Beckett v. Social Security Administration, Commissioner of
MEMORANDUM AND ORDER. The judgment of the Commissioner is affirmed pursuant to the fourth sentence of 42 U.S.C. § 405(g). See attached for more details. Signed by U.S. District Senior Judge Sam A. Crow on 12/6/2011. (bmw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Case No. 10-1370-SAC
MICHAEL J. ASTRUE,
MEMORANDUM AND ORDER
This is an action reviewing the final decision of the
Commissioner of Social Security denying the plaintiff disability
The matter has been fully briefed by the
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
The court should review the Commissioner's decision
to determine only whether the decision was supported by
substantial evidence and whether the Commissioner applied the
correct legal standards.
(10th Cir. 1994).
Glenn v. Shalala, 21 F.3d 983, 984
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
The determination of 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 really constitutes mere conclusion.
v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).
Although the court
is not to reweigh the evidence, the findings of the Commissioner
will not be mechanically accepted.
Nor will the findings be
affirmed by isolating facts and labeling them substantial
evidence, as the court must scrutinize the entire record in
determining whether the Commissioner's conclusions are rational.
Graham v. Sullivan, 794 F. Supp. 1045, 1047 (D. Kan. 1992).
court should examine the record as a whole, including whatever in
the record fairly detracts from the weight of the Commissioner's
decision and, on that basis, determine if the substantiality of
the evidence test has been met.
Glenn, 21 F.3d at 984.
The Social Security Act provides that an individual shall be
determined to be under a disability only if the claimant can
establish that they have a physical or mental impairment expected
to result in death or last for a continuous period of twelve
months which prevents the claimant from engaging in substantial
gainful activity (SGA).
The claimant's physical or mental
impairment or impairments must be of such severity that they are
not only unable to perform their previous work but cannot,
considering their age, education, and work experience, engage in
any other kind of substantial gainful work which exists in the
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 non-disability 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 or she is not working at a “substantial gainful activity.”
step two, the agency will find non-disability unless the claimant
shows that he or she 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 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 or her previous work; unless the claimant shows that he or
she cannot perform their previous work, they are determined not
to be disabled.
If the claimant survives step four, the fifth
and final 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, 124 S. Ct. 376, 379-380 (2003).
The claimant bears the burden of proof through step four of
Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir.
At step five, the burden shifts to the Commissioner to
show that the claimant can perform other work that exists in the
Nielson, 992 F.2d at 1120; Thompson v.
Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
meets this burden if the decision is supported by substantial
Thompson, 987 F.2d at 1487.
Before going from step three to step four, the agency will
assess the claimant’s residual functional capacity (RFC).
RFC assessment is used to evaluate the claim at both step four
and step five.
20 C.F.R. §§ 404.1520(a)(4), 404.1520(e,f,g);
History of case
On September 21, 2009, administrative law judge (ALJ) Robert
A. Evans issued his decision (R. at 12-18).
that he has been disabled since September 30, 1998 (R. at 12).
Plaintiff is insured for disability insurance benefits through
September 30, 1998 (R. at 14).
At step one, the ALJ found that
plaintiff has not engaged in substantial gainful activity on
September 30, 1998 (R. at 14).
At step two,
the ALJ found that
plaintiff had the following severe impairment: coronary artery
disease status post coronary artery bypass grafting (R. at 14).
At step three, the ALJ determined that plaintiff’s impairments do
not meet or equal a listed impairment (R. at 14).
determining plaintiff’s RFC, that plaintiff can perform a full
range of light work (R. at 14), the ALJ determined at step four
that plaintiff could perform past relevant work (R. at 17).
Therefore, the ALJ concluded that plaintiff was not disabled (R.
Are the ALJ’s RFC findings supported by substantial
According to SSR 96-8p, the RFC assessment “must include a
narrative discussion describing how the evidence supports each
conclusion, citing specific medical facts...and nonmedical
The ALJ must explain how any material inconsistencies
or ambiguities in the evidence in the case record were considered
The RFC assessment must always consider and
address medical source opinions.
If the RFC assessment conflicts
with an opinion from a medical source, the ALJ must explain why
the opinion was not adopted.
SSR 96-8p, 1996 WL 374184 at *7.
SSR rulings are binding on an ALJ.
20 C.F.R. § 402.35(b)(1);
Sullivan v. Zebley, 493 U.S. 521, 530 n.9, 110 S. Ct. 885, 891
n.9, 107 L. Ed.2d 967 (1990); Nielson v. Sullivan, 992 F.2d 1118,
1120 (10th Cir. 1993).
When the ALJ fails to provide a narrative
discussion describing how the evidence supports each conclusion,
citing to specific medical facts and nonmedical evidence, the
court will conclude that his RFC conclusions are not supported by
See Southard v. Barnhart, 72 Fed. Appx.
781, 784-785 (10th Cir. July 28, 2003).
The ALJ’s decision must
be sufficiently articulated so that it is capable of meaningful
review; the ALJ is charged with carefully considering all of the
relevant evidence and linking his findings to specific evidence.
Spicer v. Barnhart, 64 Fed. Appx. 173, 177-178 (10th Cir. May 5,
It is insufficient for the ALJ to only generally discuss
the evidence, but fail to relate that evidence to his
Cruse v. U.S. Dept. of Health & Human Services, 49
F.3d 614, 618 (10th Cir. 1995).
When the ALJ has failed to
comply with SSR 96-8p because he has not linked his RFC
determination with specific evidence in the record, the court
cannot adequately assess whether relevant evidence supports the
ALJ’s RFC determination.
Such bare conclusions are beyond
meaningful judicial review.
Brown v. Commissioner of the Social
Security Administration, 245 F. Supp.2d 1175, 1187 (D. Kan.
The ALJ found that plaintiff had the RFC to perform the full
range of light work (R. at 14).
At the hearing, Dr. Felkins
testified that plaintiff could perform a full range of light work
in the time period from 1996-1998 (R. at 23).
There is no
medical opinion evidence indicating that plaintiff cannot perform
light work, or which makes any other findings regarding
Plaintiff argues that Dr. Felkins is not qualified to render
an opinion regarding plaintiff’s RFC because Dr. Felkins is a
Dr. Felkins curriculum vitae (CV)
indicates that Dr. Felkins has an M.D. degree, and is therefore a
physician who is board certified and practices in the field of
psychiatry (R. at 146-147).
A psychiatrist is a physician, and therefore an acceptable
medical source under the regulations.
Any opinion from a
psychiatrist is therefore a medical opinion that the ALJ must
Fuller v. Astrue, 766 F. Supp.2d 1149, 1161 (D. Kan.
According to the regulations, a physician can provide
medical opinions regarding a claimant’s physical or mental
20 C.F.R. § 404.1527(a)(2).
A physician may give
an opinion regarding a patient’s mental state even though not a
psychiatrist; the fact that a physician is not a specialist does
not affect the admissibility of the opinion, but does affect the
weight given to the opinion.
Quinton v. Farmland Industries,
Inc., 928 F.2d 335, 337 (10th Cir. 1991).
psychiatrist, who is also a physician, may give an opinion
regarding a patient’s physical state; the fact that the
psychiatrist is not a specialist regarding plaintiff’s physical
impairments does not affect the admissibility of the opinion, but
it may affect the weight given to the opinion.
Although the fact
that Dr. Felkins is a psychiatrist is a factor to be considered
when determining what weight can be accorded to her opinion, as a
medical doctor she is qualified to render a medical opinion
regarding plaintiff’s physical impairments and limitations.
The ALJ adopted the opinion of Dr. Felkins that plaintiff
could perform light work.
The court will not reweigh the
evidence or substitute its judgment for that of the Commissioner.
Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005); White
v. Barnhart, 287 F.3d 903, 905, 908, 909 (10th Cir. 2002).
Although the court will not reweigh the evidence, the conclusions
reached by the ALJ must be reasonable and consistent with the
See Glenn v. Shalala, 21 F.3d 983, 988 (10th Cir.
1994)(the court must affirm if, considering the evidence as a
whole, there is sufficient evidence which a reasonable mind might
accept as adequate to support a conclusion).
Given the fact that
Dr. Felkins is an acceptable medical source, and in light of the
lack of any other medical evidence regarding plaintiff’s RFC, the
court finds that the decision of the ALJ to adopt the opinion of
Dr. Felkins that plaintiff can perform light work is reasonable
and consistent with the evidence.
Did the ALJ err in his step four analysis?
At step four, the ALJ is required by Social Security Ruling
(SSR) 82-62 to make findings of fact regarding: 1) the
individual’s residual functional capacity, 2) the physical and
mental demands of prior jobs or occupations, and 3) the ability
of the individual to return to the past occupation given his or
her residual functional capacity.
of HHS, 13 F.3d 359, 361 (1993).
Henrie v. United States Dep’t
Thus, at the third or final
phase of the analysis, the ALJ determines whether the claimant
has the ability to meet the job demands found in phase two
despite the mental and/or physical limitations found in phase
At each of these three phases, the ALJ must make specific
Frantz v. Astrue, 509 F.3d 1299, 1303 (10th Cir.
Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996).
The first question before the court is whether plaintiff has
past relevant work that can be considered at step four.
Plaintiff testified that he was performing disaster relief work
in the 1980s.
He initially worked doing mass care, or the
feeding of people, but moved into training work due to his
physical problems (R. at 37).
He began training in 1983, and
became a training officer in 1988 (R. at 37).
expert (VE) testified that plaintiff’s work as a disaster
relief/service director (DOT # 187.167-214) is classified as
medium work, and that the work as a training instructor (DOT #
166.227-010) is classified as light work (R. at 38-42).
second hearing, another VE testified that they agreed with the
testimony of the VE at the first hearing that described
plaintiff’s work for the Red Cross as light work (R. at 25).
Work experience applies as past relevant work at step four
when it was done within the last 15 years, lasted long enough for
the claimant to do it, and was substantial gainful activity
SSR 82-62, 1982 WL 31386 at *1.
Plaintiff testified that
he began training or transitioning to become a training
instructor in 1983, and became a training instructor in 1988.
continued in this job until 1993 (R. at 171, 162).
thus performed this job within 15 years of the date that he was
last eligible for disability insurance (1998).
His income from
1988-1993 was as follows:
SGA income level1
(R. at 162).
Thus, in 1989, 1990, and in 1991 plaintiff was
performing work as a training instructor at the substantial
gainful activity level.
The Dictionary of Occupational Titles
(DOT) states that the specific vocation preparation (SVP) for
this job is over 2 years, up to and including 4 years.
Plaintiff testified that he began training for this job
Substantial gainful activity (SGA) levels for non-blind
individuals can be found at http://www.ssa.gov/oact.cola.sga.html
(Nov. 28, 2011).
in 1983, and moved into that position in 1988.
Thus, he had 5
years training for the job, and 6 years performing that job, 3 of
those 6 years at a SGA level.2
The court finds that the record
provides adequate evidence for the ALJ to conclude that the
plaintiff performed this job long enough to learn to do it, and
performed it at SGA levels for 3 years.
Therefore, it qualifies
as past relevant work.
At phase one of step four, the ALJ must determine
The ALJ found that plaintiff has the RFC to
perform the full range of light work as defined in 20 C.F.R. §
404.1567(b) (R. at 14).
Because this case was decided at step
four of the sequential analysis, the burden is on the claimant to
show that his impairment(s) renders him unable to perform his
past relevant work.
Henrie, 13 F.3d at 360; Castine v. Astrue,
334 Fed. Appx. 175, 179 (10th Cir. June 26, 2009).
The undisputed evidence from the VE was that plaintiff’s
past work as a training instructor was light work according to
the Dictionary of Occupational Titles (DOT) and as performed by
the plaintiff (R. at 40-41).
It was plaintiff’s burden to
establish that his impairments prevented him from doing his past
light work, i.e., that he could perform less than a full range of
Castine, 334 Fed. Appx. at 179.
The court would also note that, while training for the job
from 1983-1987, plaintiff performed work at SGA levels in 1983
and in 1985-1987 (R. at 162).
There is no medical evidence in the record indicating that
plaintiff could not perform a full range of light work as defined
in 20 C.F.R. § 404.1567(b).
The ALJ found that plaintiff’s
testimony and statements were not fully credible to the extent
that they indicate that he cannot perform light work (R. at 16).
The only medical opinion evidence regarding plaintiff’s RFC was
from Dr. Felkins, and she opined that plaintiff could perform a
full range of light work (R. at 23).
The ALJ could reasonably
rely on that testimony to discount plaintiff’s allegations of
The remaining phases of step four require the ALJ to
determine the physical and mental demands of the prior job, and
then to determine the ability of the claimant to return to the
prior job given his or her RFC.
The ALJ found that plaintiff was
capable of performing past relevant work as a training instructor
because this work did not require the performance of activities
precluded by plaintiff’s RFC.
In other words, at phase two, the
ALJ found that, based on the testimony of the VE and the DOT,
plaintiff’s past work was considered light exertional work as
actually and generally performed.
At phase three, the ALJ
concluded that plaintiff could perform his past work given his
RFC, which limited him to light work (R. at 16).
On these facts,
the court finds that substantial evidence supports the ALJ’s step
See Qualls v. Astrue, 2011 WL 2600546 at *6-7
(10th Cir. July 1, 2011)(no error in step four analysis when
claimant found capable of performing a full range of light work,
with no other limitations, and ALJ found that plaintiff could
return to prior work which was light work); Griffin v. Astrue,
Case No. 10-1316-SAC (D. Kan. Aug. 8, 2011)(same); Parise v.
Astrue, 2009 WL 3764119 at *4-5 (D. Kan. Nov. 10, 2009, aff’d,
2010 WL 4846097 at *2-3 (10th Cir. Nov. 30, 2010)(same).
Did the ALJ err in his credibility analysis?
Credibility determinations are peculiarly the province of
the finder of fact, and a court will not upset such
determinations when supported by substantial evidence.
findings as to credibility should be closely and affirmatively
linked to substantial evidence and not just a conclusion in the
guise of findings.
Kepler v. Chater, 68 F.3d 387, 391 (10th Cir.
Furthermore, the ALJ cannot ignore evidence favorable to
Owen v. Chater, 913 F. Supp. 1413, 1420 (D. Kan.
When analyzing evidence of pain, the court does not require
a formalistic factor-by-factor recitation of the evidence.
long as the ALJ sets forth the specific evidence he relies on in
evaluating the claimant’s credibility, the ALJ will be deemed to
have satisfied the requirements set forth in Kepler.
Barnhart, 287 F.3d 903, 909 (10th Cir. 2002); Qualls v. Apfel,
206 F.3d 1368, 1372 (10th Cir. 2000).
Furthermore, the ALJ need
not discuss every relevant factor in evaluating pain testimony.
Bates v. Barnhart, 222 F. Supp.2d 1252, 1260 (D. Kan. 2002).
ALJ must therefore explain and support with substantial evidence
which part(s) of claimant’s testimony he did not believe and why.
McGoffin v. Barnhart, 288 F.3d 1248, 1254 (10th Cir. 2002).
is error for the ALJ to use standard boilerplate language which
fails to set forth the specific evidence the ALJ considered in
determining that a claimant’s complaints were not credible.
Hardman v. Barnhart, 362 F.3d 676, 679 (10th Cir. 2004).
other hand, an ALJ’s credibility determination which does not
rest on mere boilerplate language, but which is linked to
specific findings of fact fairly derived from the record, will be
affirmed by the court.
White, 287 F.3d at 909-910.
The court will not reweigh the evidence or substitute its
judgment for that of the Commissioner.
Hackett v. Barnhart, 395
F.3d 1168, 1173 (10th Cir. 2005); White v. Barnhart, 287 F.3d
903, 905, 908, 909 (10th Cir. 2002).
Although the court will not
reweigh the evidence, the conclusions reached by the ALJ must be
reasonable and consistent with the evidence.
See Glenn v.
Shalala, 21 F.3d 983, 988 (10th Cir. 1994)(the court must affirm
if, considering the evidence as a whole, there is sufficient
evidence which a reasonable mind might accept as adequate to
support a conclusion).
of the evidence.
The court can only review the sufficiency
Although the evidence may support a contrary
finding, the court cannot displace the agency’s choice between
two fairly conflicting views, even though the court may have
justifiably made a different choice had the matter been before it
Oldham v. Astrue, 509 F.3d 1254, 1257-1258 (10th Cir.
In his decision, the ALJ mentioned some of plaintiff’s daily
activities, his lack of medical treatment, and the significant
weight he gave to the opinions of the medical expert, Dr. Felkins
(R. at 16-17).
The court will not reweigh the evidence regarding
the relative weight the ALJ gave to plaintiff’s daily activities
or to the opinions of Dr. Felkins.
Dr. Felkins discussed
plaintiff’s daily activities before testifying that plaintiff
could perform a full range of light work (R. at 23).
evidence certainly provides a substantial basis in the evidence
to support the ALJ’s RFC findings.
However, the ALJ also relied on the lack of medical
treatment during the relevant period; the ALJ further stated that
the plaintiff most likely sought no medical treatment during the
relevant period because he required no medical treatment (R. at
However, the ALJ failed to mention that plaintiff testified
at the hearing as follows:
Q (by plaintiff’s attorney): Okay. The
[medical] records look like they end in about
1996. Do you know why that is?
A (by plaintiff): No money. I, I didn't have
insurance for the, the heart surgery. I
thought I had insurance for the, the 1996
episode and the company decided to disallow
that and so Helen, my, my wife, ended up
having to pay for, the, the hospitalization
and the procedures that were taken care of.
And we just didn't have the money and, in
fact, they wanted me to go back to the
doctors and, and we just didn't have the
(R. at 35).
The 10th Circuit, relying on the case of Thompson v.
Sullivan, 987 F.2d 1482, 1489-90 (10th Cir. 1993), has repeatedly
held that the inability to pay may justify a claimant’s failure
to pursue or seek treatment.
Threet v. Barnhart, 353 F.3d 1185,
1190 n.7 (10th Cir. 2003); Norris v. Apfel, 215 F.3d 1337
(table), 2000 WL 504882 at *8 (10th Cir. Apr. 28, 2000); Smith v.
Apfel, 149 F.3d 1191 (table), 1998 WL 321176 at *4 (10th Cir.
June 8, 1998); Snead v. Callahan, 129 F.3d 131 (table), 1997 WL
687660 at *4 (10th Cir. Oct. 31, 1997); see also Eason v. Chater,
951 F. Supp. 1556, 1562 (D. N.M. 1996)(claimant should not be
penalized for failing to seek treatment that they cannot afford);
Hockenhull v. Bowen, 723 F. Supp. 555, 557 (D. Colo. 1989)
(evidence of nontreatment is of little weight when claimant’s
failure to seek medical treatment can be attributed to their
inability to pay for such treatment).
The ALJ clearly should
have considered plaintiff’s explanation indicating that he lacked
insurance for the period of time that he did not receive medical
Although the court has some concerns with the ALJ’s failure
to consider the evidence that plaintiff lacked insurance for the
period of time that he did not receive medical treatment, after
examining the record as a whole, including the fact that the
ALJ’s RFC findings are clearly consistent with the medical
opinion evidence, the court finds that the balance of the ALJ’s
credibility analysis is nonetheless closely and affirmatively
linked to substantial evidence.
Williams v. Astrue, Case No. 09-
1341-SAC (D. Kan. Oct. 26, 2010)(Although the court had some
concerns with the ALJ’s failure to consider the evidence that
plaintiff lacked insurance for the period of time that he did not
receive medical treatment, after examining the record as a whole,
including the fact that the ALJ’s RFC findings are generally
consistent with the medical opinion evidence, the court finds
that the balance of the ALJ’s credibility analysis is nonetheless
closely and affirmatively linked to substantial evidence); see
Branum v. Barnhart, 385 F.3d 1268, 1274 (10th Cir. 2004)(“While
we have some concerns regarding the ALJ’s reliance on plaintiff’s
alleged failure to follow a weight loss program and her
performance of certain minimal household chores, we conclude that
the balance of the ALJ’s credibility analysis is supported by
substantial evidence in the record.”); Matlock v. Astrue, Case
No. 09-1207-MLB (D. Kan. May 7, 2010; Doc. 16 at 24-26)(While the
court had a concern with the ALJ’s conclusion that the claimant’s
ability to perform daily activities “to any degree suggests that
he retains the ability to work full-time,” the court concluded
that the balance of the credibility analysis was closely and
affirmatively linked to substantial evidence, including the lack
of any medical evidence that plaintiff had limitations not
included in the ALJ’s RFC findings); McGlothlin v. Astrue, Case
No. 08-1117-WEB (D. Kan. Aug. 4, 2009, Doc. 17 at 13 (same);
Landwehr v. Astrue, Case No. 08-1154-WEB (D. Kan. May 14, 2009,
Doc. 15 at 14-17) (Despite one error in the ALJ’s credibility
analysis, the court held that the ALJ’s credibility analysis was
nonetheless closely and affirmatively linked to substantial
evidence); Kochase v. Astrue, Case No. 07-1190-MLB, 2008 WL
852123 at *9
(D. Kan. March 28, 2008, Doc. 14 at 20-23) (same).
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 6th day of December, 2011, Topeka, Kansas.
s/ Sam A. Crow
Sam A. Crow, U.S. District Senior Judge
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