Iiams v. Social Security Administration, Commissioner of

Filing 15

MEMORANDUM AND ORDER. The decision of the Commissioner is AFFIRMED. Signed by District Judge Eric F. Melgren on 04/22/2014. (aa)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JOHN IIAMS,
Plaintiff,

vs.

Case No. 6:13-CV-1227-EFM

CAROLYN W. COLVIN,
Commissioner of Social Security
Defendant.

MEMORANDUM AND ORDER
Plaintiff John Iiams (“Plaintiff”) seeks review of a final decision by Defendant, the
Commissioner of Social Security (“Commissioner”), denying his applications for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI
of the Social Security Act, respectively, and attorney’s fees. In his pleadings, Plaintiff alleges
three assignments of error concerning the assessment of his residual functional capacity: (1) a
failure to properly weigh the opinions of the state examiners, (2) a failure to properly weigh the
opinion of Plaintiff’s treating source, and (3) credibility issues. Upon review, the Court finds
that the Commissioner’s decision was supported by substantial evidence contained in the record.
As such, the decision of the Commissioner is affirmed.
I.

Factual and Procedural Background

Plaintiff’s relevant medical issues date back to July 11, 2008, when Plaintiff saw his
family physician complaining that his right arm had not been working for the past week. An

examination found that Plaintiff could not raise his right arm at all, nor could he move it forward
or backward. He also held his right arm down to his side with his palm facing outward.
However, Plaintiff’s doctor noted that “when [Plaintiff was] not aware of it, he use[d] the arm
without any difficulty.”1

An x-ray showed no acute bony fracture, dislocation, or bony

destruction. In October 2008, Plaintiff underwent an x-ray of his cervical spine. The scan
showed a straightening of the spine with narrowing of the disc spaces at the C4-C7 vertebrae and
anterior hyperostotic changes at the C3-T1 vertebrae.
The balance of Plaintiff’s medical record consists of his numerous visits to chiropractor
Gerald Kauffman, DC (“Kauffman”), who Plaintiff saw approximately twice per week from
April 2009 through late 2011. Kauffman diagnosed Plaintiff with a frozen shoulder. From July
2010 through March 2011, when asked to rate his pain on a scale of one to nine, Plaintiff
indicated that his neck pain was a two, and his mid and lower back pain was a one. Kauffman
noted that Plaintiff had some swelling of the tissues, muscle spasms, taut and tender fibers, pain
upon palpation, hypomobility of the vertebra, and a decrease in the normal range of motion. In
mid-March 2011, and without explanation, Plaintiff’s pain ratings changed as follows: neck pain
at a six, neck pain radiating into right arm at a seven, mid back pain at a four, low back pain at a
seven, and low back pain radiating into the right leg at an eight.

Kauffman’s narrative

commentary did not reflect any reason for these changes, nor did it describe any additional
symptoms. In May 2011, Plaintiff’s mid back pain decreased to a four, where it remained
through at least August 2011.2

1

Doc. 6, at 283.

2

Plaintiff’s medical records also contain information from Plaintiff’s cardiologist, Dr. Lambert A. Wu, MD
(“Dr. Wu”). Dr. Wu noted that Plaintiff had an acute inferior wall myocardial infarction on May 30, 2005, which
was treated with a left and right coronary arteriography and Cypher drug-eluting stent. Plaintiff returned to Dr. Wu

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Plaintiff filed for both DIB and SSI on June 10, 2010, alleging disability beginning May
2, 2010.3 His claims were denied initially on September 14, 2010, and upon reconsideration on
October 7, 2010. Plaintiff timely filed a request for an administrative hearing, which took place
on September 27, 2011, before Administrative Law Judge Michael Shilling (“ALJ Shilling”).
Plaintiff, represented by counsel, appeared and testified.
At the time of the hearing, Plaintiff was sixty years old and lived alone. Plaintiff testified
that he graduated high school and took a course when he began employment with a hospital.
When asked what prevented him from returning to work, Plaintiff cited the pain in his shoulder
as well as leg and foot numbness. Plaintiff indicated that he injured his right shoulder while
moving a cement birdbath and this injury resulted in adhesive capsulitis, or frozen shoulder. He
sought treatment with his chiropractor, Kauffman, and testified that no one had ever discussed
with him additional treatment options. Plaintiff testified that he did not take any type of pain
medication, including over-the-counter remedies, but did use BioFreeze on his leg and ice to
relieve the pain in his right shoulder. He noted that his chiropractic sessions provided temporary
relief. Plaintiff testified that Kauffman discussed surgery but allegedly told Plaintiff that the
surgery was “experimental” and “very expensive” and would involve breaking Plaintiff’s
collarbone.4

once per year. His most recent appointment in August 2011 showed no concerns for his heart. Plaintiff does not
allege disability based on his cardiac issues.
3

The Court notes that Plaintiff initially filed for DIB and SSI on August 19, 2008. These claims were
denied on February 19, 2009. Following a March 2010 administrative hearing, Plaintiff’s applications were again
denied on April 30, 2010, just weeks before Plaintiff’s current applications were filed. The Appeals Council denied
review of these claims on November 24, 2010.
4

Doc. 6, at 43.

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With regard to activities of daily living, Plaintiff testified that he could cook, do yard
work, and drive, although not on the highway. He indicated that his adult daughter took care of
most of his household chores, including laundry. Plaintiff also noted that he had difficulty
getting dressed and undressed and limited himself to one shower per week due to his shoulder
pain. He testified that he could lift ten to fifteen pounds with his left arm, sit for an hour at a
time, and stand for thirty to forty minutes at a time. Plaintiff indicated that he did not use a sling
to help stabilize his shoulder but used a cane for walking longer distances.
In addition to Plaintiff’s testimony, ALJ Shilling also sought the testimony of Vocational
Expert Alissa Smith (“VE Smith”) to determine how, if at all, Plaintiff’s impairments and
limitations affected his ability to return to the workforce. VE Smith described Plaintiff’s past
work as a psychiatric aide as semi-skilled and typically performed at a medium level, although
she noted that Plaintiff performed this job more at a heavy level of exertion. The VE described
Plaintiff’s past work as a security guard as semi-skilled and light, and his past work as a hotel
housekeeper as unskilled and light. Based on this testimony, and upon his review of Plaintiff’s
entire record, ALJ Shilling asked the VE a series of hypothetical questions that included varying
degrees of limitation on actions such as lifting, walking, standing, sitting, climbing,
pushing/pulling, balancing, and reaching. Plaintiff’s counsel did not pose any hypothetical
questions.
On November 1, 2011, ALJ Shilling issued his decision, finding that Plaintiff suffered
from a variety of severe impairments, including right shoulder pain, coronary artery disease, and
obesity. Despite these findings, the ALJ determined that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. ALJ Shilling concluded that Plaintiff retained the

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residual functional capacity to perform medium work, as that term is defined under Social
Security Regulations, with the following limitations and/or exceptions: (1) only occasionally lift
and/or carry fifty pounds and frequently lift and or carry twenty-five pounds; (2) stand and walk
for six hours out of an eight-hour workday; (3) sit for six hours out of an eight-hour workday; (4)
frequently balance, stoop, crouch, crawl, and climb stairs; (4) occasionally climb ropes,
scaffolds, or ladders; and (5) frequently engage in overhead reaching and handling. The ALJ
therefore concluded that Plaintiff had not been under a disability since May 1, 2010, the alleged
onset date, through the date of his decision.
Given this unfavorable result, Plaintiff sought reconsideration of ALJ Shilling’s decision
from the Appeals Council. The Council denied review on April 12, 2013. As such, the ALJ’s
November 2011 decision became the final decision of the Commissioner.
On June 10, 2013, Plaintiff filed a Complaint in the United States District Court, District
of Kansas seeking reversal and the immediate award of benefits or, in the alternative, a remand
to the Commissioner for further consideration. Plaintiff also seeks attorney’s fees. Given
Plaintiff’s exhaustion of all administrative remedies, his claim is now ripe for review before this
Court.
II.

Legal Standard

Judicial review of the Commissioner’s decision is guided by the Social Security Act (the
“Act”) which provides, in part, that the “findings of the Commissioner as to any fact, if
supported by substantial evidence, shall be conclusive.”5 The court must therefore determine
whether the factual findings of the Commissioner are supported by substantial evidence in the

5

42 U.S.C. § 405(g).

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record and whether the ALJ applied the correct legal standard.6 “Substantial evidence is more
than a scintilla, but less than a preponderance; in short, it is such evidence as a reasonable mind
might accept to support the conclusion.”7 The court may “neither reweigh the evidence nor
substitute [its] judgment for that of the [Commissioner].”8
An individual is under a disability only if he can “establish that [he] has a physical or
mental impairment which prevents [him] from engaging in substantial gainful activity and is
expected to result in death or to last for a continuous period of at least twelve months.”9 This
impairment “must be severe enough that [he] is unable to perform [his] past relevant work, and
further cannot engage in other substantial gainful work existing in the national economy,
considering [his] age, education, and work experience.”10
Pursuant to the Act, the Social Security Administration has established a five-step
sequential evaluation process for determining whether an individual is disabled.11 The steps are
designed to be followed in order. If it is determined, at any step of the evaluation process, that
the claimant is or is not disabled, further evaluation under a subsequent step is unnecessary.12
The first three steps of the sequential evaluation require the Commissioner to assess: (1)
whether the claimant has engaged in substantial gainful activity since the onset of the alleged
6

Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).

7

Barkley v. Astrue, 2010 U.S. Dist. LEXIS 76220, at *3 (D. Kan. July 28, 2010) (citing Castellano v. Sec’y
of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994)).
8

Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting Casias v. Sec’y of Health & Human
Servs., 933 F.3d 799, 800 (10th Cir. 1991)).
9

Brennan v. Astrue, 501 F. Supp. 2d 1303, 1306-07 (D. Kan. 2007) (citing 42 U.S.C. § 423(d)).

10

Barkley, 2010 U.S. Dist. LEXIS 76220, at *3 (citing Barnhart v. Walton, 535 U.S. 212, 217-22 (2002)).

11

Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010); see also 20 C.F.R. § 404.1520(a).

12

Barkley, 2010 U.S. Dist. LEXIS 76220, at *4.

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disability; (2) whether the claimant has a severe, or combination of severe, impairments; and (3)
whether the severity of those severe impairments meets or equals a designated list of
impairments.13 If the impairment does not meet or equal one of these designated impairments,
the ALJ must then determine the claimant’s residual functional capacity, which is the claimant’s
ability “to do physical and mental work activities on a sustained basis despite limitations from
[his] impairments.”14
Upon assessing the claimant’s residual functional capacity, the Commissioner moves on
to steps four and five, which require the Commissioner to determine whether the claimant can
either perform his past relevant work or whether he can generally perform other work that exists
in the national economy, respectively.15 The claimant bears the burden in steps one through four
to prove a disability that prevents performance of his past relevant work.16 The burden then
shifts to the Commissioner at step five to show that, despite his alleged impairments, the
claimant can perform other work in the national economy.17
III.

Analysis

Plaintiff’s three assignments of error, namely the ALJ’s failure to properly weigh the
opinions of the state examiners and Plaintiff’s treating source as well as Plaintiff’s credibility, all
stem from the ALJ’s assessment of Plaintiff’s residual functional capacity. Specifically, Plaintiff
alleges that the ALJ’s failure to properly evaluate these three components resulted in an improper
13

Lax, 489 F.3d at 1084; see also Barkley, 2010 U.S. Dist. LEXIS 76220, at *4-5 (citing Williams v.
Bowen, 844 F.2d 748, 751 (10th Cir. 1988)).
14

Barkley, 2010 U.S. Dist. LEXIS 76220, at *5; see also 20 C.F.R. §§ 404.1520(e), 404.1545.

15

Barkley, 2010 U.S. Dist. LEXIS 76220, at *5 (citing Williams, 844 F.2d at 751).

16

Lax, 489 F.3d at 1084.

17

Id.

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assessment of Plaintiff’s residual functional capacity, one that was not based on substantial
evidence. The Court finds Plaintiff’s arguments to be without merit. As a preliminary matter,
some general information regarding residual functional capacity is helpful.
A. Residual Functional Capacity
“[R]esidual functional capacity consists of those activities that a claimant can still
perform on a regular and continuing basis despite his or her physical limitations.”18 A residual
functional capacity assessment “must include a narrative discussion describing how the evidence
supports each conclusion, citing specific medical facts . . . and nonmedical evidence.”19 The
ALJ also must discuss the individual’s ability to perform sustained work activities in an ordinary
work setting on a “regular and continuing basis” and describe the maximum amount of workrelated activity the individual can perform based on evidence contained in the case record.20 The
ALJ must “explain how any material inconsistencies or ambiguities in the evidence in the case
record were considered and resolved.”21 However, there is “no requirement in the regulations for
a direct correspondence between an RFC finding and a specific medical opinion on the
functional capacity in question.”22
1. Weight Assigned to Treating Sources and State Examiners
As a general rule, “[t]he opinions of physicians, psychologists, or psychiatrists who have
seen a claimant over a period of time for purposes of treatment are given more weight than the

18

White v. Barnhart, 287 F.3d 903, 906 n.2 (10th Cir. 2001).

19

SSR 96-8p, 1996 SSR LEXIS 5, at *19 (July 2, 1996).

20

Id.

21

Id.

22

Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012).

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views of consulting physicians or those who only review the medical records and never examine
the claimant.”23 “The opinion of an examining physician is generally entitled to less weight than
that of a treating physician, and the opinion of an agency physician who has never seen the
claimant is entitled to the least weight of all.”24 “If an ALJ intends to rely on a nontreating
physician or examiner’s opinion, he must explain the weight he is giving to it.”25
a. Weight Assigned to the Opinions of State Examiners
Plaintiff first alleges that ALJ Shilling failed to properly consider and weigh the opinions
of state examiners Dr. Jay T. Hughey, DO (“Dr. Hughey”) and Dr. C.A. Parsons, MD (“Dr.
Parsons”). Specifically, Plaintiff claims that the ALJ inappropriately gave more weight to the
opinion of state examiner Dr. Divina San Diego (“Dr. San Diego”), even though Dr. San Diego’s
opinion was less detailed and outdated. This Court disagrees.
Plaintiff underwent two consultative evaluations in connection with his claims for DIB
and SSI, one on August 25, 2010, with Dr. San Diego, and one on January 8, 2011, with Dr.
Hughey.

On January 27, 2011, Dr. Parsons submitted a “check the box” assessment of

Plaintiff’s physical residual functional capacity based on his review of Plaintiff’s medical
records. In her August 2010 evaluation, Dr. San Diego concluded that, although Plaintiff rated
his right shoulder pain as an eight out of a possible ten, examination revealed no gross swelling,
ecchymosis, erythema, or deformity. Plaintiff resisted passive range of motion but was able to
abduct his right shoulder up to twenty degrees when asked to put on his shirt. Dr. San Diego
23

Romero v. Colvin, 2014 U.S. Dist. LEXIS 39984, *7 (D. Kan. Mar. 26, 2014) (citing Robinson v.
Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004)).
24

Id.

25

Romero, 2014 U.S. Dist. LEXIS 39984, at *7-8 (citing Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th
Cir. 2004)).

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also found that Plaintiff had upper right extremity strength of three to four out of a possible five
and noted that Plaintiff was “not exerting good efforts during the examinations.”26 ALJ Shilling
assigned Dr. San Diego’s opinion significant weight, as it was rendered after an examination of
Plaintiff and was supported by the general lack of evidence in the record.
During the January 2011 evaluation with Dr. Hughey, Plaintiff was found to have a
significant reduction in the range of motion of his right shoulder.

However, Dr. Hughey

concluded that Plaintiff’s grip strength and dexterity were preserved.27 Plaintiff alleges that this
opinion was entitled to more weight than that of Dr. San Diego because: (1) Dr. Hughey
performed a thorough examination, (2) there was no question about the level of effort exerted by
Plaintiff during the examination, (3) there was objective testing, and (4) it was more recent. This
Court fails to see how any of these elements make a difference. As a whole, Dr. San Diego’s and
Dr. Hughey’s evaluations seem similar: both doctors actually examined Plaintiff, both found
Plaintiff to have shoulder pain, and both found Plaintiff to retain fairly good strength. The main
difference between the opinions appears to be Plaintiff’s range of motion. While Dr. San Diego
found that Plaintiff had good range of motion in his right shoulder both passively and actively,
despite Plaintiff’s desire to keep his right arm at his side, Dr. Hughey concluded that Plaintiff
had a significant reduction in his range of motion. As the ALJ noted, this finding does not
comport with the balance of the medical evidence, namely Plaintiff’s lack of medical treatment
and overall activities of daily living.
26

Doc. 6, at 293.

27

Both Plaintiff and Commissioner claim that the ALJ assigned little weight to the opinion of Dr. Hughey.
Upon review, this Court was unable to locate that precise language in the ALJ’s decision, although it is clear from
his discussion of Dr. Hughey that ALJ Shilling gives little credence to Dr. Hughey’s opinion. Since both Plaintiff
and Commissioner agree that the ALJ assigned Dr. Hughey’s opinion little weight, the Court will adopt this
conceded issue.

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Plaintiff also alleges that Dr. San Diego’s opinion was not entitled to significant weight
since it “was performed in August 2010 when there was very little medical evidence to review
and his examination was limited as well to just an examination.”28 However, at the time of Dr.
San Diego’s examination, Plaintiff had already had x-rays of his right shoulder and cervical
spine, both of which were rather benign, and had begun seeing Kauffman twice per week. The
day before his examination with Dr. San Diego, Plaintiff visited Kauffman and rated his neck
pain as a two out of a possible nine and his mid and lower back pain as a one out of a possible
nine. Plaintiff’s pain ratings and examination findings with Kauffman remained consistent
through January 6, 2011, just two days before Plaintiff was evaluated by Dr. Hughey. The date
of Dr. San Diego’s examination therefore seems irrelevant, as Dr. Hughey’s examination was
based on virtually identical evidence.
It is equally as confusing to this Court, given these findings, as to why Dr. Parsons,
having only reviewed Plaintiff’s medical record, including the findings of Drs. San Diego and
Hughey, drastically limited Plaintiff’s residual functional capacity. Dr. Parsons opined that
Plaintiff could: (1) occasionally lift and/or carry twenty pounds; (2) frequently lift and/or carry
ten pounds; (3) stand and/or walk for a total of six hours during an eight-hour workday; (4) sit
for a total of six hours during an eight-hour workday; and (5) engage in limited pushing and
pulling with his upper extremities. Dr. Parsons also concluded that Plaintiff could never climb
ladders, ropes, or scaffolds, or crawl, and was limited in his ability to reach and engage in both
gross and fine manipulation. The ALJ assigned this opinion little weight, noting that Dr.
Parsons’ findings were not based on the objective evidence of record, given Plaintiff’s lack of

28

Doc. 7, at 11.

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medical treatment, radiological results, the findings of Dr. San Diego, and the rather limited
findings of Kauffman.
Finally, Plaintiff alleges that ALJ Shilling failed to address all aspects of Drs. San
Diego’s and Hughey’s findings, specifically leaving out Dr. San Diego’s examination of
Plaintiff’s left hand and right leg and the results of a lumbar x-ray, ordered by Dr. Hughey in
January 2011.

While ALJ Shilling may not have discussed these alleged impairments

specifically with regard to the weight given to the consultative examiner’s opinions, he did, in
fact, discuss them, noting that
a review of the medical record reflects the impairments of left hand/right leg
paresthesias, dyslipidemia and hypertension. However, regarding the claimant’s
left finger numbness and stinging, he testified that they do not prevent its use.
Regarding his right leg numbness, the claimant reported to [Dr. Hughey] in
January 2011 that he could ‘walk for 20 minutes before being limited by
discomfort’ and his hypertension was found to have ‘no associated signs or
symptoms.’29
Furthermore, in his discussion of Dr. San Diego’s findings, ALJ Shilling noted that Dr. San
Diego reported that Plaintiff “had no atrophy or fasciculations of his left hand.”30 ALJ Shilling
ultimately concluded, given their minimal influence on Plaintiff’s ability to perform basic work
activity, that these impairments were non-severe. Ultimately, even if this Court found the
findings concerning Plaintiff’s left hand, right leg, and lumbar x-ray to be relevant, which it does
not, it cannot “reweigh the evidence nor substitute [its] judgment for that of the agency”31 when
it finds the ALJ’s opinion to be based on substantial evidence.

29

Doc. 6, at 17-18.

30

Doc. 6, at 20.

31

White, 287 F.3d at 905.

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The Court also notes the apparent contradiction in Plaintiff’s argument: while he does not
think Dr. San Diego’s opinion is entitled to significant weight given Dr. San Diego’s minimal
and rather benign findings, Plaintiff does want to rely on Dr. San Diego’s findings to note further
limitations. Plaintiff cannot simply pick and choose from and within medical records and use
only the facts that support his case.
Based on a review of Plaintiff’s entire record, including his chiropractic treatment and
administrative hearing testimony, this Court finds that the ALJ’s decision concerning the
opinions of Plaintiff’s consultative examiners was indeed based on substantial evidence. As
such, Plaintiff’s first assignment of error is without merit and is therefore dismissed.
b.

Weight Assigned to Plaintiff’s Chiropractor

Plaintiff next argues that the ALJ failed to properly weigh the opinion of his treating
chiropractor, Kauffman. In his decision, the ALJ noted that as a chiropractor, Kauffman was not
considered an acceptable medical source under Social Security Regulations. He assigned the
opinion “little weight,” as he found Kauffman’s opinion not supported by either the objective
medical evidence of record or Plaintiff’s own testimony.
As a general rule, “the Commissioner may use evidence from ‘other medical sources’
such as nurse-practitioners, physician’s assistants, naturopaths, chiropractors, audiologists, and
therapists, none of which are on the list of ‘acceptable medical sources,’ to show the severity of
[a] plaintiff’s impairments and how they affect his ability to work.”32 Recognizing that an
increasing number of claimants receive their medical care by these types of health care

32

Dixon v. Astrue, 2011 U.S. Dist. LEXIS 37518, at *10 (D. Kan. Apr. 6, 2011) (citing 20 C.F.R. §§
404.1513(d), 416.913(d)) (emphasis added).

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providers, the Commissioner promulgated Social Security Ruling 06-03p which states, in
relevant part:
[w]ith the growth of managed health care in recent years and the emphasis on
containing medical costs, medical sources who are not ‘acceptable medical
sources,’ such as nurse practitioners, physician assistants, and licensed clinical
social workers, have increasingly assumed a greater percentage of the treatment
and evaluation functions previously handled primarily by physicians and
psychologists. Opinions from these medical sources, who are not technically
deemed ‘acceptable medical sources’ under our rules, are important and should be
evaluated on key issues such as impairment severity and functional effects, along
with other relevant evidence in the file.33
The Ruling further explains that a disability “adjudicator generally should explain the weight
given to opinions from these ‘other sources,’ or otherwise ensure that the discussion of the
evidence . . . allows a claimant or subsequent reviewer to follow the adjudicator’s reasoning,
when such opinions may have an effect on the outcome of the case.”34 The ruling also provides
a list of factors that an ALJ should consider in his analysis of these “other sources,” including:
(1) how long the source has known and how frequently the source has seen the individual, (2)
how consistent the opinion is with other evidence, (3) the degree to which the source presents
relevant evidence to support an opinion, (4) how well the source explains the opinion, (5)
whether the source has a specialty or area of expertise related to the individual’s impairment(s),
and (6) any other factors that tend to support or refute the opinion.35 Importantly, the Ruling also
provides that “[n]ot every factor for weighing opinion evidence will apply in every case. The

33

SSR 06-03p, 2006 SSR LEXIS 5, at *8 (2006).

34

SSR 06-03p, at *6; see also Bowman, 511 F.3d at 1274 (noting that SSR 06-03p requires an ALJ to
evaluate medical opinions from providers who are not deemed “acceptable medical sources” and explain the weight
given to them).
35

SSR 06-03p, at *11.

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evaluation of an opinion from a medical source who is not an ‘acceptable medical source’
depends on the particular facts in each case.”36
Here, Plaintiff alleges that, giving his lengthy treatment relationship with Kauffman and
his consistent examinations, Kauffman’s opinion should have at least been accorded substantial
weight. On July 22, 2011, Kauffman issued a “check the box” medical source statement that
limited Plaintiff to: (1) frequently lifting and/or carrying five pounds; (2) occasionally lifting
and/or carrying five pounds; (3) standing and/or walking for thirty minutes at a time; (4) standing
and/or walking for a total of one hour during an eight-hour day; (5) sitting for one hour at a time;
(6) sitting for a total of one hour during an eight-hour day; (7) limited pushing and pulling; (8)
never climbing, balancing, or crawling; and (9) occasionally stooping, kneeling, crouching,
reaching, and handling. Kauffman also advised that Plaintiff should avoid all exposure to
heights and lie down for twenty to forty minutes every hour.
ALJ Shilling went into a detailed analysis of Kauffman’s findings and, after comparing
them to the balance of the medical record, concluded that Kauffman’s opinion and diagnoses
were entitled to
little weight because his opinion [was] not consistent with the medical record,
including the claimant’s testimony that he could lift 10-15 pounds with his left
arm as well as his statement to [Dr. Hughey] that he could sit for two hours
‘before being limited by discomfort.’ Further, Dr. Kauffman is not an acceptable
medical source.37
As stated above, an ALJ should “generally” explain the weight given to opinions from
other sources; however, the Ruling does not provide any set formula for what constitutes a

36

Id. at *13.

37

Doc. 6, at 20.

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general explanation.38 Here, ALJ Shilling noted that Plaintiff consistently rated his neck pain as
a two out of a possible nine and his mid and lower back pain as a one out of a possible nine from
July 2010 through March 2011. Suddenly, but without explanation, Plaintiff’s pain increased to
levels of six, seven, and eight out of nine in March 2011. Kauffman’s narrative record of
Plaintiff’s treatment sessions remained virtually unchanged, offering no explanation for
Plaintiff’s sudden increase in pain or alternative or updated treatment based on this change. ALJ
Shilling noted that Plaintiff could write with his right hand, did not engage in any physical
therapy, MRI testing, epidural injections, or take any pain medication to manage his symptoms.
The ALJ also referred to the fact that Plaintiff admitted that his chiropractic sessions provided
relief and that Plaintiff never sought a second opinion from any other treatment provider. This
Court therefore finds the ALJ’s explanation to be sufficient to meet the requirements of Ruling
06-03p.
The Court pauses here to discuss Plaintiff’s citation of Leggitt v. Sullivan,39 which
Plaintiff erroneously attributes to the Tenth Circuit as standing for the idea that “a chiropractor’s
opinion as to diagnosis, nature, and degree of impairment arising from a condition within the
chiropractor’s field of expertise should generally be accorded ‘substantial weight’ under the
treating physician rule.”40 While this is indeed the holding of Leggitt, it is not a Tenth Circuit
case and is therefore not binding on this Court. Furthermore, Leggitt is a 1992 ruling, issued
well before the Social Security Administration clarified, via SSR 06-03p in 1996, its policies
concerning providers who are not medical sources. Moreover, ALJ Shilling did not simply reject
38

SSR 06-03p, at *15-16.

39

812 F. Supp. 1109 (D. Col. 1992).

40

Doc. 7, at 15.

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Kauffman’s conclusions because he was a chiropractor. Rather, the ALJ rejected Kauffman’s
diagnosis and opinion because they did not comport with the balance of the objective medical
evidence and Plaintiff’s own testimony. As such, this Court finds Plaintiff’s assignment of error
with regard to Kauffman’s opinion to be without merit. It is therefore dismissed.
2. Credibility
Finally, Plaintiff alleges that the ALJ erred by failing to conduct a proper credibility
analysis as required by Social Security Ruling 96-7p41 and Luna v. Bowen,42 in that the ALJ
improperly disregarded Plaintiff’s statements regarding his limitations. Plaintiff’s argument is
without merit.
At the administrative hearing, Plaintiff testified that he had seen Kauffman consistently
since 2008 but had not discussed any further treatment for his right shoulder outside of
Kauffman’s weekly adjustments. Plaintiff noted that he had some difficulty with housework,
getting dressed and undressed, and showering, but could do yard work and did not require
assistance with normal daily activities. Plaintiff also testified that he was not on any type of pain
medication, including over-the-counter medication, for his shoulder, but did use BioFreeze on
his leg.
Recognizing that “some claimants exaggerate symptoms for the purposes of obtaining
government benefits,”43 an ALJ’s credibility determinations are generally treated as binding on

41

1996 SSR LEXIS 4 (July 2, 1996).

42

834 F.2d 161 (10th Cir. 1987).

43

Bolan v. Barnart, 212 F. Supp. 2d 1248, 1260 (D. Kan. 2002) (citing Frey v. Bowen, 816 F.2d 508, 517
(10th Cir. 1987)).

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review.44 “Credibility determinations are peculiarly the province of the finder of fact” and will
not be overturned when supported by substantial evidence.45 The Court cannot displace the
ALJ’s choice between two fairly conflicting views even though the Court may have justifiably
made a different choice.46 However, notwithstanding the deference generally given to an ALJ’s
credibility determination, “findings as to credibility should be closely and affirmatively linked to
substantial evidence and not just a conclusion in the guise of findings.”47
In evaluating a disability claim based on nonexertional symptoms, including pain, the
ALJ must first determine whether the objective medical evidence demonstrates that a claimant
suffers from an underlying medically determinable physical or mental impairment.48 If so, the
ALJ must consider the relationship between the impairment and the alleged nonexertional
limitation.49 If a loose nexus exists, the ALJ must then consider all the evidence, both objective
and subjective, in determining whether a claimant’s limitation is disabling.50 Factors that may be
relevant in assessing the claimant’s testimony include the levels of medication prescribed and
their effectiveness, the extensiveness of the attempts (medical or non-medical) to obtain relief,
the frequency of medical contacts, the nature of daily activities, subjective measures of
credibility that are peculiarly within the judgment of the ALJ, the motivation of and relationship

44

Talley v. Sullivan, 908 F.2d 585, 587 (10th Cir. 1990); Broadbent v. Harris, 698 F.2d 407, 413 (10th Cir.

45

Wilson, 602 F.3d at 1144; Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005).

46

Oldham v. Astrue, 509 F.3d 1254, 1257-58 (10th Cir. 2007).

47

Wilson, 602 F.3d at 1144 (quoting Huston v. Bowen, 838 F.2d 1125, 1133 (10th Cir. 1998)).

48

Luna, 834 F.2d at 163; Williams, 844 F.2d at 753.

49

Luna, 834 F.2d at 164.

50

Id.

1983).

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between the claimant and other witnesses, and the consistency or compatibility of non-medical
testimony with objective medical evidence.51
With regards to Plaintiff’s credibility, ALJ Shilling concluded
[a]fter considering the evidence of record . . . the claimant’s medically
determinable impairments could reasonably be expected to produce the alleged
symptoms, but . . . the claimant’s statements concerning the intensity, persistence
and limiting effects of these symptoms are generally not fully credible. As stated
above, the claimant alleges he is unable to work. However, the record establishes
that the claimant is capable of working. The claimant stated that he quit working
in May 2007 because of a ‘disagreement with [his] employer,’ not due to any
asserted medical condition. Further, the claimant is able to engage in a wide
range of activities of daily living that could translate into performing a job
including driving, housecleaning, vacuuming, and cleaning dishes. Therefore, he
is capable of performing basic work activities consistent with the residual
functional capacity stated above.52
ALJ Shilling further noted that Plaintiff testified that he was still able to write with his right hand
and that his treatment with Kauffman helped. The ALJ also recognized that Plaintiff did not
receive any consistent treatment from a medical doctor and noted Dr. Hughey’s January 2011
report that found that Plaintiff did not have a history of physical therapy, MRI testing, epidural
injection, or use of a transcutaneous electrical nerve stimulation unit. Plaintiff also testified that
he did not take any pain medication, prescription or over-the-counter, to manage his right
shoulder symptoms. While “[m]inimal or conservative medical treatment may evince a pain that
is not disabling,”53 the ALJ “must not draw any inferences about an individual’s symptoms and
their functional effects from a failure to seek or pursue regular medical treatment without first

51

Thompson v. Sullivan, 987 F.2d 1482, 1489 (10th Cir. 1993).

52

Doc. 6, at 21.

53

Dellinger v. Barnhart, 298 F. Supp. 2d 1130, 1136 (D. Kan. 2003) (citing Wiley v. Chater, 967 F. Supp.
446, 451 (D. Kan. 1997)).

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considering any explanations that the individual may provide.”54 The ALJ noted that Plaintiff
stated that he has not received medical treatment because he is unable to afford it. During the
administrative hearing, ALJ Shilling asked Plaintiff if any medical professional had
recommended surgery for Plaintiff’s shoulder, to which Plaintiff replied “[n]o, my chiropractor
said there is one type of surgery that’s kind of experimental, very expensive. They basically
break your collarbone.”55 ALJ Shilling dismissed this justification, stating that “the evidence
does not document that the claimant was ever refused treatment or medication for any reason,
including insufficient funds.”56

This Court tends to agree.

While the Tenth Circuit has

repeatedly held that “the inability to pay may justify a claimant’s failure to pursue or seek
treatment,”57 Plaintiff makes no mention of seeking lower-cost or free healthcare. There is also
no indication that Plaintiff ever sought relief from an emergency room.
Based on a review of the record, this Court determines that the ALJ articulated specific
reasons for finding Plaintiff not credible, and these reasons are affirmatively linked to evidence
in the record. As stated above, the Court will not reweigh the evidence or substitute its own
judgment for that of the ALJ.58 As such, Plaintiff’s assignment of error with regard to credibility
is without merit and is therefore dismissed.

54

SSR 96-7p, 1996 SSR LEXIS 4, at *22 (July 2, 1996).

55

Doc. 6, at 43.

56

Doc. 6, at 22.

57

Williams v. Astrue, 2011 U.S. Dist. LEXIS 53027, at *17 (D. Kan. May 17, 2011) (emphasis added); see
also Thompson, 987 F.2d at 1489-90; Threet v. Barnhart, 353 F.3d 1185, 1190 n.7 (10th Cir. 2003); SSR 96-7p, at
*23 (the fact that “[t]he individual may be unable to afford treatment and may not have access to free or low-cost
medical services” is a legitimate excuse).
58

Hackett, 395 F.3d at 1173.

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B. Attorney’s Fees
Plaintiff requests that this Court award him attorney’s fees, although Plaintiff fails to
provide any basis for or documentation of the amount he is requesting. Section 206(b) of the Act
provides that “[w]henever a court renders a judgment favorable to a claimant . . . the court may
determine and allow as part of its judgment a reasonable [attorney] fee . . . not in excess of 25
percent of the past due benefits.” This provision allows a court to award attorney fees in
conjunction with a remand for further proceedings where a claimant ultimately recovers past due
benefits.59 As stated above, this Court denies Plaintiff’s request to remand his request for
benefits to the Commissioner. Without this remand, Plaintiff is not eligible for payment of
attorney’s fees. As such, Plaintiff’s request for attorney’s fees is denied.
IT IS THEREFORE ORDERED that the decision of the Commissioner is AFFIRMED.
IT IS SO ORDERED.
Dated this 22nd day of April, 2014.

ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE

59

See Wrenn ex rel. Wrenn v. Astrue, 525 F.3d 931, 933 (10th Cir. 2008).

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