Best v. Social Security Administration, Commissioner of

Filing 15

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 4/11/17. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MICHAEL BEST,
Plaintiff,
vs.

Case No. 16-1189-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
supplemental security income payments.

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.
(10th Cir. 1994).
1

Glenn v. Shalala, 21 F.3d 983, 984

Substantial evidence requires more than a

On January 20, 2017, Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of Social Security.
1

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
substantial gainful activity (SGA).
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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
their previous work, they are determined not to be disabled.
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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 July 11, 2014, administrative law judge (ALJ) James

Harty issued his decision (R. at 16-29).

Plaintiff alleges that

he has been disabled since December 3, 2012 (R. at 16).

At step

one, the ALJ found that plaintiff has not engaged in substantial
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gainful activity since December 6, 2012, the application date
(R. at 18).

At step two, the ALJ found that plaintiff had a

severe combination of impairments (R. at 18).

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 22), the ALJ found at step four that
plaintiff is unable to perform any past relevant work (R. at
27).

At step five, the ALJ found that plaintiff could perform

other jobs that exist in significant numbers in the national
economy (R. at 28).

Therefore, the ALJ concluded that plaintiff

was not disabled (R. at 29).
III.

Did the ALJ err in his analysis of plaintiff’s

credibility?
The framework for the proper analysis of evidence of pain
is that the Commissioner must consider (1) whether claimant
established a pain-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, claimant’s pain is in fact
disabling.

Kepler v. Chater, 68 F.3d 387, 390-91 (10th Cir.

1995); Thompson v. Sullivan, 987 F.2d 1482, 1488-89 (10th Cir.
1993); Luna v. Bowen, 834 F.2d 161, 163-65 (10th Cir. 1987).
an impairment is reasonably expected to produce some pain,
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If

allegations of disabling pain emanating from that impairment are
sufficiently consistent to require consideration of all relevant
evidence.

For example, an impairment likely to produce some

back pain may reasonably be expected to produce severe back pain
in a particular claimant.

Luna, 834 F.2d at 164.

Symptoms can

sometimes suggest a greater severity of impairment than is
demonstrated by objective and medical findings alone.

Direct

medical evidence of the cause and effect relationship between
the impairment and the degree of claimant’s subjective
complaints need not be produced.

Luna, 834 F.2d at 165.

The

absence of an objective medical basis for the degree of severity
of pain may affect the weight to be given to the claimant’s
subjective allegations of pain, but a lack of objective
corroboration of the pain’s severity cannot justify disregarding
those allegations.

When determining the credibility of pain

testimony the ALJ should consider 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

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nonmedical testimony with objective medical evidence.

Thompson,

987 F.2d at 1489.2
Credibility determinations are peculiarly the province of
the finder of fact, and a court will not upset such
determinations when supported by substantial evidence.

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
2

The factors listed in the regulations are similar to the factors noted in Thompson. They are: objective medical
evidence; daily activities; location, duration, frequency, and intensity of pain or other symptoms; precipitating and
aggravating factors; type, dosage, effectiveness, and side effects of medications taken to relieve pain or other
symptoms; treatment, other than medication, for pain or other symptoms; measures plaintiff has taken to relieve pain
or other symptoms; and other factors concerning limitations or restrictions resulting due to pain or other symptoms.
20 C.F.R. §§ 404.1529(c)(2),(3)(i-vii), 416.929(c)(2),(3)(i-vii).
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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
linked to specific findings of fact fairly derived from the
record, will be affirmed by the court.

White, 287 F.3d at 909-

910.
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
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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).3
The ALJ found that plaintiff could perform light work, with
additional postural, manipulative, environmental and mental
limitations (R. at 22).

The ALJ gave some weight to the

opinions of Dr. Tawadros, a state agency physician who reviewed
the medical records and offered opinions limiting plaintiff to
light work with some additional restrictions (R. at 699-706).
The ALJ held that evidence of cervical problems and obesity
support greater postural limitations than indicated by Dr.
Tawadros, and also supports a limitation on overhead reaching
(R. at 24).
In regards to plaintiff’s mental limitations, the ALJ
considered the opinion of ARNP Vitt, a treatment provider, who
opined in January 2013 that that plaintiff had no mental
limitations, but needed job training (R. at 690-691), and who
opined in May 2013 that plaintiff had no physical or mental
problems, but that plaintiff needed job training.
also suggested a part-time job (R. at 685-686).

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ARNP Vitt

The ALJ

Plaintiff argues that this case should be considered in light of SSR 16-3p, which superseded SSR 96-7p, on March
28, 2016. 2016 WL 1237954, 1119029. Although the ALJ decision was made on July 11, 2014 (R. at 29), the
Appeals Council decision declining to review the ALJ decision, was made on April 11, 2016 (R. at 5). Thus, SSR
16-3p was adopted while this case was still before the Commissioner. Therefore, the court will consider SSR 16-3p
in its review of this case.
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accorded some weight to this opinion, although finding that the
record does support some limitations (R. at 26).
Finally, the ALJ also considered the opinions of Dr. Cohen,
who reviewed the record and provided a mental RFC assessment.
Dr. Cohen opined that plaintiff had moderate limitations in the
ability to understand, remember and carry out detailed
instructions; in the ability to interact appropriately with the
general public; and in the ability to get along with coworkers
or peers without distracting them or exhibiting behavioral
extremes (R. at 707-708).

Dr. Cohen stated that plaintiff can

attend long enough to complete simple tasks, and would need work
that did not involve serving the public, or require more than
incidental interactions with coworkers (R. at 709).

The ALJ

found that plaintiff is also limited with regard to interaction
with supervisors and complex work due to anxiety and
distraction.

The ALJ therefore accorded only some weight to

this opinion (R. at 26).
Plaintiff alleges that the ALJ erred when it found
plaintiff only partially credible, and that this tainted the
evaluation of plaintiff’s RFC (Doc. 11 at 9).

In evaluating

plaintiff’s credibility, the ALJ noted that plaintiff had a poor
work history due to an extensive history of incarceration (R. at
23).

The ALJ noted that plaintiff indicated that his extensive

prison history limits his ability to work (R. at 23, 250).
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The ALJ mentioned that his incarceration involved selling
prescription narcotics, and cited to medical records that he was
not taking his pain medications, drug seeking, and attempts to
obtain pain medications.

The ALJ stated that this history

suggests that he may be exaggerating his complaints of pain and
possibly diverting his medication (R. at 23).
The ALJ indicated that plaintiff does not appear to report
some of his alleged physical limitations to his medical
providers, and has not sought more intensive treatment.

The ALJ

concluded that these findings undermine plaintiff’s allegations
(R. at 23).
The ALJ considered plaintiff’s obesity, and set forth a
detailed summary of the medical records and medical opinions (R.
at 23-27).

The ALJ also considered statements from third

parties (R. at 27).

Based on all this information, the ALJ

found that plaintiff was only partially credible (R. at 23).
Plaintiff asserts that the ALJ concluded that plaintiff’s
criminal history made his allegations of pain less credible
(Doc. 11 at 9).
decision.

However, that is not what the ALJ stated in his

The ALJ noted plaintiff’s extensive history of

incarceration, and that plaintiff himself asserted that his life
in prison, along with physical and mental impairments, limited
his ability to work (R. at 250).

However, the ALJ never

indicated that he found plaintiff less credible because he had
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been incarcerated.

The court finds nothing in the ALJ’s

credibility analysis that clearly violated SSR 16-3p.
The record includes medical records raising a suspicion of
drug seeking (R. at 466), and raises questions about why
plaintiff’s drug screen showed no oxycodone detected when
oxycodone was being prescribed for him (R. at 788, 806-807).
Plaintiff admitted to overuse of his pain medication, and was
warned that any future overuse would result in him no longer
being a candidate for opioid therapy (R. at 788).

The medical

records also show that plaintiff tested positive for
methamphetamines, although its use was denied by the plaintiff
(R. at 747).

Furthermore, Dr. Tawadros stated that plaintiff

alleged limitations due to back pain which are in excess of the
medical findings, and that other limitations alleged by
plaintiff are not credible as they are not supported by the
medical findings (R. at 706).
Admittedly, the court has some concern about the ALJ’s
mention of the extent plaintiff reported his limitations to
treatment providers or sought intensive treatment.

However, the

ALJ reasonably relied on the medical evidence and the medical
opinion evidence regarding plaintiff’s limitations, and noted
medical records that raised legitimate questions about drug
seeking behavior.

Dr. Tawadros found that plaintiff’s alleged

limitations were not supported by the medical findings.
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The

court will not reweigh the evidence.

The court finds that the

balance of the ALJ’s detailed summary and evaluation of the
evidence and his credibility findings are supported by
substantial evidence in the record.

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”).
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 11th day of April 2017, Topeka, Kansas.

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

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