Brown v. Social Security Administration, Commissioner of
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 Commissioners decision. Signed by District Judge John W. Lungstrum on 3/15/2012. (ses)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JAMES LAMONT BROWN,
MICHAEL J. ASTRUE,
Commissioner of Social Security,
MEMORANDUM AND ORDER
Plaintiff seeks review of a decision of the Commissioner of Social Security
(hereinafter Commissioner) denying disability insurance benefits (DIB) and supplemental
security income (SSI) under sections 216(i), 223, 1602, and 1614(a)(3)(A) of the Social
Security Act. 42 U.S.C. §§ 416(i), 423, 1381a, and 1382c(a)(3)(A) (hereinafter the Act).
Finding no error, the court ORDERS that judgment shall be entered pursuant to the fourth
sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner’s decision.
Plaintiff applied for both DIB and SSI on July 3, 2007, alleging disability
beginning January 1, 2005. (R. 103-15, 362). The applications were denied initially and
upon reconsideration, and Plaintiff requested a hearing before an Administrative Law
Judge (ALJ). (R. 33-36, 46-47, 362). Plaintiff’s request was granted, and Plaintiff
appeared with counsel for a hearing before ALJ Michael R. Dayton on December 22,
2008. (R. 7-8, 362). At the hearing, testimony was taken from Plaintiff and from a
vocational expert. (R. 7-32, 362). On February 19, 2009 ALJ Dayton issued a decision in
which he found that Plaintiff has a severe combination of mental impairments but is able
to perform a full range of work at all exertional levels restricted only by certain nonexertional limitations related to his mental impairments. (R. 362-370). The ALJ
determined at step four that Plaintiff is able to perform his past relevant work as a
materiel handler or as a hand trimmer. (R. 369). Alternatively, the ALJ determined at
step five that although the unskilled job base is reduced by seventy-five percent for an
individual with limitations such as those assessed for Plaintiff, there are other jobs
existing in the economy in significant numbers that Plaintiff can perform. (R. 369-70).
Therefore, the ALJ determined Plaintiff is not disabled within the meaning of the Act,
and denied his applications. (R. 370).
Plaintiff sought Appeals Council review of the ALJ’s decision. (R. 5-6). The
Appeals Council found no reason to review the decision, and denied Plaintiff’s request
for review. (R. 1). Therefore, the ALJ’s decision is the final decision of the
Commissioner. (R. 1); Blea v. Barnhart, 466 F.3d 903, 908 (10th Cir. 2006). Plaintiff
now seeks judicial review. (Doc. 1).
The court’s jurisdiction and review are guided by the Act. Weinberger v. Salfi,
422 U.S. 749, 763 (1975) (citing 42 U.S.C. § 405(g)); Wall v. Astrue, 561 F.3d 1048,
1052 (10th Cir. 2009) (same); Brandtner v. Dep’t of Health and Human Servs., 150 F.3d
1306, 1307 (10th Cir. 1998) (sole jurisdictional basis in social security cases is 42 U.S.C.
§ 405(g)). Section 405(g) of the Act provides for review of a final decision of the
Commissioner made after a hearing in which the Plaintiff was a party. It also 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 factual findings are supported by substantial evidence in the record and
whether the ALJ 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
evidence as a reasonable mind might accept to support a conclusion. 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). 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).
An individual is under a disability only if that individual can establish that he has a
physical or mental impairment which prevents him from engaging in any substantial
gainful activity, and which is expected to result in death or to last for a continuous period
of at least twelve months. Thompson v. Sullivan, 987 F.2d 1482, 1486 (10th Cir. 1993)
(citing 42 U.S.C. § 423(d)); see also, Knipe v. Heckler, 755 F.2d 141, 145 (10th Cir.
1985) (quoting identical definitions of a disabled individual from both 42 U.S.C.
§§ 423(d)(1) and 1382c(a)(3)(A)); accord, Lax, 489 F.3d at 1084 (citing 42 U.S.C.
§§ 423(d)(1)(A), 1382c(a)(3)(A)). The claimant’s impairments must be of such severity
that he is not only unable to perform his past relevant work, but cannot, considering his
age, education, and work experience, engage in any other substantial gainful work
existing in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
The Commissioner uses a five-step sequential process to evaluate disability. 20
C.F.R. §§ 404.1520, 416.920 (2008); 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 RFC. 20 C.F.R. §§ 404.1520(e), 416.920(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 whether claimant can perform past relevant work; and whether, considering
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 claimant to prove a disability that prevents
performance of past relevant work. Blea, 466 F.3d at 907; 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 within
Plaintiff’s capability. Id.; Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).
Plaintiff points to his testimony at the hearing regarding his allegedly extreme
limitations both in daily living and in his withdrawal from social activities (Pl. Br. 13),
and argues that the limitations to which he testified “have been under rated and
mischaracterized as of mild limitation purely in order to anchor a faulted decision.” Id. at
14. He argues that the extreme severity of the paragraph B criteria in activities of daily
living and in social functioning “are not properly reflected in the mental residual
functional capacity assessment recommendation provided by the administrative law
judge.” (Pl. Br. 14). Plaintiff asserts “that a true consideration of the extreme limitations
in restrictions of daily activities and difficulties in social functioning articulate extreme
limitations when objectively considered away from the biased lens of a predisposition of
denial imagined and projected by DDS and re-articulated by the ALJ.” Id. at 12-13. The
court understands Plaintiff’s brief to allege three errors in the decision at issue: (1) The
agency and the ALJ were biased and predisposed to deny benefits without proper
consideration of the record. (2) The ALJ improperly applied the Commissioner’s
psychiatric review technique. And (3) the ALJ erroneously determined that Plaintiff’s
allegations of symptoms resulting from his impairments are not credible. In his brief, the
Commissioner argues that substantial evidence supports the ALJ’s credibility
determination, and that the vocational expert’s testimony is substantial evidence
supporting the finding that there are a significant number of jobs in the economy that
Plaintiff can perform. (Comm’r Br. 8-14). In Plaintiff’s reply brief (entitled “Plaintiff’s
Response Brief”),1 he objects to the Commissioner’s citation to the case of Bean v.
D. Kan. Rule 83.7.1 controls in this court’s review of administrative proceedings.
The party seeking review (Plaintiff) shall file a brief within forty-five days after the
agency files the administrative record in the case, and the responding party (the
Commissioner) shall file a brief within thirty days thereafter. D. Kan. Rule 83.7.1(d).
The rule provides that the party seeking review “may serve and file a reply brief within 14
days after service of the brief of the respondent.” Id. (emphasis added). “Plaintiff’s
Response Brief” fits the local rule’s allowance of a reply brief. In consideration of the
local rule, the court’s CM/ECF system for electronic filing provides a means whereby the
parties may file their required brief’s within that system. The party seeking to file a
Chater, 77 F.3d 1210, 1213 (10th Cir. 1995) for the proposition that “[t]he Tenth Circuit
has held that similar activities [(to activities of daily living performed by Plaintiff)] are
inconsistent with allegations of disabling limitations.” (Reply, 1-2) (quoting (Comm’r.
Br. 10-11) and citing Bean). He argues that Bean does not stand for the proposition that
the mere performance of such activities is inconsistent with disability, and that although
such activities may be considered in evaluating credibility, they do not automatically
preclude a finding of disability. Id. 2-3. Finally, Plaintiff asks the court to consider
Plaintiff’s hearing testimony as summarized in his Initial Brief, and argues that “[t]he
ALJ has undervalued the ‘B Criteria’ limitations” regarding activities of daily living and
social functioning when assessing Plaintiff’s RFC. (Reply 3-4).
Although Plaintiff alleges bias, erroneous application of the psychiatric review
technique, and erroneous evaluation of the credibility of his allegations of symptoms, he
does not point to record evidence or statements in the decision which demonstrate bias or
the other errors alleged. He merely asserts bias and a predisposition to denial, and argues
Social Security brief in the system may sequentially hover his cursor over “Civil” in the
CM/ECF menu bar; hover over “Motions, Supporting Documents, Responses, Replies &
Social Security” in the dropdown menu that appears; and select “Responses, Replies &
Social Security” in the final menu that appears. When the next web page downloads, the
party may begin typing “Social Security” in the blank space at the top of the page, and
four Social Security events will appear in the box below. From those events, the party
may select “Commissioner’s Response Brief,” “Plaintiff’s Initial Brief,” “Plaintiff’s
Reply Brief,” or “Surreply Brief” as is appropriate and authorized.
that the ALJ provided insufficient weight to Plaintiff’s hearing testimony in applying the
psychiatric review technique and in evaluating the credibility of his allegations of limiting
symptoms. The court will address each issue raised.
The Due Process Clause of the Fifth Amendment guarantees a hearing before a fair
and impartial tribunal. See U.S. Const., amend. V; Harline v. Drug Enforcement Admin.,
148 F.3d 1199, 1203 (10th Cir. 1998); Withrow v. Larkin, 421 U.S. 35, 46, 95 S.Ct. 1456,
43 L.Ed.2d 712 (1975). This guarantee applies to administrative adjudications as well as
those in the courts. Id. But, in order to disqualify an ALJ, or obtain a ruling that a
hearing is unfair, “a substantial showing of personal bias is required.” Roberts v. Morton,
549 F.2d 158, 164 (10th Cir. 1976). Moreover, an administrative law judge enjoys a
presumption of honesty and integrity, Withrow, 421 U.S. at 47, 95 S.Ct. 1456, which is
only rebutted by a showing of “some substantial countervailing reason to conclude that a
decisionmaker is actually biased with respect to factual issues being adjudicated.”
Mangels v. Pena, 789 F.2d 836, 838 (10th Cir. 1986). Without such a showing, ALJ’s are
presumed to be persons “‘of conscience and intellectual discipline, capable of judging a
particular controversy fairly on the basis of its own circumstances.’” Withrow, 421 U.S.
at 55, 95 S.Ct. 1456 (quoting United States v. Morgan, 313 U.S. 409, 421, 61 S.Ct. 999,
85 L.Ed. 1429 (1941)).
Here, Plaintiff makes the bare assertion that the ALJ’s credibility findings and
RFC assessment were made through the “biased lens of a predisposition of denial
imagined and projected by DDS [(the state agency Disability Determination Service)] and
re-articulated by the ALJ.” (Pl. Br. 13). However, Plaintiff points to no evidence
suggesting a substantial showing of personal bias, or to any substantial countervailing
reason to conclude that the ALJ is biased with respect to the factual issues being
adjudicated. The mere fact that Plaintiff disagrees with the findings reached by the ALJ
is insufficient to show bias.
To be sure, the ALJ’s findings with respect to the paragraph “B Criteria” of the
mental listings were identical to the findings of the DDS psychologist in the initial
determination. Compare (R. 366), with (R. 291). However, at the reconsideration
determination, a different DDS psychologist found that Plaintiff’s degree of limitation on
the paragraph “B Criteria” was either “mild,” or “none,” and determined that Plaintiff’s
mental impairments were not severe. (R. 313, 323). Each of the DDS psychologists, and
the ALJ explained the rationale for his findings regarding the “B Criteria,” and none of
the rationale displays obvious bias. (R. 293, 325, 364-69). As to mental RFC assessment,
the DDS psychologist at the initial determination found moderate limitations only in the
ability to interact appropriately with the general public, and he explained that “[t]he clmt
would do better in jobs that require infrequent interaction with the general public.” (R.
296, 297). The DDS psychologist at the reconsideration determination found the mental
impairments were not severe and did not provide a mental RFC assessment because, by
definition, a “non-severe” impairment does not produce more than minimal work-related
limitations. (R. 313) (“These findings complete the medical portion of the disability
determination.”). The ALJ stated that he agreed with the mental RFC of the DDS
psychologist “at the initial determination” in reaching his own RFC assessment. (R. 369)
(citing Ex. 8F (R. 295-98)). Like the DDS psychologist at the initial determination, the
ALJ assessed moderate limitation in the ability to interact appropriately with the general
public, and found that “the claimant would do better in jobs that require infrequent
interaction with the general public.” (R. 367). However, unlike the DDS psychologist,
the ALJ also found that “the claimant has a ninth grade education and is unable to read or
write except for simple words and is unable to do simple math.” Id. The court sees no
evidence in the record which would provide a substantial showing of bias, and finds that
Plaintiff has not demonstrated bias as alleged.
An ALJ’s credibility determinations are 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 the
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, 987 F.2d at 1490 (10th Cir. 1993) (“deference is not an absolute rule”).
Plaintiff must demonstrate error in the ALJ’s rationale or finding, 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. We 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).
But, “[f]indings as to credibility should be closely and affirmatively linked to substantial
evidence and not just a conclusion in the guise of findings.” Huston v. Bowen, 838 F.2d
1125, 1133 (10th Cir. 1988). Where the ALJ has reached a reasonable conclusion that is
supported by substantial evidence, the court will not reweigh the evidence and reject that
conclusion even if it might have reached a contrary conclusion in the first instance.
Plaintiff makes no attempt to demonstrate the error in the ALJ’s credibility
determination. He does not identify the factors relied upon in the decision, or point to
evidence which would negate their effect. Rather, he summarizes certain of his own
testimony at the hearing, and argues that an “objective examination” of that testimony
demonstrates extreme limitations in daily living and in social functioning. (Pl. Br. 13-14).
On the other hand, the court’s review of the decision reveals fifteen reasons given by the
ALJ to find Plaintiff’s allegations not credible. (1) Plaintiff’s allegations are not
supported by a review of the evidence. (R. 368). (2) Plaintiff alleged disability beginning
July 3, 2007, but did not seek mental health treatment till later. Id. (3) Dr. Wards’s
consultative examination in August 2007 revealed Plaintiff would be psychologically able
to complete most work assignments. Id. (4) Global Assessment of Functioning scores
assigned at COMCARE improved from 55 to 62, indicating only mild symptoms while
generally functioning pretty well. Id. (5) Plaintiff reported learning disability since
school, but had worked at substantial gainful levels when not incarcerated. Id.
(6) Plaintiff told Dr. Ward that he quit his last job because they withheld wages to pay
child support, but told staff at COMCARE that his last employer ran out of work, and let
him go. Id. (7) Plaintiff reported he is unable to read, but obtained a driver’s license. Id.
(8) Plaintiff reported trouble counting change, but reported he does shopping for the
family. (9) Plaintiff’s reports of limitations to the Social Security Administration differ
from his reports to treating sources. Id. (10) At the hearing, Plaintiff reported hearing
voices, but at his last COMCARE visit he denied auditory or visual hallucinations. Id.
(11) Plaintiff reported differing dates regarding suicide attempts. Id. (12) Plaintiff
reported differing dates regarding substance abuse. (R. 369). (13) Plaintiff reported
working out, and the ability to care for himself, care for his pets, clean the house, and
help his father. (R. 369). (14) No treating or examining source has suggested disability.
Id. (15) No medical source has validated the extreme limitations alleged at the hearing.
As the above summary suggests, the ALJ closely and affirmatively linked his
credibility determination to substantial evidence. Plaintiff’s assertion that his testimony at
the hearing demonstrates extreme limitations is merely an invitation to reweigh the
evidence and substitute the court’s judgment for that of the ALJ. That is not within the
court’s province. Plaintiff has shown no error in the credibility determination.
Application of the Psychiatric Review Technique
The Commissioner has promulgated a Psychiatric Review Technique for
evaluating mental impairments. 20 C.F.R. §§ 404.1520a, 416.920a. In evaluating the
severity of mental impairments at steps two and three, the technique provides for rating
the degree of functional limitation in each of four broad mental functional areas:
activities of daily living; social functioning; concentration, persistence, or pace; and
episodes of decompensation. Id. §§ 404.1520a(c) 416.920a(c). These are the four mental
functional areas referred to in the paragraph “B Criteria” of the mental disorder Listings.
Id., Pt. 404, Subpt. P, App. 1, §§ 12.00 - 12.10. After rating the degree of limitation in
each functional area, the Commissioner determines the severity of plaintiff’s mental
impairments. Id. §§ 404.1520a(d), 416.920a(d).
When the first three functional areas are rated as “none” or “mild,” and the fourth
area is rated as “none,” the agency will conclude at step two of the sequential evaluation
process that plaintiff’s mental impairments are not severe “unless the evidence otherwise
indicates that there is more than a minimal limitation in [plaintiff’s] ability to do basic
work activities.” Id. §§ 404.1520a(d)(1), 416.920a(d)(1). If the mental impairments are
severe, the technique requires a step three evaluation of whether the impairment meets or
equals a listed impairment, by comparing the step two findings and the medical evidence
with the criteria of the listings. Id. §§ 404.1520a(d)(2), 416.920a(d)(2). As relevant here,
the paragraph “B Criteria” are met if Plaintiff’s condition demonstrates at least two of the
following: (1) marked restriction of activities of daily living; (2) marked difficulties in
maintaining social functioning; (3) marked difficulties in maintaining concentration,
persistence, or pace; or (4) repeated episodes of decompensation, each of extended
duration. Id. Pt. 404, Subpt. P, App. 1, §§ 12.00A, 12.04, 12.06, 12.08. If the
Commissioner determines that plaintiff’s mental impairments do not meet or equal a
listing, he will then assess plaintiff’s RFC. Id. §§ 404.1520a(d)(3), 416.920a(d)(3).
With regard to activities of daily living and social functioning, the ALJ made the
In activities of daily living, the claimant has mild restriction. The claimant
resides with his father who has suffered a stroke. He is able to care for
himself, his father, the home and his pets.
In social functioning, the claimant has moderate difficulties. The available
medical evidence indicates that the claimant would do better in jobs that
require infrequent interaction with the general public.
(R. 366). The ALJ found that Plaintiff does not have an impairment or combination of
impairments that meets or equals any of the Listed Impairments. Id. Therefore, he
proceeded to assess Plaintiff’s RFC. (R.367-69).
In that assessment, he summarized the remainder of the evidence, including
Plaintiff’s allegations of symptoms and the medical opinions, found that Plaintiff’s
allegations are not credible, and stated his agreement with the medical opinions of the
DDS medical sources at the initial determination. (R. 367-69). Based upon that
consideration, he assessed Plaintiff with the following RFC:
to perform a full range of work at all exertional levels but with the
following nonexertional limitations: the claimant has a ninth grade
education and is unable to read or write except for simple words and is
unable to do simple math. He has moderate limitation in the ability to
interact appropriately with the general public. These limitations include the
ability to adapt to most work situations with the ability to understand and
remember simple and complex instructions, the ability to focus, persist, and
concentrate for extended periods of time with the notation that the claimant
would do better in jobs that require infrequent interaction with the general
(R. 367) (bolding omitted).
Once again, in his argument with regard to application of the psychiatric review
technique, Plaintiff points to his own testimony at the hearing and asserts that the ALJ
undervalued the “B Criteria” limitations, and did not reflect the appropriate extreme
limitations in daily activities and social functioning in his RFC assessment. Having failed
to show error in the credibility finding, Plaintiff cannot rely solely on his own testimony
as the basis to find error in the RFC assessment. The ALJ found that testimony not
credible, and as discussed above Plaintiff has shown no error in that determination.
Plaintiff’s objection to the Commissioner’s use of Bean is not helpful. Plaintiff is
correct that such daily activities as those considered in Bean may be considered in
evaluating credibility, and that mere participation in such activities does not establish that
a claimant is not disabled. However, the ALJ here did not rely upon those daily activities
alone to establish that Plaintiff is not disabled, and he did not find that the ability to
perform such activities suggests Plaintiff is able to work full time. Rather, he relied upon
those activities along with fourteen other factors to determine that Plaintiff’s allegation of
symptoms is not credible. Thereafter, he relied upon all of the record evidence to assess
Plaintiff’s RFC, and determined, based upon that RFC, that Plaintiff was able to perform
his past relevant work. (R. 367-69). Then, alternatively, he considered Plaintiff’s age,
education, work experience, and the RFC assessed, and determined that there are a
significant number of jobs in the economy that Plaintiff can perform.2 (R. 369-70). This
is not error, and Plaintiff has shown no error in the Commissioner’s decision.
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 decision.
As Plaintiff asserts, the ALJ found a 75% reduction in the occupational base, but
in accordance with the vocational expert testimony, he found that the remaining 25% of
the occupational base included significant numbers of jobs Plaintiff could perform. (R.
Dated this 15th day of March 2012, at Kansas City, Kansas.
s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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