Lang v. Social Security Administration, Commissioner of

Filing 19

MEMORANDUM AND ORDER affirming the Commissioner's decision. Signed by District Judge J. Thomas Marten on 9/30/2013. (mss)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DENISE M. LANG,
Plaintiff,
vs.

Case No. 12-1256-JTM

MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant.

MEMORANDUM AND ORDER

Plaintiff Denise M. Lang has applied for Social Security disability insurance benefits.
Her application was denied by Administrative Law Judge (ALJ) Janice Barnes-Williams on
May 13, 2011, a decision affirmed by the Appeals Council on May 21, 2012. There are two
allegations of error by Lang. First, she contends that the ALJ erred in failing to develop a
narrative explaining the Residual Functional Capacity (RFC) which she adopted. Second,
she contends that the ALJ erred in failing to determine that her headaches and irritable
bowel syndrome (IBS) were non-severe.
Plaintiff-claimant Lang was born on March 19, 1957. She has stated that she became
disabled beginning October 1, 2008. She has a high school education, and has previously
worked as a cashier, computer operator, and data entry clerk. She has cited a variety of

ailments, including headaches, bowel trouble, breathing problems, and pain in the low
back and knees. The detailed facts of the case, which are incorporated herein, are set forth
independently in the ALJ’s opinion (Tr. 13-19), and the briefs of Lang (Dkt. 11, at 2-10) and
the Commissioner (Dkt. 17, at 2-9).
The ALJ determined that Lang suffers from severe impairments in chronic
obstructive pulmonary disease, osteoarthritis is both knees, obesity, and mild degenerative
disc disease of the lumbar spine. (Tr. 13). None of these impairments met or exceeded any
of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 14). Lang has
an RFC which would preclude her from the full range of light work, as defined by 20 C.F.R.
404.1567(b). She can at times lift and carry 20 pounds, and 10 pounds often.
However, she must work in a non-captive position that allows for the ability
to alternate between sitting and standing at least every 30 minutes. The
claimant retains the ability to occasionally climb ramps and stairs, but she
may never climb ladders, ropes or scaffolds. The claimant is able to
frequently balance, but she is only able to occasionally stoop. Further, she
must avoid kneeling, crouching or crawling as well as concentrated exposure
to extremes of cold or heat, excessive vibration, pulmonary irritants,
operational control of moving machinery, unprotected heights, and
hazardous machinery.
(Tr. 15).
The ALJ determined that this RFC precludes Lang from returning to her former
work. However, with the assistance of a vocational expert, he determined that Lang is still
able to peform light, unskilled work such as information clerk, office helper, or storage
rental clerk, and thus was not disabled. (Tr. 20).
The Commissioner determines whether an applicant is disabled pursuant to a
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five-step sequential evaluation process (SEP) pursuant to 20 C.F.R. §§ 404.1520 and 416.920.
The applicant has the initial burden of proof in the first three steps: she must show that she
is engaged in substantial gainful activity, that she has a medically-determinable, severe
ailment, and whether that impairment matches one of the listed impairments of 20 C.F.R.
pt. 404, subpt P., app. 1. See Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989). If a claimant
shows that she cannot return to her former work, the Commissioner has the burden of
showing that she can perform other work existing in significant numbers in the national
economy. 20 C.F.R. § 404.1520(f). See Channel v. Heckler, 747 F.2d 577, 579 (10th Cir. 1984).
The court’s review of the Commissioner’s decision is governed by 42 U.S.C. 405(g)
of the Social Security Act. Under the statute, the Commissioner’s decision will be upheld
so long as it applies the “correct legal standard,” and is supported by “substantial
evidence” of the record as a whole. Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994).
Substantial evidence means more than a scintilla, but less than a preponderance. It
is satisfied by evidence that a reasonable mind might accept to support the conclusion. The
question of whether substantial evidence supports the Commissioner’s decision is not a
mere quantitative exercise; evidence is not substantial if it is overwhelmed by other
evidence, or in reality is a mere conclusion. Ray, 865 F.2d at 224. The court must scrutinize
the whole record in determining whether the Commissioner’s conclusions are rational.
Graham v. Sullivan, 794 F. Supp. 1045, 1047 (D. Kan. 1992).
This deferential review is limited to factual determinations; it does not apply to the
Commisioner’s conclusions of law. Applying an incorrect legal standard, or providing the
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court with an insufficient basis to determine that correct legal principles were applied, is
grounds for reversal. Frey v. Bowen, 816 F.2d 508, 512 (10th Cir. 1987).
Lang argues the ALJ’s opinion is inconsistent with SSR 96-8p, which provides that
the ALJ must evaluate the relevant evidence, articulating how that evidence affects his
findings in a manner that is “capable of meaningful review.” Brant v. Barnhart, 506 F.Supp.
2d 476, 485-86 (D. Kan. 2007)(citing Spicer v. Barnhart, 64 Fed.Appx. 173, 177-178 (10th
Cir.2003)). In addition, she argues that the ALJ failed to consider the effect of her headaches
and IBS in determining her RFC. And she contends that the ALJ erred in failing to
determine that her headaches and IBS were severe impairments at step two of the SEP.
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 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,
416.927(e)(2), 416.946.
Topper v. Colvin, 12-1119-JWL, 2013 WL 2458503, *7 (D. Kan. 2013). See McDonald v. Astrue,
492 Fed.Appx. 875, 885-86 (10th Cir. 2012). The RFC assessment takes account of the entire
record, including treatment history, objective medical assessments, the plaintiff’s daily
activity, and evidence from lay witnesses. SSR 96-8p, 1996 WL 374184. Under the Rule, the
assessment “must include a narrative discussion describing how the evidence supports

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each conclusion, citing specific medical facts [and] and nonmedical evidence.”
At the same time, there is “no requirement in the regulations for a direct
correspondence between the RFC finding and a specific medical opinion on the functional
capacity in question.” Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012). The ALJ’s
assessment must be sufficiently “specific and detailed” so that it is “capable of meaningful
review.” Spicer v. Barnhart, 64 Fed.Appx. at 177. While“[t]he record must demonstrate that
the ALJ considered all of the evidence,” he need not “discuss every piece of evidence.”
Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir.1996). The ALJ’s discussion must cite “the
evidence supporting his decision, ... the uncontroverted evidence he chooses not to rely
upon, [and] significantly probative evidence he rejects.” Id.
The court finds that the ALJ’s assessment of Lang’s RFC is supported by evidence
which “a reasonable mind might accept as adequate,” Lax v. Astrue, 489 F.3d 1080, 1084
(10th Cir. 2007) (quoting Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005), and thus
should be affirmed. See Richardson v. Perales, 402 U.S. 389, 401 (1971). Lang herself states in
her brief that “[a]dmittedly, the ALJ does summarize the medical evidence, grouped by
impairment.” (Dkt. 11, at 13). In fact, the ALJ’s RFC assessment is considered and detailed,
and the court finds no basis for reversal or remand.
In reviewing the record, the ALJ found that Lang was not fully credible in her
allegations of the extent of her limitations. He found that those allegations were
inconsistent with the objective medical evidence. The ALJ acknowledged that Lang “has
a long history of COPD, complicated by continuing tobacco use, despite frequent physician
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recommendations to quit smoking.” (Tr. 16). A physical examination, however, showed
that Lang’s pulmonary function was relatively normal. Based on the lack of objective
medical evidence, that Lang effectively addressed the issue by an inhaler, and the fact that
Lang had sought medical help for breathing difficulty on a limited number of occasions,
the ALJ determined that the COPD impairment would not affect her RFC.
Similarly, the ALJ reviewed the evidence as a whole and determined that Lang’s
statements as to the degree of limitation created by her back and knee pain was
inconsistent with medical evidence. Lang claimed she could not stand to cook, but “the
medical records document that [she] has normal strength and a normal gait and station.”
Id. Physical exams showed some arthritis in the knees, and some degeneration in the
lumbar spine, but otherwise “there is very little objective support for her complaints.” (Tr.
at 17). Physical examinations were otherwise unremasrkable, and physical therapy had
been shown to improve Lang’s condition. Lang was also able to alleviate her pain with
Flexeril. Lang testified that “I have lower back pain sometimes, then it [Flexeril] takes care
of that.” At the time of the hearing, Lang took no medication for either her knee pain or her
COPD. Lang stated at the hearing that the Flexeril sometimes gave her dizzy spells, but the
ALJ found this less than fully credible, since Lang had been seeing physicians consistently
but had never mentioned this side-effect.
Rather than recommending limitations due to knees, one physician recommended
that she should be more rather than less active. The ALJ further noted inconsistencies
between Lang’s subjective complaints and the timing of her complaints and her daily
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activities. (Tr. 17).
The court finds no error with respect to Lang’s headaches and IBS. The court finds
that substantial evidence supports the determination that these impairments are non-severe
in nature. In any event, as the Tenth Circuit has observed “[a]n error at step two concerning
the severity of a particular impairment is usually harmless when the ALJ, as here, finds
another impairment is severe and proceeds to the remaining steps of the evaluation in the
RFC.” Groberg v. Astrue, 415 Fed.Appx. 65, 67 (10th Cir. 2011). As noted earlier, the ALJ here
determined that Lang’s COPD, obesity, arthritic knees, and mild degenerative disc disease
were severe impairments, and then proceeded to assess her RFC based on her condition
as a whole pursuant to 20 C.F.R. § 404.1523.
The ALJ explicitly stated that the RFC was determined on the basis of “the entire
record” which includes the evidence relating to the headaches and IBS. The ALJ prefaced
his extensive discussion of his RFC assessment (Tr. 15-19), with the acknowledgment of
Lang’s claimed impairments, including “various headaches and irritable bowel syndrome.”
(Tr. 15). During the course of that discussion, the ALJ further explicitly references the lack
of medication for her IBS, and the fact that she had only one headache each week. (Tr. 16).
Lang acknowledged in her testimony before the ALJ that the frequency of the headaches
had declined. (Tr. 39). She is able to function with her headaches when she takes her
medication. (Id.) The ALJ noted that Lang herself “attributed most of her complaints at the
hearing to the pain she has in her back and knees.” (Tr. 16). The court finds that the ALJ
appropriately considered the effect of all Lang’s impairments, both severe and nonsevere,.
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See 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2).
Specifically, with respect to Lang’s headaches, the ALJ noted that the March 25, 2010
examination by Dr. Taijun Zhao (M.D.) indicated that the plaintiff’s neurological condition
was within normal limits, and an ACT scan was negative. (Tr. 13-14). Dr. Zhao prescribed
Amitriptyline and Midrin, and subsequent examinations indicated that the medications
were working. Lang herself reported in July of 2010 that her headaches were improved and
only sometimes affected her daily living. Lang’s history of medical treatment “reveals that
[her] headaches are well controlled and have minimal impact on her activities of daily
living [and] do not cause any significant limitations in her ability to do basic work related
activities.” (Tr. 14).
Addressing the IBS, the ALJ found that Lang was diagnosed with IBS in June 2009,
secondary to a complaint of pain in the upper right quadrant. A lactulose breath test
conducted at the time was negative. Lang made no additional complaint of bowel trouble
for almost a year, with a note that in May 2010 she suffered from constipation. When the
constipation was not relieved with Metamucil, Lang was given Miralax. The next month,
Lang reported that she felt good, and was told to continue with the Miralax. Her condition
improved, and a physical examination and endoscopy in August 2010 were both normal.
As the ALJ noted by February 2011, the claimant's physicians indicated that her
constipation and abdominal pain had improved and her IBS was “controlled.” The ALJ
accordingly found that the IBS impairment created no significant limitation on her ability
to work.
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As Lang notes, the ALJ did not fully adopt the assessment of the state agency
medical consultant. But in the present case, Dr. Gerald Siemsen reviewed the evidence and
found that Lang was in fact capable of doing medium work. The ALJ did not fully adopt
Dr. Siemsen’s recommendation because he adopted an interpretation of Lang’s RFC which
was more favorable to the plaintiff, concluding that she was not able to do medium work,
and was not able to perform the full range of light work.
The court has considered the record and all the allegations of error, and finds the
decision of the Commissioner should be AFFIRMED.
IT IS SO ORDERED this 30th day of September, 2013.

s/ J. Thomas Marten
J. THOMAS MARTEN, JUDGE

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