Zaloudek v. Social Security Administration, Commissioner of

Filing 27

MEMORANDUM AND ORDER: The judgment of the Commissioner is affirmed pursuant to the fourth sentence of 42 U.S.C. § 405(g). Signed by U.S. District Senior Judge Sam A. Crow on 3/23/15. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CLIFFORD J. ZALOUDEK,
Plaintiff,
v.

Case No. 13-4128-SAC

CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
MEMORANDUM AND ORDER
This is an action reviewing the final decision of the Commissioner of
Social Security which denied plaintiff disability insurance benefits. The
matter has been fully briefed by the parties.
I. General legal standards
The court's standard of review is set forth in 42 U.S.C. § 405(g), which
provides that “the findings of the Commissioner as to any fact, if supported
by substantial evidence, shall be conclusive.” The court should review the
Commissioner's decision to determine only whether the decision was
supported by substantial evidence in the record as a whole, and whether the
Commissioner applied the correct legal standards. Glenn v. Shalala, 21 F.3d
983, 984 (10th Cir. 1994). When supported by substantial evidence, the
Commissioner’s findings are conclusive and must be affirmed. Richardson v.
Perales, 402 U.S. 389, 401 (1971). Substantial evidence requires more than

a scintilla, but less than a preponderance, and is satisfied by such evidence
that a reasonable mind might accept to support the conclusion. Hackett v.
Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005).
The Social Security Act provides that an individual shall be determined
to be under a disability only if the claimant can establish that he has a
physical or mental impairment expected to result in death or last for a
continuous period of twelve months which prevents him from engaging in
substantial gainful activity (SGA). The claimant's physical or mental
impairment or impairments must be of such severity that he is not only
unable to perform 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).
The Commissioner has established a five-step sequential evaluation
process to determine disability. If at any step a finding of disability or nondisability can be made, the Commissioner will not review the claim further.
At step one, the agency will find non-disability unless the claimant can show
that he is not working at a “substantial gainful activity.” At step two, the
agency will find non-disability unless the claimant shows that he has a
“severe impairment,” which is defined as any “impairment or combination of
impairments which significantly limits [the claimant's] physical or mental
ability to do basic work activities.” At step three, the agency determines
whether the impairment which enabled the claimant to survive step two is
2

on the list of impairments presumed severe enough to render one disabled.
If the claimant's impairment does not meet or equal a listed impairment, the
inquiry proceeds to step four, at which the agency assesses whether the
claimant can do his previous work. The claimant is determined not to be
disabled unless he shows he cannot perform his previous work. The fifth step
requires the agency to consider vocational factors (the claimant's age,
education, and past work experience) and to determine whether the
claimant is capable of performing other jobs existing in significant numbers
in the national economy. Barnhart v. Thomas, 540 U.S. 20 (2003).
The claimant bears the burden of proof through step four of the
analysis. Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993). At step
five, the burden shifts to the Commissioner to show that the claimant can
perform other work that exists in the national economy. Nielson, 992 F.2d at
1120; Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993). The
Commissioner meets this burden if the decision is supported by substantial
evidence. Thompson, 987 F.2d at 1487.
II. Procedural History
Plaintiff applied for disability insurance benefits and supplemental
security income under Titles II and XVI of the Social Security Act. His claims
were denied initially and on reconsideration. On July 10, 2012, following a

3

hearing, the ALJ found Plaintiff was not under a “disability” as defined in the
Act.1
At step one, the ALJ found that Plaintiff had not engaged in substantial
gainful activity since his alleged onset date, May 22, 2010. At step two, the
ALJ found the claimant has the following severe impairments: diabetic
neuropathy, depression, sleep apnea, mild degenerative disc disease lumbar
spine, ulnar neuropathy, and seizure disorder. At step three, the ALJ
determined that those impairments were not on the list of impairments
presumed severe enough to render one disabled. The ALJ then determined
that the Plaintiff has the residual functional capacity (RFC) to perform light
work, with the following restrictions:

Tr. p. 19. The ALJ found the Plaintiff unable to perform his past relevant
work at step four, but found at step five that he was able to perform other
jobs that exist in significant numbers in the national economy, such as
routing clerk, folding machine operator, and sub-assembler.
1

Plaintiff had previously filed an application for disability benefits with the Commissioner
which was denied on May 22, 2010. That decision was not timely appealed, so plaintiff's
disability status prior to that date is res judicata. Accordingly, the relevant period of
disability for this application is May 22, 2010, through July 10, 2012.

4

III. Analysis
Plaintiff’s claims of error are addressed below.
A. Step Three
Plaintiff first challenges the ALJ’s conclusion at step three that Plaintiff
did not have an impairment or combination of impairments that met or
medically equaled the severity of a listed impairment. Plaintiff argues that
his depression either meets or, in combination with his other impairments,
equals the requirements of Listing § 12.04 A and B for affective disorders.
Listing § 12.04, as applicable here, requires the Plaintiff to have a
medically documented persistence of a depressive syndrome characterized
by four or more listed symptoms, which results in at least two of the
following:
1.
2.
3.
or

Marked restriction of activities of daily living; or
Marked difficulties in maintaining social functioning; or
Marked difficulties in maintaining concentration, persistence,
pace …

20 C.F.R. pt. 404, subpt. P, app. 1, § 12.04. The ALJ found Plaintiff had
moderate, but not marked, difficulties in each of these three areas, so found
he did not meet the listing.
Specifically, the ALJ found:
In activities of daily living, the claimant has moderate restriction.
The claimant is able to shop but reported he lacked energy. He walks
his dog. He is able to take care of himself and helps with his parents,
although doing so increased his depression. He drives some.
In social functioning, the claimant has moderate difficulties. He
prefers to stay home and avoids others, even his family.
5

With regard to concentration, persistence or pace, the claimant
has moderate difficulties. The claimant has reported loss of interest
but is able to take care of himself and help with his parents. The
claimant reports his medication makes it difficult for him to
concentrate.
Tr. 17.
Plaintiff’s primary contention is that his testimony, supported by
evidence from the VAMC, shows that his restrictions and difficulties are
marked, and not moderate. The Commissioner defines the term "marked" as
follows:
We use "marked" as a standard for measuring the degree of limitation,
it means more than moderate but less than extreme. A marked
limitation may arise when several activities or functions are impaired,
or even when only one is impaired, as long as the degree of limitation
is such as to interfere seriously with your ability to function
independently, appropriately, effectively, and on a sustained basis.
See Listing 12.00C, supra.
The ALJ’s evaluation of Plaintiff's depression is supported by evidence
of record, including the opinions of Darrell Snyder, Ph.D., and Lauren Cohen,
Ph.D., State agency psychological consultants. Tr. 20. These doctors gave
full credit to Plaintiff’s allegations, but still found Plaintiff had only moderate,
and not marked, difficulties in activities of daily living, social functioning, and
concentration, persistence, and pace. The ALJ gave great weight to their
opinions, and ALJ reasonably found Plaintiff's impairments, either singly or in
combination, did not meet or equal the requirements of any listed
impairment. Tr. 16.
6

Plaintiff suggests that the ALJ improperly relied on the October 2010
opinion of Dr. Snyder and the March 2011 opinion of Dr. Cohen because
these non-examining physicians did not review any evidence dated after
their opinions were rendered. But Plaintiff has not shown any material
change in the relevant medical record which would render those opinions, or
either of them, stale. See Chapo v. Astrue, 682 F.3d 1285, 1293 (10th Cir.
2012) (opinion of agency examining consultant was “patently stale” when
the relevant medical record had “material changes” after his opinion was
given). Nor has Plaintiff shown that his attorney objected to those opinions
based on staleness or requested a new mental examination of her client.
Thus these opinions were substantial evidence upon which the ALJ was
entitled to rely. See Flaherty v. Astrue, 515 F.3d 1067, 1071 (10th Cir.
2007).
Plaintiff also argues that the ALJ failed to address the findings of his
treating providers at the VA, but this is similarly without merit. The ALJ
specifically and repeatedly addressed and weighed VA records indicating that
Plaintiff was under treatment for diabetes, hyperlipidemia, tobacco
dependence, peripheral neuropathy, osteoarthritis, and depression. See Tr.
18. (referring to the medical records of Plaintiff's treating providers at the
VA). See also Tr. 18-20 (addressing VA records 17F, 18F, 10F, 28F, 20F,
22F, 18F, and 27F).

7

Plaintiff suggests that no evidence of record supports the ALJ’s finding
that Plaintiff helps with his parents or takes care of himself. But the ALJ’s
finding was that Plaintiff was able to do so, and medical record supports the
ALJ’s finding regarding his parents in stating: “[w]orsening of symptoms
were thought due to needing to move to take care of aging parents,” Tr.
653, and in showing that Plaintiff spent a month with his parents. Plaintiff
concedes that he can shop, drive, mow his lawn, shovel snow off his steps,
walk the dog, prepare his own food, and take care of his own hygiene.
Although Plaintiff expressed some difficulty in performing some of those
daily activities, this court cannot reweigh such evidence.
B. Credibility of Plaintiff's Subjective Testimony
Plaintiff argues the ALJ erred in finding his subjective complaints not
fully credible regarding the extent of his symptoms. (Tr. 16-20).
“Credibility determinations are peculiarly the province of the finder of
fact, and we will not upset such determinations when supported by
substantial evidence.” Wilson v. Astrue, 602 F.3d 1136, 1144 (10th Cir.
2010) (internal quotation marks omitted). Nevertheless, an ALJ's adverse
credibility finding “should be closely and affirmatively linked to substantial
evidence and not just a conclusion in the guise of findings.” Id. (internal
quotation marks omitted).

8

The ALJ articulated the reasons why he discredited Plaintiff’s subjective
complaints, including the objective medical evidence, the medical opinions,
Plaintiff’s daily activities, and improvement with treatment. Tr. 16-20.
The ALJ considered Plaintiff’s ability to maintain a long-term relationship with
his live-in girlfriend to be inconsistent with his claim of disabling depression.
Plaintiff contends there is no legal basis for this conclusion, yet one’s ability
to maintain satisfactory relationships with family members is commonly
recognized as a credibility factor inconsistent with one’s claim of disabling
depression or other mental limitations. See e.g., Sollera v. Colvin, 2014 WL
834495 *4 (W.D.Pa. 2014); Turner v. Colvin, 2013 WL 5817558, *16
(C.D.Cal. 2013).
Plaintiff also contends the ALJ found that his daily activities were
inconsistent with the alleged severity of his symptoms, but did not specify
any such activity in the record. To the contrary, the ALJ’s decision specifies
the following as inconsistent with Plaintiff’s claims of disabling pain:
He has reported neuropathy pain as much as 9 of 10 but is able to
mow, shovel, walk dogs, although he said only for short periods of
time. He is able to ambulate with normal gait throughout the
Department of Veterans’ Affairs records, and they do not indicate they
have prescribed a cane. (Citations omitted.) The claimant has his
insulin pump go off when walking the dogs and mowing … but this was
corrected with adjustment of his pump and diet. It nevertheless shows
more activity tha[n] suggested by the claimant.
Tr. 20.
The ALJ further suggested that Plaintiff's normal gait and stance was
inconsistent with the degree of his alleged neuropathic pain. Plaintiff
9

challenges this as an inappropriate sua sponte finding by the ALJ. But the
record shows that Plaintiff’s providers at the VA found him to be ambulatory
when he visited them, did not prescribe or document Plaintiff’s use of a
cane, and noted his stance and gait were normal. See e.g., Tr. 58-59; 118687, 1218-19. Plaintiff used a cane, however, at the time of his disability
hearing. Whether that use was due to a change in Plaintiff’s ambulatory
ability over time or to other reasons is not for this Court to decide. See
Mendez v. Colvin, 588 Fed.Appx. 776, 779 (10th Cir. 2014), citing Lax v.
Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (“The possibility of drawing
two inconsistent conclusions from the evidence does not prevent an
administrative agency's findings from being supported by substantial
evidence.” (internal quotation marks omitted)).
The ALJ also found Plaintiff's desire to obtain part-time work
inconsistent with his claim of total disability. Plaintiff argues that this should
not have negatively impacted his credibility because he never stated he
could perform part-time work, never performed part-time work during the
period in issue, and thought about obtaining part-time work only because he
was broke. But one’s stated interest in returning to work is a valid factor in
the ALJ’s credibility determination. See Newbold v. Colvin, 718 F.3d 1257,
1267 (10th Cir. 2013). And although Plaintiff doubted he could actually do
the work, this court has no authority to reweigh his testimony, which still
supports the ALJ’s finding. See Mendez v. Colvin, 588 Fed.Appx. 776, 779
10

(10th Cir. 2014), citing Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).
In citing what he contends is contrary evidence, Plaintiff is asking the court
to reweigh the evidence, which it cannot do. See Oldham v. Astrue, 509 F.3d
1254, 1257 (10th Cir. 2007) (“We review only the sufficiency of the
evidence, not its weight.”).
The ALJ’s findings regarding the degree of Plaintiff’s pain echo the
conclusions made by the evaluators and State agency medical consultants —
that although Plaintiff alleged significant neuropathic pain, the degree of his
alleged pain was inconsistent with the normal findings on examination.
The court’s review of the record convinces it that substantial evidence
supports the ALJ's credibility determination and that the correct legal
standards were applied. See Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir.
2000) (“[T]he ALJ did not simply recite the general factors he considered, he
also stated what specific evidence he relied on in determining that [the
claimant's] allegations of disabling pain were not credible.”).
RFC – Evaluation of Medical Opinions
Plaintiff argues the ALJ’s RFC was “legally and factually indefensible.”
See Pl.’s Br. At 31-32. Plaintiff contends that the RFC is not supported by
substantial evidence because the ALJ did not include a "narrative discussion"
describing how the evidence supports each conclusion in his RFC assessment
citing to specific medical facts. Instead, the ALJ simply "adopted" the RFC

11

rendered by non-examining state-agency physicians who did not review the
majority of the medical evidence of record.
But the ALJ need not repeat verbatim the medical source’s narrative in
his RFC finding or in the corresponding hypothetical to the VE. Carver v.
Colvin, 2015 WL 307084, 3 (10th Cir. 2015). Here, the ALJ’s physical RFC
assessment is identical to the opinion of Dr. Stevens, the State agency
medical consultant. Tr. 18, 661-67. The ALJ’s decision cites the evidence
relied on by Dr. Stevens to formulate the physical RFC, and states he
afforded great weight to Dr. Stevens’s opinion. Tr. 18-20. No redundancy is
required. With regard to Plaintiff's mental RFC, the ALJ adopted the
limitations opined by Dr. Snyder, Tr. 18, 655-56, that Plaintiff had moderate
limitations in his ability to understand, remember, and carry out detailed
instructions, Tr. 655, and the ALJ correspondingly limited Plaintiff to work
involving simple, routine and repetitive tasks. Tr. 18. This is sufficient.
Plaintiff also contends that Doctors Snyder and Stevens did not review
the entire case record, thus the ALJ improperly "adopted" their RFC
assessments. This staleness argument has been addressed above.
Plaintiff further contends that the ALJ improperly accorded great
weight to the opinions of the non-examining State agency medical and
psychological consultants without discussing the evidence that entitled the
opinions to great weight. See Pl.'s Br. at 29-31. But the ALJ’s decision

12

sufficiently reflects a discussion of the evidence the consultants relied on in
formulating their opinions.
Lastly, Plaintiff contends the ALJ failed to discuss the documented side
effects which plaintiff experiences from his medications. Those side effects
are stated to include grogginess, feeling like he is drunk, excessive sleep,
decreased sleep, and interruption with balance. But the ALJ specifically
addressed the side effect of feeling drunk. Tr. 19. As to the other alleged
side effects, this argument is unavailing because although an ALJ must
consider all the evidence, he “is not required to discuss every piece of
evidence.” Clifton v. Chater, 79 F.3d 1007, 1009–10 (10th Cir. 1996).
Step Five
Plaintiff contends the ALJ improperly found he could perform “other
work” that exists in significant numbers in the national economy. Plaintiff
argues that because the ALJ found that plaintiff had "moderate" limitations
in concentration, persistence and/or pace, he was required to include those
limitations in his hypothetical to the VE.
The ALJ’s hypothetical to the VE included the moderate limitations in
stating that Plaintiff is “limited to work involving simple, routine and
repetitive tasks, with only simple work-related decisions, with few if any
work place changes,” and is to have “no interaction with the public but can
be around co-workers throughout the day but only with occasional
interaction with co-workers.” Tr. 18. These limitations “capture the essence”
13

of the functional limitations supported by the objective medical evidence and
other evidence. See Carver v. Colvin, 2015 WL 307084, 3-4 (10th Cir.
2015). No more is required.
Plaintiff additionally contends that he does not retain the RFC to
perform light work activity, and that the hypothetical posed by the ALJ was
premised on his improper RFC determination. But the Court has rejected this
challenge to the RFC, above. The VE’s testimony thus constitutes substantial
evidence on which the ALJ justifiably relied in reaching his conclusion of nondisability. See Gay v. Sullivan, 986 F.2d 1336, 1340–41 (10th Cir. 1993).
Having examined the specific claims of error, the Court finds sufficient
evidence that a reasonable mind might accept to support the conclusion of
non-disability. The standard of review “does not allow a court to 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.” Trimmer v. Dep’t of Labor, 174 F.3d 1098, 1102 (10th Cir. 1999).
IT IS THEREFORE ORDERED that the judgment of the Commissioner is
affirmed pursuant to the fourth sentence of 42 U.S.C. § 405(g).
Dated this 23rd day of March, 2015, at Topeka, Kansas.

s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

14