LaBrayere v. Social Security Administration, Commissioner of
MEMORANDUM AND ORDER: The judgment of the Commissioner is affirmed pursuant to sentence four of 42 U.S.C. § 405(g). Signed by U.S. District Senior Judge Sam A. Crow on 2/17/17. (msb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KERRY JO LABRAYERE,
Case No. 15-1336-SAC
NANCY A. BERRYHILL,
Acting Commissioner of
MEMORANDUM AND ORDER
This is an action reviewing the final decision of the
Commissioner of Social Security denying the plaintiff disability
The matter has been fully briefed by the
General legal standards
The court's standard of review is set forth in 42 U.S.C.
§ 405(g), which provides that "the findings of the Commissioner
as to any fact, if supported by substantial evidence, shall be
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
On January 20, 2017, Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of Social Security.
(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
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
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.
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
Graham v. Sullivan, 794 F. Supp. 1045, 1047 (D. Kan.
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.
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 they have 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
they are not only unable to perform their previous work but
cannot, considering their age, education, and work experience,
engage in any other kind of substantial gainful work which
exists in the national economy.
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 one,
the agency will find non-disability unless the claimant can show
that he or she is not working at a “substantial gainful
At step two, the agency will find non-disability
unless the claimant shows that he or she 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.”
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.
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 or her previous
work; unless the claimant shows that he or she cannot perform
their previous work, they are determined not to be disabled.
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, 124 S. Ct. 376, 379-380 (2003).
The claimant bears the burden of proof through step four of
Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th
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).
Commissioner meets this burden if the decision is supported by
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).
RFC assessment is used to evaluate the claim at both step four
and step five.
20 C.F.R. §§ 404.1520(a)(4), 404.1520(e,f,g);
History of case
On June 20, 2014, administrative law judge (ALJ) Susan W.
Conyers issued her decision (R. at 15-26).
that she has been disabled since September 23, 2011 (R. at 15).
Plaintiff is insured for disability insurance benefits through
September 30, 2016 (R. at 17).
At step one, the ALJ found that
plaintiff engaged in substantial gainful activity (SGA) from
January 1, 2013 to September 30, 2013.
However, there had been
a continuous 12-month period during which plaintiff did not
engage in substantial gainful activity.
The remaining findings
address the periods in which plaintiff did not engage in SGA (R.
At step two, the ALJ found that plaintiff had severe
impairments (R. at 17).
At step three, the ALJ determined that
plaintiff’s impairments do not meet or equal a listed impairment
(R. at 19).
After determining plaintiff’s RFC (R. at 20), the
ALJ found at step four that plaintiff is able to perform past
relevant work as an optometric assistant and administrative
clerk (R. at 24).
In the alternative, at step five, the ALJ
found that plaintiff could perform other jobs that exist in
significant numbers in the national economy (R. at 25-26).
Therefore, the ALJ concluded that plaintiff was not disabled (R.
Did the ALJ err by not finding that plaintiff’s
impairments met or equaled listed impairment 1.04A?
Plaintiff has the burden to present evidence establishing
that his impairments meet or equal a listed impairment.
Fischer-Ross v. Barnhart, 431 F.3d 729, 733 (10th Cir. 2005).
In order for the plaintiff to show that his impairments match a
listing, plaintiff must meet “all” of the criteria of the listed
An impairment that manifests only some of those
criteria, no matter how severely, does not qualify.
Zebley, 493 U.S. 521, 530, 110 S. Ct. 885, 891 (1990)(emphasis
In her brief, plaintiff argues that plaintiff’s impairments
equaled listed impairment 1.04A (Doc. 12 at 7-9).
impairment is as follows:
1.04 Disorders of the spine (e.g., herniated
nucleus pulposus, spinal arachnoiditis,
spinal stenosis, osteoarthritis,
degenerative disc disease, facet arthritis,
vertebral fracture), resulting in compromise
of a nerve root (including the cauda equina)
or the spinal cord. With:
A. Evidence of nerve root compression
characterized by neuro-anatomic distribution
of pain, limitation of motion of the spine,
motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by
sensory or reflex loss and, if there is
involvement of the lower back, positive
straight-leg raising test (sitting and
20 C.F.R. Pt. 404, Subpt. P, App. 1 (2016 at 464).
equivalence is defined in 20 C.F.R. § 404.1526 (2016 at 381382).
The determination of medical equivalence is to be based
solely on medical findings.
Puckett v. Chater, 100 F.3d 730,
733 (10th Cir. 1996).
In her decision, the ALJ stated that plaintiff does not
have “an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments”
(R. at 19).
The ALJ went on to specifically discuss listed
impairment 1.04, and set forth her reasons for finding that this
listed impairment was not met or equaled on the facts of this
case (R. at 19-20).
The court will not reweigh the evidence or substitute its
judgment for that of the Commissioner.
Hackett v. Barnhart, 395
F.3d 1168, 1173 (10th Cir. 2005); White v. Barnhart, 287 F.3d
903, 905, 908, 909 (10th Cir. 2002).
Although the court will
not reweigh the evidence, the conclusions reached by the ALJ
must be reasonable and consistent with the evidence.
v. Shalala, 21 F.3d 983, 988 (10th Cir. 1994)(the court must
affirm if, considering the evidence as a whole, there is
sufficient evidence which a reasonable mind might accept as
adequate to support a conclusion).
the sufficiency of the evidence.
The court can only review
Although the evidence may
support a contrary finding, the court cannot displace the
agency’s choice between two fairly conflicting views, even
though the court may have justifiably made a different choice
had the matter been before it de novo.
Oldham v. Astrue, 509
F.3d 1254, 1257-1258 (10th Cir. 2007).
The court finds no clear error in the ALJ’s finding that
plaintiff’s impairments do not meet or equal a listed
impairment, including listed impairment 1.04A.
There is no
medical opinion evidence that plaintiff’s impairments equaled
this listed impairment.
Furthermore, plaintiff has the burden
of presenting evidence that demonstrates that her impairment
meets or equals a listed impairment, and it is not at all clear
that the evidence presented by plaintiff clearly demonstrates
that her impairments equal listed impairment 1.04A.
will not reweigh the evidence, even if the evidence might
support a contrary finding.
Substantial evidence supports the
ALJ’s finding that plaintiff does not have an impairment or
combination of impairments that meet or equals a listed
impairment, including listed impairment 1.04A.
Did the ALJ err in making his RFC findings?
According to SSR 96-8p, the RFC assessment “must include a
narrative discussion describing how the evidence supports each
conclusion, citing specific medical facts...and nonmedical
The ALJ must explain how any material
inconsistencies or ambiguities in the evidence in the case
record were considered and resolved.
The RFC assessment must
always consider and address medical source opinions.
If the RFC
assessment conflicts with an opinion from a medical source, the
ALJ must explain why the opinion was not adopted.
1996 WL 374184 at *7.
SSR rulings are binding on an ALJ.
C.F.R. § 402.35(b)(1); Sullivan v. Zebley, 493 U.S. 521, 530
n.9, 110 S. Ct. 885, 891 n.9, 107 L. Ed.2d 967 (1990); Nielson
v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993).
In reaching his RFC determination, an ALJ is permitted, and
indeed required, to rely on all of the record evidence,
including but not limited to medical opinions in the file.
Wells v. Colvin, 727 F.3d 1061, 1071 (10th Cir. 2013).
ALJ fails to provide a narrative discussion describing how the
evidence supports each conclusion, citing to specific medical
facts and nonmedical evidence, the court will conclude that his
RFC conclusions are not supported by substantial evidence.
Southard v. Barnhart, 72 Fed. Appx. 781, 784-785 (10th Cir. July
The ALJ’s decision must be sufficiently articulated
so that it is capable of meaningful review; the ALJ is charged
with carefully considering all of the relevant evidence and
linking his findings to specific evidence.
Spicer v. Barnhart,
64 Fed. Appx. 173, 177-178 (10th Cir. May 5, 2003).
insufficient for the ALJ to only generally discuss the evidence,
but fail to relate that evidence to his conclusions.
U.S. Dept. of Health & Human Services, 49 F.3d 614, 618 (10th
When the ALJ has failed to comply with SSR 96-8p
because he has not linked his RFC determination with specific
evidence in the record, the court cannot adequately assess
whether relevant evidence supports the ALJ’s RFC determination.
Such bare conclusions are beyond meaningful judicial review.
Brown v. Commissioner of the Social Security Administration, 245
F. Supp.2d 1175, 1187 (D. Kan. 2003).
The ALJ limited plaintiff to light work, with some
additional limitations (R. at 20).
In making her findings, the
ALJ gave partial weight to the opinion of Dr. Ericksen, who had
opined that plaintiff would be unable to complete an 8 hour
workday of sitting and standing on an ongoing basis.
stated that Dr. Ericksen provided no specific functional
The ALJ gave great weight to the opinion of Dr.
Kaur, a state agency consultant, who limited plaintiff to
The ALJ indicated that she limited plaintiff to
light work, stating that the treatment notes showed some
decreased range of motion and strength but were generally
unremarkable (R. at 23).
Plaintiff did not take issue with the
relative weight that the ALJ accorded to the medical opinions in
Plaintiff takes issue with the ALJ’s credibility findings
regarding plaintiff’s impairments of her cervical spine, knees,
shoulder, and ability to feel and manipulate.
took issue with the ALJ’s evaluation of the evidence regarding
plaintiff cleaning the basement and that she continued to work.
Credibility determinations are peculiarly the province of
the finder of fact, and a court will not upset such
determinations when supported by substantial evidence.
findings as to credibility should be closely and affirmatively
linked to substantial evidence and not just a conclusion in the
guise of findings.
Kepler v. Chater, 68 F.3d 387, 391 (10th
Furthermore, the ALJ cannot ignore evidence
favorable to the plaintiff.
Owen v. Chater, 913 F. Supp. 1413,
1420 (D. Kan. 1995).
When analyzing evidence of pain, the court does not require
a formalistic factor-by-factor recitation of the evidence.
long as the ALJ sets forth the specific evidence he relies on in
evaluating the claimant’s credibility, the ALJ will be deemed to
have satisfied the requirements set forth in Kepler.
Barnhart, 287 F.3d 903, 909 (10th Cir. 2002); Qualls v. Apfel,
206 F.3d 1368, 1372 (10th Cir. 2000).
Furthermore, the ALJ need
not discuss every relevant factor in evaluating pain testimony.
Bates v. Barnhart, 222 F. Supp.2d 1252, 1260 (D. Kan. 2002).
ALJ must therefore explain and support with substantial evidence
which part(s) of claimant’s testimony he did not believe and
McGoffin v. Barnhart, 288 F.3d 1248, 1254 (10th Cir.
It is error for the ALJ to use standard boilerplate
language which fails to set forth the specific evidence the ALJ
considered in determining that a claimant’s complaints were not
Hardman v. Barnhart, 362 F.3d 676, 679 (10th Cir.
On the other hand, an ALJ’s credibility determination
which does not rest on mere boilerplate language, but which is
linked to specific findings of fact fairly derived from the
record, will be affirmed by the court.
White, 287 F.3d at 909-
The ALJ discussed in some detail the medical records
regarding her back and shoulders (R. at 21-22), and her legs (R.
The ALJ further discussed her credibility in light of
the medical records and plaintiff’s activities (R. at 23-24).
This included a statement by the ALJ that the treatment records
showed that she was able to clean her basement all weekend after
The record cited to by the ALJ states that she had
a difficult weekend, noting that their basement flooded and she
had been cleaning, vacuuming and washing/drying towels (R. at
Although the court has some concern with how the ALJ
characterized some of the evidence, including plaintiff’s
activities, the court finds no clear error in the ALJ’s
credibility analysis on these matters, and the court will not
reweigh the evidence.
As noted above, plaintiff did not take
issue with the relative weight that the ALJ accorded to the
medical opinion evidence.
The court finds that the balance of
the ALJ’s summary and evaluation of the evidence and her
credibility findings are supported by substantial evidence in
Branum v. Barnhart, 385 F.3d 1268, 1274 (10th Cir.
2004)( “While we have some concerns regarding the ALJ’s reliance
on plaintiff’s alleged failure to follow a weight loss program
and her performance of certain minimal household chores, we
conclude that the balance of the ALJ’s credibility analysis is
supported by substantial evidence in the record”).
Plaintiff takes issue with the decision of the ALJ to limit
plaintiff to frequently feel and perform fine manipulation with
her non-dominant left hand (R. at 20).
Dr. Ericksen did not
address this issue, and Dr. Kaur found no limitation with
fingering and feeling (R. at 114).
An ALJ does not commit
reversible error by tempering medical opinions given substantial
weight by the ALJ for the claimant’s benefit.
The ALJ does not
have to provide an explanation for extending the claimant such a
Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012).
Plaintiff fails to point to any medical opinion evidence that
clearly indicates that plaintiff’s RFC should have included a
further limitation regarding plaintiff’s ability to feel or
Therefore, the court finds no error in this part of
the ALJ’s RFC findings.
The ALJ also discussed the evidence from plaintiff’s
employer, Dr. Sullivan.
Dr. Sullivan indicated in a statement
dated November 4, 2013 that plaintiff has not really been able
to function satisfactorily even working part-time, and that he
estimated the value of her work was about 40% of what they were
paying her (R. at 783-785).
The ALJ accorded little weight to
this opinion, stating that it was not reasonable to expect an
employer to tolerate this level of decreased functioning for
approximately eight months (R. at 23).
Following the ALJ decision, plaintiff submitted to the
Appeals Council a statement from Dr. Sullivan, dated September
2, 2014, stating that they terminated her on May 15, 2014
because of poor performance and mistakes (R. at 407).
Appeals Council stated that they considered this additional
evidence, but that they found that this information did not
provide a basis for changing the ALJ’s decision (R. at 2,4).
Plaintiff argues that her termination demonstrates that greater
weight should have been given to the opinions of Dr. Sullivan.
Although a very persuasive argument, the ALJ and the Appeals
Council decided that the evidence from Dr. Sullivan, her
employer, was not fully credible.
The ALJ accorded greater
weight to other evidence, including the opinions of Dr. Kaur.
This court will not reweigh the evidence.
Did the ALJ err in finding that plaintiff could perform
other work in the national economy?
At step four, the ALJ found that plaintiff could perform
past work as an optometric assistant and administrative clerk
(R. at 24).
In the alternative, at step five, the ALJ found
that plaintiff could perform other work in the national economy
(R. at 25-26).
In her brief, defendant conceded that the ALJ
erred in her step four findings (Doc. 17 at 3 n.4).
when the ALJ makes proper findings at step five, any error at
step four will be deemed harmless error.
Martinez v. Astrue,
316 Fed. Appx. 819, 824 (10th Cir. Mar. 19, 2009); see Murrell
v. Shalala, 43 F.3d 1388, 1389-1390 (10th Cir. 1994).
At step five, the vocational expert (VE) opined the ALJ
found that plaintiff could perform the jobs of cashier (170,000
nationwide), small products assembler (87,500 nationwide), and
arcade attendant (129,000 nationwide), or a total of 386,500
jobs nationally (R. at 25-26, 84-85).
The statute and case law
are clear that the Commissioner must show that the claimant can
perform other kind of work that exists in significant numbers in
the national economy.
See Raymond v. Astrue, 621 F. 3d 1269,
1274 (10th Cir. 2009).
The proper focus generally must be on
jobs in the national, not regional, economy.
is not required to show that job opportunities exist within the
Raymond v. Astrue, 621 F.3d at 1274.
In Trimiar v. Sullivan, 966 F.2d 1326, 1330 (10th Cir.
1992), the court refused to draw a bright line establishing the
number of jobs necessary to constitute a “significant number.”
The court set out several factors that go into the proper
evaluation of what constitutes a significant number, including
the level of a claimant’s disability, the reliability of the VE
testimony, the distance claimant is capable of travelling to
engage in the assigned work, the isolated nature of the jobs,
and the types and availability of such work.
line-drawing in this context is inappropriate, and the
determination of a numerical significance entails many factspecific considerations requiring individualized evaluation.
Allen v. Barnhart, 357 F.3d 1140, 1144 (10th Cir. 2004).
decision should ultimately be left to the ALJ’s common sense in
weighing the statutory language as applied to a particular
claimant’s factual situation.
966 F.2d at 1330.
Allen, 357 F.3d at 1144; Trimiar,
In Trimiar, the court found that the ALJ gave
proper consideration to the factors that go into the evaluation
of what constitutes a significant number, and upheld the ALJ’s
decision that 650-900 jobs in the state of Oklahoma constitutes
a significant number of jobs.
966 F.2d at 1330-1332.
In Stokes v. Astrue, 274 Fed. Appx. 675, 683-684 (10th Cir.
April 18, 2008), the court found that plaintiff could only
perform 2 of the 4 jobs identified by the ALJ.
The court noted
that 11,000 of those 2 jobs existed regionally, and 152,000 of
those 2 jobs existed nationally.
The court found that no
reasonable factfinder could have determined that suitable jobs
did not exist in significant numbers in either the region in
which the claimant lived or nationally.
On the facts of this case, the court finds that the ALJ
clearly had a reasonable factual basis for finding that
plaintiff could perform other work in the national economy that
exists in substantial numbers.
The job of cashier alone had
170,000 jobs available nationally that plaintiff could perform.
In fact, no reasonable factfinder could have determined that
suitable jobs did not exist in significant numbers in the
national economy that plaintiff could perform.
IT IS THEREFORE ORDERED that the judgment of the
Commissioner is affirmed pursuant to sentence four of 42 U.S.C.
Dated this 17th day of February 2017, Topeka, Kansas.
s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge
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