Pierce v. Social Security Administration, Commissioner of
Filing
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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 9/23/14. (mb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JEFFREY DOUGLAS PIERCE,
Plaintiff,
vs.
Case No. 13-1335-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 and supplemental security income payments.
The matter has been fully briefed by the parties.
I.
General legal standards
The court's standard of review is set forth in 42 U.S.C.
§ 405(g), which provides that "the findings of the Commissioner
as to any fact, if supported by substantial evidence, shall be
conclusive."
The court should review the Commissioner's
decision to determine only whether the decision was supported by
substantial evidence and whether the Commissioner applied the
correct legal standards.
(10th Cir. 1994).
Glenn v. Shalala, 21 F.3d 983, 984
Substantial evidence requires more than a
scintilla, but less than a preponderance, and is satisfied by
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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
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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
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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 January 17, 2013, administrative law judge (ALJ) Melvin
B. Werner issued his decision (R. at 401-414).1
Plaintiff
alleges that he had been disabled since November 8, 2007 (R. at
401).
Plaintiff meets the insured status requirements for
1
This is the 2nd decision by ALJ Werner. The 1st decision was reversed and remanded by this court on August 8,
2011 (R. at 484-501).
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social security disability benefits through December 31, 2008
(R. at 401).
At step one, the ALJ found that plaintiff did not
engage in substantial gainful activity since the alleged onset
date (R. at 403).
At step two, the ALJ found that plaintiff had
the following severe impairments:
lumbar spine degenerative
joint disease, diabetes, arthritis of both knees with probable
chondromalachia, obesity, and coronary artery disease.
Beginning January 1, 2011, plaintiff had the following
additional impairments: status post decompression laminectomy,
and multiple transient ischemic attacks (strokes) (R. at 404).
At step three, the ALJ determined that plaintiff’s impairments
do not meet or equal a listed impairment (R. at 404).
After
determining plaintiff’s RFC prior to January 1, 2011 (R. at
405), the ALJ determined at step four that plaintiff is unable
to perform past relevant work (R. at 412).
At step five, the
ALJ found that plaintiff, prior to January 1, 2011, can perform
jobs that exist in significant numbers in the national economy
(R. at 413-414).
The ALJ also made RFC findings for on or after
January 1, 2011 (R. at 411).
Therefore, the ALJ concluded that
plaintiff was not disabled prior to January 1, 2011, but became
disabled on that date and remains disabled through the date of
the decision (R. at 414).
III.
Did the ALJ err in his consideration of the medical
opinion evidence in making his RFC findings?
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The ALJ found that plaintiff, prior to January 1, 2011, was
limited to sedentary work, and was limited to lifting or
carrying 10 pounds, sitting about 30 minutes at a time for 6
hours in an 8 hour day, standing or walking about 15 minutes at
a time for about 2 hours in an 8 hour day with the need to
alternate sitting and standing every 30 minutes.
Plaintiff
could not climb ladders, ropes or scaffolds, but could
occasionally climb stairs with occasional grasping and handling
(R. at 405-406).
It is dangerous for plaintiff to climb when
there are heights involved (R. at 411).
Dr. Miller, plaintiff’s treating physician, opined on
February 27, 2009 that plaintiff could stand/walk for less than
1 hour in an 8 hour day, and could sit for less than 1 hour in
an 8 hour day.
He could only stand/walk for 15 minutes at a
time, and sit for 15 minutes at a time (R. at 377-379).
The ALJ
accorded minimal weight to his opinions for a number of reasons:
(1) plaintiff testified that Dr. Miller was his father-in-law,
(2) the assessment by Dr. Miller was made in 2009, approximately
2 ½ years after the end of documented treatment, (3) the
opinions of Dr. Miller are extreme in comparison to the opinions
of Dr. Hausheer and Dr. Winkler, (4) Dr. Miller is not
identified as a specialist in orthopedic or cardiac medicine,
and (5) Dr. Miller’s treatment notes do not support such extreme
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limitations (R. at 409-410).
Plaintiff’s brief does not dispute
these findings by the ALJ.
On December 27, 2007, Dr. Hausheer reviewed the records and
prepared a state agency physical RFC assessment.
Dr. Hausheer
limited plaintiff to lifting 10 pounds, standing or walking for
2 hours in an 8 hour day, and sitting for 6 hours in an 8 hour
day (R. at 364-371).
The ALJ gave “substantial” weight to his
opinions (R. at 410).
On October 16, 2012, Dr. Winkler testified as a medical
expert at the hearing (R. at 420-443).
Based on her review of
the medical records, Dr. Winkler testified that, in her opinion,
plaintiff could lift 20 pounds occasionally and 10 pounds
frequently.
Plaintiff could walk for 4 hours in an 8 hour
workday; plaintiff had no limit in his ability to sit.
Dr.
Winkler indicated that plaintiff was limited in postural
maneuvers to occasional, except no ladders, ropes or scaffolds.
Plaintiff should avoid unprotected heights, and also
concentrated exposure to cold, wetness and humidity (R. at 432).
Dr. Winkler also reviewed the opinions of Dr. Miller, and
testified that the records do not support Dr. Miller’s opinions
regarding significant limitations in terms of work activities
(R. at 431-432).
The ALJ accorded “substantial” weight to Dr.
Winkler’s testimony based on her expertise, her review of all
the medical evidence, and for providing specific reasons for her
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opinions.
To the extent that Dr. Hausheer’s opinions on
standing is more limited, the ALJ gave greater weight to his
opinion on that issue (R. at 410).
Plaintiff argues that the ALJ erred by giving greater
weight to the opinions of Dr. Hausheer and Dr. Winkler, and
takes issue with Dr. Winkler’s “credibility analysis” (Doc. 12
at 30).
Dr. Winkler reviewed the opinions of Dr. Miller, and
testified that the records do not support Dr. Miller’s opinions
regarding significant limitations in terms of work activities
(R. at 431-432).
The court has carefully reviewed the testimony
of Dr. Winkler and does not find anything improper about the
nature of her testimony.
It was not improper for her to offer
her own opinions about other medical opinions or about what she
believed the medical records did or did not show.
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).
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The court can only review
the sufficiency of the evidence.
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 gave specific and legitimate reasons for
essentially rejecting the opinions of Dr. Miller.
In fact, Dr.
Winkler testified that the evidence did not support the
limitations opined by Dr. Miller.
Furthermore, the ALJ
reasonably relied on the opinions of Dr. Hausheer and Dr.
Winkler in making his RFC findings.
Although the ALJ includes
in his RFC findings limitations on sitting and standing at one
time, findings which are not included in the opinions of Dr.
Hausheer or Dr. Miller, an ALJ does not commit reversible error
by tempering medical opinions given substantial weight by the
ALJ for the claimant’s benefit.
The ALJ does not have to
provide an explanation for extending the claimant such a
benefit.
Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012).
In summary, the court finds no error by the ALJ in the relative
weight he accorded to the medical opinion evidence in making his
RFC findings.
IV.
Did the ALJ err in his credibility analysis?
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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
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
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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.
White, 287 F.3d at 909-
910.
The ALJ reviewed the medical evidence regarding plaintiff’s
subjective complaints, plaintiff’s credibility, medical
impairments, and medical opinions (R. at 406-412).
The ALJ
clearly gave greater weight to the opinions of Dr. Hausheer and
Dr. Winkler in making his RFC findings.
The ALJ found that
plaintiff’s subjective complaints were exaggerated and
inconsistent with the other evidence, including the medical
evidence.
The ALJ also noted plaintiff’s significant financial
interest in the outcome of this case (R. at 409).
The court
finds no clear error in the ALJ’s credibility analysis, and the
court will not reweigh the evidence.
The court finds that the
balance of the ALJ’s credibility analysis is supported by
substantial evidence.
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”).
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V.
Issues raised for 1st time in reply brief
Plaintiff filed a very lengthy 39 page reply brief raising
numerous issues not raised in plaintiff’s initial brief (Doc.
20).
However, arguments raised for the first time in a reply
brief are waived and will not be considered by the court.
Water-Pik, Inc. v. Med-Systems, Inc., 726 F.3d 1136, 1159 n.8
(10th Cir. 2013); Lynch v. Barrett, 703 F.3d 1153, 1160 n.2 (10th
Cir. 2013).
Raising an argument for the first time in a reply
brief deprives the other party of an opportunity to respond.
Water-Pik, Inc. v. Med-Systems, Inc., 726 F.3d at 1159 n.8.
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 23rd day of September 2014, Topeka, Kansas.
s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge
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