Henderson v. Social Security Administration, Commissioner of

Filing 20

MEMORANDUM AND ORDER - It is ordered that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING that decision.Signed by District Judge John W. Lungstrum on 07/01/2014. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

KEITH HENDERSON,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security,
)
)
Defendant.
)
________________________________________ )

CIVIL ACTION
No. 13-1119-JWL

MEMORANDUM AND ORDER

Plaintiff seeks review of a decision of the Commissioner of Social Security
(hereinafter Commissioner) denying Supplemental Security Income (SSI) benefits1 under
sections 1602, and 1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 1381a, and
1382c(a)(3)(A) (hereinafter the Act). Finding no error in the Commissioner’s 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

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Plaintiff applied for both Disability Insurance Benefits (DIB) and SSI. (R. 12128). After the initial denial, the record no longer mentions DIB. The decision relates
only to SSI benefits. Neither party addressed this issue, and Plaintiff’s Brief does not
allege error in this regard. Therefore, the court will not address the issue.

Plaintiff applied for SSI benefits, alleging disability beginning May 1, 2010. (R.
17, 123-28). In due course, Plaintiff exhausted proceedings before the Commissioner,
and now seeks judicial review of the final decision denying benefits. He claims the
Administrative Law Judge (ALJ) erred in evaluating the credibility of his allegations of
symptoms resulting from his mental impairments, and in finding that his condition does
not meet or medically equal the severity of Listings 12.04 and 12.06.
The court’s review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052
(10th Cir. 2009). Section 405(g) of the Act 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). Nonetheless, the
determination whether substantial evidence supports the Commissioner’s decision is not
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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).
The Commissioner uses the familiar five-step sequential process to evaluate a
claim for disability. 20 C.F.R. §§ 404.1520, 416.920; 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
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past relevant work. Blea v. Barnhart, 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).
Although Plaintiff’s allegations of error are not organized in the order of the
sequential evaluation process, the court finds no error induced by that order of
proceeding, and will address the issues in the order presented in Plaintiff’s Brief.
II.

The Credibility Determination
Plaintiff claims the ALJ erred in his credibility determination because he relied

upon Plaintiff’s activities of daily living to discount Plaintiff’s credibility. (Pl. Br. 23)
(apparently quoting from Cobb v. Astrue, 2010 WL 381614 (10th Cir. Feb. 4, 2010); and
citing Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th Cir. 1993)). Based upon Cobb
and Thompson Plaintiff argues that minimal or sporadic performance of [activities of
daily living] are generally insufficient to support an adverse credibility finding.” Id. at 23
(italics in Plaintiff’s Brief). In his Reply Brief, Plaintiff asserts that this error is important
because the ALJ thereby ignored substantial evidence, contrary to the requirements of
Social Security Ruling (SSR) 96-8p. (Reply 3).
The Commissioner argues that the ALJ did not place undue reliance on activities
of daily living. She argues that in accordance with the rules, regulations, and case law,
and in addition to Plaintiff’s activities of daily living the ALJ “articulated several valid
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reasons for finding Plaintiff’s subjective complaints not credible.” (Comm’r Br. 7). She
points to several factors relied upon by the ALJ to discount Plaintiff’s credibility, and
argues that the record evidence supports each of these findings. Id. at 9-10.
A.

Standard for Evaluating a Credibility Determination

The court’s review of an ALJ’s credibility determination is deferential. It is
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 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).
B.

Discussion

As Plaintiff quoted at page 22 of his Brief, the ALJ considered Plaintiff’s activities
and determined that those activities detract from the credibility of Plaintiff’s allegations
of disabling symptoms:
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Further, the claimant daily engages in activities that are inconsistent with a
total inability to work. The claimant testified that his strict daily routine is
what keeps him from becoming too depressed or too manic to function.
The undersigned finds that the claimant’s carefully constructed daily
regimen is evidence that the claimant is capable of performing unskilled
work on a remunerative basis. The claimant described a typical day. The
claimant testified that he wakes at 6 a.m. He gets up immediately, because
if he does not get up and get going right away, he will stay in bed all day.
He testified that [he] does not allow himself to stay in bed all day. After
waking up, he lets his dogs out. He goes to the recreation center by 8 a.m.
where he does a light weight workout and easy cardio to manage his mood.
At approximately 9:30 a.m., he goes home, runs errands for his mother and
does chores around the house. He makes a simple lunch. In the afternoon,
he goes to a yoga class and then swims laps in the pool. The claimant then
goes home and fixes a quick meal. In the early evening, he feeds the dogs
and horses. He watches television and goes to bed at 9 p.m. He testified
that his exercise regimen and daily routine are very helpful in relieving his
symptoms. This routine, which is frankly not unlike a daily work routine,
indicates that the claimant has the ability to manage his symptoms
effectively, further indicating that the claimant is capable of performing
unskilled remunerative work (albeit with social limitations as stated above).
(R. 23). Plaintiff takes particular exception to the last sentence of the ALJ’s discussion,
arguing that the ALJ’s conclusion is merely speculation that Plaintiff can perform
remunerative work, and is not verified by vocational expert testimony. (Pl. Br. 22-23).
Plaintiff’s Brief completely ignores that the ALJ gave three other reasons to
discount Plaintiff’s allegations--that Plaintiff was not receiving mental health treatment,
that Plaintiff’s most recent mental status exam revealed only minor problems in mental
functioning, and that Plaintiff’s treating physicians have not identified specific limitations
or objective findings which would preclude performance of unskilled work on a sustained
basis. The court’s review reveals that each of these reasons is supported by record
evidence, and it accepts them as substantial record evidence supporting the ALJ’s finding
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that Plaintiff’s allegations are not credible. The remaining questions then are whether the
ALJ’s consideration of Plaintiff’s daily activities is erroneous and, if so, whether that
error precludes the finding that Plaintiff’s allegations are not credible.
The court finds no error. The discussion is based upon testimony regarding
Plaintiff’s daily activities, and is supported by that testimony. Plaintiff testified that he is
regimented in his daily activities. (R. 44). He is “disciplined enough to do what I need to
do to make myself have some energy. I mean I make myself get up and go swim laps
because I know if I don’t I won’t get out of bed that day. I can’t let that start happening.”
(R. 45). And, each of the daily activities noted by the ALJ is confirmed by Plaintiff’s
testimony when recounting how he has organized his regimented day. (R. 48-52).
Further, it is important to note that the ALJ did not say that Plaintiff’s daily
activities are equivalent to working eight hours a day, five days a week. Rather, the only
impairments alleged by Plaintiff are mental impairments, and the ALJ recognized that
Plaintiff’s daily regimen is similar to a daily work routine, and indicates that Plaintiff is
able to organize his day into a routine to manage his mental impairments. The ALJ found
that this ability would also allow Plaintiff to manage his mental symptoms effectively
around the routine of a work day, and thereby perform unskilled, remunerative work.
That is the significance of the last sentence of the ALJ’s discussion to which Plaintiff
takes “great exception.”
Plaintiff’s argument that the ALJ’s conclusion is merely speculation unverified by
vocational expert testimony, misunderstands both the law and the rationale of the ALJ’s
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discussion. While an ALJ’s decision may not be mere speculation, and must be reasoned
and based upon the evidence in the record, he is not limited merely to conclusions
contained in the record that have been expressed by a medical expert, a vocational expert,
or some other authority. For it is the ALJ 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
Social Security Ruling (SSR) 96-05p, 1996 WL 374183, at *5 (July 1996)). Because
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); 20 C.F.R. §§ 404.1545(a), 416.945(a).
The same principle applies to an ALJ’s consideration of the evidence in reaching
conclusions regarding credibility. Here, the record supports the evidence discussed and
relied upon by the ALJ in considering Plaintiff’s activities of daily living. Moreover, the
ALJ’s conclusion is supported by and rationally follows from the record evidence relied
upon. Therefore, his rationale is a proper basis, along with the other three reasons given,
to discount the credibility of Plaintiff’s allegations.
The cases cited by Plaintiff do not require a different conclusion. In Cobb, the
Plaintiff claimed that the ALJ applied an incorrect legal standard to the credibility
determination because the ALJ stated that Ms. Cobb’s ability to perform activities of
daily living “to any degree suggests that she retains some capacity to perform activities
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. . . in a work environment.” Cobb, 2010 WL 381614, at *5 (emphasis in original). The
court noted that the district court calculated that Ms. Cobb’s daily activities consisted of
31-54 hours weekly of seated activities and 7-14 hours weekly of standing activities and
found that the extent of Ms Cobb’s activities set her case apart from cases such as
Thompson which have held that minimal or sporadic performance of activities of daily
living is an insufficient basis for an adverse credibility finding. Id. The court noted,
moreover, that the ALJ did not state that Ms. Cobb’s ability to perform activities of daily
living meant that she was able to perform sustained work activities. It found the ALJ’s
use of the phrase “to any degree” relatively benign, and affirmed the district court’s
decision which had affirmed the ALJ’s decision. Id.
In Thompson, the court noted that an “ALJ may not rely on minimal daily
activities as substantial evidence that a claimant does not suffer disabling pain,” and that
the “sporadic performance of household tasks or work does not establish that a person is
capable of engaging substantial gainful activity.” 987 F.2d at 1490 (citing and quoting
Frey v. Bowen, 816 F.2d 508, 516-17 (10th Cir. 1987)) (brackets omitted). In this case,
the ALJ was not relying on Plaintiff’s daily routine to suggest that Plaintiff does not
suffer disabling pain--pain is not even an issue in this case. Nor was Plaintiff’s daily
routine used to establish that Plaintiff is capable of performing substantial gainful
activity. Rather, the ALJ was relying on Plaintiff’s daily routine to show that Plaintiff has
the mental ability to manage his mental symptoms effectively around the routine of a
work day, and thereby to perform unskilled, remunerative work.
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Plaintiff’s argument in his reply Brief that the ALJ ignored substantial evidence in
his credibility determination is without merit to change the court’s finding. Plaintiff does
not point to any evidence which was ignored by the ALJ. Much more, he does not
explain how such evidence would preclude the ALJ’s finding that Plaintiff’s allegations
of disabling symptoms are not credible. Plaintiff has shown no error in the credibility
determination.
III.

Listings 12.04 and 12.06
In his final claim of error, Plaintiff alleges that his mental condition meets mental

Listing 12.04 and/or Listing 12.06. This is so, in Plaintiff’s view, because his testimony
establishes that he has a “marked” limitation in activities of daily living, and the Global
Assessment of Functioning (GAF) score of 50 consistently assigned by his mental
healthcare providers at COMCARE of Sedgwick County “could serve the purpose of
defining a marked impairment in social or occupational functioning.” (Pl. Br. 25).
Implicit in Plaintiff’s argument is the regulatory requirement that in order to meet
the “paragraph B” criteria of Listing 12.04 or 12.06, Plaintiff’s condition must result in
“at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration.” 20 C.F.R.,
Pt. 404, Subpt. P., App. 1 §§ 12.04B, 12.06B. Plaintiff “has the burden at step three of
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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)). “An impairment that manifests only some of [the
listing] criteria, no matter how severely, does not qualify” to meet the listing. Zebley, 493
U.S. at 530.
But, Plaintiff does not establish that he meets two of the four “paragraph B”
criteria for the mental listings at issue here. First, the court has already determined that
Plaintiff has shown no error in the ALJ’s credibility finding that Plaintiff’s allegations are
not credible. Therefore, Plaintiff cannot show through his testimony that he has
“marked” limitations in activities of daily living.
Moreover, Plaintiff’s argument that his GAF score of 50 “could serve the purpose
of defining a marked impairment in social or occupational functioning,” is without merit.
As Plaintiff points out in his Brief, a GAF score of 41-50 indicates “Serious symptoms
(e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious
impairment in social, occupational, or school functioning (e.g., no friends, unable to
keep a job).” Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental
Disorders (DSM-IV-TR) 34 (4th ed. text revision 2000). While a GAF score of 50 at
least conceivably could define a marked impairment in social or occupational functioning,
Plaintiff makes no attempt to explain how a serious impairment in social, occupational, or
school functioning as stated in the DSM might be equivalent to a marked difficulty in
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maintaining social functioning or to a marked difficulty in maintaining concentration,
persistence, or pace as required by the regulations. Plaintiff simply has provided no legal
or evidentiary link between his proposition and the result which he would like to achieve.
Therefore, Plaintiff’s argument that the ALJ erred in relying on case law other than
that of the Tenth Circuit when discounting the GAF score of 50 assigned by Plaintiff’s
mental healthcare providers is irrelevant to the decision at issue. Moreover, even when
the court considers the failure to discuss Tenth Circuit law it finds no error in the ALJ’s
decision. As the Commissioner admits “it would have been more appropriate for the ALJ
to cite Tenth Circuit precedent in this case.” (Comm’r Br. 6-7). However, as the
Commissioner also points out, Tenth Circuit precedent does not require a finding of
disability merely because of a GAF score of 50. Id. at 7 (citing Lee v. Barnhart, 117 Fed.
App’x. 674, 678 (10th Cir. 2004)).
In Lee, the ALJ determined at step two of the sequential evaluation process that
Mr. Lee did not have a “severe impairment” within the meaning of the Social Security
regulations, and he denied Mr. Lee’s application for benefits. Lee, 117 Fed. App’x at
676. The court noted that in Mr. Lee’s case the ALJ did very little of the mental
impairment analysis required by the regulations, and that he provided no consideration of
a GAF score of 48 assigned to Mr. Lee by a physician who provided a report of a
consultative examination performed on Mr. Lee. Id. at 678. The court recognized that a
GAF score of 50 or below, standing alone, does not establish an inability to work because
it might be assigned as the result of impairments solely within the social rather than the
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occupational sphere. Id. However, the court recognized that the question at step two of
the sequential evaluation process is whether the plaintiff’s mental impairment has more
than a minimal effect on the ability to perform basic mental work abilities, and that a
GAF score of 50 or less “does suggest an inability to keep a job.” Id. Therefore, the
court held that in a case such as Lee, decided at step two, a GAF score below 50 should
not be ignored. Id.
Thus, Tenth Circuit precedent as presented in Lee recognizes that when a case is
decided at step two, a GAF score of 50 or less should not be ignored. But, as Lee also
specifically recognized, “[s]tanding alone, a low GAF score does not necessarily evidence
an impairment seriously interfering with a claimant’s ability to work.” Lee, 117 Fed.
App’x at 678. Therefore, Plainiff has shown no error in the ALJ’s determination to
discount the GAF score of 50 assigned to Plaintiff, or in his determination that Plaintiff’s
mental impairment does not meet Listing 12.04 or Listing 12.06.
The court finds no error in the Commissioner’s decision denying benefits.
IT IS THEREFORE ORDERED that judgment shall be entered pursuant to the
fourth sentence of 42 U.S.C. § 405(g) AFFIRMING that decision.
Dated this 1st day of July 2014, at Kansas City, Kansas.

s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge

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