Yardley v. Social Security Administration, Commissioner of

Filing 17

MEMORANDUM AND ORDER. IT IS ORDERED that the Commissioners decision is affirmed. Judgment shall be entered pursuant to fourth sentence of 42 U.S.C. § 405(g). Signed by District Judge Carlos Murguia on 12/20/2013. (mh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JUSTIN YARDLEY,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
COMMISSIONER OF SOCIAL SECURITY, )
)
Defendant.
)
__________________________________ _____ )

Case No. 13-1100-CM

MEMORANDUM AND ORDER
On December 1, 2009, plaintiff Justin Yardley protectively filed this action pursuant to Title II
of the Social Security Act (“Act”), 42 U.S.C. §§ 401 et seq., and Title XVI of the Act, 42 U.S.C. §§
1381 et seq. Under Title II, plaintiff requests disability insurance benefits. Under Title XVI, plaintiff
requests supplemental security income benefits. Plaintiff’s claims were denied initially and on
reconsideration. Following a video hearing, an Administrative Law Judge (“ALJ”) found that plaintiff
was not disabled in a decision dated September 8, 2011. On December 4, 2012, the Appeals Council
of the Social Security Administration denied plaintiff’s request for review. Thus, the ALJ’s decision
stands as the final decision of the Commissioner.
I.

Legal Standard
Under 42 U.S.C. § 405(g) this court applies a two-pronged review to the ALJ’s decision. This

review determines (1) whether the ALJ’s decision is supported by substantial evidence in the record as
a whole and (2) whether the ALJ applied the correct legal standards. Lax v. Astrue, 489 F.3d 1080,
1084 (10th Cir. 2007) (citation omitted). “Substantial evidence” means “more than a mere scintilla”
and “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Hunter v. Astrue, 321 F. App’x 789, 792 (10th Cir. 2009) (quoting Flaherty v. Astrue, 515 F.3d 1067,

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1070 (10th Cir. 2007)). In its analysis, the court may not reweigh the evidence or substitute its
judgment for that of the ALJ. See White v. Massanari, 271 F.3d 1256, 1257 (10th Cir. 2001) (citing
Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)). On the other hand,
the court must examine the entire record—including any evidence that may detract from the decision
of the ALJ. Jaramillo v. Massanari, 21 F. App’x 792, 794 (10th Cir. 2001) (citing Glenn v. Shalala,
21 F.3d 983, 984 (10th Cir. 1994)).
Plaintiff bears the burden of proving disability. Hunter, 321 F. App’x at 792. A disability
requires an impairment—physical or mental—that renders one unable to engage in any substantial
gainful activity. Id. (quoting Barnhart v. Walton, 535 U.S. 212, 217 (2002)). Impairment, as defined
under 42 U.S.C. § 423(d)(1)(A), is a “medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months.”
The ALJ uses a five-step sequential process to evaluate disability claims. Williams v. Bowen,
844 F.2d 748, 750 (10th Cir. 1988) (citation omitted). But the ALJ may stop once he makes a
disability determination; he need not proceed to subsequent steps if he concludes that a claimant is or
is not disabled at an intermediate step. Id. Step one requires the plaintiff to demonstrate that he is not
engaged in substantial gainful employment activity. Id. If the plaintiff meets this burden, then the ALJ
proceeds to the second step. Step two requires the plaintiff to demonstrate that he has a “medically
severe impairment or combination of impairments” that severely limits his ability to do work. Id.
(internal quotation omitted). At this point, if the plaintiff cannot show that his impairments would
have more than a minimal effect on his ability to do work, then the ALJ may determine plaintiff is not
disabled. Id. at 751. If the plaintiff meets the de minimis showing, then the ALJ proceeds to step
three. Id.

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At step three, the ALJ compares the plaintiff’s impairment to the “listed impairments”—
impairments that the Secretary of Health and Human Services recognizes as severe enough to preclude
substantial gainful activity. Id. If the plaintiff’s impairment matches one on the list, then a finding of
disability is made. Id. If not, the ALJ advances to step four. Id. Before step four, however, the ALJ
must assess the plaintiff’s residual functional capacity (“RFC”). Baker v. Barnhart, 84 F. App’x 10,
13 (10th Cir. 2003) (citing Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996)). The ALJ uses this
RFC for steps four and five. At step four, the plaintiff must demonstrate that his impairment prevents
him from performing his past work. Williams, 844 F.2d at 751. If this showing is made, the ALJ
moves to the fifth and final step. Id. Here, the burden shifts to the ALJ. Id. The ALJ must—
considering the plaintiff’s RFC and vocational factors of age, education and work experience—show
that the plaintiff can perform some work that exists in large numbers in the national economy. Id.
II.

Analysis
A. The Administrative Decision
The ALJ conducted a video hearing where he and plaintiff’s counsel asked questions of

plaintiff and a Vocational Expert (“VE”). The ALJ then issued his decision, determining that plaintiff
met the insured status requirements of the Social Security Act through September 30, 2014. The ALJ
also found that plaintiff had not engaged in substantial gainful activity since May 2, 2009, the alleged
onset date. Based on evidence in the record, the ALJ concluded that plaintiff suffers from the
following severe impairment: degenerative disc disease of the lumbar spine – status post surgery. (R.
at 19.) The ALJ then found that plaintiff did not have an impairment or combination of impairments
listed in or medically equal to one of the listed impairments. (Id. at 19–20.)
The ALJ determined that plaintiff retained the RFC to perform sedentary work as defined in 20
C.F.R. §§ 404.1567(a) and 416.967(a), except that plaintiff “can only occasionally climb ramps/stairs,

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balance, stop, kneel, crouch, crawl and should never climb ladders/ropes/scaffolds.” (R. at 20.) The
ALJ also limited plaintiff to “work in occupations without concentrated exposure to temperature
extremes, vibration, work hazards and where he is only required to perform occasional overhead
reaching.” (Id.) Further, the ALJ found plaintiff capable of “simple, unskilled work where he can
alternate between sitting and standing at will.” (Id.)
The ALJ found that plaintiff was unable to perform any past relevant work. (Id. at 24.)
Nevertheless, the ALJ determined that plaintiff would be able to perform other work existing in
significant numbers in the national economy. (Id.) Finally, the ALJ found that plaintiff had not been
under a disability from May 2, 2009, to the date of the decision. (Id. at 25.)
B. Plaintiff’s Claims
Plaintiff argues that the ALJ erred in four ways. First, plaintiff argues that the ALJ erred by
making a determination of plaintiff’s credibility that was erroneous and not supported by substantial
evidence and by improperly requiring objective substantiation of plaintiff’s pain.
The court will not disturb an ALJ’s credibility determinations when they are supported by
substantial evidence; they are “peculiarly the province of the finder of fact.” Wilson v. Astrue, 602
F.3d 1136, 1144 (10th Cir. 2010) (quotation omitted). When analyzing evidence of pain, the ALJ must
first determine if the objective medical evidence demonstrates that a pain-producing impairment exists.
Luna v. Bowen, 834 F.2d 161, 163 (10th Cir. 1987). Next, the ALJ must look at the nexus between the
impairment and the plaintiff’s allegations of pain. Id. If the nexus is sufficient, the ALJ must consider
all of the evidence—both subjective and objective—to determine whether the plaintiff’s pain is in fact
disabling. Id.
The ALJ must closely and affirmatively link her findings to the substantial evidence,
identifying the specific evidence upon which she relies. Sanders v. Astrue, 266 F. App’x 767, 770

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(10th Cir. 2008) (citing Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995); Qualls v. Apfel, 206 F.3d
1368, 1372 (10th Cir. 2000)). The ALJ may consider the following when making his credibility
determination:
(1) the individual’s daily activities; (2) the location, duration, frequency, and intensity
of the pain or other symptoms; (3) factors that precipitate and aggravate the symptoms;
(4) the type, dosage, effectiveness, and side effects of any medication taken to alleviate
the symptoms; (5) treatment for relief of the symptoms; (6) measures other than
treatment used to relieve the symptoms (e.g. rest); and (7) any other factors.
Soc. Sec. Ruling 96-7p, 1996 WL 374186, at *3 (July 2, 1996). But the ALJ is not required to
formally address every factor. See Poppa v. Astrue, 569 F.3d 1167, 1171 (10th Cir. 2009) (holding
that a credibility finding “does not require a formalistic factor-by-factor recitation of the evidence . . .
[s]o long as the ALJ sets forth the specific evidence he relies on in evaluating the claimant’s
credibility”) (quotation marks and citation omitted).
Here, the ALJ found that plaintiff’s medically determinable impairment could reasonably be
expected to cause the alleged symptoms. However, the ALJ found plaintiff’s statements regarding the
intensity, persistence, and limiting effects of the symptoms to be “not credible to the extent they are
inconsistent with the above residual functional capacity assessment.” (R. at 21.)
The ALJ first discussed that plaintiff had back surgery in 2001 and then returned to his
construction job. (Id.) Plaintiff then exacerbated his back pain after an “altercation” at work in 2009.
(Id.) The ALJ explained that plaintiff had not worked since that time and was terminated after trying
to return to work. (Id.) Plaintiff was then denied unemployment. (Id. at 21, 42.)
Discussing the objective medical evidence, the ALJ noted that although plaintiff’s treating
physician, Dr. Rose, did originally hold plaintiff out of work after his injury, Dr. Rose released
plaintiff to work without restrictions in April 2009. (Id. at 22.) And he stated that an x-ray of
plaintiff’s cervical spine in May 2010 was normal. (Id.) Further, an MRI of the lumbar spine in March

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2010 “showed some post surgical changes at L5 with hardware from a previous fusion” and “[t]here
was some bilateral neural foraminal narrowing at L4-5 with bilateral foraminal stenosis at L5-S1
without central spinal stenosis.” (Id. at 22.) The ALJ noted that the MRI was otherwise unremarkable.
(Id.) He also indicated that other March 2010 imagery showed mild degenerative disc disease at the
same location, and that earlier imagery in April 2009 had shown some degenerative changes at L4-5,
but otherwise showed a normal lumbar view. (Id.) Finally, imagery of plaintiff’s knees in January
2009 was essentially normal. (Id.)
The ALJ also stated that plaintiff was examined by Dr. Saad M. Al Shathir, M.D., in March
2010, who noted that plaintiff showed pain in straight-leg raising only at the eighty-degree level, with
some mild spasms. (Id. at 23.) The ALJ discussed Dr. Al Shathir’s opinion that plaintiff could write,
sit up and transfer, reach, bend, manipulate objects without incident, and had flexion within normal
limits. (Id.) And the ALJ noted that plaintiff did not report the level of symptoms to Dr. Al Shathir
that he testified about in the hearing. (Id.)
The ALJ gave some weight to the opinion of Dr. Michael Peril, M.D., whose April 2010
opinion stated that plaintiff could perform a range of light work. (Id.) Dr. Peril’s decision was
confirmed as written by Dr. Gerald Siemsen, M.D., in August 2010. (Id.) The ALJ noted that Dr.
Peril cited a lack of medical evidence of plaintiff’s symptoms and also the fact that Dr. Rose released
plaintiff to go back to work, but that plaintiff never picked up the release and instead wanted to discuss
unemployment. (Id.) The ALJ noted his agreement with Dr. Peril that there was a lack of objective
evidence to support plaintiff’s complaints. (Id.) However, the ALJ relied on plaintiff’s disposition at
the hearing and his subjective complaints in finding that plaintiff has some impairment. (Id.) Thus,
the ALJ gave some credit to plaintiff’s subjective complaints in finding that additional limitations were
warranted beyond those recommended by Drs. Peril and Siemsen and limited plaintiff to a range of

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sedentary work. (Id.) He also found that Dr. Al Shathir’s opinion regarding some limits in plaintiff’s
straight-leg raising and flexion supported a finding that plaintiff has some impairment. (Id.)
Plaintiff argues that the ALJ found his statements to be not credible solely based on the lack of
objective medical evidence supporting his complaints. The court does not agree. Although the ALJ
did find that there was insufficient objective medical evidence in the record to support the level of
limitation alleged by plaintiff, the ALJ also discussed plaintiff’s daily activities, his treatment for pain
relief, and other factors.
For example, the ALJ considered plaintiff’s statements that his problems were so severe that
he: (1) needed help dressing, bathing, and could not grip things with his right arm; (2) spent about five
hours on a typical day lying down; and (3) needed help getting out of bed some days and help
preparing his own meals. (Id. at 21–22.) He then contrasted this with plaintiff’s statements that he (1)
often watches his roommate’s twelve-year-old son and gives the children rides; (2) does light
household chores when he is able; (3) shops; and (4) plays guitar, goes camping, and goes fishing. (Id.
at 22.) The ALJ properly found these activities to be inconsistent with plaintiff’s complaints.
Although the ALJ did ultimately conclude that the objective medical evidence did not support
the level of pain alleged by plaintiff, this was not his only reason for his credibility determination. The
ALJ discussed multiple factors as required by law. He may not have discussed every factor, but strict
adherence to the factors is not required. The court will not substitute its opinion for that of the factfinder in this situation. The ALJ’s credibility determination is supported by substantial evidence.1

1

Although the court does not rely on it for its decision, the court notes the inconsistency of plaintiff’s attempt to get
unemployment after his 2009 injury (which requires alleging that one is able to work) with his assertion that he was
disabled and unable to work around the same time. See Marshall v. Astrue, 2011 WL 3440081, at *11 (D. Kan. Aug.
8, 2011) (noting that the plaintiff’s contradictory assertions of being able to work in order to receive unemployment
benefits, but disabled and unable to work to receive disability benefits contributed to finding that the plaintiff’s
disability allegations were not credible).

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Second, plaintiff argues that the ALJ improperly evaluated his course of medical treatment.
Specifically, plaintiff contends that the ALJ discredited him for not undergoing epidural treatments
when he did in fact do so. In support, plaintiff quotes a portion of the ALJ’s decision in which he
states:
Claimant has successfully worked post his fusion surgery in 2001 and Dr. Rose’s plan
for epidural injections to alleviate the claimant’s pain, which is real, were [sic] never
contradicted in the medical record as being ineffective. Regardless, the claimant sought
no other plan to alleviate his pain. Therefore, the undersigned finds that the claimant is
capable of a sedentary exertional level and assigns postural and environmental limits
that are supported by the medical evidence.
(Id. at 23.) Plaintiff also points to the ALJ’s observation that “Dr. Rose’s records show that the
claimant did not want further epidural injections for fear they would interfere with the hardware or hit
his spinal cord. (Exhibit B9F).” (Id. at 22.)
Although the block-quoted passage above is not extremely clear, the court finds that the ALJ
did acknowledge plaintiff’s completion of the three epidural injections: the ALJ noted only three
paragraphs earlier in his opinion that plaintiff “has had epidural injections with mixed results.” (Id.)
In the block-quoted passage, it appears that the ALJ was noting that the record lacked evidence that
Dr. Rose’s epidural injection plan was ineffective. And the ALJ followed up by noting that, regardless
of whether the epidural injections were ineffective, plaintiff sought no other plan to alleviate his pain.
(Id. at 23.) Thus, although the ALJ could have expressed this notion more clearly, the court does not
agree that the ALJ found plaintiff did not undergo the epidural injections and discredited plaintiff for
this reason.
Plaintiff includes a similar argument that the ALJ discredited his testimony by finding that he
“successfully worked” after his fusion surgery in 2001. (Id. at 23.) Plaintiff argues that the fact that
plaintiff worked for years after his surgery bears little relation to his limitations after he re-injured his
back in 2009. But plaintiff even acknowledges that the ALJ found that plaintiff re-injured his back in

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an altercation at work. (Doc. 11 at 7; R. at 21.) Further, the ALJ noted that plaintiff tried to return to
work after his injury in 2009, but was terminated.2 (R. at 21.) Again, reading the ALJ’s opinion as a
whole reveals that the ALJ did acknowledge that plaintiff re-injured his back in 2009 and that he did
not discredit plaintiff’s testimony because plaintiff worked after his surgery in 2001. This argument
fails.
Third, plaintiff contends that the ALJ improperly assumed the role of an unqualified medical
expert when he characterized his back pain as a “mild back condition.” (Id. at 23.) But the ALJ was
not making a medical determination at this point. The ALJ’s statement was made in the discussion of
whether plaintiff’s subjective complaints were supported by the objective medical record, and the ALJ
noted that his subjective complaints alone could not warrant additional limitations beyond those
already discussed. (Id. at 23.) The court reads the ALJ’s comment in context, and does not find that
the ALJ was offering a medical opinion regarding plaintiff’s condition. He was instead speaking
generally about the objective medical evidence regarding plaintiff’s condition. Plaintiff’s argument
on this point fails.
Fourth, plaintiff argues that the ALJ erred because although he acknowledged plaintiff’s
testimony that he could not afford medical treatment, he did not consider “(1) whether the treatment
would restore plaintiff’s ability to work; (2) whether the treatment was prescribed; (3) whether the
treatment was refused; and if so, (4) whether the refusal was without justification.” (Doc. 11 at 9
(citing Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th Cir. 1993); Frey v. Bowen, 816 F.2d 508, 517
(10th Cir. 1987)).)
The court agrees that the ALJ must address these factors in certain circumstances. See King v.
Colvin, No. 12-1116-JWL, 2013 WL 1624826, at *3 (D. Kan. Apr. 15, 2013) (quoting same factors
2

This fact further supports the ALJ’s finding that plaintiff was not disabled. See Williams v. Chater, 923 F. Supp. 1373,
1379 (D. Kan. 1996) (finding that evidence that the plaintiff left his job due to economic reasons—and not because of
physical or emotional problems—supported the ALJ’s decision that the plaintiff was not disabled).

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and calling them the “Frey” test). If the ALJ had been analyzing whether plaintiff had followed a
prescribed or recommended treatment plan, then the Frey test would be required. See id. But the Frey
test is not required in situations, like here, where the ALJ was determining what steps plaintiff had
taken to relieve his symptoms in analyzing plaintiff’s credibility. See id. (noting that “the Tenth
Circuit has held that the Frey test is not required in situations where treatment has not been prescribed
or recommended, but where the ALJ is simply considering ‘what attempts plaintiff made to relieve
[her symptoms] . . . in an effort to evaluate the veracity of plaintiff’s contention that [her symptoms
were] so severe as to be disabling’”) (citing Qualls, 206 F.3d at 1372 (other citations omitted)).
Here, after carefully reviewing the record, the court finds no error in the ALJ’s analysis. The
ALJ stated that he “understands that the claimant states he could not afford medical treatment and so
he does not have records to document his level of suffering.” (R. at 23.) But the ALJ also
acknowledged that there was a May 2010 function report around the same time that Dr. Rose
performed his examinations of plaintiff, and there was no documentation of worsening of symptoms.
(Id.) And the ALJ pointed out that Dr. Rose cleared plaintiff to return to work around the same time
that plaintiff and his roommate were reporting that plaintiff needed help to get dressed in the morning.
(Id.) Finally, the ALJ notes that “[t]here are no emergency room visits or any other record” to support
plaintiff’s alleged level of pain. (Id.)
The court again had to carefully consider the portion of the ALJ’s opinion where he stated that
“Dr. Rose’s plan for epidural injections to alleviate the claimant’s pain, which is real, were [sic] never
contradicted in the medical record as being ineffective.” (Id.) At first glance, it might appear that this
is the type of situation in which the Frey test is required. However, it appears that the ALJ was
referring to plaintiff’s failure to seek additional treatment, and not his refusal to follow through with

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prescribed treatment.3 The next sentence stating that “[r]egardless, the claimaint sought no other plan
to alleviate his pain” further confirms this interpretation. (Id.) As a result, the court finds that the ALJ
was not required to consider the Frey factors and his analysis was appropriate. This argument fails.
III.

Conclusion
The ALJ’s credibility findings are supported by substantial evidence in the record, and the

court will not disturb them. Based on the above analysis, the court affirms the decision of the ALJ.
IT IS THEREFORE ORDERED that the Commissioner’s decision is affirmed. Judgment
shall be entered pursuant to fourth sentence of 42 U.S.C. § 405(g).
Dated this 20th day of December, 2013, at Kansas City, Kansas.

s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge

3

As discussed above, the ALJ acknowledged that plaintiff did follow through with the epidural injections. (R. at 22.)

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