Wallace v. Social Security Administration, Commissioner of

Filing 14

MEMORANDUM AND ORDER. The decision of the Commissioner is affirmed. Signed by District Judge Monti L. Belot on 6/26/2015. (sz)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BOBBY WALLACE,

)
)
)
)
)
)
)
)
)
)
)
)

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

CIVIL ACTION
No.

14-1211-MLB

MEMORANDUM AND ORDER
This is an action reviewing a final decision of the Commissioner
of Social Security denying plaintiff disability insurance benefits.
I. General Legal Standards
The court’s standard of review is contained in 42 U.S.C. §
405(g),

which

provides

in

part

that

“[t]he

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. Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994).
Substantial evidence requires more than a scintilla, but less than a
preponderance, and is satisfied by 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. Graham v. Sullivan, 794
F.Supp. 1045, 1047 (D.Kan. 1992). 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 he has 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 his is not only unable to perform his previous work
but cannot, considering his age, education, and work experience,
engage in any other kind of substantial gainful work which exists in
the national economy.1 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

1

one,

the

agency

will

find

This standard applies regardless of whether such work exists
in the immediate area where the individual lives, or whether a
specific job vacancy exists for him, or whether he would be hired if
he applied for work. 42 U.S.C. § 423(d)(2)(A).
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non-disability unless the claimant can show that he is not working at
a “substantial gainful activity.” At step two, the agency will find
non-disability unless the claimant shows that he 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 previous work;
unless the claimant shows that he cannot perform his previous work,
he is determined not to be disabled. If the claimant survives step
four, the fifth and final step 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, 540 U.S. 20, 24-25 (2003).
The claimant bears the burden of proof through step four of the
analysis. Nielson v. Sullivan, 992 F.2d 1118, 1120 (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
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evaluate the claim at both step four and step five. 20 C.F.R. §
404.1520(a)(4); 404.1520(f, g).
II. History of the Case
Following

a

hearing,

Administrative

Law

Judge

(ALJ)

Ross

Stubblefield issued a written decision denying plaintiff’s application
for disability benefits on January 25, 2013. Doc. 7-3 at 14-27. At
step one, the ALJ determined that plaintiff has not engaged in
substantial gainful activity since September 5, 2009, his alleged
onset date. At step two, the ALJ found claimant has the following
severe impairments: degenerative disc disease of the lumbar spine and
anxiety disorder. At step three, the ALJ found that plaintiff’s
impairments do not meet or equal a listed impairment.
The ALJ found that plaintiff has the residual functional capacity
(RFC) to perform light work, as defined in 20 CFR 404.1567(b), with
limitations including the following: lifting and/or carrying 20 pounds
occasionally, 10 pounds frequently; standing and/or walking for 6
hours in an 8-hour workday; and sitting for up to 6 hours in an 8-hour
workday with normal breaks. These findings conflicted to some extent
with plaintiff’s testimony and with the opinion of his primary care
treating physician, Dr. Stephen Thies. The ALJ relied instead on
medical opinions of another treating physician and on consulting
physicians.
Plaintiff asserted that he has problems sitting for over an hour
due to back pain and that he can stand for only 30 minutes and walk
15 minutes before needing to sit down. He testified he needs to lie
in a reclined position for 2-3 hours per day to get relief. The ALJ
found that plaintiff’s subjective pain complaints and allegations of
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disability were inconsistent with the medical record. Plaintiff’s
treating physician, Dr. Thies, indicated in a medical source statement
dated April 2, 2012 that plaintiff had limitations including: lifting
or carrying 15 pounds occasionally, 5 pounds frequently; standing or
walking 3 hours of an 8-hour day; sitting up to 2 hours in an 8-hour
day; and having to lie down 2-3 times a day for 30 minutes to 2 hours.
The

ALJ

afforded

“little

weight”

to

these

opinions,

however,

concluding that the objective evidence did not support them.
At step four, the ALJ found plaintiff cannot perform any past
relevant work. At step five, considering plaintiff’s age, education,
work experience, and RFC, the ALJ found plaintiff could perform jobs
that exist in significant numbers in the national economy, including
electrical assembler, mail clerk, and routing clerk. The ALJ therefore
concluded that plaintiff is not disabled.
III. Analysis
Plaintiff alleges that the ALJ erred by failing to properly
analyze and consider the opinion of treating physician Dr. Thies and
by improperly disregarding plaintiff’s statements concerning the
intensity and persistence of his pain.
A. Treating physician opinion. A treating physician's opinion
must be given controlling weight if it “is supported by medically
acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with other substantial evidence in the record.” Knight
ex rel. P.K. v. Colvin, 756 F.3d 1171, 1176 (10th Cir. 2014). When the
opinion is not given controlling weight, the ALJ must explain what
weight, if any, was assigned to it using all of the factors provided
in 20 C.F.R. §§ 404.1527 and 416.927. Knight ex rel., 756 F.3d at
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1176-77. These factors require that medical opinions be assessed based
on: (1) the length of the treatment relationship and the frequency of
examination; (2) the nature and extent of the treatment relationship,
including the treatment provided and the kind of examination or
testing performed; (3) the degree to which the physician's opinion is
supported by relevant evidence; (4) consistency between the opinion
and the record as a whole; (5) whether or not the physician is a
specialist in the area upon which an opinion is rendered; and (6)
other factors brought to the ALJ's attention which tend to support or
contradict the opinion.
The ALJ afforded little weight to Dr. Thies’s opinions in two
medical source statements (MSSs). Doc. 7-3 at 22. In the first MSS,
dated June 9, 2011, Thies opined that plaintiff was limited to lifting
or carrying 20 pounds occasionally and 10 pounds frequently; standing
or walking two hours of an eight-hour workday; sitting three to four
hours of an eight-hour workday; needing to change position every 15
to 20 minutes; and occasional climbing, stooping and kneeling, with
no crouching or crawling. In the second MSS, dated April 2, 2012,
Thies opined that plaintiff could lift 15 pounds occasionally and five
pounds frequently; stand or walk three hours of an eight-hour workday;
sit no more than two hours of an eight-hour workday; and that he had
to lie down 30 minutes to two hours every two to three hours.
A review of the record supports the ALJ’s conclusion that the
limitations expressed by Dr. Thies are both lacking in objective
clinical support and are inconsistent with substantial other evidence.
As

to

the

first

point,

it

is

clear

that

both

x-ray

and

MRI

examinations confirmed that plaintiff suffers from degenerative disk
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disease and degenerative joint disease of the lumbar spine. Dr. Katta,
plaintiff’s orthopaedic specialist, confirmed as much as of January
2011. But as the ALJ pointed out, Dr. Katta’s findings from those
tests also indicated plaintiff was “without any clinical evidence of
ongoing lumbar radiculopathy” and “without any significant spinal
canal or neural foraminal compromise” as of June 2011. The tests
showed no significant disk destruction, nerve root compression, or
spinal stenosis which, as the ALJ noted, is often associated with
disabling pain and limitations.
Dr. Thies’s MSS of April 2012 contained various limitations, some
of which were more restrictive and some of which were less restrictive
than the 2011 MSS. The 2011 MSS also contained one or more limitations
that the 2012 one did not, such as a need for plaintiff to frequently
shift positions. The 2012 MSS had no explanation of the basis for
plaintiff’s limitations, while the 2011 MSS only cryptically stated
the findings were based on “lumbar DJD on MRI” and “lumbar DJD & DDD
on MRI.” Dr. Thies’s treatment notes and records do not otherwise
explain or show how the extent of the limitations was determined.
Neither do they or other materials in the record explain the basis for
the more limited restrictions in 2012, or the inconsistencies between
the 2011 and 2012 MSSs. In fact, Dr. Thies’s basis for the extent of
plaintiff’s limitations is unexplained in the record. It may have been
derived from plaintiff’s own pain assessment, although again, that is
unclear given the lack of any explanation for the doctor’s findings.
At the same time, the severely restrictive limitations in the
MSSs appear contrary to numerous observations in the treatment notes
of both Drs. Thies and Katta. For example, Dr. Katta’s notes dated
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June 24, 2011, after plaintiff’s MRI, showed that plaintiff had
localized tenderness and painful, limited movement of his lumbar
spine, but he was without muscle spasm, he walked without any gait
deviation, he had full muscle strength and reflexes in the lower
extremities,

he

was

using

proper

body

mechanics,

and

he

was

independent with mobility. Katta advised plaintiff to continue his
current

medication

and

home

exercise

and

to

gradually

increase

activities as tolerated. Katta suggested injections for the pain but
plaintiff “felt like he is not in that much pain to think about any
injections at this time.” Dr. Thies’s notes from August 2011 indicated
that plaintiff’s daily pain level was “3-4 with low activity,”
although the pain was worse when lying down. In March 2012, shortly
before the 2012 MSS, Thies again noted that plaintiff’s pain was “3-4
on average.” It could flare up to 7-8 “only a few times a week” and
plaintiff had “good steps to take if [it] flares” up, although on
average plaintiff had to sit down or lay down several times a day. He
noted that plaintiff had a back brace but “only uses it when doing
more activity.” Thies’s examination showed “mild tenderness over
paraspinal muscle of low back, ... mild stiffness and pain with
flexion, negative crush test, gait and transfers are normal.”
In addition to the lack of clinical support for the MSSs, the
limitations indicated by Dr. Thies were inconsistent with substantial
other evidence in the record. Dr. Thies found in the 2012 MSS that
plaintiff was limited to lifting 15 pounds, although both plaintiff
and Dr. Katta indicated plaintiff could lift 25 pounds. As noted
above, the treatment notes and examinations of plaintiff’s treating
doctors (both Thies and Katta) are inconsistent with the severe and
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disabling pain indicated by Thies in his MSSs. Those limitations are
also inconsistent with the findings of consulting physician Dr. Murari
Bijpuria, whose opinion the ALJ gave great weight, insofar as Bijpuria
found plaintiff could, with normal breaks, stand, walk and sit for six
hours of an eight hour workday. Both the ALJ and Bijpuria, it should
be noted, discounted other medical assessments that did not give
sufficient credit to plaintiff’s subjective complaints of persistent
pain. There were other inconsistencies as well (including those
mentioned below regarding evidence of plaintiff’s daily activities)
which supported the ALJ’s conclusion that Dr. Thies’s MSS opinions
should not be given controlling weight.
Consistent with the requirements of 20 C.F.R. §§ 404.1527 and
416.927, the ALJ explained the weight he gave to Thies’s opinions and
assessed those opinions in accordance with the factors spelled out in
the regulations. The ALJ’s treatment of Thies’s opinions comported
with the regulations and was supported by substantial evidence. The
record shows no error in the ALJ’s consideration of this evidence or
in his application of the governing standards.
B. Credibility of plaintiff’s complaints of pain. Plaintiff also
contends the ALJ erred by failing to conduct a proper analysis of his
pain complaints “in that the credibility analysis is not supported by
the substantial evidence of record.” Doc. 9 at 18.
A claimant's subjective complaints of debilitating pain are
evaluated for credibility under a three-step analysis that addresses:
(1) whether the claimant established a pain-producing impairment by
objective medical evidence; (2) if so, whether there is a “loose
nexus” between the proven impairment and the claimant’s subjective
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allegations of pain; and (3) if so, whether, considering all the
evidence, both objective and subjective, the claimant's pain was in
fact disabling. Wilson v. Astrue, 602 F.3d 1136, 1144 (10th Cir. 2010)
(citations omitted). The first two elements are clearly satisfied
here. The only question is whether plaintiff’s pain was in fact
disabling.
In determining whether the claimant's subjective complaints of
pain are credible, the ALJ should consider various factors, including:
the levels of medication and its effectiveness, the extensiveness of
the attempts (medical or nonmedical) 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 between the claimant and other
witnesses,

and

the

consistency

or

compatibility

of

nonmedical

testimony with objective medical evidence. Wilson, 602 F.3d at 1145
(citing Branum v. Barnhart, 385 F.3d 1268, 1273 (10th Cir. 2004)). See
also 20 C.F.R. § 404.1529 and Soc. Sec. Ruling 96-7p (listing similar
factors to consider: 1. The individual's daily activities; 2. The
location, duration, frequency, and intensity of the individual's pain
or other symptoms; 3. Factors that precipitate and aggravate the
symptoms; 4. The type, dosage, effectiveness, and side effects of any
medication the individual takes or has taken to alleviate pain or
other symptoms; 5. Treatment, other than medication, the individual
receives or has received for relief of pain or other symptoms; 6. Any
measures other than treatment the individual uses or has used to
relieve pain; and 7. Any other factors concerning the individual's
functional

limitations

and

restrictions
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due

to

pain

or

other

symptoms.).
The ALJ’s opinion shows that he properly considered these factors
in assessing the credibility of plaintiff’s pain allegations. After
noting the lack of objective diagnostic support for debilitating pain,
the ALJ again considered the treatment notes and results of exams. Dr.
Katta’s notes, for example, showed that plaintiff was walking without
any gait deviation. Although he continued to have pain in his lumbar
spine, it was without muscle spasm, he had normal strength in his
lower

extremities,

he

was

using

proper

body

mechanics,

he

was

independent in his mobility, and he had no symptoms of nerve damage.
Katta suggested injections for pain but plaintiff “felt like he is not
in that much pain to think about any injections at this time.” Dr.
Thies’s notes likewise indicated numerous visits when plaintiff’s
reported pain symptoms were apparently not disabling. See e.g., Tr.
at 372 (12/29/2010 - plaintiff is about to be employed and would like
his back evaluated prior to employment);

Tr. at 365 (3/2/2011 -

plaintiff seen for disability form to be completed; “If avoids
physical activity symptoms are pretty good.”);

Tr. at 354 (8/29/2011

- daily pain level 3-4 with low activity); Tr. at 351 (10/5/2011 “Needed pain medication a few times”); Tr. at 349 (3/12/2012 - has
back brace, only uses when doing more activity. Pain worse with
bending, prolonged standing. 3-4 on average, can have flares up to 78/10 only a few times a week, has good steps to take if [it] flares.).
These and other items provided support for the ALJ’s conclusion that
the evidence as a whole showed a level of pain that would not preclude
plaintiff from all types of work.
The ALJ also considered plaintiff’s course of treatment. He
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appropriately characterized it as conservative in nature, noting that
it consisted primarily of a program of home exercise and stretching
combined with pain medication which, until October of 2011, was nonnarcotic in nature. Although plaintiff reported some drowsiness as a
side effect of medication, nothing in the record suggested that it was
such that it would have prevented plaintiff from being able to perform
light work. Plaintiff’s treating doctors suggested injections for pain
on more than one occasion but plaintiff declined, indicating the pain
was not that severe, and the record indicates that he never received
such injections. Cf. Keyes–Zachary v. Astrue, 695 F.3d 1156, 1167
(10th

Cir

.2012)

(when

evaluating

credibility,

the

ALJ

should

consider, among other items, the claimant's regular contact with a
physician and her willingness to try any prescribed treatment). He was
also prescribed a back brace but rarely used it, reporting that he
used it only in periods of high activity. As the ALJ pointed out, no
physician ever recommended surgery for plaintiff’s condition.
The

ALJ

also

considered

plaintiff’s

daily

activities

and

permissibly concluded that they showed a level of activity consistent
with a range of light work. He noted plaintiff’s daily activities
included making simple meals, doing cardiovascular exercises for 20-30
minutes, performing household chores such as laundry and vacuuming,
driving to visit his parents, and watching television. Plaintiff was
also the primary care giver for his niece and nephew, who were (at the
time) ages 12 and 13.

He visited his father a couple of times a week,

ran errands, and occasionally went grocery shopping with his wife. He
mowed his lawn on a riding lawn mower for about an hour at a time, was
able to periodically work on cars, and could lift 25 pounds.
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The

ALJ

considered

other

evidence

bearing

on

plaintiff’s

motivation. He noted that plaintiff had a good work history for 32
years as a machinist but was laid off in 2009 when his former employer
reduced

its

operations.

Plaintiff

thereafter

hurt

his

back

and

allegedly became disabled in September of 2009, but he received
unemployment compensation until late 2010. In order to obtain that
compensation, plaintiff had to certify that he was able and willing
to work, which is inconsistent with his claim of disability during
that period. The ALJ noted that plaintiff filed for disability
benefits in January 2011, shortly after his unemployment benefits
ended.
There is no question that plaintiff suffers from pain, but as the
ALJ noted, the issue here is whether the pain was of such a nature so
as to preclude all substantial gainful activity. The ALJ appropriately
considered

all

of

the

evidence

in

concluding

that

plaintiff’s

allegation of disabling pain was not fully credible, and that he
retained the capacity to perform certain light work jobs, including
those identified in the ALJ’s opinion. (The ALJ also appropriately
considered the extent and effect of plaintiff’s anxiety disorder on
his ability to work.) “Credibility determinations are peculiarly the
province

of

the

finder

of

fact,

and

we

will

not

upset

such

determinations when supported by substantial evidence.” Wilson, 602
F.3d at 1144. The ALJ’s credibility determination was supported by
substantial evidence, and under the governing standard it must be
affirmed.
IV. Conclusion
The decision of the Commissioner is affirmed.
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IT IS SO ORDERED.
Dated this 26th

day of June 2015, at Wichita, Kansas.

s/Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE

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