Barger v. Social Security Administration, Commissioner of
Filing
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MEMORANDUM AND ORDER denying plaintiff's appeal and affirming the decision of the Commissioner. Signed by Chief Judge J. Thomas Marten on 7/24/15. (mss)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KIMBERLY BARGER,
Plaintiff,
vs.
Case No. 14-1272-JTM
CAROLYN W. COLVIN, Commissioner of
Social Security,
Defendant.
MEMORANDUM AND ORDER
Plaintiff Kimberly Barger has applied for Social Security supplemental security
income benefits. Her claim was denied initially and on reconsideration. After a November
27, 2012 hearing, her application was denied by the Administrative Law Judge (ALJ) on
January 25, 2013. The Appeals Council declined to review this determination, rendering
final the denial of benefits. In the present appeal, Barger alleges that the ALJ's decision does
not rest upon substantial evidence, and that the ALJ erred in assessing her credibility.
Plaintiff-claimant Barger was born on July 28, 1968. She has stated that she became
disabled by September 27, 2010, citing "nerve damage, DDD (degenerative disk disease),
facet arthritis, depression, bipolar, back osteophyte, numbness in left leg and foot, low
thyroid, loss of muscle control, and migraine headaches." (Tr. 173). She has previously
worked as a deli clerk, stamper, circuit board assembler, and sales route driver. The
detailed facts of the case, which are incorporated herein, are set forth independently in the
ALJ's opinion.
The ALJ found that Barger had the severe impairments of degenerative disc disease,
and back and affective disorders under 20 C.F.R. § 416.920(c). However, she also
determined that while Barger has a history of migraine headaches, there is no evidence that
these are severe. The headaches are managed by medication, with a number of scans
yielding normal results. The ALJ further found that Barger's impairments, whether alone
or in combination, do not meet the severity standards of 20 C.F.R. § Part 404, Subpart P,
Appendix 1.
In determining Barger's residual functional capacity (RFC), the ALJ found that the
claimant can still do "simple, routine, repetitive tasks." (Tr. 16). She can "perform a less
than full range of sedentary work[,] can occasionally climb ramps and stairs, stoop and
crouch, but must avoid ladders, ropes and scaffolds, unprotected heights and hazardous
machinery. She is able to have occasional interaction with coworkers, but no interaction
with the general public." (Id.)
This court reviews the ALJ's decision under 42 U.S.C. § 405(g) to “determine
whether the factual findings are supported by substantial evidence and whether the correct
legal standards were applied.” Angel v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003).
Substantial evidence is that which “a reasonable mind might accept as adequate to support
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a conclusion.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010) (citation omitted).
“Substantial evidence requires more than a scintilla but less than a preponderance.”
Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004) (citation omitted). The court's role
is not to “reweigh the evidence or substitute its judgment for the Commissioner's.” Cowan
v. Astrue, 552 F.3d 1182, 1185 (10th Cir. 2008). The possibility that two inconsistent
conclusions may be drawn from the evidence does not preclude a finding that the
Commissioner's decision was based on substantial evidence. Zoltanski, 372 F.3d at 1200.
An individual is under a disability only if she can “establish that she has a physical
or mental impairment which prevents her 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.”
Brennan v. Astrue, 501 F. Supp. 2d 1303, 1306-07 (D. Kan. 2007) (citing 42 U.S.C. § 423(d)).
This impairment “must be severe enough that she is unable to perform her past relevant
work, and further cannot engage in other substantial gainful work existing in the national
economy, considering her age, education, and work experience.” Barkley v. Astrue, No. 091163-JTM, 2010 WL 3001753, at *2 (D. Kan. July 28, 2010) (citing Barnhart v. Walton, 535 U.S.
212, 217-22 (2002)).
Pursuant to the Act, the Social Security Administration has prescribed a five-step
sequential analysis to determine whether disability existed between the time of claimed
onset and the date the claimant was last insured under the Act. Wilson, 602 F.3d at 1139; 20
C.F.R. § 404.1520(a)(4). If the trier of fact finds at any point during the five steps that the
claimant is disabled or not disabled, the analysis stops. Reyes v. Bowen, 845 F.2d 242, 243
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(10th Cir. 1988). The first three steps require the Commissioner to assess: (1) whether the
claimant has engaged in substantial gainful activity since the onset of the alleged disability;
(2) whether the claimant has a medically severe impairment or combination of
impairments; and (3) whether the severity of those impairments meets or equals a listed
impairment. Wilson, 602 F.3d at 1139 (citing Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir.
2007)). If the impairments do not meet or equal a designated listing in step three, the
Commissioner then assesses the claimant's RFC based on all medical and other evidence
in the record. 20 C.F.R. § 404.1520(e). RFC is the claimant's ability “to do physical and
mental work activities on a sustained basis despite limitations from her impairments.”
Barkley, 2010 WL 3001753, at *2; see also 20 C.F.R. §§ 404.1520(e), 404.1545. “RFC is not the
least an individual can do despite his or her limitations or restrictions, but the most.” SSR
96-8p, 1996 WL 374184, at *1 (July 2, 1996) (emphasis in original). The Commissioner then
proceeds to step four, where the RFC assessment is used to determine whether the claimant
can perform past relevant work. Lax, 489 F.3d at 1084; 20 C.F.R. § 404.1520(e). The claimant
bears the burden in steps one through four of proving disability that prevents performance
of her past relevant work. 42 U.S.C. § 423(d)(5)(A); Lax, 489 F.3d at 1084.
If a claimant meets the burdens of steps one through four, “the burden of proof
shifts to the Commissioner at step five to show that the claimant retains sufficient RFC to
perform work in the national economy, given her age, education, and work experience.”
Lax, 489 F.3d at 1084 (brackets omitted). The ALJ determines RFC by evaluating a
claimant's impairments that are “demonstrable by medically acceptable clinical and
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laboratory diagnostic techniques,” then weighing evidence to determine the nature and
severity of those impairments. 20 C.F.R. §§ 404.1527(a), 416.927(a). Such evidence may
include medical opinions, other opinions, and a claimant's subjective complaints. Id.; see
also Poppa v. Astrue, 569 F.3d 1167, 1170-71 (10th Cir. 2009).
While Barger now asserts an onset date of September 27, 2010, for disability due to
the impairments previously described, in her August 29, 2011, consultative examination
by Dr. T.M. Venkat at Coffeyville Doctors Clinic, she reported that she had “all of the
above-mentioned problems since 2004.” (Tr. 568-69). That is, the impairments began with
her report of an assault in which she was “pinned ... against her car in the parking lot.”
(Tr. 18.) Barger was not hospitalized following the report, and has not worked since then.
Prior to the present request for benefits, she has filed four unsuccessful applications for
disability insurance benefits, and one unsuccessful application for supplemental income
benefits.
Barger underwent artificial disc (L-5) replacement surgery in March, 2007, and her
mother and daughter began to receive payments from Southeast Kansas Independent
Living (SKIL) an assistance agency, to help her with daily living needs and do household
chores. Barger has received no additional treatment since the surgery. She has seen
neurologists, but all testing has been negative. (Tr. 18-19).
Barger watches television, reads, does puzzles, plays Yahtzee, and goes out to play
bingo several times a month. She naps several hours a day. She sometimes becomes dizzy
and has experienced two falls in the last year. She reported such falls in two emergency
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room visits during the year prior to the ALJ hearing. She feels stressed because of her
financial condition. She does not drive, although no doctor has told her to avoid driving.
There is some evidence that she “[h]istorically has been a fairly heavy drinker, Captain
Morgan being her friend of choice.” (Tr. 618) However, the record does not indicate that
her drinking “is signficant or material to the finding of disability.” (Tr. 19).
On September 25, 2012, Dr. Lee reported that Barger had “[n]o recent falls,” with one
exception. On the Fourth of July, after having a few drinks, she “sat down on the lawn chair
with it folding in on her.” (Tr. 608).
The ALJ examined in detail Barger's medications and treatment following her
surgery, including her emergency room reports of August 30, 2011, and October 27, 2011.
In the first visit, to the Neosho Memorial Regional Medical Center, she reported back pain
stemming from the fall from the lawn chair. The therapist at the emergency room applied
moist heat and recommended stretching for the lumbar region. Barger received pain
medication and a home exercise program. Her rehabilitation potential was rated at “Fair.”
(Tr. 597).
When Barger returned to the emergency room in October, she reported that she
“was listing to the left,” and had started having slurred speech. (Tr. 591). Further, the
treatment notes indicate Barger
is on multiple medications for chronic pain issues to include migraine
headaches and degenerative disc disease. In fact, the patient states that she
needs stronger medications even though she is taking so many. She requests
Vicodin or Oxycodone. The patient denies any specific weakness, but states
that she lists to her left.
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(Id.) The notes further state that Barger “denies any falls or trauma.” (Id.)
In the examination, Barger was “alert and oriented and appear[ed] to be in not acute
distress.” (Id.) She reported having similar symptoms on September 2, 2011, when her
daughter was married. “The family states that the patient appeared to be intoxicated.” (Id.)
Barger was then taking numerous medications, including Etrafon, Wellbutrin, Celebrex,
Flexeril, Duragesic, Neurontin, Maxalt, and Zoloft. The notes by Dr. Mark Wendt (D.O.)
conclude that the symptoms were “probable medication side effects” and that “[a]lcohol
probably plays a part here.” (Tr. 592). Dr. Wendt changed Barger's medications, and noted
that “I could not find any neurologic deficit during my examination which is reassuring
and her CT scan was negative.” (Id.) She was released in stable condition.
Barger returned to the emergency room on November 14, 2011, reporting weakness
in the extremities, headaches since November 12, and impaired speech. Dr. David Gurnsey
reported that an MRI “was within normal limits,” and that “[o]n a normal basis, the patient
is usually alert and oriented.” (Tr. 581). A CT scan was conducted which was also normal.
Barger told Dr. Gurnsey that her family has told her that she has altered mental states, but
“this was not noted while she was in the Emergency Room” (Id.) Dr. Gurnsey gave Barger
some medication for headaches and she “rested well in the Emergency Room Department.”
Dr. Barger concluded that Barger displayed “no evidence of gross deficits that persisted
through her Emergency Room stay, which also leads me to believe that these may be
related to neurologic headaches or a pseudo event of some sort.” (Id.) The notes explicitly
“rule-out TIA [transient ischemic attack] in October of 2011.” (Id.)
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Dr. Devendra Jain of Parsons, Kansas, examined Barger in connection with her
complaints of headaches, on October 24, 2011, November 17, 2011, and April 16, 2012. In
the first visit, Barger reported that the August 30 emergency room visit was for slurred
speech. She stated she was taking Depakote, that “she tolerated this medication very well,”
and “[h]er headaches frequency and severity have significantly decreased.” (Tr. 601). Dr.
Jain noted that Barger had been “discharged from the ER without any significant
instructions,” other than an adjustment in her Flexeril prescription. (Id.) Dr. Jain adjusted
her medications.
Barger and her mother returned to Dr. Jain shortly after the October 30 emergency
room visit. Dr. Jain noted the normal results of the MRI, and further noted her medications.
Dr. Jain concluded that Barger might have experienced a TIA, but also recognized that her
symptoms might be caused by “seizure disorder, a complicated migraine, [or] a drug
effect.” (Tr. 600). Dr. Jain again adjusted her medication.
Following the April, 2012, examination, Dr. Jain noted that Depakote and Topamax
appeared ineffective in dealing with Barger's migraines, but that Barger takes Maxalt “as
needed for migraine headaches and the patient reports that it seems to help her.” (Tr. 599).
Dr. Jain noted that Barger was scheduled to be examined by a neurologist at KU Medical
Center.
Barger told Dr. Venkat in the consultative examination that “she is able to take care
of most of the activities of daily living by herself.” (Tr. 569). She told him she had migraines
“about once or twice a week.” (Id.) She indicated she had medication for the migraines. She
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did not indicate the medication was ineffective, but stated that she sometimes has nausea
with the migraine. “[I]t does not bother her every day.” (Id.) Dr. Venkat noted Barger's
history of disc disease, but found no difficulty or minimal difficulty in her movements. (Tr.
572).
The ALJ noted the results of Dr. Venkat's examination, along with assessments of
Barger's global assessment of functioning (GAF) conducted by Southeast Kansas Mental
Health in the 2010 to 2012 period. These generally indicated GAF scores increasing from
50, to later scores of 57 or up to 63. Such scores indicate moderate or mild symptoms. (Tr.
20).
While Barger testified that she had been to the emergency room twice in the last year
because of falls, an examination of the actual visits indicated that the visits were largely
“for other reasons.” (Tr. 19). There was a direct discrepancy as to the frequency of Barger's
migraines. She testified at the hearing that these occurred several times a day. Barger told
Dr. Venkat they occurred once or twice a week. Further, while Barger reported the
existence of such headaches to Dr. Jain, there is no indication that the headaches were not
controlled with medication. Rather, the medication had appeared to reduce the frequency
and severity of the headaches. Barger testified that she has difficulties in memory and
concentration. The ALJ found that this testimony is inconsistent with Barger's activities of
daily life, which include reading, playing games including bingo, and doing puzzles. (Tr.
21) While Barger complains of side effects from her various medications, such concerns
have not appeared in the treatment records. Barger's treating medical sources have
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recommended she exercise, and she has stated that she had been undergoing aquatics
therapy. Such therapy is not reflected in the records. The treatment notes indicate that
Barger is walking four times a week, which the ALJ found was inconsistent with her
testimony that she can stand for only brief periods. Finally, the ALJ noted Barger's
extremely limited work history and lack of motivation to work, including numerous
comments that it is “her pursuit of disability benefits [that] is depressing her.” (Tr. 22).
The plaintiff argues that the ALJ erred in failing to give the opinion of Dr. Lee
controlling weight. Here, the ALJ noted that Dr. Lee had presented several statements. The
first, addressing the claimant's mental state and which indicated moderate limitations on
the ability to work she granted some weight, because it was consistent with other evidence
in the record. However, the ALJ accorded only limited weight to a medical source
statement by Dr. Lee addressing Barger's physical condition. The ALJ explained:
Dr. Lee also completed a medical source statement-physical on May
23, 2011 indicating the ability to perform a reduced range of light work. He
limited lifting and carrying to 20 pounds frequently and 25 pounds
occasionally with sitting 4 hours in an 8 hour day and standing/walking 3
hours in 8 hour day with occasional postural limitations and some
environmental factors. This assessment is consistent with the medical
evidence to the degree reflected in the above residual functional assessment
limiting the claimant to a range of sedentary work. However, Dr. Lee then
completed the same form on November 5, 2012 indicating limitations to less
than sedentary work. He reported the claimant could sit less than 1 hour in
an 8 hour day and stand or walk less than 1 hour in an 8 hour day. This
assessment is given little weight as there is no support for the significant
decline in function. The treatment records indicate the claimant is stable. This
form appears to be completed based on the claimant's subjective complaints.
Again, it is adequate for consideration, but is insufficiently supported in the
record.
(Tr. 22-23 (record citations omitted)).
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A treating physician's statement is entitled to controlling weight if it is
“well-supported by medically acceptable clinical and laboratory diagnostic techniques.”
Robinson v. Barnhart, 366 F.3d 1078, 1082 (10th Cir. 2004) (quoting SSR 96-2p, 1996 WL
374188, at *2 (July 2, 1996)). If the treating physician's statement is not well-supported or
is otherwise inconsistent with substantial evidence on record, it is not entitled to controlling
weight and is weighed as any other medical opinion. Id.
Medical opinions are weighed by evaluating all relevant factors including: (1) an
opinion source who examined the claimant is generally given more weight than one who
has not; (2) an opinion source who treated the claimant is generally given more weight than
one who has not; (3) the length, nature, and extent of any examining or treatment
relationship; (4) whether the opinion source presents supporting evidence, such as medical
signs and laboratory results; (5) how well the source explains the opinion; (6) whether the
opinion is consistent with the record; (7) whether the source has specialty related to the
claimant's impairments; and (8) all other relevant factors of which the ALJ is aware that
may bear on what weight should be given to a medical opinion. 20 C.F.R. §§ 404.1527,
416.927; see Knight ex rel P.K. Colvin, 756 F.3d 1171, 1176-77 (10th Cir. 2014). “[T]he ALJ must
give good reasons in the notice of determination or decision for the weight he ultimately
assigns the opinion.” Knight ex rel P.K., 756 F.3d at 1177 (quoting Watkins v. Barnhart, 350
F.3d 1297, 1300 (10th Cir. 2003)).
The court finds no error in the ALJ’s treatment of the physical and mental statements
from Dr. Lee, a decision grounded on the record as a whole, but in particular the
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substantial change in the November 2012 physical assessment without underlying objective
support in the medical record. The 2011 assessment, indicating that Barger could perform
sedentary work, was well supported in the evidentiary record. Treatment notes in the
intervening period indicated generally that Barger was exercising and test results were
normal. The November 2012 statement provides no explanation at all for the radically
different assessment, and cites no objective examinations or test results to support the new
finding.
The court also concludes the ALJ did not err in treating Dr. Lee’s mental assessment.
The ALJ noted there were no indications of decompensation. According to the relevant
treatment notes, Barger’s attention, concentration, recall and memory appeared to be
normal. Evidence from the record generally indicated that with medication Barger was able
to act with only mild or moderate limitation due to her depression. (Tr. 22). The ALJ
further noted (Tr. 23) the results of other medical evidence, including the examination by
Dr. Venkat and consultative reports filed by Dr. Robin Reed, state agency consultant Carol
Adams (Psy.D.), and Dr. Paul Kindling. Dr. Reed concluded that Barger had moderate
limitations on her ability to carry out detailed instructions and to interact with others, but
she could perform “simple to intermediate work.” (Tr. 71). Ms. Adams reached the same
conclusion. (Tr. 439). And Dr. Kindling found that Barger should refrain from climbing,
stopping, and crouching, but indicated that she could perform sedentary activities. As a
result, she “would be limited to jobs that do not require frequent public interaction but she
can interact appropriately with co-workers and supervisors.” (Tr. 77). Finally, the ALJ
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noted the claimant’s activities of daily living and concluded that while these indicated
moderate difficulty in social function, her activities were generally sufficient to justify
giving Dr. Lee’s 2012 assessment only some weight..
The plaintiff next argues that the ALJ erred in concluding that her subjective
statements were less than fully credible. In rendering a credibility determination, the ALJ
“must consider the entire case record, including the objective medical evidence” to
determine whether plaintiff's subjective claims of debilitation are credible. SSR 96-7p, 1996
WL 374186, at *1 (July 2, 1996). A claimant's subjective complaints are evaluated for
credibility under a three-step analysis that asks:
(1) whether the claimant established a pain-producing impairment by
objective medical evidence; (2) if so, whether the impairment is reasonably
expected to produce some pain of the sort alleged (what we term a “loose
nexus”); and (3) if so, whether, considering all the evidence, both objective
and subjective, the claimant's pain was in fact disabling.
Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166-67 (10th Cir. 2012) (citing Luna v. Bowen, 834
F.2d 161, 163-64 (10th Cir. 1987)) The ALJ need not make a “formalistic factor-by-factor
recitation of the evidence” if he specifies evidence relied on in the credibility analysis. Id.
(citing Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000)). “[A] credibility determination
'must contain specific reasons for the finding on credibility, supported by the evidence in
the case record' and be 'sufficiently specific' to inform subsequent reviewers of both the
weight the ALJ gave to a claimant's statements and the reasons for that weight.” Hayden
v. Barnhart, 374 F.3d 986, 992 (10th Cir. 2004) (quoting SSR 96-7p, 1996 WL 374186, at *4).
The court finds no error in the ALJ’s credibility assessment. Here, the ALJ noted
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specific and legitimate rationales for discounting the plaintiff’s credibility. For example, the
ALJ identified medical evidence indicating that Barger’s headaches were stable with
medication, and the record failed to indicate any substantial negative side effects to her
medication. Additionally, the medical evidence was markedly inconsistent from Barger’s
hearing testimony as to the frequency of the headaches. There were additional
inconsistencies between Barger’s subjective statement as to her physical abilities and
medical records indicating more substantial activities in walking and participating in
aquatics therapy.
IT IS ACCORDINGLY ORDERED this 24th day of July, 2015, that the present appeal
is hereby denied, and the decision of the Commissioner is AFFIRMED.
s/ J. Thomas Marten
J. THOMAS MARTEN, JUDGE
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