Lamb 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). Signed by U.S. District Senior Judge Sam A. Crow on 12/10/2013. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CHARLES LAMB,
Plaintiff,
vs.

Case No. 12-1393-SAC

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

MEMORANDUM AND ORDER
This is an action reviewing the final decision of the
Commissioner of Social Security denying the plaintiff disability
insurance benefits and supplemental security income payments.
The matter has been fully briefed by the parties.
I.

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

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

The court should review the Commissioner's

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

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

Substantial evidence requires more than a

1

Carolyn W. Colvin became Acting Commissioner of Social Security on February 14, 2013, replacing Michael J.
Astrue, the former Commissioner of Social Security.
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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).
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The claimant's physical or

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

42 U.S.C. § 423(d).

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

If at any step a

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

At step one,

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

At step two, the agency will find non-disability

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

At

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

If

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

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

the analysis.
Cir. 1993).

At step five, the burden shifts to the

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

Nielson, 992 F.2d at 1120;

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

The

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

Thompson, 987 F.2d at 1487.

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

This

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

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

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

History of case
May 20, 2011, administrative law judge (ALJ) Christina

Young Mein issued her decision (R. at 12-25).

Plaintiff alleges

that he has been disabled since October 1, 2003 (R. at 14).
Plaintiff is insured for disability insurance benefits through
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March 31, 2011 (R. at 14).

At step one, the ALJ found that

plaintiff has not engaged in substantial gainful activity since
plaintiff’s alleged onset date of disability (R. at 14).

At

step two, the ALJ found that plaintiff has the following severe
impairments:

major depression, posttraumatic stress disorder,

alcohol dependence, bipolar disorder, reading and mathematics
disorder and personality disorder (R. at 14).

At step three,

the ALJ determined that plaintiff’s impairments do not meet or
equal a listed impairment (R. at 15).

After determining

plaintiff’s RFC (R. at 17), the ALJ determined at step four that
plaintiff is unable to perform any past relevant work (R. at
24).

At step five, the ALJ determined that plaintiff could

perform other jobs that exist in significant numbers in the
national economy (R. at 24-25).

Therefore, the ALJ concluded

that plaintiff was not disabled (R. at 25).
III.

Did the ALJ err in her consideration of the medical

opinion evidence?
The ALJ found that plaintiff had the RFC for a full range
of work at all exertional levels, but would be limited to
performing simple, routine and repetitive tasks, could have no
interaction with the public, and only occasional interaction
with coworkers and supervisors (R. at 17).

The record includes

three medical reports regarding plaintiff’s mental limitations.

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On August 30, 2004, Dr. Fantz prepared a psychological
assessment (R. at 410-413).

He recommended that plaintiff

receive a psychiatric medication evaluation, that plaintiff
address his abuse of alcohol, and that plaintiff obtain a job
coach.

He also found that plaintiff met the criteria for

learning disabilities in math and reading, and would benefit
from training and tutoring to deal with those disabilities (R.
at 413).

The ALJ discussed the report of Dr. Fantz in his

decision (R. at 18).
On July 20, 2010, Dr. Berg prepared a consultation report
(R. at 349-351).

He found that plaintiff had a GAF of 33, and

opined that plaintiff is impaired in his ability to attend to
and process simple information, as he makes errors and is
extremely slow.

Plaintiff’s description of his daily routine

suggested to Dr. Berg that he is involved in little activity
requiring prolonged effort or persistence.

Dr. Berg found that

plaintiff’s ability to learn new information is at least mildly
impaired.

Dr. Berg also found that plaintiff’s history reflects

a chronic inability to conform with authority, and that he is
irritable, defiant and unable to get along with others (R. at
351).
The ALJ discussed the findings of Dr. Berg, and then
stated:

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Overall, I find Dr. Berg’s opinion only
partially consistent with the record. The
doctor’s opinion that the claimant was
“unable to get along with others” appears
based, in large part, upon the claimant’s
subjective reports. The doctor seemed to
uncritically accept as true most, if not
all, of what the claimant reported. Yet, as
explained elsewhere in this decision, there
exist good reasons for questioning the
reliability of the claimant’s subjective
complaints. In addition, it is unclear from
the doctor’s opinion what effect the
claimant’s substance abuse has on the
claimant’s ability to function in a work
environment. As discussed more fully below,
the claimant was able to work at Subway with
no difficulties after the alleged onset
date. Accordingly, I afford only some
weight to the opinion of Dr. Berg.
(R. at 20).
The record also contains a psychiatric review technique
form and a mental RFC assessment prepared by Dr. Adams, a nonexamining medical source, on July 30, 2010 (352-364, 366-369).
The ALJ found that the opinions of Dr. Adams are consistent with
the record as a whole, and her opinions were given great weight
(R. at 23).
Plaintiff argues that the ALJ erred in the relative weight
given to the medical opinions.

Plaintiff contends that the ALJ

failed to set forth what weight, if any, she accorded to some of
the opinions of Dr. Fantz.

The ALJ did summarize the findings

of Dr. Fantz in her decision (R. at 18).

Although Dr. Fantz

provided some recommendations, as set forth above, none of his

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recommendations or statements offered an assessment of
plaintiff’s mental limitations on his ability to work.

The

ALJ’s failure to assign a specific weight to the recommendations
of Dr. Fantz therefore do not represent harmful error.

Keyes-

Zachary v. Astrue, 695 F.3d 1156, 1164 (10th Cir. 2012).
The ALJ discounted the opinions of Dr. Berg because,
according to the ALJ: 1) the opinions of Dr. Berg appear, in
large part, to be based on plaintiff’s subjective reports, and
2) plaintiff was able to work at Subway with no difficulties
after the alleged onset date.

The court will address the latter

issue first.
According to the Subway manager, plaintiff worked at Subway
from September 5, 2008 through August 5, 2009.

The manager

indicated that plaintiff had no limitation in his ability to
perform the job, had no problems in understanding and following
directions, and had no problems performing his duties in a
timely and satisfactory manner.

Plaintiff performed his

assigned job with ordinary supervision, was able to concentrate
adequately, and had no trouble getting along with co-workers,
supervisors, and the public.

Plaintiff was given no special

consideration in his job duties, and was able to learn new tasks
in an acceptable time frame.

There were no noticeable changes

in plaintiff’s performance during the employment.

Plaintiff

worked full-time, although there was a need to adjust or reduce
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his schedule due to performance.

Plaintiff was terminated for

violating company policies (R. at 174-176).

According to

plaintiff’s testimony, he was terminated because he brought
alcohol to the job site, and he was not getting along with
management (R. at 41).
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).

The court finds that the

statements of plaintiff’s former supervisor does provide a
reasonable evidentiary basis to discount the opinions of Dr.
Berg.
The ALJ further found that Dr. Berg’s opinions appeared to
rely, in large part, on plaintiff’s subjective reports.

In his

report, Dr. Berg stated the following:
Although he was able to persist on a number
of tasks during the mental status
examination, his description of his daily
routine suggests that he is involved in
little activity requiring any prolonged
effort or persistence.
(R. at 351).

This statement reflects that although Dr. Berg

observed plaintiff’s ability to persist in tasks, Dr. Berg
relied on plaintiff’s description of his daily routine to
suggest that he may not be able to engage in activities
requiring prolonged effort or persistence.

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Furthermore, the ALJ

could reasonably rely on the statements of plaintiff’s former
supervisor to discount Dr. Berg’s opinion that he cannot engage
in prolonged effort or persistence, or is unable to conform with
authority, and unable to get along with others.
The ALJ gave great weight to the opinions of Dr. Adams in
making her RFC findings.

Dr. Adams discussed the treatment

notes at Valeo, the mental status examination of Dr. Berg, and
the report from plaintiff’s former employer in making her
recommendations regarding plaintiff’s RFC.

Dr. Adams discussed

plaintiff’s alcohol use as well (R. at 364, 368).

The ALJ

relied on the report of Dr. Adams and the report from
plaintiff’s former employer to find that plaintiff’s
limitations, including his alcohol use, were not disabling (R.
at 21, 23).

The court will not reweigh the evidence.

The court

finds no error by the ALJ in her evaluation of the medical
evidence regarding plaintiff’s mental RFC.
IV.

Did the ALJ err in finding that plaintiff’s impairments did

not meet or equal listed impairment 12.04?
The ALJ found that plaintiff’s impairments did not meet or
equal listed impairment 12.04, specifically finding that
plaintiff’s impairments did not meet the “B” criteria (R. at
15).

In order to meet the “B” criteria, the evidence must

establish at least two of the following:

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1. Marked restriction in activities of
daily living.
2. Marked difficulties in maintaining
social functioning.
3. Marked difficulties in maintaining
concentration, persistence, or pace.
4. Repeated episodes of decompensation,
each of extended duration.
20 C.F.R. Pt. 404, Subpt. P, App. 1 at (2013 at 512).
The ALJ found that plaintiff had only a mild limitation in
activities of daily living, moderate restrictions in social
functioning, moderate difficulties in concentration, persistence
or pace, and no episodes of decompensation (R. at 15, 22).
Those findings match the opinions of Dr. Adams (R. at 362); the
ALJ gave great weight to her opinions (R. at 23).

In making her

findings, Dr. Adams relied, in part, on the statement from
plaintiff’s former manager at Subway (R. at 23).

No medical

opinion evidence directly contradicts the findings of Dr. Adams.
The court finds that the ALJ’s findings are supported by
substantial evidence; the court will not reweigh the evidence.
V.

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
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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
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

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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.

Oldham v. Astrue, 509

F.3d 1254, 1257-1258 (10th Cir. 2007).
The sporadic performance of daily activities does not
establish that a person is capable of engaging in substantial
gainful activity.

Thompson v. Sullivan, 987 F.2d 1482, 1490

(10th Cir. 1993).

The ability to do light housework and visit

with friends provides little or no support for a finding that a

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person can perform full-time competitive work.

Draper v.

Barnhart, 425 F.3d 1127, 1130-1131 (8th Cir. 2005).
While the court has some concerns regarding the ALJ’s
reliance on plaintiff’s daily activities, the court concludes
that the balance of the ALJ’s credibility analysis is supported
by substantial evidence in the record.

Branum v. Barnhart, 385

F.3d 1268, 1274 (10th Cir. 2004)( “While we have some concerns
regarding the ALJ’s reliance on plaintiff’s alleged failure to
follow a weight loss program and her performance of certain
minimal household chores, we conclude that the balance of the
ALJ’s credibility analysis is supported by substantial evidence
in the record”).

The balance of the ALJ’s credibility analysis

is closely and affirmatively linked to substantial evidence,
including the medical opinion evidence by Dr. Adams, and the
statements of plaintiff’s former employer, who supervised
plaintiff for an 11 month period in 2008-2009.
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 10th day of December 2013, Topeka, Kansas.

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

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