Olson v. Social Security Administration, Commissioner of

Filing 23

MEMORANDUM AND ORDER: The court shall affirm defendant's decision to deny plaintiff's applications for benefits. Signed by District Judge Richard D. Rogers on 5/28/15. (meh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CHRIS CHAD OLSON,
Plaintiff,
v.

Case No. 14-1212-RDR

CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.
MEMORANDUM AND ORDER
On

January

18,

2011,

plaintiff

filed

applications

for

social security disability insurance benefits and supplemental
security

income

benefits.

These

applications

alleged

a

disability onset date of August 10, 2010.

On July 17, 2012, a

hearing

applications.

was

conducted

administrative

law

upon

judge

plaintiff’s

(ALJ)

considered

the

The

evidence

and

decided on August 20, 2012 that plaintiff was not qualified to
receive benefits.

This decision has been adopted by defendant.

This case is now before the court upon plaintiff’s motion to
reverse and remand the decision to deny plaintiff’s applications
for benefits.
I.

STANDARD OF REVIEW
To

establish

qualify
that

for
he

or

disability
she

was

benefits,
“disabled”

a

claimant

under

the

must
Social

Security Act, 42 U.S.C. § 423(a)(1)(E), during the time when the
claimant had “insured status” under the Social Security program.
See Potter v. Secretary of Health & Human Services, 905 F.2d
1346, 1347 (10th Cir. 1990); 20 C.F.R. §§ 404.130, 404.131.

To

be “disabled” means that the claimant is unable “to engage in
any

substantial

determinable

gainful

physical

or

activity
mental

by

reason

impairment

of

any

which

.

medically
.

.

has

lasted or can be expected to last for a continuous period of not
less than 12 months.”

42 U.S.C. § 423(d)(1)(A).

For supplemental security income claims, a claimant becomes
eligible in the first month where he or she is both disabled and
has an application on file.

20 C.F.R. §§ 416.202-03, 416.330,

416.335.
The court must affirm the ALJ’s decision if it is supported
by substantial evidence and if the ALJ applied the proper legal
standards.
2004).

Rebeck v. Barnhart, 317 F.Supp.2d 1263, 1271 (D.Kan.

“Substantial evidence” is “more than a mere scintilla;”

it is “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.”

Id., quoting Richardson

v. Perales, 402 U.S. 389, 401 (1971).

The court must examine

the record as a whole, including whatever in the record fairly
detracts from the weight of the defendant’s decision, and on
that

basis

decide

defendant’s decision.

if

substantial

evidence

supports

the

Glenn v. Shalala, 21 F.3d 983, 984 (10th
2

Cir.

1994)

(quoting

Casias

v.

Secretary

of

Health

Services, 933 F.2d 799, 800-01 (10th Cir. 1991)).

&

Human

The court may

not reverse the defendant’s choice between two reasonable but
conflicting views, even if the court would have made a different
choice if the matter were referred to the court de novo.

Lax v.

Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Zoltanski
v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).
II.

THE ALJ’S DECISION (Tr. 19-27).
There is a five-step evaluation process followed in these

cases which is described in the ALJ’s decision.

(Tr. 20-21).

First, it is determined whether the claimant is engaging in
substantial gainful activity.

Second, the ALJ decides whether

the claimant has a medically determinable impairment that is
“severe” or a combination of impairments which are “severe.”

At

step three, the ALJ decides whether the claimant’s impairments
or

combination

of

impairments

meet

or

medically

equal

the

criteria of an impairment listed in 20 C.F.R. Part 404, Subpart
P, Appendix 1.

Next, the ALJ determines the claimant’s residual

functional capacity and then decides whether the claimant has
the residual functional capacity to perform the requirements of
his or her past relevant work.

Finally, at the last step of the

sequential evaluation process, the ALJ determines whether the
claimant is able to do any other work considering his or her

3

residual

functional

capacity,

age,

education

and

work

experience.
In steps one through four the burden is on the claimant to
prove a disability that prevents performance of past relevant
work.

Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006).

At

step five, the burden shifts to the Commissioner to show that
there

are

jobs

functional

in

the

capacity.

economy
Id.

with

In

the

this

claimant’s

case,

the

ALJ

residual
decided

plaintiff’s application should be denied on the basis of the
fourth

and

determined

fifth
that

steps

of

the

plaintiff

evaluation

maintained

the

process.
residual

The

ALJ

functional

capacity to perform his past relevant work as a store manager
and

that

plaintiff

could

perform

other

jobs

that

constitute

substantial gainful employment.
The

ALJ

decision.

made

the

First,

following

plaintiff

specific

meets

findings

the

insured

in

his

status

requirements for Social Security benefits through December 31,
2013.

Second, plaintiff did not engage in substantial gainful

activity

after

disability.
impairments:

August
Third,

10,

2010,

plaintiff

the
has

alleged
the

onset

following

date

of

severe

history of stroke, seizure disorder and substance

abuse disorder in remission.

Fourth, plaintiff does not have an

impairment or combination of impairments that meet or medically
equal the listed impairments in 20 C.F.R. Part 404, Subpart P,
4

Appendix

1.

Fifth,

plaintiff

has

the

residual

functional

capacity to perform the full range of work at all exertional
levels with the following limitations:
ropes

or

hazards.

scaffolds,

and

avoid

all

never climb ladders,

exposure

to

work

around

Finally, the ALJ determined that plaintiff is able to

perform his past relevant work as a retail store manager as well
as other jobs existing in the national economy, such as hand
packer, cashier and surveillance monitor.
III. THE ALJ DID NOT
PLAINTIFF’S BROKEN LEG.

IMPROPERLY

IGNORE

THE

EVIDENCE

OF

Plaintiff’s predominant argument to reverse the decision to
deny benefits is that the ALJ ignored evidence that plaintiff
had a seizure or loss of consciousness, fell, and broke his left
leg on May 9, 2012.
later.

He had surgery upon the leg a few days

This was approximately two months before plaintiff’s

administrative hearing.

Plaintiff asserts that his broken leg

diminished plaintiff’s residual functional capacity and that the
ALJ erred when he failed to consider it.
A.

Evidence regarding plaintiff and his broken leg

Plaintiff was born in 1973.
Plaintiff

testified

that

his

He was 37 years old in 2010.

last

job

was

as

a

health

club

maintenance manager in 2010 and that he worked Monday through
Saturday from 6:00 a.m. to 6:00 p.m. and was on call as well.
He testified that he had a stroke event in February 2010 and

5

doesn’t have the physical capability to do the work he performed
at the health club anymore.

(Tr. 42).

When asked by his

counsel what about his health was keeping plaintiff from going
back to work, plaintiff replied:
just overall depression.”
he

had

difficulty

“Major issues with anxiety and

(Tr. 46).

interacting

with

Plaintiff testified that
people

and

that

he

was

preoccupied or obsessed with organizing things to the extent
that he has missed appointments.

(Tr. 46-49).

He described his

“most recent” episode or seizure when he fell and broke his leg,
and had “no recollection of what was going on.”

(Tr. 61-66).

Plaintiff testified that he has “a nail and screws holding my
left leg together from the knee cap down to my ankle.”
62).

(Tr.

Plaintiff stated that “Now, it’s just bad walking.” (Tr.

63).
At the beginning of the administrative hearing, plaintiff’s
counsel made an opening statement which discussed plaintiff’s
impairments,
leg.

but

Counsel,

medical
hearing.”

from

did

however,

Wesley

(Tr.

not

37).

directly

mention

did

that

Medical
At

add

Center
the

plaintiff

that

close

plaintiff’s

of

I’ll
the

broken

“has

fresh

submit

post-

administrative

hearing, the ALJ remarked that “it’s important for me to look at
this new information and to evaluate that.”

(Tr. 71).

He asked

plaintiff’s counsel to transmit the recent medical records to

6

him.

Id.

The Wesley Medical Center documents include records

pertaining to plaintiff’s broken leg.
Plaintiff’s treating doctor, Dr. Matthew Harris, gave an
opinion on June 21, 2012 that plaintiff suffered from seizures
for which he had been prescribed anti-epileptic medication; that
his impairments were expected to last for at least six months;
but

that

he

could

perform

full-time

precautions in a safe environment.

work

with

(Tr. 556).

seizure

Plaintiff’s

complaints to Dr. Harris centered upon recurrent syncope.

Dr.

Harris mentioned plaintiff’s fall in May 2012 which resulted in
a

“fractured

plaintiff’s

left

past

hip.”1

medical

(Tr.
history

560).
as:

Dr.
1)

Harris

listed

hypertension;

2)

depression; 3) recurrent syncope since 2010; and 4) questionable
history of stroke, CVA.”

Id.

Dr. Harris listed plaintiff’s

past surgical history as “Open reduction internal fixation of
left tib-fib May 2012.”

Id.

The records regarding plaintiff’s surgery for his broken
left leg indicate that plaintiff handled the procedure well with
no complications.

(Tr. 567 & 575).

On May 22, 2012, plaintiff

was observed walking slowly with a soft cast.
B.
The court may assume that
evidence of plaintiff’s broken leg.

1

the

This appears to be a typo or error in transcription.
was in the lower leg.

7

(Tr. 663).
ALJ

considered

the

Plaintiff’s fracture

The

ALJ

opinion.

did

not

mention

plaintiff’s

broken

leg

in

his

He did state, however, that he carefully considered

all of the evidence (Tr. 19) and we may take him at his word.
Wall v. Astrue, 561 F.3d 1048, 1070 (10th Cir. 2009).

This does

not seem to be a leap of faith since plaintiff testified about
his

broken

leg

before

the

ALJ

and

the

treating

physician

mentioned the broken leg in an exhibit referred to in the ALJ’s
decision.
C. The ALJ did not err by failing to consider plaintiff’s
broken leg as a severe impairment.
At

step

impairment

two,

and

416.912(c).

a

must

severity.

its

claimant

20

provide

evidence

C.F.R.

§§

of

an

404.1512(c),

To be “severe” an impairment or combination of

impairments must last for a continuous period of at least 12
months.

§§ 404.1509, 416.909.

Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th

severity is required.
Cir. 1997).
the

Only a de minimus showing of

But, at step four, plaintiff must also show that

combination

of

plaintiff’s

impairments

prevent

plaintiff

from returning to his past relevant work for twelve months.

Lax

v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)(the duration
requirement applies to the inability to engage in substantial
gainful activity, not just an underlying impairment).
In

this

instance,

suffered a broken leg.

plaintiff

introduced

evidence

that

he

But, as defendant argues, plaintiff did

8

not introduce evidence that his broken leg had a substantial
potential

of

impairing

his

ability

to

perform

substantial

gainful activity or to return to his previous work for a period
longer than 12 months.

Therefore, the ALJ did not err when he

failed to list the broken leg as a severe impairment or consider
the impact of the broken leg in determining plaintiff’s RFC.
See

Wall, 561 F.3d at 1063 (evidence of memory problems was not

sufficient

to

show

substantial

issue

that

problems

caused

a

failure to obtain substantial work); Moore v. Astrue, 2010 WL
2044660

*4-5

(D.Kan.

4/27/2010)(plaintiff

failed

to

show

substantial memory problems continued for twelve months and thus
did not demonstrate a severe impairment); Wright v. Astrue, 2008
WL

4500261

*2

(W.D.Ky.

9/29/2008)(ALJ

properly

discounted

recently broken right wrist which did not appear to meet the
duration requirement); Coleman v. Astrue, 2008 WL 1735391 *10
(D.Kan.

4/14/2008)(evidence

of

depression

reflected

twice

in

treatment notes over two months does not demonstrate a severe
impairment);

Valdez

v.

Barnhart,

2004

WL

1846220

*1

(D.Kan.

5/3/2004)(record failed to show that numerous conditions existed
for

more

than

12

months

or

that

they

combined

to

limit

substantial work activity for more than 12 months).
Plaintiff insists that defendant’s reliance upon the 12month

duration

rationalization.

requirement

is

an

improper

post-hoc

The court, of course, is aware that we may not
9

create or adopt post-hoc rationalizations to support an ALJ’s
decision that are not apparent from the decision itself.
v. Astrue, 482 F.3d 1205, 1207-08 (10th Cir. 2007).

Haga

The court is

also aware that the ALJ is not required to discuss every piece
Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir.

of evidence.
1996).

An ALJ is required “to discuss uncontroverted evidence

he chooses not to rely upon, as well as significantly probative
evidence he rejects.”

Id. at 1010.

The court assumes that the

requirement of discussing uncontroverted evidence (such as the
broken leg) applies only to evidence which is material to the
issues in the case.
In this instance, the ALJ chose not to discuss or rely upon
the

evidence

of

plaintiff’s

broken

leg.

If

there

was

a

substantial question in the record as to whether plaintiff’s
broken leg was a “severe impairment” which would last twelve
months or more, then the court would find that an error was
committed which justifies a reversal of the decision to deny
benefits.
leg

was

Plaintiff had the burden of showing that the broken
a

material

or

substantial

issue

on

its

face.

Hawkins v. Chater, 113 F.3d 1162, 1167 (10th Cir. 1997).

See
Here,

plaintiff did not raise a substantial issue on its face that
plaintiff’s

broken

leg

constituted

a

severe

impairment.

Therefore, the ALJ did not commit error in failing to discuss
plaintiff’s broken leg in his decision.
10

For these reasons, the court finds that the ALJ did not
commit

a

legal

determining
residual

error

or

plaintiff’s

functional

make

an

“severe

capacity

unreasonable

impairments”

in

spite

of

judgment

or
the

in

plaintiff’s
evidence

of

plaintiff’s broken leg.
IV. PLAINTIFF HAS NOT
CREDIBILITY FINDINGS.

DEMONSTRATED

ERROR

IN

THE

ALJ’S

The ALJ determined that plaintiff’s statements concerning
the intensity, persistence and limiting effects of his symptoms
were not credible to the extent they were inconsistent with the
ALJ’s

residual

functional

capacity

assessment.

(Tr.

24).

Plaintiff contends that the evidence of his left leg fracture
lends

credibility

to

plaintiff’s

subjective

descriptions

regarding his seizure symptoms.
As

already

noted,

the

court

consider plaintiff’s broken leg.

believes

that

the

ALJ

did

The record also demonstrates

that the ALJ determined that plaintiff had a seizure disorder
and

placed

limitations

upon

plaintiff’s

residual

functional

capacity which acted as precautions in the event of seizures.
Under these circumstances, the court does not find that the
failure to discuss plaintiff’s broken leg reflects a reversible
error in the ALJ’s credibility analysis of plaintiff’s seizure
disorder testimony.
the

function

of

the

Generally, credibility determinations are
ALJ

and

11

such

determinations

are

not

overturned “when supported by substantial evidence.”

Wilson v.

Astrue, 602 F.3d 1136, 1144 (10th Cir. 2010)(interior quotations
and

citations

omitted).

This

is

an

“on-balance”

analysis.

Substantial evidence may exist even when some aspects of an
ALJ’s credibility determination are mistaken.

See Pickup v.

Colvin, 2015 WL 1515460 *1 (10th Cir. 4/6/2015)(citing Branum v.
Barnhart, 385 F.3d 1268, 1274 (10th Cir. 2004)).

The court is

convinced by our review of the record, including the treating
physician’s

report

and

the

function

reports,

that

the

ALJ’s

credibility analysis is supported by substantial evidence.2
V.
PLAINTIFF HAS NOT DEMONSTRATED ERROR IN THE ALJ’S ANALYSIS
OF
PLAINTIFF’S
ALLEGED
SOCIAL
RESTRICTION
AND
OBSESSIVE
COMPULSION DISORDER.
Plaintiff

contends

that

the

ALJ

did

not

give

adequate

consideration to evidence of “social restriction and solitary
behavior” and “obsessive compulsion disorder.”
17.

Doc. No. 14, p.

Plaintiff testified that he doesn’t want to get out in

public and be around people; that he secludes himself in his
studio apartment; and that having visitors is a nerve wracking
2

As mentioned, the treating physician’s report stated that plaintiff could
return to full-time work with seizure precautions. Plaintiff’s friend
completed a function report indicating that plaintiff cooks simple meals;
performs simple household chores and yard work; shops; handles money; can
follow instructions; goes on daily walks; and spends time with others on a
daily basis. (Tr. 320-27). Plaintiff completed a function report (Tr. 297304) which indicated that he can do physical activities which do not require
stairs or lifting; that he walks and performs light exercises; and that he
spends time with friends and family. The report stated that he can lift only
less than 50 pounds; that he can walk a mile or so without resting; that
squatting and kneeling cause dizziness; and that tremors make the use of his
hands more difficult. In general, plaintiff’s report indicated that he used
to be extremely active and that, because of medical issues, he lost
everything, became homeless, and now his body shuts down if he pushes it.

12

experience.

(Tr. 46-48).

He also testified that he has spent

days cleaning and organizing things over and over again and that
this

compulsion

times.

has

caused

him

to

miss

appointment

several

(Tr. 47-49).

The ALJ found that plaintiff has a “mild” restriction in
activities

of

daily

living;

“mild

difficulties”

in

social

functioning – noting that plaintiff indicated in his function
report that he spends time with friends and family on a daily
basis and regularly goes to the community center; and “moderate
difficulties” with regard to concentration, persistence or pace.
(Tr. 22).

The ALJ also noted that plaintiff’s mental health

treatment reports show:

fair or intact memory, attention and

concentration; average intelligence; and moderate GAF scores.
(Tr.

24).

The

function

report

from

plaintiff’s

friend

indicates, as mentioned by the ALJ, that plaintiff spends time
with others on a daily basis, follows instructions and gets
along with authority figures.

(Tr. 25).

Plaintiff’s function

report further records that plaintiff follows written and spoken
instructions at least fairly well and gets along very well with
authority figures.

(Tr. 302-03).

Plaintiff’s argument is asking the court to reweigh the
evidence

and

credibility.
factual

reconsider

the

ALJ’s

assessment

of

plaintiff’s

The court’s job is to determine whether the ALJ’s

findings

are

supported
13

by

substantial

evidence

and

whether the correct legal standards were applied; not to reweigh
the evidence or substitute our judgment for that of the agency.
Mays

v.

Colvin,

739

F.3d

569,

571

(10th

Cir.

2014)(interior

quotation omitted); Newbold v. Colvin, 718 F.3d 1257, 1262 (10th
Cir.

2013)(interior

quotation

omitted).

Our

review

of

the

record persuades the court that the ALJ followed the applicable
legal standards and that his factual findings are supported by
substantial evidence.
VI.

CONCLUSION
For

the

defendant’s

above-stated
decision

to

reasons,
deny

the

court

plaintiff’s

shall

applications

benefits.
IT IS SO ORDERED.
Dated this 28th day of May, 2015, at Topeka, Kansas.

s/RICHARD D. ROGERS
Richard D. Rogers
United States District Judge

14

affirm
for