Pickett v. Social Security Administration, Commissioner of

Filing 25

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 Commissioner's decision. Signed by District Judge John W. Lungstrum on 9/21/2012. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DENNIS PICKETT,

)
)
Plaintiff,
)
)
v.
)
)
MICHAEL J. ASTRUE,
)
Commissioner of Social Security,
)
)
Defendant.
)
________________________________________ )

CIVIL ACTION
No. 11-1227-JWL

MEMORANDUM AND ORDER

Plaintiff seeks review of a decision of the Commissioner of Social Security
(hereinafter Commissioner) denying Social Security disability benefits (SSD) 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.
I.

Background
Plaintiff applied for both SSD and SSI on December 13, 2006. (R. 9, 104-11). In

due course, Plaintiff’s applications were denied, he exhausted the administrative process,
and he sought judicial review before the U. S. District Court for the District of Kansas.

(R. 705-28). The district court found errors in the Commissioner’s rationale for
according no weight to the medical opinion of a treating source, in his adoption of the
residual functional capacity (RFC) assessment of a Single Decisionmaker (SDM) who
was not a medical professional, and in his failure to consider the opinion of a nontreating
psychologist, and remanded the case to the Commissioner pursuant to the fourth sentence
of 42 U.S.C. § 405(g) for further proceedings. Id. In an order dated February 25, 2010,
the Appeals Council vacated the earlier decision of the Commissioner, and remanded the
case to an Administrative Law Judge (ALJ) “for further proceedings consistent with the
order of the court.” (R. 703). It instructed the ALJ to “offer the claimant the opportunity
for a hearing, take any further action needed to complete the administrative record, and
issue a new decision.” Id.
The proceedings on remand were held before ALJ James Harty, a different ALJ
than handled the case previously. On remand, another psychological consultation was
procured, and the administrative record was updated. (R. 729-903). On January 5, 2011,
Plaintiff appeared with counsel for a new hearing. (R. 648, 666-700). At the hearing,
testimony was taken from Plaintiff and from a vocational expert. (R. 666-700). The ALJ
confirmed that Plaintiff was alleging an onset date of May 9, 2002, just as alleged in the
2008 hearing, and left the record open for Plaintiff to submit additional medical records
and a post-hearing memorandum. (R. 669-70, 698-700). After the additional medical
records and the post-hearing memorandum were submitted, ALJ Harty issued his decision
on April 26, 2011. (R. 648-59). In the decision, he determined that Plaintiff has not
2

performed substantial gainful activity since his alleged onset date and has a combination
of severe impairments, but that his condition does not meet or medically equal the
severity of a Listed Impairment. (R. 650-51). He determined that Plaintiff’s allegations
of symptoms “are not credible to the extent they are inconsistent with” the RFC assessed
by the ALJ (R. 653), but that Plaintiff’s “allegations of back pain are credible to the
extent that he is reduced to work at the light exertional level with the additional
limitations set out” in that RFC. (R. 655).
The ALJ considered the opinion evidence and accorded “controlling weight” to the
opinion of Dr. Lasak, “little weight” to the opinion of Dr. Neblett, “some weight” to the
opinions of Dr. Liebenau and Dr. Parsons, “significant weight” to the opinion of Dr.
Moeller, and “little weight” to the opinion of Plaintiff’s mother. (R. 656-57). The ALJ
assessed Plaintiff with the RFC for a range of light work limited by significant postural,
environmental, and mental restrictions. (R. 653). He determined that Plaintiff has no past
relevant work, but that considering Plaintiff’s age, education, work experience, and RFC,
jobs exist in significant numbers in the national economy that Plaintiff can perform. (R.
658). Based upon that determination, he found that Plaintiff has not been disabled within
the meaning of the Act, and denied Plaintiff’s applications. (R. 659). The Appeals
Council did not assume jurisdiction of the decision after remand, and therefore that
decision is the final decision of the Commissioner. Hamlin v. Barnhart, 365 F.3d 1208,
1214 (10th Cir. 2004); see also 20 C.F.R. §§ 404.984(a), 416.1484(a) (after remand, the
ALJ’s decision becomes the “final decision of the Commissioner after remand . . . unless
3

the Appeals Council assumes jurisdiction of the case”). Plaintiff timely filed this case,
seeking judicial review of the Commissioner’s final decision. (Doc. 1).
II.

Legal Standard
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)); see also, 42 U.S.C. § 1383(c)(3) (SSI decision “shall be subject to judicial
review as provided in section 405(g)”). Section 405(g) 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.
4

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 (2011); 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
5

claimant has engaged in substantial gainful activity since the alleged onset, whether he
has a severe impairment(s), and whether the severity of his impairment(s) meets or equals
the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt.
P, App. 1). Williams, 844 F.2d at 750-51. After evaluating step three, the Commissioner
assesses claimant’s residual functional capacity (RFC). 20 C.F.R. §§ 404.1520(e),
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 v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006);
accord, Dikeman v. Halter, 245 F.3d 1182, 1184 (10th Cir. 2001); Williams, 844 F.2d at
751 n.2. At step five, the burden shifts to the Commissioner to show that there are jobs in
the economy within Plaintiff’s capability. Id.; Haddock v. Apfel, 196 F.3d 1084, 1088
(10th Cir. 1999).
Plaintiff claims the ALJ erred because he failed to provide good reasons for
according “little weight” to Dr. Neblett’s treating source opinion, and because his
credibility determination is not supported by substantial record evidence. The
Commissioner argues that substantial record evidence, in fact, supports the ALJ’s
6

credibility determination and that the ALJ properly considered Dr. Neblett’s opinion,
partially discounted and partially credited it, and the opinion is not entitled to deference
as a treating source opinion. Although the court relies upon somewhat different reasoning
than presented in the Commissioner’s brief, it finds no error in the decision. The court
will address the issues in the order presented in Plaintiff’s Brief.
III.

Evaluation of Dr. Neblett’s Opinion
Plaintiff claims the ALJ erred when he failed to provide good reasons for

according “little weight” to Dr. Neblett’s treating source opinion. Plaintiff quoted ALJ
Burbank’s assessment of Dr. Neblett’s opinion in the decision which was reversed and
remanded by the district court. (Pl. Br. 6). He summarized the Magistrate Judge’s
reasons for finding error in ALJ Burbank’s determination. Id. Then, he quoted Dr.
Neblett’s opinion, and ALJ Harty’s evaluation of that opinion. Id. at 7-8. Plaintiff
recognized three reasons ALJ Harty discounted Dr. Neblett’s opinion: Plaintiff’s back
problems appear to come and go, there were periods when Plaintiff worked at the level of
significant gainful activity (SGA), and Dr. Neblett’s opinion was not consistent with the
longitudinal record. Id. at 8-10. He alleged error in each of those reasons. Id.
The Commissioner responds that the ALJ partially discounted and partially
credited Dr. Neblett’s opinion and stated proper reasons for discounting the opinion.
(Comm’r Br. 20). He then points to the regulations, asserting that “a treating physician’s
opinion is entitled to great weight only if the physician has treated the claimant “a number
of times and long enough to have obtained a longitudinal picture of [the claimant’s]
7

impairments.’” Id. at 21 (quoting 20 C.F.R. §§ 404.1527(d)(2)(i), 416.927(d)(2)(i)).1 He
argues that the Tenth Circuit has held that a physician is not “considered a treating
physician unless he ‘has dealt with a claimant and his maladies over a long period of
time’ and therefore has ‘a deeper insight into the medical condition of the claimant’” than
a physician who has examined the claimant once (a nontreating physician) or one who has
merely reviewed the record (a nonexamining physician).2 Id. (quoting Doyal v. Barnhart,
331 F.3d 758, 762 (10th Cir. 2003)). On the strength of that authority and the fact that
Dr. Neblett’s opinion was based on only four visits and on treatment for less than two
months, the Commissioner argues that Dr. Neblett’s opinion “is not entitled to deference
as a ‘treating source opinion’ under the regulations.” Id. at 21-22. Plaintiff complains
that the Commissioner’s argument regarding four visits in less than two months is posthoc rationalization in support of the decision, and that the court must evaluate the
decision only on the rationale presented therein. (Reply 1).
A.

Standard for Weighing Treating Source Opinions

1

The court notes that the Commissioner’s Brief mistakenly cites the quoted portion
of the regulations as “§§ 404.1527(d)(I) and 416.927(d)(I).” (Comm’r Br. 21).
2

The regulations define three types of “acceptable medical sources:”
“Treating source:” an “acceptable medical source” who has provided the claimant
with medical treatment or evaluation in an ongoing treatment relationship. 20 C.F.R.
§§ 404.1502, 416.902.
“Nontreating source:” an “acceptable medical source” who has examined the
claimant, but never had a treatment relationship. Id.
“Nonexamining source:” an “acceptable medical source” who has not examined
the claimant, but provides a medical opinion. Id.
8

A physician who has treated a patient frequently over an extended period of time
(a treating source) is expected to have greater insight into the patient’s medical condition,
and his opinion is generally entitled to “particular weight.” Doyal, 331 F.3d at 762. But,
“the opinion of an examining physician [(a nontreating source)] who only saw the
claimant once is not entitled to the sort of deferential treatment accorded to a treating
physician’s opinion.” Id. at 763 (citing Reid v. Chater, 71 F.3d 372, 374 (10th Cir.
1995)). However, opinions of nontreating sources are generally given more weight than
the opinions of nonexamining sources who have merely reviewed the medical record.
Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004); Talbot v. Heckler, 814 F.2d
1456, 1463 (10th Cir. 1987) (citing Broadbent v. Harris, 698 F.2d 407, 412 (10th Cir.
1983), Whitney v. Schweiker, 695 F.2d 784, 789 (7th Cir. 1982), and Wier ex rel. Wier v.
Heckler, 734 F.2d 955, 963 (3d Cir. 1984)).
If the treating source opinion is not given controlling weight, it is “still entitled to
deference and must be weighed using all of the factors provided in 20 C.F.R. § 404.1527
and 416.927.” Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). After
considering the factors, the ALJ must give reasons in the decision for the weight he gives
the treating source opinion. Id. 350 F.3d at 1301. “Finally, if the ALJ rejects the opinion
completely, he must then give ‘specific, legitimate reasons’ for doing so.” Id. (citing
Miller v. Chater, 99 F.3d 972, 976 (10th Cir. 1996) (quoting Frey v. Bowen, 816 F.2d
508, 513 (10th Cir. 1987)).
B.

The ALJ’s Evaluation of Dr. Neblett’s Opinion
9

As Plaintiff admits, the ALJ explained his assessment of Dr. Neblett’s opinion:
The claimant’s physician, Robert S. Neblett, M.D., stated that due to pain
and medication, the claimant could have difficulty concentrating and
keeping up a normal work pace. (Exhibit C23F/8 [(R. 601)]). However,
[(1)] the claimant’s back problems appear to come and go. He admitted that
he did not have difficulties from 2000 until a flare up in 2007 and then not
again until a flare up in 2009. (Exhibits C26F/2 [(R. 607)]; C33F/22 [(R.
897)]). The record shows that [(2)] the claimant also has had periods where
he worked at substantial gainful activity. (Exhibits C7D [(R. 794-96)]; C1E
[(R. 115-26)]). To accommodate the claimant’s occasional difficulty with
concentration and keeping up a normal work pace, the evidence supports a
finding that the claimant is limited to simple, routine, repetitive tasks not
performed in a fast-paced production environment.
As for the opinion evidence, in September 2007, Dr. Neblett indicated that
the claimant was significantly restricted in his ability to sit and would likely
need to request breaks to change positions. Lifting would also be very
limited. (Exhibit C23F/8 [(R. 601)]). This opinion is given little weight as
[(3)] it is not consistent with the longitudinal record. As noted above, the
claimant had occasional flare ups of back pain when he over did things but
[(4)] admitted that he essentially controlled his back pain with physical
exercise. (Exhibit 33F/22 [(R. 897)]).
(R. 656-57) (numbering added).
C.

Analysis

As the numbering added to the ALJ’s assessment illustrates, Plaintiff did not
recognize the ALJ’s fourth reason for discounting Dr. Neblett’s opinion--that Plaintiff
admitted he controlled his back pain with physical exercise. As the ALJ noted, at his
office visit in September 2009, Plaintiff reported that his back had been stable for two
years with physical activity. (R. 897); see also (R. 654) (decision) (claimant “stated that
his back had been stable with physical exercise for two years”). The office note cited by
the ALJ memorializes Plaintiff’s report that sitting for eight hours during the drive from
10

Florida to Wichita, Kansas had caused a recurrence of his back pain, and it also notes that
Plaintiff’s latest previous flare-up was two years prior. (R. 897). Moreover, at the
hearing Plaintiff testified that he treated his pain “through exercise and stuff[,] I cannot
take pills. I’ll take some Ibuprofen when I need to.” (R. 690). Earlier, he stated, “I do
little exercises my therapist taught me and then I’ve got a metal back brace that I wear.”
(R. 678). Substantial record evidence supports the ALJ’s fourth reason for discounting
Dr. Neblett’s opinion.
Regarding the first reason (Plaintiff’s back problems appear to come and go),
Plaintiff argues that the duration requirement for a “severe” impairment is twelve months,
that the ALJ found his degenerative disc disease and sciatica are “severe,” and therefore,
the ALJ must have found that the “flares” in 2007 and 2009 each lasted for twelve months
or more. He acknowledges that “there is evidence in the record to support the notion that
plaintiff had periods when his back pain was exacerbated,” but argues that between
“flares” his “baseline pain” is disabling and “when his pain was exacerbated . . . he was
bedridden and functionally derelict, as opposed to ‘just’ disabled,” and the ALJ’s
“transitory pain rationale does not provide a good reason for rejecting the majority of Dr.
Neblett’s opinion.” (Pl. Br. 9-10) (citing R. 601, 655, 897).
Plaintiff’s logic is faulty. The ALJ’s finding that Plaintiff’s back impairments are
severe does not require that he also found that the “flares” in 2007 and 2009 each lasted
for twelve months or more. As Plaintiff suggests, to be “severe,” an impairment must
meet the duration requirement of twelve months or longer. 20 C.F.R.
11

§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii); See also, 20 C.F.R. §§ 404.1509, 416.909
(“Unless your impairment is expected to result in death, it must have lasted or must be
expected to last for a continuous period of at least 12 months.”). However, establishing a
“severe” impairment at step two requires only a “de minimis” showing. Hinkle v. Apfel,
132 F.3d 1349, 1352 (10th Cir. 1997). Plaintiff need only show that an impairment
would have more than a minimal effect on his ability to do basic work activities in order
to establish that the impairment is “severe.” Williams, 844 F.2d at 751. However, he
must show more than the mere presence of a condition or ailment. Hinkle, 132 F.3d at
1352 (citing Bowen v. Yuckert, 482 U.S. 137, 153 (1987)).
In finding that Plaintiff’s degenerative disc disease and sciatica are “severe” at step
two, the ALJ found only that for at least a year those impairments had more than a
minimal effect on Plaintiff’s ability to do basic work activities, he did not find that the
“flares” or exacerbations of back pain in 2007 and 2009 lasted more than a year, or even
at least a year. “Back pain” is a symptom, not an impairment. Impairments must meet
the duration requirement. There is no requirement that each symptom meet the duration
requirement, what is required at step two is that the totality of Plaintiff’s condition related
to a particular impairment or combination of impairments must have more than a minimal
effect on his ability to perform basic work activities for at least 12 months. The ultimate
question the ALJ was tasked to answer was whether Plaintiff’s severe impairment(s) also
produced an “inability to engage in any substantial gainful activity” which lasted or was
expected to last for at least 12 months. Barnhart v. Walton, 535 U.S. 212, 217 (2002)
12

(quoting 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A)). But, that question was not
answered at step two of the sequential evaluation process in this case.
The ALJ found that Plaintiff’s back impairments--degenerative disc disease and
sciatica--were “severe” and therefore met the duration requirement. He also found that
certain symptoms resulting from those impairments--“the claimant’s back problems”-come and go. As Plaintiff tacitly admits, the record evidence supports the finding that
Plaintiff’s back problems come and go. (Pl. Br. 9) (“there is evidence in the record to
support the notion that plaintiff had periods when his back pain was exacerbated”). He
shows no error in the ALJ’s first reason to discount Dr. Neblett’s opinion.
Plaintiff argues that the ALJ’s second reason (there were periods when Plaintiff
worked at SGA) is erroneous because those periods were outside the adjudicative period,
and also because such a finding is precluded by the ALJ’s step one finding that Plaintiff
had not engaged in SGA since his alleged onset date. (Pl. Br. 10). The periods of SGA to
which the ALJ referred in his decision occurred in 2004 and in the fourth quarter of 2008.
(R. 651) (citing Exs. C1E, C7D (R. 115-26, 794-96)). Since Plaintiff alleges disability
beginning May 9, 2002, these periods are squarely within the adjudicative period,
contrary to Plaintiff’s argument. Moreover, although the ALJ did not decide the case at
step one of the sequential evaluation process, his step one finding does not preclude
reliance on these periods of work as evidence that detracts from Dr. Neblett’s opinion. In
his step one analysis, the ALJ specifically noted, “The record shows that the claimant had
earnings in excess of the substantial gainful activity level in 2004 and the fourth quarter
13

of 2008.” (R. 650-51) (citations omitted). Contrary to Plaintiff’s argument, these periods
constitute work at the level of SGA both before and after Dr. Neblett’s September 2007
opinion, and as such are material to consideration whether Plaintiff can work now and are
a good reason for assigning little weight to Dr. Neblett’s opinion.
Finally, Plaintiff argues that Dr. Neblett “was aware of plaintiff’s flares of back
pain, and nonetheless assessed” limitations, so the ALJ’s finding that the opinion was not
consistent with the longitudinal record is erroneous. (Pl. Br. 10). Plaintiff also implies
that the ALJ’s decision to discount Dr. Neblett’s opinion is foreclosed by the earlier
decision of the district court. Id.
The court discussed the issue of “flares” of back pain earlier and will not address it
again. Moreover, the decision to discount Dr. Neblett’s opinion is not foreclosed by the
court’s earlier decision. In that decision, the court found that each of the reasons given by
ALJ Burbank were an insufficient basis to accord no weight to Dr. Neblett’s opinion. (R.
717-21). Here, ALJ Harty did not accord no weight to the opinion, he accorded it little
weight. His reasons to discount Dr. Neblett’s opinion are completely different than the
reasons given by ALJ Burbank. Moreover, as discussed above, each reason is legitimate
and is supported by substantial record evidence. Even assuming the court’s earlier
remand order has a preclusive effect in the proceedings on remand, ALJ Harty’s decision
is not inconsistent with that order. Plaintiff has shown no error in the ALJ’s evaluation of
Dr. Neblett’s opinion.
IV.

The Credibility Determination
14

Plaintiff argues that the ALJ’s credibility determination is not supported by
substantial record evidence. He argues that the ALJ erred: in finding that Plaintiff has
not received the type of treatment one would expect for an individual with disabling pain,
in finding that being in and out of jail suggests Plaintiff is more active than he alleges, in
finding an inconsistency in Plaintiff’s testimony that an additional back surgery had less
than a fifty percent chance of success, and in failing to balance his discussion of
Plaintiff’s criminal activities with a discussion of his “new way of life.” (Pl. Br. 13-17).
The Commissioner argues that “the ALJ partially credited Plaintiff’s testimony, and to the
extent he discounted it, he discussed his reasons in detail, citing to specific facts in the
record and inconsistencies in Plaintiff’s statements and testimony.” (Comm’r Br. 13).
The Commissioner then points to record evidence which, in his view, supports the ALJ’s
credibility determination, and argues that the determination should be affirmed because it
is supported by substantial record evidence. Id. 14-20.
The decision reveals that the ALJ made an extensive evaluation of the credibility
of Plaintiff’s allegations of symptoms and provided numerous reasons for discounting his
credibility. (R. 653-56). He found that Plaintiff’s allegations “are not credible to the
extent they are inconsistent with the above residual functional capacity assessment” (R.
653) (emphasis added), but he also found that Plaintiff’s “allegations of back pain are
credible to the extent that he is reduced to work at the light exertional level with the
additional limitations set out in the residual functional capacity above.” (R. 655)
(emphasis added). The ALJ discounted Plaintiff’s allegations because disabling pain is
15

not supported by the objective evidence and his daily activities are more limited than
suggested by the medical evidence and examination findings, because his treatment is not
what one would expect for pain of disabling severity, because he asserted less than a 50
percent chance of successful back surgery whereas the most recent treatment notes
establish that he had a 70 percent chance of success, because he testified that he stopped
all pain medication and controls his pain with exercise and a back brace, because he may
engage in drug seeking behavior, because he was reported as a “deceptive historian,”
because he has been in and out of jail thereby suggesting greater activity than alleged, and
because he has a felony conviction involving moral turpitude which suggests his
testimony should not be fully credited in making judicial decisions. (R. 655-56).
An ALJ’s credibility determinations are generally treated as binding on review.
Talley v. Sullivan, 908 F.2d 585, 587 (10th Cir. 1990); Broadbent, 698 F.2d at 413.
“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
(“deference is not an absolute rule”).
Plaintiff must demonstrate the 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
16

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)
(same). Therefore, where the ALJ has reached a reasonable conclusion that is supported
by substantial evidence in the record, the court will not reweigh the evidence and reject
that conclusion even if it might have reached a contrary conclusion in the first instance.
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).
As the Commissioner argues, the ALJ here partially credited Plaintiff’s allegations
regarding back pain, but discounted much of Plaintiff’s remaining allegations. Moreover,
He explained his reasons for discounting the allegations, and closely and affirmatively
linked his findings to substantial record evidence. With but one exception which the
court will discuss shortly, Plaintiff acknowledges as he must the record evidence
supporting the ALJ’s credibility findings, but argues that the ALJ gave that evidence too
much weight, and should have given greater weight to other evidence, or should have
recognized subtle nuances in the evidence which would lead to a different credibility
conclusion. Such argument merely asks the court to reweigh the evidence and to
substitute its judgment for that of the Commissioner, an action which it may not take.
17

The one exception Plaintiff makes in asking the court to reweigh the evidence
involves the ALJ’s finding that Plaintiff “has not received the type of medical treatment
one would expect for an individual with disabling pain.” (R. 655). Plaintiff notes that he
had two prior back surgeries and argues that “the ALJ failed to cite to any medical
evidence that plaintiff did not . . . have the medical treatment one would expect from a
disabled person.” (Pl. Br. 13-14). He argues that without medical evidence supporting
his conclusion “the ALJ overstepped his bounds into the province of medicine.” Id. at 14
(citing Miller v. Chater, 99 F.3d 972, 977 (10th Cir. 1996)). He asserts that although it is
the ALJ’s duty “to weigh conflicting evidence and make disability determinations; he is
not in a position to render a medical judgment. Id. (citing Bolan v. Barnhart, 212 F.
Supp. 2d 1248, 1262 (D. Kan. 2002).
Plaintiff’s argument misses the point of the ALJ’s decision. The ALJ did not find
that Plaintiff did not “have the medical treatment one would expect from a disabled
person,” as alleged by Plaintiff. Rather, he found that Plaintiff did not have the “medical
treatment one would expect for an individual with disabling pain.” The ALJ’s finding is
not a “medical judgment” as argued by Plaintiff but, in context, is a practical, commonsense observation that someone in disabling pain would show it more in clinical
evaluations than is demonstrated in this record, and would seek much more extensive
treatment than merely controlling his pain with exercise and with use of a back brace. It
is an acknowledgment of other facts upon which the ALJ specifically relied in the
decision, that “Dr. Moeller considered the likelihood of malingering” (R. 654), and that
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Plaintiff was a deceptive historian. (R. 656). While it is true that an ALJ may not make
medical judgments and may not overstep his bounds into the province of medicine to
substitute his medical judgment for that of a physician, that is not what happened in this
case. Plaintiff has shown no error in the decision at issue here.
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.
Dated this 21st day of September 2012, at Kansas City, Kansas.

s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge

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