Garrison 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 4/8/2013. (ses)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CAROLYN W. COLVIN,1
Acting Commissioner of Social Security,
MEMORANDUM AND ORDER
Plaintiff seeks review of a decision of the Commissioner of Social Security
(hereinafter Commissioner) denying Social Security disability benefits (SSD) under
sections 216(i) and 223 of the Social Security Act. 42 U.S.C. §§ 416(i) and 423
(hereinafter the Act). Finding no error in the Commissioner’s final decision, the court
ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C.
§ 405(g) AFFIRMING that decision.
On February 14, 2013, Carolyn W. Colvin became Acting Commissioner of
Social Security. In accordance with Rule 25(d)(1) of the Federal Rules of Civil
Procedure, Ms. Colvin is substituted for Commissioner Michael J. Astrue as the
defendant. In accordance with the last sentence of 42 U.S.C. § 405(g), no further action
Plaintiff applied for SSD on January 28, 2009, alleging disability beginning
January 1, 2006. (R. 13, 177-78).2 The application was denied initially and upon
reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge
(ALJ). (R. 13, 68-69, 91-92). Plaintiff’s request was granted, and Plaintiff appeared with
a representative (who is also an attorney) for a hearing before ALJ George M. Bock on
May 11, 2011. (R. 13, 25-26). At the hearing, testimony was taken from a medical
expert (hereinafter ME), from Plaintiff, and from a vocational expert. (R. 13, 25-67).
On July 11, 2011 ALJ Bock issued his decision regarding the period from January
1, 2006 through Plaintiff’s date last insured, March 31, 2009 (R. 13-24), finding that
Plaintiff had severe impairments including fibromyalgia, chronic obstructive pulmonary
disease (COPD), depression, anxiety, history of substance abuse, and history of right
cubital nerve impingement. (R. 15). He also found that Plaintiff’s alleged hand
impairments were not medically determinable impairments in the circumstances of this
case. (R. 16). He determined that during the relevant period Plaintiff did not have an
impairment or combination of impairments that met or medically equaled the severity of
any impairment in the Listing of Impairments--20 C.F.R. Part 404, Subpt. P, App. 1. Id.
The record shows that Plaintiff, through her representative, amended her alleged
onset date to July 1, 2007, in a statement dated April 13, 2010. (R. 179). The decision,
on the other hand, states that Plaintiff’s alleged onset date is January 1, 2006, and neither
party addressed this ambiguity in her brief. Because the court affirms the ALJ’s
determination that Plaintiff was not disabled at any time from January 1, 2006 through
Plaintiff’s date last insured, March 31, 2009, it need not address the issue of Plaintiff’s
alleged onset date.
He summarized the record evidence, Plaintiff’s allegations, and the medical opinions;
accorded weight to the medical opinions; evaluated the credibility of Plaintiff’s
allegations of symptoms; and assessed Plaintiff’s residual functional capacity (RFC). (R.
The ALJ determined that Plaintiff had the capacity to perform a range of light
work limited to only occasionally climbing stairs, bending, crouching, and crawling; that
she could never climb ladders, ropes, and scaffolds, or interact with the public while
performing job duties; and that she must avoid concentrated exposure to cold, wetness,
humidity, and airborne irritants. (R. 17). Based upon the RFC assessed, the ALJ
determined that Plaintiff was unable to perform any of her past relevant work, but that
when also considering her age, education, and work experience there were a significant
number of jobs in the economy that Plaintiff could have performed such as an electrical
assembler, a price marker, and a folding machine operator. (R. 23-24). Therefore, the
ALJ determined that Plaintiff was not disabled within the meaning of the Act during the
relevant period, and denied her application for benefits. (R. 24).
Plaintiff sought, but was denied, Appeals Council review of the ALJ’s decision.
(R. 1-5, 175). 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 of that decision. (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 she has
a physical or mental impairment which prevents her 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. 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 she is not
only unable to perform her past relevant work, but cannot, considering her 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).
The Commissioner uses a five-step sequential process to evaluate disability. 20
C.F.R. § 404.1520 (2011);3 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 she has a severe
impairment(s), and whether the severity of her impairment(s) meets or equals the severity
Because the Commissioner’s decision in this case was issued on July 11, 2011, all
citations to the Code of Federal Regulations in this opinion refer to the 2011 edition of 20
C.F.R. Parts 400 to 499, revised as of April 1, 2011, unless otherwise indicated.
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 the
claimant’s RFC. 20 C.F.R. § 404.1520(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 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 there are jobs in the economy
within Plaintiff’s RFC. Id.; Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).
Plaintiff presents four issues asserting error, all of which touch upon the ALJ’s
RFC assessment. She claims that the ALJ did not perform a proper credibility analysis;
that the ALJ erroneously relied upon the opinion of the non-examining ME, Dr. Winkler,
over that of her treating physician, Dr. Katz; that the ALJ erroneously accorded “very
little weight” to Dr. Katz’s opinion; and that the ALJ’s narrative discussion of his RFC
assessment inadequately explains how the record evidence supports the limitations
assessed. The Commissioner argues that the ALJ properly evaluated the credibility of
Plaintiff’s allegation of symptoms, properly considered the medical opinions, and
provided a proper narrative discussion of his RFC assessment. As did the Commissioner
(and the plaintiff in her Reply Brief), the court will address the ALJ’s consideration of the
medical opinions as a single unit. Moreover, because the narrative discussion
requirement applies to RFC assessment as a whole, the court will address that issue last.
Plaintiff argues that the ALJ erred by according greater weight to the medical
opinion of a non-examining ME, Dr. Winkler, than to that of her treating physician, Dr.
Katz. She argues that “[t]he ALJ failed to provide the required ‘specific, legitimate
reasons’ for rejecting” Dr. Katz’s opinion (Pl. Br. 19), failed to evaluate Dr. Katz’s
opinion in accordance with the regulatory factors, and failed to explain how the record
evidence supports the relative weight accorded to these two medical opinions. Id. at 2021. Specifically, she argues that the ALJ failed to explain how the ME’s opinion was
supported by the record evidence more than the opinion of the treating physician. Id. at
17-18. The Commissioner argues that the ALJ properly discounted Dr. Katz’s opinion
because it was inconsistent with the other record evidence (Comm’r Br. 10) and because
the doctor’s course of treatment was not consistent with the limitations expressed in his
opinion. Id. at 13. The Commissioner points to record evidence, including Dr. Winkler’s
testimony, which in her view supports the reasons given for discounting Dr. Katz’s
opinion. (Comm’r Br. 10-14).
A treating physician’s opinion about the nature and severity of the claimant’s
impairments should be given controlling weight by the Commissioner if well supported
by clinical and laboratory diagnostic techniques and if it is not inconsistent with the other
record evidence. Watkins v. Barnhart, 350 F.3d 1297, 1300-01 (10th Cir. 2003); 20
C.F.R. § 404.1527(d)(2). When a treating physician’s opinion is not given controlling
weight, the ALJ must nonetheless specify what lesser weight he assigned the treating
physician’s opinion. Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004).
A treating source opinion which is not entitled to controlling weight is “still
entitled to deference and must be weighed using all of the factors provided in 20 C.F.R.
§ 404.1527.” Watkins, 350 F.3d at 1300. When the Commissioner does not give
controlling weight to a treating physician’s opinion on the nature and severity of the
claimant’s impairment(s), the Commissioner will evaluate all medical opinions in
accordance with those regulatory factors. 20 C.F.R. § 404.1527(d)(2-6). Those factors
are: (1) length of treatment relationship and frequency of examination; (2) the nature and
extent of the treatment relationship, including the treatment provided and the kind of
examination or testing performed; (3) the degree to which the physician’s opinion is
supported by relevant evidence; (4) consistency between the opinion and the record as a
whole; (5) whether or not the physician is a specialist in the area upon which an opinion
is rendered; and (6) other factors brought to the ALJ’s attention which tend to support or
contradict the opinion. Watkins, 350 F.3d at 1301; 20 C.F.R. § 404.1527(d)(2-6); see
also Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001) (citing Goatcher v.
Dep’t of Health & Human Servs., 52 F.3d 288, 290 (10th Cir. 1995)). However, the court
will not insist on a factor-by-factor analysis so long as the “ALJ’s decision [is]
‘sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator
gave to the treating source’s medical opinion and the reasons for that weight.’” Oldham v.
Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007) (quoting Watkins, 350 F.3d at 1300).
After considering the factors, the ALJ must give good reasons in his decision for
the weight he ultimately assigns the opinions. If the ALJ rejects a treating source
opinion, he must give specific, legitimate reasons for doing so. Watkins, 350 F.3d at
As noted above, the ALJ in his decision summarized the record evidence,
Plaintiff’s allegations, and the medical opinions; accorded weight to the medical opinions;
evaluated the credibility of Plaintiff’s allegations of symptoms; and assessed Plaintiff’s
RFC. (R. 17-22). The ALJ summarized Dr. Winkler’s testimony that Plaintiff could
perform a range of light work limited by an inability to climb ladders, ropes, and
scaffolds, and with the ability to only occasionally climb stairs, bend, crouch, or crawl.
(R. 20). He noted Dr. Winkler’s opinion that Plaintiff must avoid unprotected heights, or
concentrated exposure to cold, wetness, humidity, or airborne irritants. Id. He stated that
he gave Dr. Winkler’s opinion “great weight,” and he adopted her limitations as his RFC
assessment. Id. The ALJ also summarized Dr. Katz’s testimony, noting that Dr. Katz
opined that Plaintiff was unable to sit, to stand, or to walk during an eight-hour workday.
Id. He noted that this opinion contrasts “sharply with the other evidence of record,” and
that the opinion is inconsistent with the course of treatment provided by Dr. Katz. Id.
For these reasons, he accorded Dr. Katz’s opinion “very little weight.” Id.
Plaintiff asserts the reasons given by the ALJ to discount Dr. Katz’s opinion are
insufficient because Dr. Katz treated Plaintiff fifteen times over the course of two years,
because the ALJ failed to cite specific evidence which was contrary to Dr. Katz’s opinion,
because the ALJ did not apply the regulatory factors, and because the opinion of a
treating source should be given greater weight than the opinion of a non-examining
source. The court does not agree.
The court notes that Dr. Winkler testified that she found Dr. Katz’s opinion that
Plaintiff could not sit five or ten minutes and could not use her hands “remarkably not
supported in the record,” and stated that even someone with severe rheumatoid arthritis
would not be expected to be so limited. (R. 35-36). The ALJ found that Dr. Katz’s
opinion contrasted sharply with the other record evidence. (R. 20). The court agrees with
both of these characterizations. Dr. Katz’s opinion reveals an individual who is unable to
do even the most basic of activities. (R. 511-12) (cannot sit, stand, or walk; cannot
perform simple grasping with either hand; and cannot push or pull). However, the record
evidence does not reflect limitations approaching such severity. Moreover, the court’s
review of Dr. Katz’s treatment notes does not reflect such limitations.
Further, the record supports the ALJ’s finding that Dr. Katz’s course of treatment
of Plaintiff was not consistent with such severe limitations. Dr. Katz treated Plaintiff
once a month for six months during the relevant period before her date last insured. (R.
434-43) (Oct. 28 2008, Nov. 25 2008, Dec. 24 2008, Jan. 21 2009, Feb. 18 2009, and
Mar. 13 2009). As the ALJ’s summary suggests, Dr. Katz’s treatment notes from that
period reveal an intake evaluation, repeated recommendations that Plaintiff exercise three
times a week and that she engage in swimming three times a week and stretch every day,
all to decrease her fibromyalgia pain. They reveal management of Plaintiff’s
fibromyalgia pain with medication. At her second office visit, Plaintiff was begun on a
course of Mirapex for her pain. (R. 438). At the third office visit, the Mirapex was
increased. (R. 437). At the fourth office visit, January 21, 2009, Plaintiff stated that her
“pain levels have improved significantly since being on Mirapex,” and the doctor also
recommended exercising at a particular exercise facility--the Lemons Center. (R. 436).
At the fifth office visit, February 18, 2009, Plaintiff stated “that she is doing very well
with the Mirapex,” and she was told by Dr. Katz “that she must exercise at least three
times a week.” (R. 435). At her final visit during the relevant period on March 13, 2009,
Plaintiff reported that her pain had increased, and “that the Mirapex helps, but it just
needs to be at a higher dose.” (R. 434). Dr. Katz increased the dosage and included this
note in his records, “She was told again that she must exercise. She was told that going to
the Lemons Center would be an excellent idea for physical activity as well as some
psychological help. She does understand this, and she will be looking into this.” (R.
434). This is the picture of a relatively conservative course of treatment for a patient
whose pain is being managed with medication, and who is being encouraged to do more,
not less. This does not present the picture of someone who is severely limited in all her
Plaintiff objects to the ALJ’s characterization of this treatment record, noting that
she consistently reported being in pain even when she stated that the medication was
helping. Plaintiff’s argument misses the point. The ALJ did not find that Plaintiff does
not experience pain. Rather, the ALJ correctly noted that “the inability to work without
some pain or discomfort is not necessarily disabling under the Act.” (R. 20). And, as the
Commissioner’s brief suggests, “[D]isability requires more than mere inability to work
without pain. To be disabling, pain must be so severe, by itself or in conjunction with
other impairments, as to preclude any substantial gainful employment.” Gossett, 862
F.2d at 807 (quoting Brown v. Bowen, 801 F.2d 361, 362-63 (10th Cir. 1986)).
Plaintiff’s argument that the ALJ did not appropriately address the regulatory
factors for weighing medical opinions fares no better. As the court noted above, it will
not insist on a factor-by-factor analysis in evaluating medical opinions so long as the
“ALJ’s decision [is] ‘sufficiently specific to make clear to any subsequent reviewers the
weight the adjudicator gave to the treating source’s medical opinion and the reasons for
that weight.’” Oldham, 509 F.3d at 1258 (quoting Watkins, 350 F.3d at 1300). That
standard is met here. The ALJ acknowledged that Dr. Katz is a treating physician, and he
summarized Dr. Katz’s treatment during the time period relevant here. He explained his
reasons for according “very little weight” to Dr. Katz’s opinion and, as discussed above,
those reasons are supported by substantial record evidence. Plaintiff’s argument that the
ALJ failed to cite specific evidence which was contrary to Dr. Katz’s opinion ignores the
ALJ’s summary of the evidence, and erroneously expects that each time an ALJ states a
finding he will once again state and cite the evidence supporting that finding even if the
evidence has been previously discussed in the decision.
Plaintiff is correct that the opinion of a treating source is generally accorded
greater weight than is the opinion of a non-examining source who has only reviewed the
record evidence--such as Dr. Winkler. However, in a case such as this where the ALJ
properly determined that the treating source opinion was worthy of “very little weight,”
the court finds that the ALJ properly explained why Dr. Winkler’s opinion outweighed
the opinion of Dr. Katz. The ALJ found that Dr. Winkler’s opinion was both well
supported by and not inconsistent with the other substantial record evidence, and the court
finds that to be true. Although Plaintiff argues that the ALJ did not explain why the
evidence supports Dr. Winkler’s opinion, she does not point to any evidence other than
Dr. Katz’s opinion which is contrary to Dr. Winkler’s opinion. The court will not make
Plaintiff’s case for her. Moreover, Plaintiff once again ignores the rest of the decision in
which the ALJ summarized the record evidence, and she ignores the fact that the evidence
supports Dr. Winkler’s opinion. The court finds no error in the weight the ALJ accorded
to Dr. Katz’s opinion or to Dr. Winkler’s opinion.
The Credibility Determination
Plaintiff claims error in the credibility determination because the ALJ erred in
weighing Plaintiff’s activities of daily living, and did not properly evaluate Plaintiff’s
level of pain. She argues that the ALJ did not affirmatively link substantial evidence to
the credibility finding. The Commissioner argues that the ALJ applied the correct legal
standard to evaluate the credibility of Plaintiff’s allegations of symptoms resulting from
her impairments, that the ALJ considered appropriate factors in his evaluation, and that
the record evidence supports the ALJ’s findings.
The Tenth Circuit has explained the analysis for considering subjective testimony
regarding symptoms. Thompson v. Sullivan, 987 F.2d 1482, 1488 (10th Cir. 1993)
(dealing specifically with pain).
A claimant’s subjective allegation of pain is not sufficient in itself to
establish disability. Before the ALJ need even consider any subjective
evidence of pain, the claimant must first prove by objective medical
evidence the existence of a pain-producing impairment that could
reasonably be expected to produce the alleged disabling pain. This court
has stated: The framework for the proper analysis of Claimant’s evidence
of pain is set out in Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987). We
must consider (1) whether Claimant established a pain-producing
impairment by objective medical evidence; (2) if so, whether there is a
“loose nexus” between the proven impairment and the Claimant’s
subjective allegations of pain; and (3) if so, whether, considering all the
evidence, both objective and subjective, Claimant’s pain is in fact disabling.
Thompson, 987 F.2d at 1488(citations and quotation omitted).
In evaluating symptoms, the court has recognized a non-exhaustive list of factors
which should be considered. Luna, 834 F.2d at 165-66; see also 20 C.F.R.
§ 404.1529(c)(3). These factors include:
the levels of medication and their effectiveness, the extensiveness of the
attempts (medical or nonmedical) to obtain relief, the frequency of medical
contacts, the nature of daily activities, subjective measures of credibility
that are peculiarly within the judgment of the ALJ, the motivation of and
relationship between the claimant and other witnesses, and the consistency
or compatibility of nonmedical testimony with objective medical evidence.
Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (quoting Thompson, 987 F.2d at
1489. The Commissioner has promulgated regulations suggesting relevant factors to be
considered in evaluating credibility which overlap and expand upon the factors stated by
the court: Daily activities; location, duration, frequency, and intensity of symptoms;
factors precipitating and aggravating symptoms; type, dosage, effectiveness, and side
effects of medications taken to relieve symptoms; treatment for symptoms; measures
plaintiff has taken to relieve symptoms; and other factors concerning limitations or
restrictions resulting from symptoms. 20 C.F.R. § 404.1529(c)(3)(i-vii).
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 (“deference is not an absolute rule”). “However,
‘[f]indings as to credibility should be closely and affirmatively linked to substantial
evidence and not just a conclusion in the guise of findings.’” Wilson, 602 F.3d at 1144
(quoting Huston v. Bowen, 838 F.2d 1125, 1133 (10th Cir. 1988)); Hackett, 395 F.3d at
The decision reveals that the ALJ applied the appropriate framework, determined
that Plaintiff’s impairments could cause the symptoms alleged and that there is a nexus
between Plaintiff’s impairments and the symptoms alleged, and consequently considered
all of the evidence in order to evaluate the credibility of her allegations. (R. 18, 20). The
ALJ found that Plaintiff’s allegations of symptoms are not credible (R. 18), and
specifically found “that her symptoms are not of such severity, persistence and intensity
as to preclude all work activity.” (R. 20).
The specific reasons given by the ALJ for his credibility finding were: (1) that her
subjective complaints “are inconsistent with the medical record as discussed throughout
this decision” (R. 18); (2) Plaintiff did not consistently follow Dr. Ruhlman’s or Dr.
Katz’s suggested exercise regimen (R. 19); (3) Plaintiff’s “symptoms were largely
controlled by medications, id.;” (4) Plaintiff was more active in her activities of daily
living than would be expected if her allegations were credible (R. 20); (5) Plaintiff was
arrested for altering a Lortab prescription (R. 21); and (6) Plaintiff’s inability to perform
her past relevant work is not probative regarding her ability to work at lower exertional
levels. (R. 22).
With regard to Plaintiff’s daily activities, Plaintiff argues that the ALJ’s evaluation
was not based on all of the record evidence, and that an ALJ may not ignore evidence
favorable to Plaintiff when making a credibility analysis. (Pl. Br. 22) (citing Owens v.
Chater, 913 F. Supp. 1413, 1420 (D. Kan. 1995)). However, the only evidence which
Plaintiff alleges was ignored by the ALJ were portions of her statements and of her
testimony. While it is true that the Commissioner may not ignore evidence favorable to a
finding of disability, it is intuitively obvious to even the most casual observer that an ALJ
need not accept Plaintiff’s statements or testimony at face value when considering the
credibility of those very allegations. The very idea is preposterous, for rather than
ignoring Plaintiff’s statements and testimony in such a situation, the ALJ has specifically
recognized them and is considering what weight they should be accorded. (R. 18)
(recognizing Plaintiff’s reports of difficulty walking, difficulty bending, difficulty with
concentration, constant fatigue, feelings of sadness, etc.). To the extent Plaintiff may be
arguing that it was error for the ALJ to fail to state each and every limitation Plaintiff
reported, that is not the law. An ALJ is not required to discuss every piece of evidence.
Rather, in addition to discussing the evidence supporting his decision, the ALJ must
discuss the uncontroverted evidence he chooses not to rely upon, as well as significantly
probative evidence he rejects. Clifton v. Chater, 79 F.3d 1007, 1009-1010 (10th Cir.
1996). The purpose of the credibility determination is to consider whether Plaintiff’s
allegations of symptoms are uncontroverted or significantly probative.
Plaintiff argues that her daily activities constitute the sporadic performance of
household tasks and, as such, do not establish that she is able to engage in substantial
gainful activity. (Pl. Br. 22) (citing Thompson, 987 F.2d at 1489). While it is true that
the sporadic performance of household tasks does not establish that Plaintiff can engage
in work, “such activities may be considered along with other evidence, in determining
whether a person is entitled to disability benefits.” Gossett, 862 F.2d at 807.
Plaintiff’s argument that the ALJ failed properly to evaluate her level of pain seeks
merely to have the court reweigh the ALJ’s credibility finding and substitute its judgment
for that of the ALJ. It is without authority to engage in such an undertaking. Bowman,
511 F.3d at 1272 (The court may “neither reweigh the evidence nor substitute [its]
judgment for that of the agency.”); accord, Hackett, 395 F.3d at, 1172. Moreover, the
court’s discussion above explains that the inability to work without some pain or
discomfort is not in itself disabling under the Act. Supra, at 12. Plaintiff has shown no
error in the ALJ’s credibility determination.
Plaintiff claims the ALJ’s narrative discussion was insufficient to explain how the
evidence supported his RFC limitations. Here is the heart of Plaintiff’s argument:
The ALJ’s narrative discussion was scant as it consisted of citing four
separate office visits regarding Garrison’s treatment for her fibromyalgia to
support his conclusion that Garrison’s pain due to her fibromyalgia was
largely controlled by medications. As shown, the limited evidence
specifically cited by the ALJ, when evaluated in its entirety, did not support
the ALJ’s conclusion that Garrison’s pain was controlled by her
medications. “The ALJ may not pick and choose partial entries in a
medical record to support his ruling, he must consider the record as a
whole.” Although the ALJ relied on the opinion of the medical expert in
determining the RFC, the medical expert simply testified Garrison did
suffer from fibromyalgia and did not provide further explanation or analysis
concerning the medical records. The ALJ failed to provide the proper
narrative discussion as required by SSR 96-8p when evaluating the medical
evidence and determining Garrison was capable of light exertional work.
(Pl. Br. 15-16) (quoting Schwarz v. Barnhart, 70 F. App’x. 512, 518 (10th Cir. 2003))
As Plaintiff’s Brief suggests, Social Security Ruling (SSR) 96-8p includes
narrative discussion requirements for RFC assessment. West’s Soc. Sec. Reporting Serv.,
Rulings 149 (Supp. 2012). The discussion must cite medical facts and nonmedical
evidence to describe how the evidence supports each conclusion, discuss how the plaintiff
is able to perform sustained work activities, and describe the maximum amount of each
work activity the plaintiff can perform. Id. The discussion must include an explanation
how any ambiguities and material inconsistencies in the evidence were considered and
resolved. Id. It must also include consideration of the credibility of plaintiff’s allegations
of symptoms and consideration of medical opinions regarding plaintiff’s capabilities. Id.
at 149-50. If the ALJ’s RFC assessment conflicts with a medical source opinion, the ALJ
must explain why she did not adopt the opinion. Id. at 150.
The error in Plaintiff’s argument has already been demonstrated in this decision.
As the Commissioner points out, the ALJ’s narrative discussion appears at pages 17-23 of
the record. (Comm’r Br. 15) (pages 5 - 11 of the decision). As discussed herein, the ALJ
considered and explained how Plaintiff is able to perform sustained work activities and
the limitations in the work activities Plaintiff can perform, he also considered and
discussed the credibility of Plaintiff’s allegation of symptoms, and the weight accorded
each medical opinion of record. As the court found above, Plaintiff has shown no error in
the ALJ’s evaluation of the medical opinions or in the ALJ’s evaluation of the credibility
of Plaintiff’s allegation of symptoms. Moreover, Plaintiff points to no evidence which
the ALJ actually ignored. In short, Plaintiff has shown no error in the decision below.
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 8th day of April 2013, at Kansas City, Kansas.
s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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