Jones v. Social Security Administration, Commissioner of

Filing 17

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 07/22/2015. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

HERBERT GERARD JONES,

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

CIVIL ACTION
No. 14-1311-JWL

MEMORANDUM AND ORDER
Plaintiff, proceeding pro se,1 seeks review of a decision of the Acting
Commissioner of Social Security (hereinafter Commissioner) denying Disability
Insurance benefits (DIB) 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, the court ORDERS that
judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g)
AFFIRMING the Commissioner’s decision.
I.

Background

1

The court construes Plaintiff’s pleadings and briefs liberally. Haines v. Kerner,
404 U.S. 519, 520-21 (1972); Travis v. Park City Mun. Corp., 565 F.3d 1252, 1254 (10th
Cir. 2009). But, the court will not assume the role of advocate for him. Garrett v. Selby
Conner Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).

Plaintiff applied for DIB benefits, alleging disability beginning June 9, 2010. (R.
18, 147). Plaintiff exhausted proceedings before the Commissioner, and now seeks
judicial review of the final decision denying benefits. Plaintiff claims the Administrative
Law Judge (ALJ) erred in rejecting the opinion of Ms. Yourdon, the physician’s assistant
who treated him and provided an opinion regarding his limitations; failed to make specific
findings regarding the physical and mental demands of Plaintiff’s past relevant work; and
failed to conduct a proper credibility analysis.2
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 she 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

2

Plaintiff also argues that the decision is not supported by substantial evidence
because the ALJ simply listed all of the evidence in the record and concluded that
Plaintiff is limited to a reduced range of light work without providing a narrative
discussion, and failed to link the medical evidence to the RFC assessment. Plaintiff did
not point to specific evidence relied upon by the ALJ which does not support her decision
and did not explain why the record evidence cannot support the ALJ’s decision, and the
court is unable to follow Plaintiff’s argument in this regard.
In any case, the court notes that the ALJ’s narrative discussion in support of her
RFC assessment appears at pages five through eight of the decision (R. 15-18) and that
she explained her rationale sufficiently that the court finds no error in this regard.
2

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).
The Commissioner uses the familiar five-step sequential process to evaluate a
claim for disability. 20 C.F.R. § 404.1520; 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
3

assesses claimant’s residual functional capacity (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
economy which are within the RFC assessed. Id.; Haddock v. Apfel, 196 F.3d 1084,
1088 (10th Cir. 1999). The ALJ determined at step four that Plaintiff is able to perform
his past relevant work. Consequently she did not perform a step five analysis.
The court finds that Plaintiff has shown no error in the Commissioner’s decision.
It addresses each error alleged in the order presented in Plaintiff’s Brief.
II.

Evaluation of the Opinion of Christie Yourdon
Plaintiff points out that the ALJ gave only “some weight” to Ms. Yourdon’s

opinion, including the opinion that Plaintiff must frequently elevate his legs during an 8hour workday. He notes the vocational expert’s (VE) testimony that such a requirement
would eliminate competitive employment. He argues that the ALJ erroneously failed to
4

consider the factors for evaluating a physician’s assistant’s opinion in accordance with
Social Security Ruling (SSR) 06-3p, that the ALJ erroneously relied upon her lay
interpretation of the medical record, and that she should have recontacted Ms. Yourdon
for clarification of her opinion.
The Commissioner argues that the ALJ could have accorded lesser weight to Ms.
Yourdon’s opinion merely because she is not an “acceptable medical source,” but that the
ALJ specifically explained the bases on which she discounted Ms. Yourdon’s opinion,
and the portions of that opinion which were credited and discounted. And, she argues
that the ALJ’s findings are supported by the record evidence.
A.

Standard for Evaluating “Other” Medical Source Opinions

In accordance with the regulations, an “acceptable medical source” includes only
certain named classes of professionals: licensed physicians, licensed or certified
psychologists, licensed optometrists, licensed podiatrists, and qualified speech-language
pathologists. 20 C.F.R. § 404.1513. Physician’s assistants are among another group of
health-care providers called “other” medical sources from whom the Commissioner will
accept and use evidence showing the severity of a claimant’s impairment(s) and how the
impairment(s) affects claimant’s ability to work. Id. § 404.1513(d). “Medical opinions”
are defined as “statements from physicians and psychologists or other acceptable medical
sources that reflect judgments about the nature and severity of [claimant’s] impairment(s),
including [claimant’s] symptoms, diagnosis and prognosis, what [claimant] can still do
despite impairment(s), and [claimant’s] physical or mental restrictions.” Id.
5

§ 404.1527(a)(2). A “treating source” must be an “acceptable medical source,” Id.
§ 404.1502, and a medical opinion from a “treating source” may be given controlling
weight in certain circumstances. 20 C.F.R. § 404.1527(c)(2).
Applying these regulations, a physician’s assistant is an “other” medical source,
not an “acceptable medical source” or a “treating source.” Id. § 404.1513(d)(1). A
physician’s assistant’s opinion is not, strictly speaking, a “medical opinion,” and is never
entitled to controlling weight.
Recognizing the reality that an increasing number of claimants have their medical
care provided by health care providers who are not “acceptable medical sources”--nursepractitioners, physician’s assistants, social workers, and therapists, the Commissioner
promulgated SSR 06-3p. West’s Soc. Sec. Reporting Serv., Rulings 327-34 (Supp.
2014). In that ruling, the Commissioner noted:
With the growth of managed health care in recent years and the emphasis
on containing medical costs, medical sources who are not “acceptable
medical sources,” such as nurse practitioners, physician assistants, and
licensed clinical social workers, have increasingly assumed a greater
percentage of the treatment and evaluation functions previously handled
primarily by physicians and psychologists. Opinions from these medical
sources, who are not technically deemed “acceptable medical sources”
under our rules, are important and should be evaluated on key issues such as
impairment severity and functional effects, along with the other relevant
evidence in the file.
Id., Rulings, 330-31.
The ruling explains that where a treating source opinion is not given controlling
weight, opinions of physician’s assistants will be evaluated using the regulatory factors

6

for evaluating medical opinions. Id. at 331-32 (citing 20 C.F.R. § 404.1527). Those
factors are: (1) length of treatment relationship and 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 opinion is
supported by relevant evidence; (4) consistency between the opinion and the record as a
whole; (5) whether or not the provider 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. 20 C.F.R. § 404.1527(c)(2-6); see also Drapeau v. Massanari, 255
F.3d 1211, 1213 (10th Cir. 2001) (citing Goatcher v. Dep’t of Health & Human Servs., 52
F.3d 288, 290 (10th Cir. 1995)).
In the ruling, the Commissioner recognizes that “depending on the particular facts
in a case, and after applying the factors for weighing opinion evidence, an opinion from a
medical source who is not an ‘acceptable medical source’ may outweigh the opinion of an
‘acceptable medical source,’ including the medical opinion of a treating source.” Id. at
332. The ruling explains that the ALJ “generally should explain the weight given to
opinions from these ‘other sources,’ or otherwise ensure that the discussion of the
evidence in the . . . decision allows a claimant or subsequent reviewer to follow the
adjudicator’s reasoning, when such opinions may have an effect on the outcome of the
case.” Id. at 333; see also, Frantz v. Astrue, 509 F.3d 1299, 1300 (10th Cir. 2007)
(remanding for consideration of a nurse-practitioner’s opinions in light of SSR 06-3p).
B.

The ALJ’s Findings
7

The ALJ explained that she had “considered opinion evidence in accordance with
the requirements of 20 CFR 404.1527 and SSR . . . 06-3p” (R. 15), and thereafter she
provided her evaluation of Ms. Yourdon’s opinion:
Christie Yourdon, the physician’s assistant treating the claimant, provided
an opinion in September 2012 (Exhibit 13F). This opinion indicated that
the claimant had fatigue on exertion, shortness of breath with mild exercise,
and peripheral edema (Exhibit 13F, p.2). However, these symptoms are
generally mild or minimal in the claimant’s treatment records. Consistent
with this, Ms. Yourdon indicated the claimant has some limitations on
lifting, sitting, and standing, and these are generally consistent or less
restrictive than the limitations in the residual functional capacity. These
limitations are only partially consistent with the claimant’s treatment notes,
although the claimant’s documented symptoms do support some restriction
in these areas. Furthermore, Ms. Yourdon indicated the claimant must
“frequently” elevate his legs. However, as discussed above, there is no
support for this in the record. As a result, her opinion received only some
weight.
(R. 17).
C.

Analysis

The court finds no error in the ALJ’s evaluation of Ms. Yourdon’s opinion. The
record does not support Plaintiff’s argument that the ALJ failed to consider the
appropriate factors for evaluating a physician’s assistant’s opinion. First, the ALJ stated
that she had considered the opinion evidence in accordance with 20 C.F.R. § 404.1527
and SSR 06-3p. The court’s general practice is to take a lower tribunal at its word when
it declares that it has considered a matter, and it sees no reason to depart from that
practice here. Hackett, 395 F.3d at 1172-73. Moreover, the decision reveals that the ALJ
considered certain specific factors. For example, she recognized that Ms. Yourdon

8

treated Plaintiff and she noted that Ms. Yourdon’s opinion was not supported by her
treatment records or by the other record evidence. The court finds that the ALJ
considered the appropriate regulatory factors.
Plaintiff’s argument that the ALJ erroneously relied upon her own lay
interpretation of the medical record rests upon an incorrect understanding of the duty of
the ALJ. Although an ALJ is not an acceptable medical source qualified to render a
medical opinion, “the ALJ, not a physician, is charged with determining a claimant’s RFC
from the medical record.” Howard v. Barnhart, 379 F.3d 945, 949 (10th Cir. 2004).
“And the ALJ’s RFC assessment is an administrative, rather than a medical
determination.” McDonald v. Astrue, 492 F. App’x 875, 885 (10th Cir. 2012) (citing
SSR 96-5p, 1996 WL 374183, at *5 (July 1996)). Because RFC assessment is made
based on “all of the evidence in the record, not only the medical evidence, [it is] well
within the province of the ALJ.” Dixon v. Apfel, No. 98-5167, 1999 WL 651389, at **2
(10th Cir. Aug. 26, 1999); 20 C.F.R. § 404.1545(a). Moreover, the final responsibility for
determining RFC rests with the Commissioner. 20 C.F.R. §§ 404.1527(e)(2), 404.1546.
It is the ALJ’s duty to evaluate the opinions in the record, and the fact that she discounts a
particular opinion of a medical source, does not constitute substituting her lay opinion for
the medical source’s opinion, and, if supported by record evidence, it is not error.
Plaintiff’s argument that the ALJ should have recontacted Ms. Yourdon for
clarification of her opinions is likewise unavailing. The regulations were changed nearly
a year before the hearing in this case, giving adjudicators greater flexibility in obtaining
9

information necessary to make a disability determination, and they no longer require that
an ALJ first recontact a treating source to resolve an inconsistency or insufficiency in the
evidence that source provides to the Social Security Administration. How We Collect
and Consider Evidence of Disability, 77 Fed. Reg. 10,651 (Feb. 23, 2012) (effective
March 26, 2012). Moreover, Plaintiff has shown no basis to recontact Ms. Yourdon
under the standard applicable before March 26, 2012. As Plaintiff asserts, the former
regulation required a medical source to be recontacted when the report from that medical
source contains a conflict or ambiguity that must be resolved, does not appear to be based
on acceptable clinical and laboratory diagnostic techniques, and does not contain all of
the information necessary to a decision. (Pl. Br. 8) (citing 20 C.F.R. § 404.1512(e)(1)).3
Here, the ALJ did not suggest in any way that Ms. Yourdon’s opinion is not based
on acceptable clinical and laboratory diagnostic techniques or that she omitted certain
information necessary to a decision. And Plaintiff does not point to such insufficiency.
Moreover, Plaintiff does not point out a conflict or ambiguity in Ms. Yourdon’s report
requiring resolution, and the ALJ did not recognize such a deficiency in the report. The
mere fact that an ALJ discounted the opinion of a medical source has never been
sufficient to require that she recontact the medical source, and it certainly does not have
that effect under the controlling regulations when Plaintiff’s case was decided. Were it

3

Plaintiff cites 20 C.F.R. § 416.912(e)(1), but that regulation applies only to
applications for Supplemental Security Income (SSI) benefits, and Plaintiff applied for
DIB benefits. 20 C.F.R. § 404.1512(e)(1) applies to DIB cases such as this, and is
identical in every relevant respect to 20 C.F.R. § 416.912(e)(1).
10

otherwise, the meticulous and somewhat cumbersome system used by the agency would
become virtually unworkable. As quoted above, the ALJ explained which portions of Ms.
Yourdon’s opinion she accepted, and which portions she discounted, and why. Her
reasons are supported by the record evidence, and Plaintiff has not shown otherwise. The
court finds no error in the evaluation of Ms. Yourdon’s opinion.
Finally, the court notes that in his Reply Brief, Plaintiff argues that Ms. Yourdon is
a member of Dr. Alvarez’s office, Dr. Alvarez is an “acceptable medical source,” and that
Ms. Yourdon is “arguably” speaking for Dr. Alvarez. (Reply 2). While it may be true
that Ms. Yourdon is subject to Dr. Alvarez’s medical supervision, the court does not find
that the opinion at issue is that of Dr. Alvarez, or that Ms. Yourdon is speaking for Dr.
Alvarez. In the form which Ms. Yourdon filled out, there is a space titled
“Physician/Medical Source Name:” and Ms. Yourdon inserted “Dr. Alvarez/Christie
Yourdon, PA-C.” (R. 462). Clearly, this indicates that Dr. Alvarez is Plaintiff’s
physician, and that Ms. Yourdon is the clinical physician assistant who is the medical
source completing the form. At the end of the form it is signed by Ms. Yourdon. There is
simply no indication that the form contains Dr. Alvarez’s opinion, or that Ms. Yourdon
had the authority to, or was attempting to, speak for Dr. Alvarez in completing the form.
Moreover, Dr. Alvarez provided his own opinion in a “Medical Source Statement Physical.” (R. 467-68)
III.

The ALJ’s Step Four Finding

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In three sentences, Plaintiff claims that the ALJ failed to make specific findings at
phase two and phase three of her step four analysis, and merely accepted the analysis
which took place entirely in the VE’s head. (Pl. Br. 9). The Commissioner argues both
that the ALJ properly relied upon the job descriptions in the Dictionary of Occupational
Titles (DOT), and that any error is harmless because Plaintiff has not shown that he was
prejudiced. In his Reply Brief, Plaintiff argues that he was harmed by the ALJ’s error,
and that his past relevant work as a program worker now requires a college degree which
he does not possess. (Reply 3).
A.

Step Four Standard for Evaluating Past Relevant Work

At step four of the sequential evaluation process, the ALJ is required to make
specific findings in three phases. Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996)
(citing SSR 82-62, 1975-1982 West’s Soc. Sec. Reporting Serv., Rulings 809 (1983)). In
phase one, “the ALJ should first assess the nature and extent of [the claimant’s] physical
limitations.” Winfrey, 92 F.3d at 1023. In phase two, the ALJ must “make findings
regarding the physical and mental demands of the claimant’s past relevant work.”
Winfrey, 92 F.3d at 1024. Finally, in phase three, the ALJ must determine “whether the
claimant has the ability to meet the job demands found in phase two despite the mental
and/or physical limitations found in phase one.” Id., 92 F.3d at 1023. These findings are
to be made on the record by the ALJ. Id. at 1025; see also, SSR 82-62, 1975-1982 West’s
Soc. Sec. Reporting Serv., Rulings, at 813 (“decision must contain . . . specific findings of
fact” regarding each of the three phases).
12

An ALJ is under no obligation to seek vocational expert testimony when she
decides a case at step four. Kepler v. Chater, 68 F.3d 387, 392 (10th Cir. 1995) (citing
Glenn v. Shalala, 21 F.3d 983, 988 (10th Cir. 1994)). The Tenth Circuit has explained,
however, that an ALJ may properly rely upon vocational expert (VE) testimony in
making her findings at phase two and phase three of step four. Doyal v. Barnhart, 331
F.3d 758, 761 (10th Cir. 2003). The ALJ may not delegate the analysis to the VE. She
may, however, rely on information supplied by the VE regarding the demands of
plaintiff’s past relevant work and whether a person with plaintiff’s RFC could meet those
demands, and she may accept the VE’s opinions. Doyal, 331 F.3d at 761. The critical
distinction is whether the ALJ relied upon the VE testimony in making the findings or
whether the ALJ delegated the findings to the VE. Id. 331 F.3d at 761. Where the ALJ
makes the phase two and phase three findings, and merely cites the VE testimony
approvingly in support, she has properly relied upon the VE testimony. Id.
B.

The ALJ’s Findings

At step four of the sequential process, the ALJ determined that Plaintiff is able to
perform his past relevant work as a program worker. (R. 18). She noted that this work
had been performed within the past fifteen years and met the recency requirement. Id.
She cited the VE’s testimony that the job was performed at the specific vocational
preparation (SVP) level of three, requiring three months to learn, and found that Plaintiff
performed the job for more than a year at the gainful activity level, thus learning the
essential duties. (R. 18-19). She explained her analysis:
13

In comparing the claimant’s residual functional capacity with the physical
and mental demands of this work, the undersigned finds that the claimant
was able to perform it as actually and generally performed. The vocational
expert indicated the claimant could perform this job under the residual
functional capacity found in this case. This corresponds with the Dictionary
of Occupational Titles, which indicates this job is performed at the light
exertional level, with no overhead reaching of [sic] use of foot controls.
Although the Dictionary of Occupational Titles does not provide specific
information on alternation of positions, nothing in the Dictionary of
Occupational Titles contradicts the vocational expert’s testimony on this
issue. Furthermore, the requirements of this job, both as indicated in the
Dictionary of Occupational Titles and as described in the claimant’s
testimony, appear compatible with said limitation on alternation. Therefore,
the undersigned finds the vocational expert’s testimony on this issue
credible.
(R.19).
C.

Analysis

Contrary to Plaintiff’s claim, the phase two and three analysis did not take place in
the VE’s head, and the ALJ made specific findings regarding the demands of Plaintiff’s
past work as a program worker. As the decision reveals, the ALJ found that Plaintiff’s
past work had mental demands of SVP3, and that physically it was performed at the light
exertion level, involved no overhead reaching or use of foot controls, and allowed
Plaintiff to alternate positions. (R. 18-19). Although the ALJ relied upon the VE
testimony in reaching her conclusions in this regard, the analysis did not merely take
place in the VE’s head. As quoted above, the ALJ explained her analysis, and further
explained that she accepted the VE’s testimony in this regard because she found it
credible. This is not error.
IV.

The ALJ’s Credibility Determination
14

In his final argument, Plaintiff claims the ALJ failed to conduct a proper credibility
analysis because she disregarded Plaintiff’s statements regarding his limitations and she
did not “pursue or request any other medical evidence relating to Jones’ pacemaker
restrictions.” (Pl. Brief 9-10). Plaintiff included with his Brief an “Appendix, Exhibit 1"
which includes treatment notes provided by Dr. Alvin Wolfe, dated in November and
December, 1997. (Pl. Br. 11-12). The Commissioner argues that the ALJ provided
several valid reasons to discount the credibility of Plaintiff’s allegations, the credibility
determination was “closely and affirmatively linked to substantial record evidence,” and
should be affirmed. (Comm’r Br. 9-11) (quoting Wall, 561 F.3d at 1070).
A.

Standard for Evaluating Credibility

The framework for a proper credibility analysis is set out in Luna v. Bowen, 834
F.2d 161 (10th Cir. 1987). An ALJ must consider (1) whether the claimant has
established a symptom-producing impairment by objective medical evidence; (2) if so,
whether there is a “loose nexus” between the proven impairment and the claimant’s
subjective allegations of pain; and (3) if so, whether, considering all the evidence, both
objective and subjective, the claimant’s symptoms are in fact disabling. See, Thompson
v. Sullivan, 987 F.2d 1482, 1488 (10th Cir. 1993) (explaining the Luna framework). The
Commissioner has promulgated regulations suggesting relevant factors to be considered
in evaluating credibility: Daily activities; location, duration, frequency, and intensity of
symptoms; factors precipitating and aggravating symptoms; type, dosage, effectiveness,
and side effects of medications taken to relieve symptoms; treatment for symptoms;
15

measures plaintiff has taken to relieve symptoms; and other factors concerning limitations
or restrictions resulting from symptoms. 20 C.F.R. § 404.1529(c)(3)(i-vii). The court has
recognized a non-exhaustive list of factors which overlap and expand upon the factors
promulgated by the Commissioner. Luna, 834 F.2d at 165-66. These factors include:
the levels of medication and their 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.
Kepler, 68 F.3d at 391 (quoting Thompson, 987 F.2d at 1489).
The court’s review of an ALJ’s credibility determination is deferential. Credibility
determinations are generally treated as binding on review. Talley v. Sullivan, 908 F.2d
585, 587 (10th Cir. 1990); Broadbent v. Harris, 698 F.2d 407, 413 (10th Cir. 1983).
“Credibility determinations are peculiarly the province of the finder of fact” and will not
be overturned when supported by substantial evidence. Wilson, 602 F.3d at 1144; accord
Hackett, 395 F.3d at 1173. Therefore, in reviewing the ALJ’s credibility determinations,
the court will usually defer to the ALJ on matters involving witness credibility. Glass v.
Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994); but see Thompson, 987 F.2d at (“deference
is not an absolute rule”). “However, ‘[f]indings as to credibility should be closely and
affirmatively linked to substantial evidence and not just a conclusion in the guise of
findings.’” Wilson, 602 F.3d at 1144 (quoting Huston v. Bowen, 838 F.2d 1125, 1133
(10th Cir. 1988)); Hackett, 395 F.3d at 1173 (same).

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B.

The ALJ’s Credibility Determination

The ALJ explained the regulatory standard which she applied in evaluating the
credibility of Plaintiff’s allegation of symptoms, and that standard is consistent with the
standard explained above. (R. 15-16). She concluded that Plaintiff’s allegations are “not
entirely credible,” because in his testimony and submissions to the agency he “generally
reports symptoms . . . in excess of those described in [his] treatment records,” because he
“reports problems . . . which he does not report to his providers,” and because his
allegations are not supported by the medical records. (R. 16).
C.

Analysis

The ALJ’s reasons for discounting the credibility of Plaintiff’s allegations are
supported by the record evidence, and Plaintiff does not argue otherwise. Rather, he
argues that the ALJ “improperly disregarded” his statements. (Pl. Br. 9-10). While it is
true that the ALJ discounted Plaintiff’s statements, it was not improper to do so. She
stated her reasons for doing so, and those reasons are supported by record evidence. The
purpose of a credibility determination is to decide whether a claimant’s allegations will be
accepted completely, and it is insufficient for the claimant to argue merely that the ALJ
disregarded those statements.
The remaining basis for Plaintiff’s credibility argument is treatment records from
December 1997 which Plaintiff argues demonstrate restrictions consistent with his
allegations which are due to his pacemaker. As Plaintiff argues, in December, 1997 Dr.
Wolfe released him to return to work, but restricted him to no heights, with restricted
17

stooping, bending, lifting, and working overhead. (Pl. Br. 12). There are several
problems with accepting Plaintiff’s argument. First, the court’s evaluation of a decision
of the Commissioner is limited to the record evidence before the Commissioner. Lax,
489 F.3d at 1084; White, 287 F.3d at 905; 42 U.S.C. § 405(g) (sentence four). Therefore,
the court may not consider evidence not in the record before the Commissioner.
Sentence six of 42 U.S.C. § 405(g) provides that the court “may at any time order
additional evidence to be taken before the [Commissioner of Social Security], but only
upon a showing that there is new evidence which is material and that there is good cause
for the failure to incorporate such evidence into the record.” Heimerman v. Chater, 939
F. Supp. 832, 833 (D. Kan. 1996). Dr. Wolfe’s treatment note is “new evidence” in the
sense that it is not cumulative or duplicative of evidence already in the administrative
record. Id. It is material in the sense that it potentially relates to the time period at issue
here, between June 9, 2010 (Plaintiff’s alleged disability onset date) and January 25, 2013
(the date of the decision), and in the sense that it offers a possibility of changing the
decision. Id. at 833-34. However, Plaintiff has not shown good cause for the failure to
obtain and present the evidence at the ALJ hearing in this case. Id. at 834 (citing Tirado
v. Bowen, 842 F.2d 595, 597 (2nd Cir. 1988)); see also, Wilson, 602 F.3d at 1149.
Although Plaintiff appears pro se before this court, before the Commissioner he was
represented by an attorney. (R. 11, 25). It has long been recognized that an “ALJ should
ordinarily be entitled to rely on the claimant’s counsel to structure and present claimant’s
case in a way that the claimant’s claims are adequately explored.” Wilson, at 1149
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(quoting Hawkins v. Chater, 113 F.3d 1162, 1167 (10th Cir. 1997)). Counsel did not
present Dr. Wolfe’s records in the proceedings before the Commissioner, and Plaintiff has
not shown good cause for that failure.
Moreover, the ALJ accounted for Plaintiff’s pacemaker in his RFC assessment.
He determined that Plaintiff cannot engage in overhead lifting with his left arm because
of his testimony and medical records indicating some movement of the pacemaker. (R.
17). Plaintiff’s pacemaker was replaced in June, 2010 at the time of his alleged disability
onset, and the ALJ thoroughly considered and discussed the treatment records at that
time. (R. 16-17). Plaintiff points to no limitations his physicians imposed at that time
which have been erroneously omitted from the RFC assessed. The records and treatment
notes of Dr. Wolfe relate to the first pacemaker, which was replaced in June 2010, and
there is no indication current limitations remain the same as those suggested over twelve
years earlier. Finally, Plaintiff worked at significant gainful activity level as a program
worker after Dr. Wolfe provided a release to work in December 1997, and he did not
allege an onset of disability until June 2010, more than twelve years later.
Plaintiff has not shown error in the ALJ’s credibility determination, or in the
failure to consider Dr. Wolfe’s limitations, and has shown no error in the ALJ’s decision.
As a final matter, the court notes that in his Reply Brief Plaintiff objected to the
Commissioner’s use of unpublished opinions in her Brief, and requested “that all
references to unpublished opinions in Defendant’s brief be disregarded or stricken.”
(Reply 2). The court declines to do so.
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In accordance with the local rules of this court, there is no prohibition on the
citation to unpublished opinions, and the rules require only that if such a decision is
unavailable electronically a copy must be attached as an exhibit to the brief, and a
decision which is available electronically must be furnished to opposing parties “only
upon request.” D. Kan. R. 7.6(c). Moreover, the Tenth Circuit Rules provide that
unpublished decisions are not precedential, but may be cited for their persuasive value,
even if issued before January 1, 2007. 10th Cir. R. 32.1.
To the extent that the Commissioner cited to unpublished opinions in her Brief, the
court has considered them only for their persuasive value, and has not cited any of them
in its decision of this matter. However, the court has relied upon two unpublished
decision of the Tenth Circuit, McDonald, 492 F. App’x at 885; and Dixon, 1999 WL
651389, at **2, to provide further explanation of the duty of an ALJ in assessing RFC.
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 22nd day of July 2015, at Kansas City, Kansas.

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

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