Garrett v. Social Security Administration, Commissioner of

Filing 17

MEMORANDUM AND ORDER. The judgment of the Commissioner is affirmed pursuant to sentence four of 42 U.S.C. § 405(g). See attached for more details. Signed by U.S. District Senior Judge Sam A. Crow on 7/31/2013. (bmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JOE GARRETT,
Plaintiff,
vs.

Case No. 12-1264-SAC

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

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

The matter has been

fully briefed by the parties.
I.

General legal standards
The court's standard of review is set forth in 42 U.S.C.

§ 405(g), which provides that "the findings of the Commissioner
as to any fact, if supported by substantial evidence, shall be
conclusive."

The court should review the Commissioner's

decision to determine only whether the decision was supported by
substantial evidence and whether the Commissioner applied the
correct legal standards.
(10th Cir. 1994).

Glenn v. Shalala, 21 F.3d 983, 984

Substantial evidence requires more than a

1

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

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

The determination of whether substantial evidence

supports the Commissioner's decision is not simply a
quantitative exercise, for evidence is not substantial if it is
overwhelmed by other evidence or if it really constitutes mere
conclusion.

Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).

Although the court is not to reweigh the evidence, the findings
of the Commissioner will not be mechanically accepted.

Nor will

the findings be affirmed by isolating facts and labeling them
substantial evidence, as the court must scrutinize the entire
record in determining whether the Commissioner's conclusions are
rational.
1992).

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

The court should examine the record as a whole,

including whatever in the record fairly detracts from the weight
of the Commissioner's decision and, on that basis, determine if
the substantiality of the evidence test has been met.

Glenn, 21

F.3d at 984.
The Social Security Act provides that an individual shall
be determined to be under a disability only if the claimant can
establish that they have a physical or mental impairment
expected to result in death or last for a continuous period of
twelve months which prevents the claimant from engaging in
substantial gainful activity (SGA).
2

The claimant's physical or

mental impairment or impairments must be of such severity that
they are not only unable to perform their previous work but
cannot, considering their age, education, and work experience,
engage in any other kind of substantial gainful work which
exists in the national economy.

42 U.S.C. § 423(d).

The Commissioner has established a five-step sequential
evaluation process to determine disability.

If at any step a

finding of disability or non-disability can be made, the
Commissioner will not review the claim further.

At step one,

the agency will find non-disability unless the claimant can show
that he or she is not working at a “substantial gainful
activity.”

At step two, the agency will find non-disability

unless the claimant shows that he or she has a “severe
impairment,” which is defined as any “impairment or combination
of impairments which significantly limits [the claimant’s]
physical or mental ability to do basic work activities.”

At

step three, the agency determines whether the impairment which
enabled the claimant to survive step two is on the list of
impairments presumed severe enough to render one disabled.

If

the claimant’s impairment does not meet or equal a listed
impairment, the inquiry proceeds to step four, at which the
agency assesses whether the claimant can do his or her previous
work; unless the claimant shows that he or she cannot perform
their previous work, they are determined not to be disabled.
3

If

the claimant survives step four, the fifth and final step
requires the agency to consider vocational factors (the
claimant’s age, education, and past work experience) and to
determine whether the claimant is capable of performing other
jobs existing in significant numbers in the national economy.
Barnhart v. Thomas, 124 S. Ct. 376, 379-380 (2003).
The claimant bears the burden of proof through step four of
Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th

the analysis.
Cir. 1993).

At step five, the burden shifts to the

Commissioner to show that the claimant can perform other work
that exists in the national economy.

Nielson, 992 F.2d at 1120;

Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).

The

Commissioner meets this burden if the decision is supported by
substantial evidence.

Thompson, 987 F.2d at 1487.

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

This

RFC assessment is used to evaluate the claim at both step four
and step five.

20 C.F.R. §§ 404.1520(a)(4), 404.1520(e,f,g);

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

History of case
On April 27, 2011, administrative law judge (ALJ) Christina

Young Mein issued her decision (R. at 11-22).

Plaintiff alleges

that he has been disabled since October 5, 2007 (R. at 11).
step one, the ALJ found that plaintiff has not engaged in
4

At

substantial gainful activity since plaintiff’s application date
of October 23, 2009 (R. at 13).

At step two, the ALJ found that

plaintiff has the following severe impairments: degenerative
disc disease of the lumbar spine, rheumatoid arthritis, obesity,
bipolar disorder and a personality disorder (R. at 13).

At step

three, the ALJ determined that plaintiff’s impairments do not
meet or equal a listed impairment (R. at 13).

After determining

plaintiff’s RFC (R. at 15), the ALJ determined at step four that
plaintiff has no past relevant work (R. at 20).

At step five,

the ALJ determined that plaintiff could perform other jobs that
exist in significant numbers in the national economy (R. at 21).
Therefore, the ALJ concluded that plaintiff was not disabled (R.
at 21-22).
III.

Are the ALJ’s RFC findings supported by substantial

evidence?
The ALJ made the following RFC findings:
…claimant has the residual functional
capacity to perform medium work as defined
in 20 CFR 416.967(c), except he can
occasionally reach overhead bilaterally.
Additionally, the claimant is limited to
simple, routine, repetitive tasks with
occasional interaction with co-workers and
the general public.
(R. at 15).
findings.

Plaintiff only takes issue with the physical RFC

Therefore, the court will examine the medical

evidence relevant to plaintiff’s physical RFC.

5

Dr. Lewis performed a consultative examination on December
12, 2009 (R. at 278).
lumbar spine.

He found pain in plaintiff’s knees and

He stated that lumbar bend is 18” to the floor,

that plaintiff has 5 pounds of grip strength in the right hand
and 20 pounds of grip strength in the left hand (R. at 279).

He

found plaintiff’s motor and sensory functions to be intact; he
further found that plaintiff had moderate to severe difficulty
with heel and toe walking, moderate difficulty in squatting 2/3
of the way down, and that plaintiff was unable to hop.

He

concluded that plaintiff had a diminished range of motion to the
bilateral knees and lumbar spine (R. at 280).
On February 11, 2010, Dr. Tella performed a physical RFC
assessment (R. at 297-303) based upon a review of the
consultative examinations (R. at 302), including the examination
by Dr. Lewis.

Dr. Tella limited plaintiff to lifting 50 pounds

occasionally and 25 pounds, and found that plaintiff could
frequently perform various postural tasks (R. at 298-299).

Dr.

Tella provided a detailed narrative discussion of the evidence
and explained the basis for his opinions (R. at 302).

His

opinion was affirmed by Dr. Siemsen on May 13, 2010 (R. at 310).
The ALJ gave great weight to this assessment (R. at 19).
Plaintiff argues that the ALJ erred by relying on the
assessment by Dr. Tella based on an entirely different set of
impairments than those deemed severe by the ALJ.
6

Although the

wording of the impairments varies somewhat, both the ALJ and Dr.
Tella evaluated limitations stemming from plaintiff’s back and
knee impairments, both referenced plaintiff’s arthritis, and the
assessment by Dr. Lewis, which was reviewed by Dr. Tella,
mentioned that plaintiff was obese.

The court finds this

argument by plaintiff to be without merit.
Plaintiff argues that various pieces of the medical
evidence demonstrate that plaintiff cannot perform medium work
(Doc. 11 at 8-13), as opined by Drs. Tella and Siemsen, and
adopted by the ALJ.

Plaintiff cites to medical records from Dr.

Hagemann, who saw plaintiff on March 5, 2009 and April 13, 2009
(R. at 325-328).

However, the findings and diagnosis by Dr.

Hagemann, on their face, do not indicate that plaintiff cannot
perform medium work.

The same is true for other findings and

diagnoses in the record; nothing in the record establishes that
these findings and diagnoses are incompatible with medium work.
There is no medical opinion that any of these findings or
diagnoses preclude medium work.
Dr. Lewis, in his consultative examination noted
plaintiff’s limitations with straight leg raising, lumbar
bending, and grip strength in his right and left hand (R. at
279).

He also found that plaintiff had moderate to severe

difficulty with heel and toe walking, and moderate difficulty
squatting (R. at 280).

Drs. Tella and Siemsen reviewed the
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consultative examination by Dr. Lewis, but nonetheless opined
that plaintiff could frequently2 engage in various postural
maneuvers (climbing, balancing, stooping, kneeling, crouching
and crawling) (R. at 299).

Dr. Tella set forth a narrative

explanation for his findings (R. at 302).
First, the court will not reweigh the evidence or
substitute its judgment for that of the Commissioner.

Hackett

v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005); White v.
Barnhart, 287 F.3d 903, 905, 908, 909 (10th Cir. 2002).
Although the court will not reweigh the evidence, the
conclusions reached by the ALJ must be reasonable and consistent
with the evidence.

See Glenn v. Shalala, 21 F.3d 983, 988 (10th

Cir. 1994)(the court must affirm if, considering the evidence as
a whole, there is sufficient evidence which a reasonable mind
might accept as adequate to support a conclusion).

There is no

medical opinion evidence that states that plaintiff cannot
frequently perform postural maneuvers.

Although the findings of

Dr. Lewis could lead the ALJ to question whether plaintiff can
frequently perform all of the postural maneuvers set out in the
RFC assessment (R. at 299), it is not clear that the opinions of
Dr. Lewis and Dr. Tella are incompatible.

There is no medical

opinion evidence that the opinions of Dr. Lewis and Dr. Tella
are incompatible.

Furthermore, the ALJ can reasonably rely on

2

“Frequently” is defined an activity or condition that exists from 1/3 to 2/3 of the time. Selected Characteristics of
Occupations Defined in the Revised Dictionary of Occupational Titles, U.S. Department of Labor (1993 at C-3).
8

the narrative explanation of Dr. Tella to give more weight to
his opinion.
Second, even if it could be argued that the ALJ should have
given greater weight to the mild to severe difficulties with
orthopedic maneuvers noted by Dr. Lewis in his report (R. at
280) and limited plaintiff to only occasional postural
maneuvers, the vocational expert (VE) at the hearing testified
that even if plaintiff was limited to only occasional3 postural
maneuvers, plaintiff could still perform the medium jobs
previously identified by the VE as jobs that plaintiff could
perform (R. at 45-47).4

Therefore, any failure to include the

limitations of Dr. Lewis in the RFC findings is, at most,
harmless error.
Given the fact that there is no medical opinion evidence
that indicates that plaintiff cannot perform medium work along
with certain other limitations set out in the ALJ’s RFC
findings, and the fact that the ALJ, in making his RFC findings,
reasonably relied on an RFC assessment by two doctors who have
reviewed consultative examinations and other records, and
provided a detailed narrative discussion of the evidence and the
basis for their findings, the court finds that substantial
evidence supports the ALJ’s RFC findings.
33

“Occasionally” is defined an activity or condition that exists up to 1/3 of the time. Selected Characteristics of
Occupations Defined in the Revised Dictionary of Occupational Titles, U.S. Department of Labor (1993 at C-3).
4

There is no evidence that plaintiff could never engage in various postural maneuvers.
9

IV.

Did the ALJ err in her analysis of plaintiff’s credibility?
Credibility determinations are peculiarly the province of

the finder of fact, and a court will not upset such
determinations when supported by substantial evidence.

However,

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

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

Furthermore, the ALJ cannot ignore evidence

favorable to the plaintiff.

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

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

So

long as the ALJ sets forth the specific evidence he relies on in
evaluating the claimant’s credibility, the ALJ will be deemed to
have satisfied the requirements set forth in Kepler.

White v.

Barnhart, 287 F.3d 903, 909 (10th Cir. 2002); Qualls v. Apfel,
206 F.3d 1368, 1372 (10th Cir. 2000).

Furthermore, the ALJ need

not discuss every relevant factor in evaluating pain testimony.
Bates v. Barnhart, 222 F. Supp.2d 1252, 1260 (D. Kan. 2002).

An

ALJ must therefore explain and support with substantial evidence
which part(s) of claimant’s testimony he did not believe and
why.

McGoffin v. Barnhart, 288 F.3d 1248, 1254 (10th Cir.

2002).

It is error for the ALJ to use standard boilerplate

language which fails to set forth the specific evidence the ALJ
10

considered in determining that a claimant’s complaints were not
credible.
2004).

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

On the other hand, an ALJ’s credibility determination

which does not rest on mere boilerplate language, but which is
linked to specific findings of fact fairly derived from the
record, will be affirmed by the court.

White, 287 F.3d at 909-

910.
The court will not reweigh the evidence or substitute its
judgment for that of the Commissioner.

Hackett v. Barnhart, 395

F.3d 1168, 1173 (10th Cir. 2005); White v. Barnhart, 287 F.3d
903, 905, 908, 909 (10th Cir. 2002).

Although the court will

not reweigh the evidence, the conclusions reached by the ALJ
must be reasonable and consistent with the evidence.

See Glenn

v. Shalala, 21 F.3d 983, 988 (10th Cir. 1994)(the court must
affirm if, considering the evidence as a whole, there is
sufficient evidence which a reasonable mind might accept as
adequate to support a conclusion).
the sufficiency of the evidence.

The court can only review

Although the evidence may

support a contrary finding, the court cannot displace the
agency’s choice between two fairly conflicting views, even
though the court may have justifiably made a different choice
had the matter been before it de novo.
F.3d 1254, 1257-1258 (10th Cir. 2007).

11

Oldham v. Astrue, 509

In light of the medical evidence, the ALJ found that
plaintiff’s allegations of disabling limitations were not
credible.

The ALJ noted that nothing in the medical treatment

records established a more restrictive RFC (R. at 19).

The ALJ

noted that no treatment provider had placed any limitations on
plaintiff’s ability to work (R. at 20).

The ALJ gave great

weight to the only medical opinion evidence regarding
plaintiff’s RFC (R. at 19).
evidence.

The court will not reweigh the

The court finds that substantial evidence supports

the ALJ’s credibility findings.
IT IS THEREFORE ORDERED that the judgment of the
Commissioner is affirmed pursuant to sentence four of 42 U.S.C.
§ 405(g).
Dated this 31st day of July, 2013, Topeka, Kansas.

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

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