Koehn v. Social Security Administration, Commissioner of

Filing 22

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 8/13/14. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

THOMAS KOEHN,
Plaintiff,
vs.

Case No. 13-1155-SAC

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

MEMORANDUM AND ORDER
This is an action reviewing the final decision of the
Commissioner of Social Security denying the plaintiff disability
insurance benefits.

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

scintilla, but less than a preponderance, and is satisfied by

1

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).

The claimant's physical or

mental impairment or impairments must be of such severity that
2

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.
the claimant survives step four, the fifth and final step
3

If

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 March 14, 2012, administrative law judge (ALJ) Timothy

J. Christensen issued his decision (R. at 10-19).

Plaintiff

alleges that he had been disabled since June 24, 2009 (R. at
10).

Plaintiff is insured for disability insurance benefits

through December 31, 2015 (R. at 12).
4

At step one, the ALJ

found that plaintiff did not engage in substantial gainful
activity since the alleged onset date (R. at 12).

At step two,

the ALJ found that plaintiff had the following severe
impairments:

status post-surgery for cancerous kidney,

arthritis in feet, bilateral carpal tunnel syndrome, sleep apnea
with chronic fatigue, degenerative disc disease of the spine,
fibromyalgia, anxiety disorder, depressive disorder (R. at 12).
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 15-16), the ALJ determined at
step four that plaintiff is unable to perform past relevant work
(R. at 18).

At step five, the ALJ found that plaintiff could

perform work that exists in significant numbers in the national
economy (R. at 18-19).

Therefore, the ALJ concluded that

plaintiff was not disabled (R. at 19).
III.

Did the ALJ err in his credibility analysis?
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

5

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
record, will be affirmed by the court.
910.

6

White, 287 F.3d at 909-

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 ALJ’s RFC findings limited plaintiff to light work,
only occasional performance of postural activities, occasional
fingering, avoiding concentrated exposure to noise and
vibration, performing no more than simple, routine, tasks, and
tolerating no more than occasional changes in the workplace
setting (R. at 15-16).
Concerning plaintiff’s credibility, the ALJ stated the
following:
7

This residual functional capacity assessment
adequately addresses the claimant's physical
and mental impairments. The claimant's
arthritis, carpal tunnel syndrome, and
degenerative disc disease limit the
claimant's exertional abilities. The
claimant's carpal tunnel syndrome limits his
ability to perform more than occasional
fingering. The claimant's fibromyalgia with
chronic fatigue prevents the claimant from
working in certain environmental conditions.
The claimant's degenerative disc disease and
fibromyalgia limit his ability to perform
postural activities. The claimant's mental
impairments limit his ability to perform
complex tasks or work in a rapidly changing
environment.
After careful consideration of the evidence,
the undersigned finds that the claimant's
medically determinable impairments could
reasonably be expected to cause the alleged
symptoms; however, the claimant's statements
concerning the intensity, persistence and
limiting effects of these symptoms are not
credible to the extent they are inconsistent
with the above residual functional capacity
assessment. The evidence shows the claimant
has many severe impairments, but they are
fairly mild and the claimant has not sought
more than conservative treatment for any
of them outside the 2008 kidney surgery. The
claimant credibly testified that he cannot
lift over fifty pounds due to back pain and
can walk at least one mile. The claimant
testified he has problems with hand
cramping, but states can play guitar and
keyboard, go fishing, and use a vacuum
cleaner. The claimant testified he watches
television all day, and later that he
listens to the radio all day. The claimant
then stated he spends all day sleeping,
alleging he requires eleven or twelve hours
of sleep a night to function. The claimant's
statements that he performs each of
these activities all day shows a definite
tendency to exaggerate. The claimant acted
8

appropriately during the hearing and
admitted he rarely has problems with fatigue
while driving, which further calls into
question the alleged severity of the
claimant's fatigue. (8F3, hearing
testimony) The claimant has also been
inconsistent in his statements regarding his
ability to clean his house, do yard work, or
home repair. ( 4E, 8El, lOE, 12E, llF) The
undersigned does not find the claimant's
statement that he requires eleven or twelve
hours of sleep to function to be fully
credible. The undersigned finds the
objective and subjective evidence of record
does not fully support the claimant's
allegations. Based on this evidence, the
undersigned does not find the claimant's
allegations more convincing than the medical
opinions and other evidence of record.
(R. at 16-17).
The ALJ gave great weight to the opinions of the
consultative examiner, Dr. Simmonds regarding plaintiff’s mental
impairments (R. at 427-429, 17).

The ALJ also gave great weight

to the physical RFC assessment by Dr. Parsons and Dr. Cole (R.
at 437-444, 506-507) and the mental RFC assessment by Dr.
Schulman and Dr. Biscardi (R. at 454-470, 505, 17).

The ALJ

gave little weight to the opinions of Dr. Davison (R. at 17).
Plaintiff does not take issue with the relative weight that the
ALJ gave to the medical source opinions.
Plaintiff takes issue with the ALJ’s assertion that
plaintiff had “fairly mild” symptoms, that plaintiff sought only
“conservative treatment,” that the ALJ listed various daily
activities that plaintiff engaged in, that the plaintiff made
9

inconsistent statements, and with the ALJ’s observation that
plaintiff acted appropriately during the hearing and rarely had
problems with fatigue while driving.

Plaintiff also asserts

that the ALJ should have considered plaintiff’s earnings record.
Regarding plaintiff’s daily activities, the ALJ simply
noted certain daily activities; the ALJ did not expressly rely
on them as a basis for finding that plaintiff could work.
Although minimal activities of daily living do not constitute
substantial evidence that a claimant does not suffer disabling
pain, the ALJ may consider activities of daily living as part of
his evaluation of a claimant’s credibility.

The ALJ did not

solely rely on claimant’s activities of daily living, but
instead evaluated them as part of his credibility analysis.
Zaricor-Ritchie v. Astrue, 452 Fed. Appx. 817, 823 (10th Cir.
Dec. 15, 2011).

For this reason, the court finds no error by

the ALJ in his mention of certain daily activities by the
plaintiff.

For the same reason, the ALJ’s reference to

plaintiff’s behavior during the hearing was not error because it
may also be considered as part of the credibility analysis.
Plaintiff also asserts that the ALJ should have considered
plaintiff’s earnings records.

However, plaintiff has failed to

cite to any case law or regulation requiring the ALJ to consider
a claimant’s past consistent work history when making a
credibility determination.

See Bolan v. Barnhart, 212 F.
10

Supp.2d 1248, 1261 (D. Kan. 2002).

As noted above, 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 relied on in evaluating plaintiff’s credibility.
As noted above, the ALJ gave great weight to the opinions
of Dr. Parsons.

Dr. Parsons concluded his narrative discussion

as follows:
The totality of the medical and non-medical
evidence in file indicates clmt does have
MDIs [medically determinable impairments]
that are the reasonable cause of Sxs of
fatigue. This allegation is credible.
Despite this fatigue, clmt cares for himself
and his residence, shops, entertains
himself, and visits friends and family
weekly or bimonthly. Limitations alleged
are out of proportion to the level of
activity shown, and are thus partially
credible.
Clmt is able to sustain activity
as reflected in this RFC
(R. at 444, emphasis added).

Dr. Schulman’s narrative concluded

as follows:
Allegations are considered credible but the
extent to which they limit his cognitive
abilities and function does not preclude all
activity. Impairments result in moderate
limits to CP&P [concentration, persistence,
pace] but mild limits to ADL’s [activities
of daily living] and socialization.
(R. at 466).
The ALJ found that plaintiff’s statements concerning her
symptoms were not credible to the extent that they were
inconsistent with the ALJ’s RFC findings.
11

Those RFC findings

are consistent with the opinions rendered by Dr. Parsons and Dr.
Schulman.

Dr. Parsons, after reviewing the medical evidence and

statements of plaintiff and other witnesses, found that
plaintiff’s limitations are out of proportion to plaintiff’s
level of activity, and were thus only partially credible (R. at
444).

Dr. Schulman, after reviewing the medical evidence and

statements of the plaintiff, also opined that plaintiff’s
allegations were only credible to the extent that they resulted
in limitations set out in his mental RFC assessment (R. at 466).
The ALJ could reasonably rely on the evidence from Dr. Parsons
and Dr. Schulman to find that plaintiff was credible only to the
extent that plaintiff’s limitations limited him as set forth in
the opinions of Dr. Parsons and Dr. Schulman, and as established
by the ALJ in his RFC findings for the plaintiff.
It is not clear from the ALJ’s opinion what is the basis
for his finding that plaintiff’s impairments are fairly mild or
that plaintiff sought no more than conservative treatment.

The

ALJ also failed to indicate how some of the statements cited
were inconsistent (regarding his ability to clean house, do yard
work, home repair); however, the ALJ did find an inconsistency
with problems with hand cramping at the same time plaintiff
stated he played the guitar and keyboard, went fishing and used
a vacuum cleaner (R. at 8-9).

While the court has some concerns

regarding the ALJ’s reliance on these factors, the court
12

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 ALJ’s credibility

analysis is clearly linked to the opinions of Dr. Parsons
(affirmed by Dr. Cole), and Dr. Schulman (affirmed by Dr.
Biscardi).

For this reason, the court finds that substantial

evidence supports the ALJ’s credibility analysis.
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 13th day of August 2014, Topeka, Kansas.

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

13