McClemore v. Social Security Administration, Commissioner of

Filing 14

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 3/24/17. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

TAMARA McCLEMORE,
Plaintiff,
vs.

Case No. 16-1070-SAC

NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,1
Defendant.

MEMORANDUM AND ORDER
This is an action reviewing the final decision of the
Commissioner of Social Security denying the plaintiff disability
insurance benefits.

The matter has been fully briefed by the

parties.
I.

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
conclusive."

The court should review the Commissioner's

decision to determine only whether the decision was supported by
substantial evidence and whether the Commissioner applied the
correct legal standards.

1

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.
1

(10th Cir. 1994).

Substantial evidence requires more than a

scintilla, but less than a preponderance, and is satisfied by
such evidence that a reasonable mind might accept to support the
conclusion.

The determination of whether substantial evidence

supports the Commissioner's decision is not simply a
quantitative exercise, for evidence is not substantial if it is
overwhelmed by other evidence or if it really constitutes mere
conclusion.

Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).

Although the court is not to reweigh the evidence, the findings
of the Commissioner will not be mechanically accepted.

Nor will

the findings be affirmed by isolating facts and labeling them
substantial evidence, as the court must scrutinize the entire
record in determining whether the Commissioner's conclusions are
rational.
1992).

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.

Glenn, 21

F.3d at 984.
The Social Security Act provides that an individual shall
be determined to be under a disability only if the claimant can
establish that 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
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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
activity.”

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.”

At

step three, the agency determines whether the impairment which
enabled the claimant to survive step two is on the list of
impairments presumed severe enough to render one disabled.

If

the claimant’s impairment does not meet or equal a listed
impairment, the inquiry proceeds to step four, at which the
agency assesses whether the claimant can do his or her previous
work; unless the claimant shows that he or she cannot perform
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their previous work, they are determined not to be disabled.

If

the claimant survives step four, the fifth and final step
requires the agency to consider vocational factors (the
claimant’s age, education, and past work experience) and to
determine whether the claimant is capable of performing other
jobs existing in significant numbers in the national economy.
Barnhart v. Thomas, 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

the analysis.
Cir. 1993).

At step five, the burden shifts to the

Commissioner to show that the claimant can perform other work
that exists in the national economy.

Nielson, 992 F.2d at 1120;

Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).

The

Commissioner meets this burden if the decision is supported by
substantial evidence.

Thompson, 987 F.2d at 1487.

Before going from step three to step four, the agency will
assess the claimant’s residual functional capacity (RFC).

This

RFC assessment is used to evaluate the claim at both step four
and step five.

20 C.F.R. §§ 404.1520(a)(4), 404.1520(e,f,g);

416.920(a)(4), 416.920(e,f,g).
II.

History of case
On December 15, 2014, administrative law judge (ALJ) Ross

Stubblefield issued his decision (R. at 12-23).

Plaintiff

alleges that she has been disabled since August 26, 2011 (R. at
4

12).

Plaintiff is insured for disability insurance benefits

through December 31, 2014 (R. at 14).

At step one, the ALJ

found that plaintiff has not engaged in substantial gainful
activity since the alleged onset date (R. at 14).

At step two,

the ALJ found that plaintiff had severe impairments (R. at 15).
At step three, the ALJ determined that plaintiff’s impairments
do not meet or equal a listed impairment (R. at 15).

After

determining plaintiff’s RFC (R. at 17), the ALJ found at step
four that plaintiff is unable to perform any past relevant work
(R. at 22).

At step five, the ALJ found that plaintiff could

perform other jobs that exist in significant numbers in the
national economy (R. at 22-23).

Therefore, the ALJ concluded

that plaintiff was not disabled (R. at 23).
III.

Are the ALJ’s RFC findings supported by substantial

evidence?
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
evidence.”

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.
5

SSR 96-8p,

1996 WL 374184 at *7.

SSR rulings are binding on an ALJ.

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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).

When the

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.

See

Southard v. Barnhart, 72 Fed. Appx. 781, 784-785 (10th Cir. July
28, 2003).

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).

It is

insufficient for the ALJ to only generally discuss the evidence,
but fail to relate that evidence to his conclusions.

Cruse v.

U.S. Dept. of Health & Human Services, 49 F.3d 614, 618 (10th
Cir. 1995).

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
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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, in his RFC findings, limited plaintiff to
sedentary work as defined by the Social Security Administration.
Plaintiff can use either hand to frequently handle and finger.
She can occasionally climb ramps and stairs, occasionally
balance, stoop, crouch and crawl but can never climb ladders and
scaffolds.

Plaintiff can never perform work at unprotected

heights, never perform work involving moving mechanical parts,
cannot have concentrated exposure to dust, odors, fumes and
pulmonary irritants, and can never work in work areas with
extreme heat, cold or vibration.

Plaintiff is able to

understand, remember and carry out simple instructions and is
limited to perform simple, routine tasks (R. at 17, 105).
Plaintiff argues that the ALJ erred by failing to provide a
proper RFC in that the ALJ erroneously weighed the treating
physician opinion (Dr. Kaplan) and did not properly analyze
plaintiff’s credibility (Doc. 9 at 10).

The court will first

address the weight accorded to the opinions of Dr. Kaplan.
Dr. Kaplan, plaintiff’s treating physician, opined on
August 5, 2014 that plaintiff could frequently lift less than 10
pounds and could occasionally lift 10 pounds.
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Plaintiff could

occasionally stoop, crouch and crawl, but could only rarely
balance and climb.

Plaintiff could sit for 4 hours in an 8 hour

workday, and could stand for less than 2 hours in an 8 hour
workday.

Plaintiff would need to shift positions at will from

sitting, standing or walking.

Plaintiff would need to take up

to 5 unscheduled breaks during a work day, each of 15 minute
duration.

Plaintiff would miss more than 4 days per month due

to her condition (R. at 559-561).

The ALJ gave little weight to

these limitations because, according to the ALJ, they were not
consistent with the plaintiff’s overall record of treatment as a
whole (R. at 19).

The ALJ then summarized plaintiff’s medical

treatment records (R. at 20).
The ALJ also considered the opinions of Dr. Coleman, who
reviewed the medical records and performed a state agency
physical assessment on August 22, 2013.

He limited plaintiff to

lifting and/or carrying 10 pounds, stand and/or walk for 2 hours
and sit for 6 hours in an 8 hour workday.

He indicated that

plaintiff had some postural and environmental limitations.

Dr.

Coleman noted that records from hospitalization in August 2012
questioned plaintiff’s credibility regarding her symptoms.

Dr.

Coleman stated that due to a lack of consistent objective
findings upon exams, plaintiff’s allegations are only considered
partially credible, as they appear to be exaggerated (R. at 132133).

The ALJ gave partial weight to this opinion, noting that
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newer medical evidence indicated that plaintiff is more limited
(R. at 21).
The opinions of physicians, psychologists, or psychiatrists
who have seen a claimant over a period of time for purposes of
treatment are given more weight than the views of consulting
physicians or those who only review the medical records and
never examine the claimant.

The opinion of an examining

physician is generally entitled to less weight than that of a
treating physician, and the opinion of an agency physician who
has never seen the claimant is entitled to the least weight of
all.

Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004).

When a treating source opinion is inconsistent with the other
medical evidence, the ALJ’s task is to examine the other medical
source’s reports to see if they outweigh the treating source’s
reports, not the other way around.

Treating source opinions are

given particular weight because of their unique perspective to
the medical evidence that cannot be obtained from the objective
medical findings alone or from reports of individual
examinations, such as consultative examinations.

If an ALJ

intends to rely on a nontreating physician or examiner’s
opinion, he must explain the weight he is giving to it.
v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004).

Hamlin

The ALJ must

provide a legally sufficient explanation for rejecting the

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opinion of treating medical sources in favor of non-examining or
consulting medical sources.

Robinson, 366 F.3d at 1084.

A treating physician’s opinion about the nature and
severity of the claimant’s impairments should be given
controlling weight by the Commissioner if well supported by
clinical and laboratory diagnostic techniques and if it is not
inconsistent with other substantial evidence in the record.
Castellano v. Secretary of Health & Human Services, 26 F.3d
1027, 1029 (10th Cir. 1994); 20 C.F.R. §§ 404.1527(d)(2),
416.927(d)(2).

When a treating physician opinion is not given

controlling weight, the ALJ must nonetheless specify what lesser
weight he assigned the treating physician opinion.
Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004).

Robinson v.

A treating

source opinion not entitled to controlling weight is still
entitled to deference and must be weighed using all of the
following factors:
(1) the length of the treatment relationship and the frequency
of examination;
(2) the nature and extent of the treatment relationship,
including the treatment provided and the kind of examination or
testing performed;
(3) the degree to which the physician’s opinion is supported by
relevant evidence;
(4) consistency between the opinion and the record as a whole;
(5) whether or not the physician is a specialist in the area
upon which an opinion is rendered; and
(6) other factors brought to the ALJ’s attention which tend to
support or contradict the opinion.
Watkins v. Barnhart, 350 F.3d 1297, 1300-1301 (10th Cir. 2003).

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After considering the above factors, the ALJ must give good
reasons in his/her decision for the weight he/she ultimately
assigns the opinion.

If the ALJ rejects the opinion completely,

he/she must then give specific, legitimate reasons for doing so.
Watkins, 350 F.3d at 1301.
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.

See Glenn

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 by the ALJ in his analysis
of the medical opinion evidence.

The ALJ followed his statement

that he gave little weight to the limitations set forth by Dr.
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Kaplan because they are “not consistent with the claimant’s
overall record of treatment as a whole” (R. at 19) with a
detailed discussion of the medical record, noting at the end
that in the spring of 2013, plaintiff’s COPD improved with
treatment and that in July 2013 the plaintiff had improved
asthma symptoms (R. at 20).

The ALJ had also previously

discussed plaintiff’s medical treatment (R. at 18-19), noting
that Dr. Kaplan had indicated in January 2013 that plaintiff had
improved and was back to normal (R. at 18), the report of Dr.
Martinez that, despite her allegations of osteoarthritis, she
did not have a sickly appearance and was not intubated or in
distress, she had normal musculoskeletal range of motion and no
edema (R. at 19), and the medical record in February 2014 that
she had coughing, but no wheezing, a normal heart rate, regular
rhythm, normal sounds, no gallop or friction, and that her
asthma was stable (R. at 19).
In his report of August 2013, Dr. Coleman stated that
plaintiff reported some relief of allergy symptoms with current
medications.

He noted that she did not have complications from

or symptoms of anemia since her hysterectomy.

He stated that

the records did not note difficulties due to hypertension.

He

stated that records from hospitalization in August 2012
questioned plaintiff’s credibility regarding her report of
symptoms, as there had been no consistent evidence of COPD or
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asthma flare, she had never had documented wheezing on exam and
had 02 sats of 98%.

He noted that although plaintiff alleged

significant breathing limitations in her activities of daily
living (ADL), Dr. Coleman concluded that due to a lack of
consistent objective findings upon exam, plaintiff’s allegations
are only considered partially credible, as they appear to be
exaggerated (R. at 133).

As noted above, the ALJ gave partial

weight to this opinion, but found that newer medical evidence
indicated that plaintiff was more limited than Dr. Coleman had
opined.
The court will not reweigh the evidence.

The ALJ could

reasonably rely on the opinions of Dr. Coleman, as set forth
above, and on his summary of the medical records (R. at 18-20)
to conclude that the opinions of Dr. Kaplan are not consistent
with the treatment records.

Furthermore, the ALJ did not need

to explicitly discuss all of the § 404.1527 factors for each of
the medical opinions.
(10th Cir. 2007).

Oldham v. Astrue, 509 F.3d 1254, 1258

It is sufficient if the ALJ provided good

reasons in her decision for the weight she gave to the treating
source opinions.

Nothing more is required.

Id.

Plaintiff also alleges error in the ALJ’s credibility
analysis.

Credibility determinations are peculiarly the

province of the finder of fact, and a court will not upset such
determinations when supported by substantial evidence.
13

However,

findings as to credibility should be closely and affirmatively
linked to substantial evidence and not just a conclusion in the
guise of findings.
Cir. 1995).

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.

So

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.

White v.

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).

An

ALJ must therefore explain and support with substantial evidence
which part(s) of claimant’s testimony he did not believe and
why.

McGoffin v. Barnhart, 288 F.3d 1248, 1254 (10th Cir.

2002).

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
credible.
2004).

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
14

linked to specific findings of fact fairly derived from the
record, will be affirmed by the court.

White, 287 F.3d at 909-

910.
In addition to the ALJ’s analysis of the medical records,
as noted above, the ALJ also noted that plaintiff is the mother
of two children and that she works part-time (12 hours a week)
(R. at 20, 14).

The ALJ stated that although those tasks are

not mutually exclusive with a finding of disability, they
undermine plaintiff’s allegations that her impairments are not
as significantly limiting as she alleges.

The ALJ also found

that although the plaintiff alleges significant breathing
limitations, the ALJ stated that the objective records do not
support this (R. at 20-21).

Dr. Coleman stated in his report

that although plaintiff alleged significant breathing
limitations in her activities of daily living, Dr. Coleman
opined that due to a lack of consistent objective findings upon
exams, plaintiff’s allegations are only considered partially
credible, as they appear to be exaggerated (R. at 133).
The court will not reweigh the evidence.

Furthermore, the

court finds no clear error in the ALJ’s credibility analysis.
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 the record.

Branum v.

Barnhart, 385 F.3d 1268, 1274 (10th Cir. 2004)( “While we have
15

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”).
IT IS THEREFORE ORDERED that the judgment of the
Commissioner is affirmed pursuant to sentence four of 42 U.S.C.
§ 405(g).
Dated this 24th day of March 2017, Topeka, Kansas.

s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

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