Groom vs. Social Security Administration, Commissioner of
Filing
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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 6/24/2013. (ses)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BRIAN D. GROOM,
)
)
Plaintiff,
)
)
v.
)
)
)
CAROLYN W. COLVIN,1
Acting Commissioner of Social Security,
)
)
Defendant.
)
________________________________________ )
CIVIL ACTION
No. 12-1172-JWL
MEMORANDUM AND ORDER
Plaintiff, appearing before the court pro se, seeks review of a decision of the
Commissioner of Social Security (hereinafter Commissioner) denying Social Security
disability(SSD) benefits 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.
I.
Background
1
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
is necessary.
Plaintiff applied for SSD benefits on November 23, 2009, alleging disability
beginning April 30, 2009. (R. 10, 118-26). The application was denied initially and upon
reconsideration, whereupon Plaintiff requested a hearing before an Administrative Law
Judge (ALJ). (R. 10, 76-77, 87-89). Plaintiff’s request was granted, and Plaintiff
appeared without representation and testified at a hearing before ALJ Michael R. Dayton
on November 23, 2010. (R. 10, 28-30). At the hearing, testimony was also taken from
Norma Jean King a witness for Plaintiff, and from Cindy Younger a vocational expert.
(R. 10, 28-75).
On January 28, 2011, ALJ Dayton issued his decision applying the
Commissioner’s five-step sequential evaluation process and finding at step one that
although Plaintiff worked after his alleged onset date the work activity did not rise to the
level of substantial gainful activity. (R. 12). He found at step two that Plaintiff has
severe impairments including “degenerative disc disease of the cervical and lumbar spines
and a history of carpal tunnel syndrome.” (R. 12-15). At step three he found that
Plaintiff’s condition does not meet or medically equal any Listed Impairment; and
specifically found that Listing 1.02 is not met because the record does not demonstrate an
“extreme” limitation in the ability to ambulate effectively or to perform fine and gross
movements effectively, and that Listing 1.04 is not met because the record does not
demonstrate “nerve root compression or other findings that would satisfy the criteria of
listing 1.04.” (R. 15-16).
2
Before proceeding to the fourth step of the process, the ALJ assessed Plaintiff’s
residual functional capacity (RFC) and found that he is able to perform a range of light
work as defined in 20 C.F.R. § 404.1567(b), further limited by the need to avoid
concentrated exposure to vibrations and workplace hazards, and the ability to climb
ladders, ropes, and scaffolds only occasionally. (R. 16-20). In assessing RFC, the ALJ
considered the credibility of Plaintiff’s allegations of symptoms resulting from his
impairments, and found his “statements concerning the intensity, persistence and limiting
effects of these symptoms are not credible.” (R. 17). He also considered the medical
opinions, according “little weight” to the non-treating source opinion of Dr. Smith, a
psychologist who examined Plaintiff, and “significant weight” to the non-examining
source opinions of Dr. Wilkinson and Dr. Coleman, a state agency psychological
consultant and medical consultant, respectively, who reviewed the record and opined
regarding Plaintiff’s abilities and limitations. (R. 14, 19). Finally, he considered the
written lay opinions provided by Mr. Dyke and Mr. Geeting and the lay opinion
testimony of Ms. King at the hearing, and accorded them “little weight.” (R. 19-20).
The ALJ found at step four of the sequential evaluation process that Plaintiff has
past relevant work as a sporting goods sales clerk, and that based upon the RFC assessed,
Plaintiff is still able to perform that work, not as he actually performed it, but as it is
generally performed in the national economy. (R. 20.) Although the ALJ might have
ended his analysis at step four and found Plaintiff not disabled on that basis, he continued
his analysis and made an alternative finding at step five that, considering Plaintiff’s age,
3
education, work experience, and RFC, other jobs exist in significant numbers in the
national economy that Plaintiff can perform, represented by light jobs such as an
injection-molding-machine tender or a subassembler; and by sedentary jobs such as a
semiconductor bonder, or a microfilming document preparer. (R. 20-22).
Because he found that there are jobs in the economy that Plaintiff can perform, the
ALJ found that Plaintiff is “not disabled” within the meaning of the Act. (R. 22).
Consequently, he denied Plaintiff’s application for SSD benefits. Id. Plaintiff requested
Appeals Council review of the ALJ’s decision, and submitted briefs and additional
evidence explaining his reasons for disagreeing with the decision. (R. 6). The Council
made the additional evidence a part of the administrative record in the case and
considered it in deciding whether to review the decision. (R. 1-5). Nevertheless, it
determined that the additional evidence “does not provide a basis for changing the
Administrative Law Judge’s decision” (R. 2), found no reason under the rules of the
Social Security Administration to review the decision, and denied Plaintiff’s request for
review. (R. 1). Therefore, the ALJ’s decision became the final decision of the
Commissioner; (R. 1); Blea v. Barnhart, 466 F.3d 903, 908 (10th Cir. 2006); and Plaintiff
now seeks judicial review. (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
4
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 ALJ’s factual findings are supported by substantial evidence in the record
and whether he 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. Richardson v.
Perales, 402 U.S. 389, 401 (1971); 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).
When deciding if substantial evidence supports the ALJ’s decision, the mere fact
that there is evidence in the record 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. [The court] may not displace the agency’s
choice between two fairly conflicting views, even though the court would justifiably have
5
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) (defining substantial evidence as “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion,” and noting that “the
possibility of drawing two inconsistent conclusions from the evidence does not prevent an
administrative agency’s finding from being supported by substantial evidence.”).
Nonetheless, the determination 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 disabled only if he 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. 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. 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).
6
The Commissioner uses a five-step sequential process to evaluate disability. 20
C.F.R. § 404.1520 (2010);2 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). 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 at step four whether, in light of the RFC assessed, claimant can perform his
past relevant work; and at step five whether, when also considering the 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 Plaintiff to prove a disability that prevents performance of
2
Because the Commissioner’s decision was issued on January 28, 2011, all
citations to the Code of Federal Regulations in this opinion refer to the 2010 edition of 20
C.F.R. Parts 400 to 499, revised as of April 1, 2010, unless otherwise indicated.
7
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 that there are jobs in the economy which are
within the RFC assessed. Id.; Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).
Plaintiff claims the ALJ erred at step three in finding that his impairments do not
meet or medically equal the severity of a listed impairment, erred in weighing the
opinions of Dr. Smith and Dr. Coleman, erred in evaluating the credibility of Plaintiff’s
allegations of symptoms resulting from his impairments, and erred in assessing his RFC.3
Plaintiff also “is requesting to use the date 11-23-2008, for a starting date of disability as
opposed to the April 1, 2009, the date the SSA placed on his application for disability as
they [assessed] it from the last day the plaintiff worked full time.” (Pl. Br. 23). The
Commissioner argues that the ALJ properly found that the severity of Plaintiff’s
impairments does not meet or medically equal a Listed Impairment, that he properly
considered the record medical opinions, that he performed a proper credibility evaluation,
and that he properly assessed RFC based upon all of the relevant record evidence. She
also argues that the ALJ properly determined Plaintiff’s alleged onset date and that
Plaintiff should not be allowed to amend his alleged onset date.
3
Because Plaintiff proceeds pro se before this court, the court construes his
pleadings liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Travis v. Park City
Mun. Corp., 565 F.3d 1252, 1254 (10th Cir. 2009). But, the court will not assume the
role of advocate for Plaintiff. Garrett v. Selby Conner Maddux & Janer, 425 F.3d 836,
840 (10th Cir. 2005).
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The court finds no error in the ALJ’s evaluation. It begins it analysis by
considering the ALJ’s step three evaluation and then proceeds to consider the RFC
assessment and the components thereof--evaluation of credibility and evaluation of the
opinion evidence. Because the court finds no error in the Commissioner’s determination
that Plaintiff is not disabled, the alleged date of disability onset is moot, and the court
does not consider the parties’ arguments regarding the alleged onset date of disability.
III.
Step Three Determination
Plaintiff argues that “there is no standard or Appendix or application that shows an
exact list of what ‘meets or equals’ a listed impairment. However, there is a law that
defines what is expected should a non-listed impairment exist. The plaintiff will break
this law down into seven segments to find a point of ‘meet or equal.’” (Pl. Br. 8, ¶34).
He then applies 20 C.F.R. § 404.1505(a) in seven steps to assert that as a matter of law his
condition “meets or equals” a medical condition that precludes light work, and further,
that because he is over fifty years of age, the ALJ should have found him disabled. (Pl.
Br. 9-14). He then argues that in any case his condition meets Listing 1.04 for lumbar
spinal stenosis, spondylolisthesis, or degenerative disc disease “that runs the entire length
of his spine.” Id. at 14-17. The Commissioner argues that the ALJ properly found that
Plaintiff’s condition does not meet or medically equal a Listed Impairment because
although the record demonstrates a diagnosis of cervical spinal stenosis while he was still
working before his alleged onset date, Plaintiff does not point to record evidence showing
a diagnosis of lumbar spinal stenosis, and in any case he cannot show nerve root
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compression or the inability to ambulate effectively as is required to meet Listing 1.04.
(Comm’r Br. 12-13). Further, the Commissioner argues, the ALJ considered and
explained why Plaintiff’s condition does not meet or equal the criteria of other
impairments in Listings 1.02 and 1.04. Id. at 13-14.
A.
Standard for Evaluating Step Three and Listing 1.04
The Commissioner has provided a “Listing of Impairments” which describes
certain impairments that she considers disabling. 20 C.F.R. § 404.1525(a); see also, Pt.
404, Subpt. P, App. 1 (Listing of Impairments). If plaintiff’s condition meets or equals
the severity of a listed impairment, that impairment is conclusively presumed disabling.
Williams, 844 F.2d at 751; see Bowen v. Yuckert, 482 U.S. 137, 141 (1987) (if claimant’s
impairment “meets or equals one of the listed impairments, the claimant is conclusively
presumed to be disabled”). However, plaintiff “has the burden at step three of
demonstrating, through medical evidence, that his impairments ‘meet all of the specified
medical criteria’ contained in a particular listing.” Riddle v. Halter, No. 00-7043, 2001
WL 282344 at *1 (10th Cir. Mar. 22, 2001) (quoting Sullivan v. Zebley, 493 U.S. 521,
530 (1990) (emphasis in Zebley)); see also, Thompson v. Sullivan, 987 F.2d 1482, 1487
(10th Cir. 1993) (burden shifts to Commissioner only at step five). “An impairment that
manifests only some of [the listing] criteria, no matter how severely, does not qualify” to
meet or equal the listing. Zebley, 493 U.S. at 530. Medical equivalence to a listing may
be established by showing that the claimant’s impairment(s) “is at least equal in severity
and duration to the criteria of any listed impairment.” 20 C.F.R. § 404.1526(a). The
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determination of medical equivalence is made without consideration of vocational factors
of age, education, or work experience. 20 C.F.R. § 404.1526(c).
“The [Commissioner] explicitly has set the medical criteria defining the listed
impairments at a higher level of severity than the statutory standard. The listings define
impairments that would prevent an adult, regardless of his age, education, or work
experience, from performing any gainful activity, not just ‘substantial gainful activity.’”
Zebley, 493 U.S. at 532-33 (emphasis in original) (citing 20 C.F.R. § 416.925(a) (1989)).
The listings “streamlin[e] the decision process by identifying those claimants whose
medical impairments are so severe that it is likely they would be found disabled
regardless of their vocational background.” Yuckert, 482 U.S. at 153. “Because the
Listings, if met, operate to cut off further detailed inquiry, they should not be read
expansively.” Caviness v. Apfel, 4 F. Supp. 2d 813, 818 (S.D. Ind. 1998).
Listing 1.04 deals with disorders of the spine:
1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet
arthritis, vertebral fracture) resulting in compromise of a nerve root
(including the cauda equina) or the spinal cord.
With:
A. Evidence of nerve root compression characterized by neuro-anatomic
distribution of pain, limitation of motion of the spine, motor loss (atrophy
with associated muscle weakness or muscle weakness) accompanied by
sensory or reflex loss and, if there is involvement of the lower back,
positive straight-leg raising test (sitting and supine); or
B. Spinal arachnoiditis, confirmed by an operative note or pathology report
of tissue biopsy, or by appropriate medically acceptable imaging,
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manifested by severe burning or painful dysesthesia, resulting in the need
for changes in position or posture more than once every 2 hours; or
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by
findings on appropriate medically acceptable imaging, manifested by
chronic nonradicular pain and weakness, and resulting in inability to
ambulate effectively, as defined in 1.00B2b.
20 C.F.R., Pt. 404, Subpt. P, App. 1.
As Listing 1.04 quoted above reveals, the criteria of Listing 1.04 include (I) a
disorder of the spine, which causes compromise of (1) a nerve root, or (2) the spinal cord,
with either (A) nerve root compression, (B) spinal arachnoiditis, or (C) lumbar spinal
stenosis. The criteria of Listing 1.04A (nerve root compression) are: (i) neuro-anatomic
distribution of pain, (ii) limitation of motion of the spine, (iii) motor loss accompanied by
either (a) sensory loss, or (b) reflex loss, and (if the lower back is involved) (iv) positive
straight-leg raising, either while (a) sitting or (b) supine. Listing 1.04B requires the
presence of spinal arachnoiditis which is (i) confirmed by (a) operative note or (b) tissue
biopsy, and which is (ii) manifested by (a) severe burning or (b) painful dysesthesia, and
which (iii) produces the need to change (a) position or (b) posture more frequently than
every two hours. Finally, the criteria of Listing 1.04C are lumbar spinal stenosis
(i) resulting in pseudoclaudication, (ii) established by findings on appropriate medically
acceptable imaging, (iii) manifested by (a) chronic nonradicular pain and (b) weakness,
and (iv) resulting in inability to ambulate effectively.
B.
Analysis
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First, the court notes that in his primary argument Plaintiff applies the incorrect
law to decide that his condition meets or equals a condition which precludes light work.
As Plaintiff appears to recognize, 20 C.F.R. § 404.1505(a) is the “basic definition of
disability.” 20 C.F.R. 404.1505. Moreover, Plaintiff quotes Soc. Sec. Ruling (SSR) 004p for the proposition that, “To determine whether an individual applying for disability
benefits . . . is disabled, we follow a 5-step sequential evaluation process.” (Pl. Br. 6,
¶26); see also, SSR 00-4p West’s Soc. Sec. Reporting Serv., Rulings 243 (Supp. 2012).
Plaintiff also quotes the five step sequential evaluation process as stated in SSR 00-4p.
(Pl. Br. 6-7). This process was promulgated by the Commissioner in notice and comment
rulemaking codified at 20 C.F.R. 404.1420, and has been accepted as the standard for
evaluating disability in the Tenth Circuit for many years. E.g., Newbold v. Colvin, —
F.3d —, —, 2013 WL 2631530 (10th Cir. 2013); Wilson, 602 F.3d at 1139; Williams,
844 F.2d at 750; Talbot v. Heckler, 814 F.2d 1456, 1460 (10th Cir. 1987).
Whether the claimant’s impairment(s) meets or equals the severity of an
impairment listed in Appendix 1 of Subpart P, of 20 C.F.R. Part 404 is the determination
which is made at step three of the five-step sequential evaluation process. 20 C.F.R.
§ 404.1520(a)(4)(iii). Moreover, the regulations define “medical equivalence” to a listed
impairment in 20 C.F.R. § 404.1526. Although Plaintiff is correct that there is no “exact
list of what ‘meets or equals’ a listed impairment” (Pl. Br. 8), he is mistaken when he
asserts that there is no standard, appendix, or application to make that determination. 20
C.F.R., Pt. 404, Subpt. P, App. 1 contains the Listing of Impairments, which provides the
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criteria to be met for each Listed Impairment, and 20 C.F.R. § 404.1526 explains the
standard to be applied to determine medical equivalence--whether the Listing is equaled.
Therefore, Plaintiff’s attempted application of the definition of disability from 20 C.F.R.
§ 404.1505 to make the step three “meets or equals” determination is erroneous.
Nonetheless, Plaintiff’s appeal to Listing 1.04 is appropriate, and the court will determine
whether the ALJ properly determined that Listing 1.04 is not met or equaled in the
circumstances of this case.
In his step three analysis, the ALJ noted that Plaintiff has musculoskeletal
impairments. (R. 15); see also (R. 12) (finding degenerative disc disease--a back disorder
enumerated in Listing 1.04). But, he found that Plaintiff “does not have an “extreme”
limitation in the ability to ambulate effectively.” Id. He went on to explain that,
“Although the claimant has a severe back impairment, there is no evidence that at any
time the claimant has been unable to walk without the use of a walker, canes, or crutches
or that he has an extreme limitation in the ability to ambulate effectively.” Id. With
regard to Listing 1.04A (nerve root compression), the ALJ noted that listing was not met
because Plaintiff “does not have one of the listed disorders . . . in conjunction with
evidence of nerve root compression characterized by neuro-anatomic distribution of pain,
limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or
muscle weakness) accompanied by sensory or reflex loss, and, in connection with the
lumbar spine impairment, also a positive straight leg raising test (sitting and supine).” (R.
16) (emphasis in original).
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Plaintiff properly does not argue that Listing 1.04B (spinal arachnoiditis) is met
here because there is simply no record evidence of such an impairment. However, he
specifically argues that Listing 1.04C (lumbar spinal stenosis) is met (Pl. Br. 14, 15, 18),
and in his Reply Brief he suggests that Listing 1.04A (nerve root compression) is met.
(Pl. Reply 5-6). The problem with Plaintiff’s arguments is that he does not demonstrate
that all of the criteria for either Listing 1.04A or 1.04C are met as Zebley requires.
Listing 1.04C requires lumbar spinal stenosis (ii) established by findings on
appropriate medically acceptable imaging, (i) resulting in pseudoclaudication,
(iii) manifested by (a) chronic nonradicular pain and (b) weakness, and (iv) resulting in
inability to ambulate effectively. To establish Listing 1.04C plaintiff points to an x-ray
report showing chronic grade 1 spondylolisthesis at L5-S1 with sclerosis, but stating that
the “remainder of the lumbar spine is normal.” (Pl. Br. 8) (quoting R. 510). Plaintiff
asserts, without citation to any authority, that grade 1 spondylolisthesis equates to a 25%
closure of the spinal canal, and that his “lack of ability to ambulate was documented as
being ‘antalgic’ by Dr. Milton H. Landers” in May 2008. (Pl. Br. 15) (citing R. 440). He
then asserts that “This means the plaintiff has met the requirements of 20 CFR Part 404,
Subpart P, Appendix 1, 1.04C and 1.00(B)(2)(b).” Id. 15. Contrary to Plaintiff’s
assertion, he has not established that all of the criteria of Listing 1.04C are met. First, he
has not shown that grade 1 spondylolisthesis at L5-S1 equates to “lumbar spinal stenosis”
or that the x-ray reports relied upon are “appropriate medically acceptable imaging” upon
which such stenosis might be “established.” Moreover, he has not shown that an
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“antalgic” gait equates to an “inability to ambulate effectively,” or that the “antalgic” gait
referred to by Dr. Landers results from lumbar stenosis.
Even if the court were to assume that these four facts had been established by
Plaintiff, and that the pain and weakness testified by Plaintiff were “chronic nonradicular
pain and weakness” sufficient to manifest lumbar spinal stenosis, Plaintiff has not shown
pseudoclaudication resulting from lumbar spinal stenosis. Moreover, as the ALJ’s
decision suggests, the regulations define “inability to ambulate effectively,” as “an
extreme limitation in the ability to walk . . . having insufficient lower extremity
functioning . . . to permit independent ambulation without the use of a hand-held assistive
device(s) that limits the functioning of both upper extremities.” 20 C.F.R., Pt. 404, Subpt.
P, App. 1 § 1.00B(2)(b)(1)(emphasis added). The regulations explain:
To ambulate effectively, individuals must be capable of sustaining a
reasonable walking pace over a sufficient distance to be able to carry out
activities of daily living. They must have the ability to travel without
companion assistance to and from a place of employment or school.
Therefore, examples of ineffective ambulation include, but are not limited
to, the inability to walk without the use of a walker, two crutches or two
canes, the inability to walk a block at a reasonable pace on rough or uneven
surfaces, the inability to use standard public transportation, the inability to
carry out routine ambulatory activities, such as shopping and banking, and
the inability to climb a few steps at a reasonable pace with the use of a
single hand rail. The ability to walk independently about one's home
without the use of assistive devices does not, in and of itself, constitute
effective ambulation.
20 C.F.R., Pt. 404, Subpt. P, App. 1 § 1.00B(2)(b)(2). Plaintiff has not shown the
extreme limitation in the ability to walk contemplated by the regulations.
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His assertion that Dr. Landers’s finding of “antalgic” gait shows an inability to
ambulate effectively is without merit. Antalgic gait is not an extreme limitation in the
ability to walk. It is defined as “a characteristic g[ait] resulting from pain on
weightbearing in which the stance phase of g[ait] is shortened on the affected side.”
Stedman’s Medical Dictionary, 698 (26th Ed. 1995). A shortened stance on one side
when walking is not the sort of “extreme limitation in the ability to walk” necessary to
establish the inability to ambulate effectively. Beyond his mere assertion, Plaintiff has
not shown, and the record evidence does not support, that Listing 1.04C is met here.
Although the court need not consider an argument raised for the first time in a
reply brief, Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000), because of his pro se
status the court has nonetheless considered Plaintiff’s suggestion that his condition meets
Listing 1.04A, nerve root compression. Nevertheless, Plaintiff has not shown that he has
neuro-anatomic distribution of pain, motor loss, sensory or reflex loss, or a positive
straight-leg raising test. He has not shown that Listing 1.04A is met in this case.
With regard to whether Plaintiff’s condition equals the criteria of one of the
subsections of Listing 1.04, Plaintiff does not point to facts in the record which establish
that his impairments are “at least equal in severity and duration to the criteria of” Listing
1.04 as required to show medical equivalence to the Listing. 20 C.F.R. § 404.1526.
Plaintiff has shown no error in the ALJ’s step three analysis.
IV.
Credibility
17
Plaintiff claims that the ALJ erred in finding that his allegations of disabling
symptoms are not credible. He bases this claim on several facts: that Dr. Smith, an
examining psychologist, stated he had no reason to doubt Plaintiff’s credibility (Pl. Br.
22); that it is improper to discount credibility merely because of a lack of objective
evidence, id. at 18; and that “the court should not give weight to that which cannot be
credibly established, such as the ALJ finding the plaintiff ‘less than credible,’ especially
since it was established by an improper assessment or unjust bias.” Id. at 23 (quoting R.
17). Plaintiff concludes by asserting that he “is not a malinger[er], but has credible
‘symptoms.’” Id. at 24. The Commissioner argues that Plaintiff’s arguments are without
merit, that the ALJ applied the correct legal standard to his credibility determination, and
that the record evidence supports his determination. (Comm’r Br. 15-20).
A.
Standard for Evaluating Credibility
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
18
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
1173 (same).
The Tenth Circuit has explained the analysis for considering subjective testimony
regarding symptoms. Thompson, 987 F.2d at 1488 (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.
Id. (citations and quotation omitted).
In evaluating credibility, 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
19
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).
B.
The ALJ’s Analysis
The ALJ stated he “considered all symptoms and the extent to which these
symptoms can reasonably be accepted as consistent with the objective medical evidence
and other evidence, based on the requirements of 20 CFR 404.1529 and SSRs 96-4p and
96-7p.” (R. 16). He explained that the cited regulation and rulings require him to
determine whether Plaintiff has a medically determinable impairment(s) “that could
reasonably be expected to produce” the symptoms alleged by Plaintiff. Id. He noted that
if an impairment is shown which might reasonably produce the alleged symptoms, he
must consider “the entire case record” to determine the credibility of Plaintiff’s
statements regarding the intensity, persistence, and limiting effects of the symptoms.
(R.16). Next, he made his credibility analysis, and thereafter explained that although he
found that the symptoms alleged might potentially be produced by Plaintiff’s
impairments, he had considered all of the record evidence and found that in light of this
analysis Plaintiff’s allegations of symptoms of disabling severity are not credible. (R. 1617). The court finds the ALJ’s credibility analysis clear and thorough and includes it here
20
with numbering added to aid in identification and discussion of the reasons given by the
ALJ to justify his credibility determination:
The claimant reported that his “disability” began in May 2007; however,
[(1)] the claimant worked until April 2009 (Exhibit 16E, p.10 [(R. 233)]).
Additionally, based on the medical records and the claimant’s reports,
[(2)] the claimant appears to have experienced more significant symptoms
while he was working. As the claimant’s symptoms did not prevent him
from working at that time, there is a strong suggestion that these symptoms
do not now prevent work. Additionally, [(3)] there is evidence that the
claimant stopped working for reasons not related to the allegedly disabling
impairments when the store he was working at closed.
Furthermore, [(4)] the claimant continues to engage in activities requiring
more exertional abilities than those required for the light work specified in
the residual functional capacity. Additionally, [(5)] many of the limitations
alleged by the claimant require greater functional abilities than required for
light work. This certainly suggests the claimant is capable of performing
the work described by the vocational expert under the residual functional
capacity found in this case. This also indicates the claimant is not incapable
of work, as he alleges.
In addition, [(6)] despite the complaints of allegedly disabling symptoms,
the claimant has not taken any medications for those symptoms. In
particular, although the claimant alleges disabling levels of back and neck
pain, he does not take any prescription pain medication. The claimant did
undergo surgery for the alleged neck impairment, which certainly suggests
that the symptoms were genuine. While that fact would normally weigh in
the claimant's favor, it is offset by the fact that [(7)] the record reflects that
the surgery was generally successful in relieving the symptoms.
Furthermore, [(8)] although the claimant testified that his pain reoccurred
and increased after surgery, and that such an outcome was not unexpected,
there is no indication of this in the medical record.
Finally, [(9)] the claimant’s description of symptoms has been quite vague
and general, lacking the specificity that might otherwise make it more
convincing. The vagueness of the claimant’s allegations has also been
noted by at least one of his medical providers (Exhibit IF, p.l [(R. 352)]).
21
As a result, the undersigned finds the claimant's allegations pertaining to his
inability to work less than credible.
(R. 16-17) (numbering added). After making his credibility analysis, the ALJ completed
his RFC assessment and summary of the record evidence--including plaintiff’s allegations
and reports, the medical evidence, the hearing testimony, and the opinion evidence. (R.
17-20).
C.
Analysis
The court first notes that the ALJ applied the correct legal standard. He
recognized that Plaintiff had shown medically determinable impairments which could
produce the symptoms alleged--Luna factor 1 (symptom producing impairment). He
found that Plaintiff’s impairments might reasonably be expected to cause the symptoms
alleged--Luna factor 2 (a loose nexus). So, he considered all of the evidence--Luna factor
3. Moreover, the ALJ’s findings are closely and affirmatively linked to the record
evidence. For example, reason number 1 cites to page 10 of the “Independent Medical
Examination” prepared by Plaintiff in which he acknowledge that he “was laid off in
April 2009" from Sportsman’s Warehouse where he had worked since October 2007, but
as the ALJ noted, in the same document Plaintiff asserted, “My date of disability is May
2007.” (R. 233). Reason number 3 is also supported by Plaintiff’s statement in the same
document that he was laid off in April 2009. In fact, the court’s review of the record
reveals that the evidence supports each reason given. Plaintiff points to other record
evidence suggesting otherwise, but the weighing of the evidence and the determination of
22
credibility are both matters for the ALJ in the first instance. The court may not reweigh
the evidence nor substitute its judgment for that of the agency. Bowman, 511 F.3d at
1272; accord, Hackett, 395 F.3d at 1172. “[T]he possibility of drawing two inconsistent
conclusions from the evidence does not prevent an administrative agency’s finding from
being supported by substantial evidence.” Consolo, 383 U.S. at 620.
Plaintiff’s arguments do not show error in the ALJ’s analysis. As Plaintiff argues,
Dr. Smith provided a credibility assessment regarding Plaintiff’s statement of symptoms
in the report of Dr. Smith’s mental status exam, in which he stated that “Mr. Groom
appeared open and honest, and I have no reason to doubt his credibility.” (R. 401).
Plaintiff argues that it was error for the ALJ to ignore Dr. Smith’s statement because,
“While the ALJ may choose between conflicting medical opinions or reject a medical
opinion that is clearly contradicted by substantial medical evidence, he is not free to set
his own expertise against that of a physician who had personally examined the claimant.”
(Pl. Br. 22) (quoting Alvarez v. Califano, 483 F. Supp. 1284, 1285 (E.D. Penn. 1980)
(quotations, brackets, and emphasis omitted). While Plaintiff is correct that an ALJ may
not substitute his opinion for the medical opinion of a physician or psychologist, an
opinion regarding credibility is not a medical opinion. The regulations define “medical
opinions” as “statements from physicians and psychologists or other acceptable medical
sources that reflect judgments about the nature and severity of [claimant’s] impairment(s),
including [claimant’s] symptoms, diagnosis and prognosis, what [claimant] can still do
23
despite impairment(s), and [claimant’s] physical or mental restrictions.” 20 C.F.R.
§ 404.1527(a)(2).
Dr. Smith’s statement that he had no reason to doubt Plaintiff’s credibility is
simply not a medical opinion. The statement does not address the nature and severity of
Plaintiff’s impairments, symptoms, diagnosis, or prognosis; it does not address what
Plaintiff can still do; and it does not address Plaintiff’s physical or mental restrictions.
Moreover, a medical source’s determination of issues reserved to the Commissioner will
not be given any special significance or controlling weight. 20 C.F.R. § 404.1527(e)(2 &
3); SSR 96-5p, West’s Soc. Sec. Reporting Serv. 123-24 (Supp. 2012); SSR 96-8p,
West’s Soc. Sec. Reporting Serv. 150, n.8 (Supp. 2012). Evaluation of the credibility of a
claimant’s allegations of symptoms is just such an issue reserved to the Commissioner
and delegated to the ALJ. SSR 96-7p, West’s Soc. Sec. Reporting Serv. 133-42 (Supp.
2012). Moreover, the Tenth Circuit has long recognized in Social Security cases that
“[c]redibility determinations are peculiarly the province of the finder of fact.” E.g.,
Newbold, — F.3d at —, 2013 WL 2631530; Wilson, 602 F.3d at 1144; Hackett, 395 F.3d
at 1173; Kepler, 68 F.3d at 391; Diaz v. Sec’y of Health & Human Servs., 898 F.2d 774,
777 (10th Cir. 1990). An ALJ is never bound by the opinion of a medical source
regarding credibility, and it was not error for the ALJ in this case to make a determination
contrary to the opinion of Dr. Smith regarding the credibility of Plaintiff’s allegations.
Plaintiff’s argument that the ALJ may not discount Plaintiff’s allegations merely
because of a lack of objective evidence, while true, is irrelevant in this case because, as
24
the analysis quoted by the court makes clear, the ALJ did not base his finding of
incredibility on a lack of objective evidence. To be sure, when expressing the standard
applied in evaluating credibility the ALJ noted that “whenever statements about the
intensity, persistence, or functionally limiting effects of pain or other symptoms are not
substantiated by objective medical evidence, the undersigned must make a finding on the
credibility of the statements based on a consideration of the entire case record.” (R. 16).
But, that was the ALJ’s statement of part of the applicable legal standard, not his
statement of the basis for discounting Plaintiff’s allegations. Rather, he considered all of
the evidence, both subjective and objective, and as reflected in the nine reasons quoted
above, he discredited Plaintiff’s subjective complaints because they were inconsistent
with the record as a whole.
Plaintiff’s assertion that the ALJ’s credibility finding “was established by an
improper assessment or unjust bias” (Pl. Br. 23), is without support in the record. As
noted above, the credibility finding was, in fact, based upon a proper assessment.
Further, Plaintiff does not point to, and the court does not find, any evidentiary basis for
Plaintiff’s assertion that the ALJ was biased in his determination. Finally, Plaintiff’s
concluding assertion that he is not a malingerer and has credible symptoms, does not
change the fact that the ALJ’s credibility finding is supported by substantial record
evidence as quoted herein. Plaintiff has shown no error in the ALJ’s credibility
determination.
V.
Opinion Evidence
25
Plaintiff claims that the ALJ erred in giving no weight to the statements of Mr.
Dyke and Mr. Geeting, or to the testimony of Ms. King. (Pl. Br. 4, 22, 23). He also
claims the ALJ erred in weighing the medical opinion of Dr. Coleman. Id. at 20-21.
A.
The ALJ’s Weighing of the Opinion Evidence
The ALJ explained the weight he accorded each of the opinions at issue:
An opinion was provided on behalf of the State Disability Determination
Service by Gary W. Coleman, M.D., based on a review of the claimant’s
medical records (Exhibit 17F [(R. 517)]). This opinion indicated the
claimant has the limitations and abilities described in the residual functional
capacity. This is consistent with the longitudinal medical records, the
claimant’s activities of daily living, and the limited objective findings and
treatment notes present after the claimant’s alleged onset date. As a result,
the undersigned gives this opinion significant weight.
The opinion provided by Darrel Dyke indicates the claimant was unable to
work for eight-hours a day or on consecutive days (Exhibit 21E, p.1 [(R.
238)]). However, Mr. Dyke’s opinion appears to be based on more
physically demanding work than the work described in the residual
functional capacity. Additionally, this opinion is a lay opinion based on
casual observation rather than objective medical and testing. It certainly
does not outweigh the accumulated medical evidence regarding the extent
to which the claimant’s limitations can reasonably be considered a result of
her [sic] determinable impairments. As a result, the undersigned gives this
opinion little weight.
A statement was also provided by Wayne Geeting, the claimant’s neighbor
(Exhibit 22E [(R. 239)]). Mr. Geeting indicated that he observed the
claimant having difficulty walking. However, he specified that this was
only after the claimant had been working or engaging in activities for long
periods. This does not suggest the claimant is incapable of walking, and,
given the extent of the activities the claimant continues to engage in, does
not indicate the claimant would necessarily have difficulty after engaging in
light work for a significant amount of time. Furthermore, this opinion is a
lay opinion based on casual observation rather than objective medical and
testing. It certainly does not outweigh the accumulated medical evidence
regarding the extent to which the claimant’s limitations can reasonably be
26
considered a result of her [sic] determinable impairments. As a result, the
undersigned gives this opinion little weight.
An opinion was also provided by Ms. King, the claimant’s witness at the
hearing. She indicated the claimant was only able to work for three to four
hours at a time. However, as discussed above, this appears to concern his
ability to work at a higher exertional level than determined in the claimant’s
residual functional capacity. As a result, this opinion is given little weight.
(R. 19-20).
B.
Lay Opinion Evidence
In the Tenth Circuit, an ALJ is not required to make specific, written findings
regarding lay opinion evidence so long as the written decision reveals that the ALJ
considered that opinion. Blea, 466 F.3d at 914-15; Adams v. Chater, 93 F.3d 712, 715
(10th Cir. 1996). Here, as quoted above, the ALJ made specific written findings
regarding the weight given to each lay opinion.
Plaintiff, however, notes that Mr. Dyke and Mr Geeting opined that Plaintiff is
unable to “work or ambulate all day long” (Pl. Br. 4), and argues that if the ALJ doubted
them he should have asked for more information because “[t]here was no contradictory
evidence asked for or submitted.” (Pl. Br. 23). The decision as quoted above reveals that
the ALJ did not doubt Mr. Dyke’s opinion or Mr. Geeting’s opinion in so far as each
opinion asserted that each individual had observed that Plaintiff was unable to perform
certain work for an entire day or on a continuous basis. Rather, the ALJ understood the
opinions to be based upon the fact that Mr. Dyke and Mr. Geeting observed that Plaintiff
could not work a full day when he was performing work which was more strenuous than
27
work which was consistent with the RFC assessed by the ALJ. Therefore, he accorded
these opinions little weight because they did not address the question of Plaintiff’s ability
to perform work at the light RFC assessed.
In the facts presented, there was no need for the ALJ to ask for more information
of Mr. Dyke or Mr. Geeting. Moreover, the record supports the ALJ’s understanding.
Mr. Dyke explained that the work he had observed Plaintiff perform was work around
Mr. Dyke’s house as a handyman because he knew Plaintiff had built his own house in
the past. (R. 238). It is reasonable and appropriate for the ALJ to determine that this
work was more strenuous than the RFC for light work assessed by the ALJ.
The opinion of Mr. Geeting is a closer question. Mr. Geeting opined that
Plaintiff’s “ability to walk seems to be affected when he has been working or doing
activities for a long period of time.” (R. 239). As quoted above, the ALJ explained that
Mr. Geeting’s opinion does not suggest that Plaintiff is incapable of walking. (R. 20).
Moreover, he explained that in light of the strenuous activities Plaintiff engages in, Mr.
Geeting’s opinion does not suggest Plaintiff “would necessarily have difficulty after
engaging in light work for a significant amount of time.” (R. 20) (emphases added).
Given that weighing the evidence is the ALJ’s duty, and given the facts of this case, the
court cannot find that the ALJ erred in his weighing of the opinion. As the ALJ noted
numerous times in his decision, the record reveals that Plaintiff has continued to engage
in activities which are more strenuous than the light RFC assessed by the ALJ. Plaintiff
worked for almost two years after he allegedly became disabled in May 2007 at a job
28
which the ALJ found was more strenuous than the RFC assessed by the ALJ. Plaintiff
continued to attempt to perform work as a handyman, and he continued to attempt to
engage in his contracting business, both of which are more strenuous than the RFC
assessed by the ALJ. Given these facts, and given Mr. Geeting’s statements that he does
not “have a long history” with Plaintiff, and that he has not “observed [Plaintiff] in very
many other activities,” the court cannot find error in the ALJ’s determination to accord
“little weight” to Mr. Geeting’s opinion.
Plaintiff also claims the ALJ erred in according “little weight” to the opinions
expressed by Ms. King in her testimony at the hearing. He points to Ms. King’s opinion
that Plaintiff is no longer able to work an eight-hour workday (Pl. Br. 4), and argues that
the ALJ erred in understanding Ms. King’s testimony to suggest that Plaintiff had
installed a sink and backsplash in her home, had run electrical wiring to her garage, and
had performed electrical work in her garage after his alleged onset date. (Pl. Br. 22). In
her response, the Commissioner recognizes that Ms. King provided a follow-up affidavit
indicating that the ALJ had mischaracterized her testimony, but the Commissioner argues
that the transcript “clearly shows” that Ms. King testified that Plaintiff did the work
discussed above after April, 2009. (Comm’r Br. 19-20).
As the Commissioner acknowledged, Ms. King submitted an affidavit to the
Appeals Council stating that the ALJ had mischaracterized her testimony, and that the
countertop and sink at issue were installed and most of the electrical wiring was done at
her house in 2005. (R. 274). In his Reply Brief, Plaintiff once again argues that Ms.
29
King did not testify that the work discussed above was done after April 2009. (Reply 12). Plaintiff argues that the ALJ merely asked “what kind of things does [Plaintiff] do
when he’s at your house,” and did not suggest a time frame for when those thing were
done. (Reply 7). He also argues that the Commissioner misled the court in her Brief by
suggesting that the hearing transcript shows that the work was done after April 2009. Id.
Because the hearing transcript is key to resolving this issue, the court reproduces
the relevant portions here:
Q
So how long have you been -- so you've known each other since
about 1989?
A
Since then, yeah.
Q
Okay. How often do you see one another?
A
We talk on the phone every night but I haven’t been back here for a
year. But he’s come back to Saint Louis several times and helped
me on things at my house in Saint Louis.
Q
Okay. Since 19 -- or since April, 2009, has he come back to your
house to help you out?
A
Uh-huh.
Q
How often?
A
Oh, he’s come back about three times a year or so.
Q
Okay. That's been a little over a year and a half so have you seen
him four or five times?
A
Yeah.
Q
Okay. What kind of things does he do when he’s at your house?
30
A
He’s helped me with some electrical things and just honey-do things
at the house. He dropped in a sink in the kitchen and some backdrop
on the kitchen counters and some stuff like that.
(R. 56-57).
The quoted portion of the transcript reveals that this line of questioning began with
the ALJ asking Ms. King if Plaintiff had come back to her house to help her out since
April 2009. (R. 56). Shortly thereafter, the ALJ noted that it had been a little over a year
and a half since April, 2009 and asked if Plaintiff had been at her house about four or five
times in that period. Id. Ms. King responded affirmatively. Id. at 57. Immediately
thereafter, the ALJ asked what kinds of things Plaintiff does when he is at Ms. King’s
house, and she responded that Plaintiff had done some electrical things, dropped a sink in
the kitchen, and some backdrop on the kitchen counters. Id. While the ALJ did not
specifically ask what things Plaintiff had done since April 2009, in context, that is the
time period with which he was concerned. In these circumstances, it was reasonable for
the ALJ to understand the testimony referred to work done since April 2009.
The ALJ’s understanding of the time period at issue tended to be confirmed by an
exchange just moments later:
Q
So when did -- when was the last time he did any work for you?
A
Let’s see it was about-- let’s see, this is November. It was
September.
Q
What did he do for you?
A
He worked -- the electricity went on in my garage and so he made
the electricity come back.
31
Q
Okay. Did he have to run any wiring or put in any kind of --
A
Yeah
Q
fixtures or anything?
A
He put in wiring.
Q
Where did he put the wiring in?
A
He put them from the house to the garage.
Q
Okay. And how long was he there doing that job?
A
A week.
(R. 58). Ms. King’s affidavit confirms that Plaintiff fixed the wire that broke between her
house and garage in September 2010, and inspected her roof and replaced some felt on it
in late 2009. (R. 274).
The Appeals Council received Ms. King’s affidavit and considered it when it
denied Plaintiff’s request for review of the ALJ’s decision. (R. 1-2, 4, 5). In doing so, it
found that “this information does not provide a basis for changing the Administrative
Law Judge’s decision.” (R. 2). The court finds no error in this finding. Although Ms.
King clarified that certain of the work had been done before April 2009, she admitted that
stringing the wire to the garage had been done in September 2010, and certain other work
had been done it late 2009. Even when considering only the work that was admittedly
done after April 2009, it was apparently more strenuous than light exertional work, and
supports the ALJ’s finding that Ms. King’s opinion that Plaintiff could not work a full
workday “appears to concern [Plaintiff’s] ability to work at a higher exertional level than
32
determined in the claimant’s residual functional capacity,” and supports his determination
to accord the opinion only “little weight.” Ms. King’s affidavit provided to the Appeals
Council does not require finding error in the ALJ’s decision. The court finds no error in
the ALJ’s evaluation of the lay opinions.
C.
Medical Opinion Evidence
“Medical opinions are statements from physicians and psychologists or other
acceptable medical sources that reflect judgments about the nature and severity of [a
claimant’s] impairment(s) including [claimant’s] symptoms, diagnosis and prognosis.”
20 C.F.R. § 404.1527(a)(2). Such opinions may not be ignored and, unless a treating
source opinion is given controlling weight, all medical opinions will be evaluated by the
Commissioner in accordance with factors contained in the regulations. Id. § 404.1527(d);
SSR 96-5p, West’s Soc. Sec. Reporting Serv., Rulings 123-24 (Supp. 2012). A physician
who has treated a patient frequently over an extended period of time (a treating source)4 is
expected to have greater insight into the patient’s medical condition, and his opinion is
generally entitled to “particular weight.” Doyal v. Barnhart, 331 F.3d 758, 762 (10th Cir.
4
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.
33
2003). 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)).
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), she will apply certain
regulatory factors used for determining the weight given all medical opinions. 20 C.F.R.
§ 404.1527(d)(2)(i, ii) & (d)(3-6). Those factors are: (1) the length of the treatment
relationship and the 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. Id. at § 404.1527(d)(2-6); see also Goatcher v. Dep’t of Health & Human Servs.,
52 F.3d 288, 290 (10th Cir. 1995).
34
Here, the ALJ did not accord controlling weight to a treating source opinion.
Rather, he applied the regulatory factors for weighing medical opinions and accorded
“significant weight” to Dr. Wilkinson’s and Dr. Coleman’s non-examining source
opinions. (R. 14, 19). Moreover, Plaintiff does not point to any treating source opinion
or non-treating source opinion which is contrary to the opinion of Dr. Coleman and to
which the ALJ should have accorded greater weight. Instead, he argues that “There is no
way the RFC could have been assessed with medically founded information,” because the
RFC was completed in February 2010 and Plaintiff’s lumbar x-ray done in April 2010 did
not exist yet, and the lumbar MRI done in April 2008 was not in the possession of the
Social Security Administration until provided by Plaintiff in August 2010. (Pl. Br. 2021); see also (R. 510, x-ray report dated April 13, 2010); (R. 518-19, MRI report dated
April 23, 2008, forwarded to SSA by Plaintiff in August, 2010).
As Plaintiff’s Brief suggests, the RFC affirmed by Dr. Coleman was prepared by a
single decisionmaker (SDM), Lori Denk, on February 11, 2010. (R. 499-506). As such it
could not have been formulated after taking consideration of the x-ray report prepared on
April 13, 2010, or the MRI report provided to the agency in August 2010. However, that
fact does not mean that it was error to accord “significant weight” to the opinion of Dr.
Coleman reflected in that RFC. On April 22, Dr. Coleman explained that he had
“reviewed the previous medical evidence and the current medical evidence as well as the
previous RFC,” and affirmed that RFC. Since the x-ray report at issue was prepared on
April 13, 2010, has a facsimile header indicating it was received at the “KS DDS” at
35
3:11PM on April 13, 2010, and appears in the administrative record before Dr. Coleman’s
opinion, it is apparent that it was in the “current medical evidence” reviewed by Dr.
Coleman when he affirmed the RFC prepared by Ms. Denk. Therefore, the x-ray report
was part of the evidence considered by Dr. Coleman in formulating his opinion. It is this
opinion to which the ALJ accorded “significant weight.” Plaintiff has shown no error in
the ALJ’s decision to accord “significant weight” to Dr. Coleman’s opinion.
The fact that Dr. Coleman was unable to review the April 2008 MRI report
provided to the agency in August 2010 in formulating his RFC assessment, does not mean
that the ALJ’s RFC assessment was formulated without consideration of the April 2008
MRI report. That MRI report was placed in the administrative record in August 2010.
(R. 518-20). The ALJ formulated his RFC assessment “[a]fter careful consideration of
the entire record,” on January 28, 2011. Therefore, the MRI report was available to, and
considered by, the ALJ when he formulated his RFC assessment. Although the ALJ’s
RFC assessment was identical to the RFC assessment affirmed by Dr. Coleman, that does
not mean that it was based upon identical information or identical considerations.
Plaintiff’s argument assumes that the RFC assessed by an ALJ must be based upon an
RFC assessed by some medical source. That is an incorrect assumption.
Although an ALJ is not an acceptable medical source qualified to render a medical
opinion, it is “the ALJ, not a physician, [who] is charged with determining a claimant’s
RFC from the medical record.” Howard v. Barnhart, 379 F.3d 945, 949 (10th Cir. 2004).
“And the ALJ’s RFC assessment is an administrative, rather than a medical
36
determination.” McDonald v. Astrue, 492 F. App’x 875, 885 (10th Cir. 2012) (citing
SSR 96-5p, 1996 WL 374183, at *5 (July 1996)). Because an RFC assessment is made
based on “all of the evidence in the record, not only the medical evidence, [it is] well
within the province of the ALJ.” Dixon v. Apfel, No. 98-5167, 1999 WL 651389, at *2
(10th Cir. Aug. 26, 1999). Moreover, the final responsibility for determining RFC rests
with the Commissioner. 20 C.F.R. §§ 404.1527(e)(2), 404.1546.
“[T]here is no requirement in the regulations for a direct correspondence between
an RFC finding and a specific medical opinion.” Chapo v. Astrue, 682 F.3d 1285, 1288
(10th Cir. 2012) (citing Howard, 379 F.3d at 949; Wall, 561 F.3d at 1068-69). The RFC
assessment required of an ALJ does not require citation to a medical opinion, or even to
medical evidence in the administrative record for the RFC limitations assessed. Castillo
v. Astrue, No. 10-1052, 2011 WL 13627, *11 (D. Kan. Jan. 4, 2011); see also,
Thongleuth v. Astrue, No. 10-1101-JWL, 2011 WL 1303374, *13 (D. Kan. Apr. 4, 2011).
There is no need in this case, or in any other, for the Commissioner to base the limitations
in his RFC assessment upon specific statements in medical evidence or in medical
opinions in the record. They are based on his consideration of all of the record evidence.
Finally, Plaintiff does not point to evidence in the x-ray report or the MRI report
which requires greater limitations than assessed by Dr. Coleman. The x-ray report
demonstrates “[d]egenerative sacroiliitis, mild,” and “[s]pondylolysis with grade 1
spondylolithesis at L5-S1.” (R. 510). The MRI report demonstrates “[d]egenerative disc
disease at L5-S1 with a posterior disc bulge at this level,” “[n]o focal disc herniation,
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significant central spinal canal stenosis or neuroforaminal narrowing,” and that “[o]sseous
structures are intact.” (R. 519). There is simply nothing in these reports which requires
finding greater limitations than assessed by either Dr. Coleman or the ALJ. Absent
citation to medical or legal authority, the fact that Plaintiff believes the reports
demonstrate impairments which require a limitation to sedentary work is insufficient to
show error in the ALJ’s determination.
VI.
RFC Limitations
In the Commissioner’s Brief, she describes Plaintiff’s RFC arguments:
Plaintiff argues that the [ALJ’s] RFC assessment is unsupported by the
medical evidence. See Pl.’s Br. at 19-20. Plaintiff also argues that the ALJ
erred by failing to include specific limitations in the RFC based on asthma.
See id. at 21. Plaintiff argues he is unable to perform light work and cannot
perform his past relevant work. See id. at 13. Finally, Plaintiff argues that
the ALJ should have found he could perform sedentary work and applied
the Medical-Vocational Guidelines (Grids) to find him disabled. See id. at
14.
(Comm’r Br. 21-22).
Plaintiff’s argument that the ALJ’s RFC assessment is unsupported by the medical
evidence was addressed in Section V(C) immediately above, wherein it was explained
that an RFC assessment is based upon all of the evidence in the administrative record, and
that there is no need for the Commissioner to base his RFC limitations upon specific
statements in medical evidence or in medical opinions in the record. Plaintiff’s argument
that he cannot perform light work and should have been found disabled in accordance
with the Grids because he is over age fifty, was addressed above at pages 13 and 14, in
38
Section III(B) analyzing the ALJ’s step three determination. To the extent greater
analysis is required, Plaintiff simply has not directed the court’s attention to record
evidence which requires a finding that he is limited to sedentary exertional level work.
With regard to Plaintiff’s argument that he cannot perform his past relevant work, the
court notes that the ALJ specifically found that Plaintiff cannot perform his past relevant
work as he performed it. To the extent it was error for the ALJ to find that Plaintiff is
able to perform past relevant work as it is performed in the national economy, the court
notes that any error is harmless because the ALJ continued to step five of the sequential
evaluation process and made an alternative finding that other work is available in
significant numbers in the national economy that is within Plaintiff’s RFC.
Plaintiff is correct that the medical evidence shows that he has asthma, and that no
more recently than 1989 while working at the Boeing Company it was determined that he
should not work around fumes, dust, or irritants. (R. 277, 286, 288, 289). However,
those restrictions were given long before the period at issue in this case, and Plaintiff
points to no record evidence demonstrating work limitations attributable to asthma during
the period at issue here. Plaintiff has shown no error in failing to include restrictions
resulting from asthma in the RFC assessment in this case.
In his Reply Brief, Plaintiff argues for the first time that his work at Sportsman’s
Warehouse was not full time work and cannot support the RFC assessed by the ALJ.
Plaintiff’s argument suffers from at least two failings. First and foremost, the ALJ
recognized that Sportsman’s Warehouse suggested that a restriction to lifting 30 pounds
39
was a limitation in Plaintiff’s job. (R. 18) (citing Ex. 6E. (R. 185-88)). Therefore, he
recognized that Plaintiff’s work at Sportsman’s Warehouse exceeded the light exertional
requirements of the RFC assessed by the ALJ, and found that Plaintiff could perform that
work only as generally performed in the economy, but not as Plaintiff performed it at
Sportsman’s Warehouse. (R. 20). Second, work can be “substantial gainful activity”
within the meaning of the regulations even if it is not performed full-time. Fowler v.
Bowen, 876 F.2d 1451, 1453 (10th Cir. 1989) (quoting 20 C.F.R. § 404.1572). Here,
Plaintiff acknowledges that his work at Sportsman’s Warehouse constituted substantial
gainful activity. (Pl. Br. 23-24) (“earnings in excess of $1,000 per month, which is
sufficient to constitute substantial gainful activity”); (Reply 3) (“grossed slightly over
substantial gainful activity”).
Plaintiff’s remaining arguments of error in the ALJ’s RFC assessment essentially
ask the court to reweigh the evidence and impose its judgment over that of the ALJ in this
case. It may not do so. Bowman, 511 F.3d at 1272; Hackett, 395 F.3d at 1172. Plaintiff
has shown no error in the ALJ’s decision below.
40
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 24th day of June 2013, at Kansas City, Kansas.
s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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