Edwards 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 the Commissioner's decision. Signed by District Judge John W. Lungstrum on 12/29/2014. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DERRICK EDWARDS,

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

CIVIL ACTION
No. 13-1399-JWL

MEMORANDUM AND ORDER

Plaintiff seeks review of a decision of the Commissioner of Social Security
(hereinafter Commissioner) denying Social Security Disability (SSD) benefits under
sections 216(i) and 223 of the Social Security Act. 42 U.S.C. §§ 416(i) and 423
(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 it.
I.

Background
Plaintiff applied for SSD, alleging disability beginning March 15, 2008. (R. 12,

117-18). 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 failing to provided a proper narrative discussion which adequately

explained his residual functional capacity (RFC) assessment as required by Social
Security Ruling (SSR) 96-8p.
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 relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.
389, 401 (1971); see also, 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
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).
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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
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
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economy which are within the RFC assessed. Id.; Haddock v. Apfel, 196 F.3d 1084,
1088 (10th Cir. 1999).
The court finds no error in the ALJ’s narrative discussion regarding her RFC
assessment.
II.

The Parties’ Arguments
Plaintiff claims the ALJ failed to explain how she arrived at her RFC conclusions.

He argues that the only medical opinions regarding Plaintiff’s capabilities are those of the
non-examining state agency doctors, that their opinions were formed based on a review of
the record evidence in May 2011 before Plaintiff had various surgeries for ischemia in his
right leg and compartment syndrome of the right calf, and before he developed right foot
drop, and that the ALJ failed to explain how Plaintiff’s peripheral artery disease (PAD)
and right foot drop were considered and resolved in her narrative discussion. He claims
that the standing and/or walking limitations assessed are not supported by substantial
record evidence. Plaintiff points to treatment notes indicating home health care, extended
wound care after surgery for compartment syndrome, need for an assistive device during
recovery from the surgery, and reports of malaise, fatigue, weight loss, claudication,
shortness of breath, and joint pain, as record evidence contrary to the RFC assessed.
The Commissioner argues that the ALJ’s entire RFC analysis is the narrative
discussion required by SSR 96-8p, and that the discussion meets the requirements of that
ruling and is supported by the record evidence. She notes that the ALJ found Plaintiff’s
allegations of symptoms resulting from his impairments are not credible, and she argues
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that the sit/stand option and the postural limitations assessed by the ALJ constitute greater
limitations than opined by any medical source and, therefore, any error in assessing such
restrictions operates in Plaintiff’s favor, and is harmless. She argues that the ALJ
properly discussed the evidence relating to Plaintiff’s PAD and compartment syndrome.
In his reply brief, Plaintiff cites the case of Luzier v. Astrue, No 10-1186-JWL,
2011 WL 2470243, *4 (D. Kan. June 20, 2011) for the proposition that a Social Security
decision must explain how ambiguities were resolved, and he argues that in this case “the
ALJ did not explain how [Mr.] Edward’s peripheral artery disease and right foot drop
were considered and resolved.” (Reply 2). He argues that the record contains evidence
that Plaintiff has limitations resulting from PAD and right foot drop that are greater than
those assessed by the ALJ.
III.

Analysis
The court agrees with the Commissioner that the ALJ provided a narrative

discussion adequately explaining her assessment of Plaintiff’s RFC in the case at bar.
Much of Plaintiff’s argument ignores that it is Plaintiff’s burden in a Social Security case
to prove that he has a physical and/or mental impairment which prevents performance of
any substantial gainful activity, it is not the Commissioner’s burden to prove that Plaintiff
has the ability to work. 42 U.S.C. § 423(d) (defining disability as inability to engage in
any substantial gainful activity). Although Plaintiff is correct that SSR 96-8p requires an
ALJ to include an explanation how any ambiguities and material inconsistencies in the
evidence were considered and resolved, Plaintiff points to no ambiguities or material
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inconsistencies in this record which were not considered and resolved. Plaintiff argues
that the ALJ should have explained why she assessed postural and environmental
limitations, why she assessed a need to alternate sitting and standing every 30 minutes,
and why she determined Plaintiff could stand and/or walk six hours in a workday. But,
Plaintiff points to no record evidence which would preclude such limitations.
Plaintiff argues that “the ALJ did not explain how [Mr.] Edward’s peripheral
artery disease and right foot drop were considered and resolved” (Reply 2), but he does
not explain what it is about those impairments that is ambiguous or materially
inconsistent and in need of resolution. At step two of her analysis, the ALJ summarized
the history and treatment of those impairments--noting home health care, aggressive
wound care, and skin graft. (R. 14-15). She noted that in December 2011 Plaintiff
“reported that the wound was healing well.” (R. 15) (citing Ex. 8F/1-2 (R. 301-02)).
Plaintiff asserts this analysis is insufficient because “he continued to require wound care
at least through February 2012 because his right foot wound would not heal,” and because
he had chronic right foot drop and underlying PAD. (Pl. Br. 13-14). Once again,
Plaintiff attempts to turn the burden of proof on its head. First, he does not suggest, and
the court’s review of the record does not reveal, continuing functional limitations
resulting from foot drop or PAD which require a finding of disability. The mere presence
of impairments does not require a finding of disability, and it is Plaintiff’s burden to
prove disabling functional limitations. Second, the limitations to which Plaintiff does
appeal (wound care through at least February 2012, and the need to use an assistive
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device for ambulation through February 2012) are not continuing limitations, and even if
the court were to accept that they might be disabling by themselves, they did not last for
one year or result in death as is required of a disabling impairment. As the ALJ noted, the
record reveals that Plaintiff’s problems resulting from his PAD first required treatment
and hospitalization on August 24, 2011, and, by December 21, 2011, Plaintiff stated his
leg wound was healing well. (R. 302, 536-37). Thereafter, as Plaintiff points out, the
record reveals that he presented to the Shawnee Mission Medical Center on February 9,
2012 complaining of a pressure ulceration of the right lateral foot. (R. 566). At that visit,
they started a course of treatment and ordered a follow up in two weeks. Id. It was noted
at that time that Plaintiff complained of pain and swelling associated with the ulcer, that
Plaintiff was ambulatory, and that he did not use an ambulatory aid. (R. 575-76). The
court notes that there is simply no record evidence that the non-healing ulcer treated on
February 9, 2012 was related to Plaintiff’s PAD, the ischemia of his right leg, or the
treatment for it, but for the sake of argument, the court assumes that it is. Nevertheless,
the evidence does not reveal that Plaintiff ever followed up on that ulcer, and there is no
record evidence of any continuing problem with that or any other non-healing wound.
Assuming that Plaintiff was unable to perform any substantial gainful activity because of
his PAD for the entire time between August 24, 2011 and March 1, 2012 (three weeks
after the February 9, 2012 treatment), that would be six months and eight days of inability
to work. But, to receive SSD benefits, Plaintiff must show an inability to work for at least
twelve months. 42 U.S.C. § 423(d).
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Plaintiff’s argument regarding his cardiac condition is similarly unsuccessful. The
ALJ summarized Plaintiff’s cardiac problems and treatment, noting that he underwent
quadruple coronary artery bypass surgery in March, 2008, that he did not have follow up
treatment on that surgery until July 2009, and that in June 2011 he reported shortness of
breath and fatigue which had lasted two months. (R. 14). In her RFC assessment, the
ALJ noted that Plaintiff “has not had frequent follow up treatment by his cardiologist for
coronary artery disease,” and that at his July 2009 appointment he reported that “he had
no chest discomfort when he does physical activity and no significant shortness of breath,
but only felt a little tired.” (R. 17). She noted that in December 2011 Plaintiff “reported
that he has not had any chest pain suggestive of cardiac origin nor any unusual shortness
of breath.” Id. (citing Ex. 14F/12 (R. 655)). She noted that Plaintiff is “stable from a
cardiovascular aspect,” and that any chest pain “post stenting has been noncardiac in
nature.” (R. 17) (citing Exs. 3F, 4F/12, 16, 27 (R. 262-64, 655, 659, 670)). The records
cited support the ALJ’s findings.
Plaintiff claims it is error for the ALJ to find that he did not receive follow up
treatment after his bypass surgery because he went to Dr. Powers two weeks later “in
order to establish care.” (Pl. Br. 14). Plaintiff also points to a letter showing that he saw
a cardiologist, Dr. Meurer, on April 22, 2008 to follow up on the surgery. Id. (citing R.
256). In context, the ALJ’s finding is based upon Plaintiff’s alleged failure to follow up
with a cardiologist for more than a year after the bypass surgery, as stated by Plaintiff’s
cardiologist, and it is that statement upon which the ALJ relied in making her finding. (R.
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250, 670) (dated 07/02/2009, “He has not seen a cardiologist since then [(his bypass
surgery in March 2008)] and comes in for a follow-up examination”). Although it
appears the ALJ’s finding is technically incorrect, Plaintiff has shown no prejudice from
this error. The import of the ALJ’s finding is that Plaintiff recovered well from his
bypass surgery, and his cardiac condition is stable. The record supports that finding.
Plaintiff asserts that “[v]iewed as a whole, the record does not suggest that [Mr.]
Edward’s cardiac condition was stable,” and points to a finding of severe left ventricular
hypertrophy, an estimated ejection fraction of 40%, reports of shortness of breath, an
atrial flutter which delayed his skin graft in November, 2011, and malaise, fatigue, weight
loss, claudication, and joint pain. (Pl. Br. 15). However, the records cited by Plaintiff
support the ALJ’s findings. Plaintiff cites a treatment record dated November 18, 2008,
but in that record, eight months after bypass surgery, Dr. Powers stated that “[t]he patient
feels well with minor complaints and has good energy level.” (R. 243). On May 26,
2009, Dr. Powers noted that the course of treatment “has been complicated by coronary
artery disease,” but he also summarized Plaintiff’s condition as “[t]he patient feels well
with no complaints, has good energy level and is sleeping well.” (R. 239). Plaintiff cites
the results of an echocardiogram on July 2, 2009 which showed severe concentric left
ventricular hypertrophy and an ejection fraction of 40% (R. 674), but he fails to note that
the cardiologist who ordered the test, Dr. Mehta, recognized the severe concentric left
ventricular hypertrophy (R. 672), and stated that “[h]e denies any significant chest

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discomfort. He has a pretty abnormal looking EKG but no history of any chest
discomfort.” (R. 671). The same day, Dr. Mehta wrote a letter to Dr. Powers, reporting:
Since his bypass surgery, Mr. Edwards seems to be doing fairly well. He
says that he exercises on a regular basis. He has had no chest discomfort
when he does physical activity. He may feel a little bit tired but usually
does not have any significant problems with shortness of breath.
(R. 670). Plaintiff points to a record from April 2012 which was positive for malaise,
fatigue, weight loss, claudication, shortness of breath, and joint pain, but he does not
recognize that physician’s summary of Plaintiff’s reported history--that Plaintiff “feels a
little tired at times. He is not having any chest pain or any other cardiac complaints.” (R.
657). He also ignores the physician’s conclusion that “[a]t the present time, patient is
stable and asymptomatic,” and that “[o]verall Derrick is doing fairly well from the cardiac
standpoint.” (R. 658-59).
While Plaintiff points to findings in the medical evidence from which the ALJ
might have concluded that Plaintiff’s cardiac condition is not stable, he ignores that the
same records were interpreted otherwise by the ALJ and they support the ALJ’s
interpretation. Moreover, Plaintiff ignores that the physicians who examined him and
prepared the medical records at issue reached the same conclusions as did the ALJ. “The
possibility of drawing two inconsistent conclusions from the evidence does not prevent an
administrative agency’s findings from being supported by substantial evidence. We may
not displace the agency’s choice between two fairly conflicting views, even though the
court would justifiably have made a different choice had the matter been before it de

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novo.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citations, quotations, and
bracket omitted); see also, Consolo v. Fed. Maritime Comm’n, 383 U.S. 607, 620 (1966)
(same).
It appears that Plaintiff has attempted to manufacture ambiguities or material
inconsistencies in the record evidence which the ALJ did not address in her narrative
discussion. But, he has not succeeded. The court finds no insufficiency in the ALJ’s
narrative discussion.
IT IS THEREFORE ORDERED that judgment shall be entered pursuant to the
fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner’s decision.
Dated this 29th day of December 2014, at Kansas City, Kansas.

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

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