Kindrick v. Social Security Administration, Commissioner of

Filing 19

MEMORANDUM AND ORDER. The judgment of the Commissioner is affirmed pursuant to sentence four of 42 U.S.C. § 405(g). See attached for more details. Signed by U.S. District Senior Judge Sam A. Crow on 2/27/2013. (bmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BOBBY RAY KINDRICK,
Plaintiff,
vs.

Case No. 12-1061-SAC

CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,1
Defendant.

MEMORANDUM AND ORDER
This is an action reviewing the final decision of the
Commissioner of Social Security denying the plaintiff disability
insurance benefits and supplemental security income payments.
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 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

1

Carolyn W. Colvin became Acting Commissioner of Social Security on February 14, 2013, replacing Michael J.
Astrue, the former Commissioner of Social Security.
1

scintilla, but less than a preponderance, and is satisfied by
such evidence that a reasonable mind might accept to support the
conclusion.

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.

Ray 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.
1992).

Graham v. Sullivan, 794 F. Supp. 1045, 1047 (D. Kan.

The 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).
2

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 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 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.”

At 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.
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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

the analysis.
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.

Before going from step three to step four, the agency will
assess the claimant’s residual functional capacity (RFC).

This

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);

416.920(a)(4), 416.920(e,f,g).
II.

History of case
On September 29, 2010, administrative law judge (ALJ)

Alison K. Brookins issued her decision (R. at 9-21).

Plaintiff

alleges that he has been disabled since January 17, 2004 (R. at
9).

Plaintiff is insured for disability insurance benefits
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through December 31, 2013 (R. at 11).

At step one, the ALJ

found that plaintiff has not engaged in substantial gainful
activity since plaintiff’s alleged onset date (R. at 11).

At

step two, the ALJ found that plaintiff had the following severe
impairments: mechanical low back pain, obesity, right cubital
tunnel syndrome, and moderate degenerative disc disease of the
cervical spine with possible cervical radiculopathy (R. at 11).
At step three, the ALJ determined that plaintiff’s impairments
do not meet or equal a listed impairment (R. at 14).

After

determining plaintiff’s RFC (R. at 15), the ALJ determined at
step four that plaintiff is unable to perform any past relevant
work (R. at 19).

At step five, the ALJ determined that

plaintiff could perform other jobs that exist in significant
numbers in the national economy (R. at 19-20).

Therefore, the

ALJ concluded that plaintiff was not disabled (R. at 20-21).
III.

Did the ALJ err in her 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.

However,

findings as to credibility should be closely and affirmatively
linked to substantial evidence and not just a conclusion in the
guise of findings.
Cir. 1995).

Kepler v. Chater, 68 F.3d 387, 391 (10th

Furthermore, the ALJ cannot ignore evidence

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favorable to the plaintiff.

Owen v. Chater, 913 F. Supp. 1413,

1420 (D. Kan. 1995).
When analyzing evidence of pain, the court does not require
a formalistic factor-by-factor recitation of the evidence.

So

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.

White v.

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).

An

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).

It 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.
2004).

Hardman v. Barnhart, 362 F.3d 676, 679 (10th Cir.

On the 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.
910.

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White, 287 F.3d at 909-

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).
the sufficiency of the evidence.

The court can only review

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 de novo.

Oldham v. Astrue, 509

F.3d 1254, 1257-1258 (10th Cir. 2007).
In her decision, the ALJ provided a well-written, thorough
and detailed discussion of plaintiff’s credibility.

The ALJ

specifically noted inconsistent statements by the plaintiff,
conservative medical treatment and periods of no medication,
work after the alleged onset date, and the lack of any
restrictions on plaintiff’s ability to work by any treatment
provider as factors for discounting plaintiff’s credibility (R.
at 16).

After reviewing the record, the court finds that the
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ALJ’s credibility determination is linked to specific findings
of fact fairly derived from the record.
Plaintiff argues that the ALJ erred by failing to consider
plaintiff’s financial situation when discrediting his complaints
for not taking pain medication (Doc. 12 at 10).

Plaintiff

stated that he had prescriptions for hydrocodone and Xanax, but
was unable to fill them because of lack of insurance and funds
(R. at 282).

However, the ALJ never mentioned this information

in her decision.

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).

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While failure to seek treatment may be probative of
severity, the ALJ has a basic duty of inquiry to ask the
plaintiff why he/she did not seek treatment, or why it was
sporadic.

Kratochvil v. Barnhart, 2003 WL 22176084 at *5 (D.

Kan. Sept. 17, 2003).

Similarly, SSR 96-7p states the

following:
On the other hand, the individual's
statements may be less credible if the level
or frequency of treatment is inconsistent
with the level of complaints, or if the
medical reports or records show that the
individual is not following the treatment as
prescribed and there are no good reasons for
this failure. However, the adjudicator must
not draw any inferences about an
individual's symptoms and their functional
effects from a failure to seek or pursue
regular medical treatment without first
considering any explanations that the
individual may provide, or other information
in the case record, that may explain
infrequent or irregular medical visits or
failure to seek medical treatment. The
adjudicator may need to recontact the
individual or question the individual at the
administrative proceeding in order to
determine whether there are good reasons the
individual does not seek medical treatment
or does not pursue treatment in a consistent
manner. The explanations provided by the
individual may provide insight into the
individual's credibility.

SSR 96-7p, 1996 WL 374186 at *7 (emphasis added); cited with
approval in Madron v. Astrue, 311 Fed. Appx. 170, 178 (10th Cir.
Feb. 11, 2009).

The fact than an individual may be unable to

afford treatment and may not have access to free or low-cost
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medical service is a legitimate excuse.
at 178; SSR 96-7p, 1995 WL 374186 at *8.

Madron, 311 Fed. Appx.
The ALJ clearly should

have considered plaintiff’s statement that he lacked insurance
and funds, and was therefore unable to fill certain
prescriptions.
Although the court has some concerns with the ALJ’s failure
to consider plaintiff’s statement that she lacked insurance and
funds to pay for certain prescriptions, after examining the
record as a whole, including the fact that the ALJ’s RFC
findings are supported by substantial evidence in the record,
the court finds that the balance of the ALJ’s credibility
analysis is nonetheless closely and affirmatively linked to
substantial evidence.

Beckett v. Astrue, Case No. 10-1370-SAC

(Dec. 6, 2011; Doc. 12 at 17-18)(Although the court had some
concern 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); Williams v. Astrue, Case No. 09-1341-SAC (D. Kan.
Oct. 26, 2010; Doc. 19 at 17-18)(same); see Branum v. Barnhart,
385 F.3d 1268, 1274 (10th Cir. 2004)(“While we have some
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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. 09-1207MLB (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 sentence four of 42 U.S.C.
§ 405(g).

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Dated this 27th day of February, 2013, Topeka, Kansas.

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

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