9-10, at 40; 9-8, at 38. On April 11, 2011, Dr. Hughes read an MRI of
plaintiff’s lower spine, noting “degenerative disc disease worse at L4-L5 with small
bulging disk at L5-S1,” but not advanced degenerative disease. Dkt. 9-8, at 33. Further,
Dr. Singh opined that plaintiff could perform light work, not that he was limited to
sedentary work or disabled. Dkt. 9-8, at 20-25.
Finally, Dr. Spears opined that plaintiff had been disabled since at least as early
as February 2010, a year before Dr. Spears ever saw plaintiff. Dkt. 9-10, at 40. Dr. Spears
based this entirely retroactive opinion on his interpretation of an MRI dated April 9,
2011. Dkt. 9-10, at 40. However, Dr. Spears does not have a specialty in orthopedics,
neurosurgery, or radiology. The ALJ’s determination that Dr. Spears’s opinion did not
merit controlling weight is supported by substantial evidence in the record.
C. Weighing Other Opinions
Finally, plaintiff argues that the ALJ should have granted greater weight to the
function report filed by Veerkamp-Geary. The opinions of a spouse are “other
opinions” for determining a claimant’s RFC. 20 C.F.R. § 404.1513. The factors for
evaluating medical opinions are also used to evaluate other, non-medical opinions. SSR
06-03p, 2006 WL 2329939, at *4-5 (Aug. 9, 2006). The ALJ determined that VeerkampGeary’s Third Party Function Report should receive little weight because (1) it “appears
to be no more than a parroting of the subjective complaints already testified to and
reported by [plaintiff],” (2) she is likely biased, (3) she has a financial interest in the
outcome, and (4) her testimony was not given under oath. Dkt. 9-3, at 20.
Veerkamp-Geary’s report opines the same limitations described by plaintiff. Dkt.
9-7, at 72-79. It is thus similarly inconsistent with other evidence in the record and
unsupported by any objective medical evidence from the time in question. Veerkamp13
Geary’s credibility is naturally assailable because, as plaintiff’s spouse, she is no doubt
biased to some extent. See Jeffries v. Soc. Sec. Admin., 358 Fed. Appx. 25, 33 (10th Cir.
2009) (affirming where the ALJ gave little weight to a spouse’s opinion due to bias).
Veerkamp-Geary’s report states that plaintiff was formerly the primary wage-earner in
the Geary household, showing that she has a financial interest in the outcome of the
disability determination. Finally, her report was not given under oath – which does not
entirely undermine her testimony, but surely does not bolster its credibility. The ALJ’s
determination that Veerkamp-Geary’s function report warranted little weight is
supported by substantial evidence in the record.
IT IS ACCORDINGLY ORDERED this 30th day of September, 2014, that the
Commissioner’s decision is AFFIRMED.
s/ J. Thomas Marten
J. THOMAS MARTEN
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