Harding v. Social Security Administration, Commissioner of

Filing 10

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 final decision. Signed by District Judge John W. Lungstrum on 08/02/2018. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

TROY LANCE HARDING,

)
)
Plaintiff,
)
)
v.
)
)
NANCY A. BERRYHILL,
)
Acting Commissioner of Social Security,
)
)
Defendant.
)
______________________________________)

CIVIL ACTION
No. 17-1135-JWL

MEMORANDUM AND ORDER

Plaintiff seeks review of a decision of the Acting Commissioner of Social Security
(hereinafter Commissioner) denying Disability Insurance Benefits (DIB) pursuant to
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
final decision.
I.

Background
Plaintiff argues that the Administrative Law Judge (ALJ) erred in weighing the

record medical opinions including those of his treating physician, Dr. Imlay, and of the
psychologist who examined him at the request of the state agency, Dr. Hackney, and
failed to adequately explain why he adopted some of the doctors’ limitations and not

others; erred in posing an inadequate hypothetical question to the vocational expert; and
erred in her credibility determination. He seeks remand for further administrative
proceedings.
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 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); see also, Bowling v. Shalala,
36 F.3d 431, 434 (5th Cir. 1994) (The court “may not reweigh the evidence in the record,
nor try the issues de novo, nor substitute [the Court’s] judgment for the
[Commissioner’s], even if the evidence preponderates against the [Commissioner’s]
decision.”) (quoting Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988)). Nonetheless,
2

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
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, considering 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
3

his 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 court considers the issues in the order presented in Plaintiff’s Brief and finds
no error in the ALJ’s decision.
II.

Medical Opinions and RFC Assessment
A.

Standard to Evaluate Medical Opinions

“Medical opinions are statements from physicians and psychologists or other
acceptable medical sources1 that reflect judgments about the nature and severity of [a
claimant’s] impairment(s) including [claimant’s] symptoms, diagnosis and prognosis.”
20 C.F.R. § 404.1527(a)(2). Such opinions may not be ignored and, unless a treating
source opinion is given controlling weight, all medical opinions will be evaluated by the
Commissioner in accordance with factors contained in the regulations. Id. § 404.1527(c);

1

The regulations define three types of “acceptable medical sources:”

“Treating source:” an “acceptable medical source” who has provided the claimant
with medical treatment or evaluation in an ongoing treatment relationship. 20 C.F.R.
§§ 404.1502, 416.902.
“Nontreating source:” an “acceptable medical source” who has examined the
claimant, but never had a treatment relationship. Id.
“Nonexamining source:” an “acceptable medical source” who has not examined
the claimant, but provides a medical opinion. Id.
4

SSR 96-5p, West’s Soc. Sec. Reporting Serv., Rulings 123-24 (Supp. 2017). A physician
who has treated a patient frequently over an extended period (a treating source) is
expected to have greater insight into the patient’s medical condition, and his opinion is
generally entitled to “particular weight.” Doyal v. Barnhart, 331 F.3d 758, 762 (10th Cir.
2003). But, “the opinion of an examining physician [(a nontreating source)] who only
saw the claimant once is not entitled to the sort of deferential treatment accorded to a
treating physician’s opinion.” Id. at 763 (citing Reid v. Chater, 71 F.3d 372, 374 (10th
Cir. 1995)). However, opinions of nontreating sources are generally given more weight
than the opinions of nonexamining sources who have merely reviewed the medical
record. Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004); Talbot v. Heckler,
814 F.2d 1456, 1463 (10th Cir. 1987) (citing Broadbent v. Harris, 698 F.2d 407, 412
(10th Cir. 1983), Whitney v. Schweiker, 695 F.2d 784, 789 (7th Cir. 1982), and Wier ex
rel. Wier v. Heckler, 734 F.2d 955, 963 (3d Cir. 1984)).
“If [the Commissioner] find[s] that a treating source’s opinion on the issue(s) of
the nature and severity of [the claimant’s] impairment(s) [(1)] is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and [(2)] is not
inconsistent with the other substantial evidence in [claimant’s] case record, [the
Commissioner] will give it controlling weight.” 20 C.F.R. § 404.1527(c)(2); see also,
SSR 96-2p, West’s Soc. Sec. Reporting Serv., Rulings 111-15 (Supp. 2010) (“Giving
Controlling Weight to Treating Source Medical Opinions”).
The Tenth Circuit has explained the nature of the inquiry regarding a treating
source’s medical opinion. Watkins v. Barnhart, 350 F.3d 1297, 1300-01 (10th Cir. 2003)
5

(citing SSR 96-2p). The ALJ first determines “whether the opinion is ‘well-supported by
medically acceptable clinical and laboratory diagnostic techniques.’” Id. at 1300
(quoting SSR 96-2p). If the opinion is well-supported, the ALJ must confirm that the
opinion is also consistent with other substantial evidence in the record. Id. “[I]f the
opinion is deficient in either of these respects, then it is not entitled to controlling
weight.” Id.
If the treating source opinion is not given controlling weight, the inquiry does not
end. Id. A treating source opinion is “still entitled to deference and must be weighed
using all of the factors provided in 20 C.F.R. § 404.1527.” Id. 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 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. Id. at 1301; 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)).
After considering the factors, the ALJ must give reasons in the decision for the
weight he gives the treating source opinion. Id. 350 F.3d at 1301. “Finally, if the ALJ
rejects the opinion completely, he must then give ‘specific, legitimate reasons’ for doing

6

so.” Id. (citing Miller v. Chater, 99 F.3d 972, 976 (10th Cir. 1996) (quoting Frey v.
Bowen, 816 F.2d 508, 513 (10th Cir. 1987)).
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 Social Security
Ruling (SSR) 96-05p, 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.
The Commissioner issued SSR 96-8p “[t]o state the Social Security
Administration’s policies and policy interpretations regarding the assessment of residual
functional capacity (RFC) in initial claims for disability benefits.” West’s Soc. Sec.
Reporting Serv., Rulings 143 (Supp. 2017). The ruling includes narrative discussion
requirements for the RFC assessment. Id. at 149. The discussion is to cite specific
medical facts and nonmedical evidence to describe how the evidence supports each
conclusion, discuss how the plaintiff is able to perform sustained work activities, and
describe the maximum amount of each work activity the plaintiff can perform. Id. The
discussion must include an explanation how any ambiguities and material inconsistencies
7

in the evidence were considered and resolved. Id. The narrative discussion must include
consideration of the credibility of the claimant’s allegations of symptoms and
consideration of medical opinions regarding his capabilities. Id. at 149-50. If the ALJ’s
RFC assessment conflicts with a medical source opinion, the ALJ must explain why she
did not adopt the opinion. Id. at 150.
“[T]here is no requirement in the regulations for a direct correspondence between
an RFC finding and a specific medical opinion.” Chapo v. Astrue, 682 F.3d 1285, 1288
(10th Cir. 2012) (citing Howard v. Barnhart, 379 F.3d 945, 949 (10th Cir. 2004)); Wall,
561 F.3d at 1068-69). The narrative discussion required by SSR 96-8p to be provided in
an RFC assessment does not require citation to a medical opinion, or even to medical
evidence in the administrative record for each RFC limitation assessed. Castillo v.
Astrue, No. 10-1052, 2011 WL 13627, *11 (D. Kan. Jan. 4, 2011). “What is required is
that the discussion describe how the evidence supports the RFC conclusions, and cite
specific medical facts and nonmedical evidence supporting the RFC assessment.” Id.
See also, Thongleuth v. Astrue, No. 10-1101-JWL, 2011 WL 1303374, *13 (D. Kan. Apr.
4, 2011). There is no need for the Commissioner to base the limitations in his RFC
assessment upon specific statements in the medical evidence or opinions in the record.
B.

The ALJ’s Findings

The ALJ found that Plaintiff is able to perform a range of medium work, but that
he has mental limitations to understand, remember, and carry out only simple
instructions, make only simple work-related decisions, and perform simple, routine tasks
consistent with work of an SVP (specific vocational preparation level) of 1-2. (R. 24).
8

She found that Plaintiff can interact only occasionally, can perform only work that does
not require interaction or coordination with others to complete job tasks, and can perform
only work that does not involve frequent changes in the work setting. Id. In her RFC
assessment, the ALJ summarized Plaintiff’s allegations, the record medical evidence and
other evidence, and the opinion evidence, including the medical opinions. (R. 24-27). At
the end of her discussion, the ALJ concluded:
In sum, after a thorough review of the evidence, the claimant’s allegations
and testimony, forms completed at the request of Social Security, the
objective medial [sic] findings, medical opinions, and other relevant
evidence, the undersigned finds the claimant capable of performing work
consistent with the residual functional capacity established in this decision.
(R. 27).
The ALJ considered Dr. Imlay’s treating source opinion and accorded it limited
weight because his restrictions do not find a basis in the record evidence--particularly the
“unremarkable examination findings after the stenting procedure,” his opinion is
inconsistent with the record evidence, and is inconsistent with Plaintiff’s “activities such
as mowing the lawn with a lawn mower.” (R. 26). She accorded very limited weight to
the opinions of Dr. Ammar and Dr. Khicha, who operated on Plaintiff, because they
“provided explicitly temporary restriction,” which have expired. (R. 27). The ALJ
discounted the state agency medical consultant’s opinion that Plaintiff’s impairments are
not severe because “the consultant did not consider the evidence related to the claimant’s
coronary artery disease and stenting procedure.” Id.
The ALJ also considered the medical opinions regarding Plaintiff’s mental
condition:
9

Dr. Hackney examined the claimant in February of 2015. Based on this
examination, Dr. Hackney concluded that the claimant is unable to maintain
adequate relationships with others and unable to understand and perform
simple tasks in an average amount of time. He concluded that the claimant
cannot sustain concentration for routine activity and would not be able to
meet the demands of an average work schedule. However, the undersigned
is not persuaded that this opinion is consistent with the specific findings
and observations in Dr. Hackney’s report. Although the claimant
demonstrated difficulty with attention and concentration, requiring
redirection and repeating of instructions, the claimant’s IQ was in the
borderline range and he scored 28 out of 30 on the mini mental state exam.
Further, Dr. Hackney is basing his conclusions on a one time evaluation of
the claimant, conclusions that are inconsistent with the improved
functioning demonstrated in the claimant’s mental health treatment records.
For these reasons, the opinion of Dr. Hackney is given limited weight.
Greater weight is given to the opinions of the state agency psychological
consultants. These conclusions are more consistent with the claimant’s
intellectual functioning, mini mental status exam performance, and
improved functioning with treatment. These opinions have been given
substantial weight in concluding that the claimant is able to perform simple,
routine work involving limited interaction with others.
(R. 27) (citations omitted).
C.

Discussion

Much of Plaintiff’s argument asks the court to reweigh the evidence and arrive at a
conclusion different than did the ALJ. However, as noted above, it may not do so.
Bowman, 511 F.3d at 1272; accord, Hackett, 395 F.3d at 1172; see also, Bowling, 36
F.3d at 434 (The court “may not reweigh the evidence in the record, nor try the issues de
novo, nor substitute [the Court’s] judgment for the [Commissioner’s], even if the
evidence preponderates against the [Commissioner’s] decision.”) (quoting Harrell, 862
F.2d at 475)). The question is whether the ALJ’s decision is supported by “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”

10

Perales, 402 U.S. at 401. The court finds that it is. To the extent that Plaintiff makes
other, specific allegations of error in the decision below, the court addresses them.
Plaintiff argues it was error for the ALJ to find “that Plaintiff’s coronary artery
disease warranted restrictions against heavy work but not medium work” because that
“finding had no basis in the medical record and was not supported by any medical
opinion [since] no State agency consultant reviewed the medical evidence after”
discovery of Plaintiff’s arteriosclerosis and surgery. (Pl. Br. 12). Plaintiff’s argument
ignores two important facts. First, the ALJ found that although Plaintiff’s “coronary
artery disease does warrant restrictions against heavy work, his unremarkable
examination findings [after his surgery] do not suggest and [sic] inability to perform
medium work.” (R. 25). This finding on its face clearly has a basis in the medical
record.
Second, and perhaps most importantly, there is no requirement in law, or in the
facts of this case, that the state agency consultants review all the medical evidence before
an ALJ makes her decision. As noted above, “the ALJ, not a physician, is charged with
determining a claimant’s RFC from the medical record.” Howard, 379 F.3d at 949.
“And the ALJ’s RFC assessment is an administrative, rather than a medical
determination.” McDonald, 492 F. App’x at 885 (citing SSR 96-05p, 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, No. 98-5167, 1999 WL 651389, at *2; 20 C.F.R. § 404.1545(a).

11

Plaintiff argues that the ALJ’s finding of “unremarkable examination findings
after his stenting procedure,” is erroneous because the record after his procedure reveals
“continued fatigue with dizziness and decreased appetite,” “burning discomfort in left
foot on neuro exam,” “depressed mood,” “foot pain, neck pain, left arm pain going numb,
rectal bleeding,” and “a fall onto rocks while at his daughter’s home.” (Pl. Br. 14) (citing
R. 468-72, 521-23, 528, 530, 532). However, the evidence to which the ALJ refers
reveals essentially normal physical and cardiac examinations, and the evidence to which
Plaintiff cites confirms the ALJ’s finding with few exceptions. Most of the evidence to
which Plaintiff cites is his report of symptoms for which there is no objective
confirmation on physical examination. The exceptions are discomfort in his left foot
which is attributable to a gunshot wound occurring three years before his alleged onset of
disability, and falling on the rocks at his daughter’s house which was evidenced on
physical examination by “l[igh]t [b]ruising r[igh]t chest wall.” (R. 521-22, 534).
Moreover, the point of the ALJ’s finding is that there is no lingering deficiency resulting
from his stenting procedures, not that there is no limitation whatsoever. In context, the
evidence supports the ALJ’s finding, and Plaintiff has not shown otherwise.
Plaintiff claims the ALJ erred in failing to find “that Plaintiff had limitations with
regard to Wernicke-Korsakoff syndrome,” and in failing to mention the syndrome. (Pl.
Br. 15) (citing R. 219, 381, 389-90). The court finds no error. The evidence to which
Plaintiff cites does not demonstrate the Plaintiff has Wernicke Korsakoff syndrome
which the ALJ should have noted, much less that she should have assessed limitations
resulting therefrom. Page 219 of the record is Plaintiff’s disability report on appeal, in
12

which he stated, that he had “been told by Dr. Gorcos [that] she felt I had Warnickes [sic]
encephalopathy before but now it’s Kossoroff’s [sic] which I understand is permanent.”
(R. 219). Page 381 of the record is a Harper Hospital District 5 treatment note dated
October 20, 2014, in which Dr. Imlay made an “Assessment” of “Wernicke Korsakoff
Syndrome” without further comment or explanation. (R. 381). Finally, the records at
389-90 are almost illegible, without any discernable reference to Wernicke Korsakoff
syndrome. (R. 389-90). Finally, Dr. Imlay’s medical source statement includes a nearly
illegible, and bare diagnosis of “Wernicke – Korsakoff synde [sic] profound w/ Cognitive
Deficits.” (R. 509). There is simply nothing here which demonstrates that the ALJ
should have assessed limitations resulting from Wernicke Korsakoff syndrome, or that
she should have recognized it as a medically determinable impairment in this case.
Moreover, the reasons the ALJ provided for discounting Dr. Imlay’s opinion were that it
is not consistent with the record evidence, and that Dr. Imlay’s limitations lack support
from the record. To be sure, Plaintiff has latched onto three relatively obscure and
indecipherable references in the record, from which he has built a narrative suggesting a
potential for disabling impairment, but he has not demonstrated that his view is the only
view permitted by the evidence as a whole. Plaintiff must demonstrate the error in the
ALJ’s rationale or finding; the mere fact that there is evidence which might support a
contrary finding will not establish error in the ALJ’s determination. “The possibility of
drawing two inconsistent conclusions from the evidence does not prevent an
administrative agency’s findings from being supported by substantial evidence. [The
court] may not displace the agency’s choice between two fairly conflicting views, even
13

though the court would justifiably have made a different choice had the matter been
before it de novo.” Lax, 489 F.3d at 1084 (citations, quotations, and bracket omitted);
see also, Consolo v. Fed. Maritime Comm’n, 383 U.S. 607, 620 (1966) (same).
Plaintiff makes much of his tremors and argues that the ALJ did not even mention
them in her decision. (Pl. Br. 16). That argument is demonstrably wrong, because in
summarizing Dr. Hackney’s report, the ALJ expressly noted Dr. Hackney’s explanation
that Plaintiff’s IQ “scores likely would have been higher were it not for the claimant’s
tremors.” (R. 25). Dr. Hackney’s report reveals that on the portion of the IQ test
regarding “coding,” Plaintiff “simply quit after the first line because he was shaking so
much that he could not complete anymore.” (R. 394). He expressed his opinion that if
Plaintiff had continued despite his tremors, his full scale IQ score would probably reflect
him functioning higher “at the mid range of the borderline range of intelligence.” Id.
Moreover, the ALJ’s decision is replete with references to Plaintiff’s longstanding history
of excessive alcohol use and alcohol dependence. (R. 21-26). Finally, the ALJ found
that limitations from Plaintiff’s alcohol dependence do not support a finding of disability,
and, therefore, she found that alcohol dependence was not a factor material to a
determination of disability. (R. 22, 26).
Plaintiff argues the fact that Dr. Hackney’s report was based on a one-time
evaluation of Plaintiff “is not by itself a basis for rejecting [a nontreating source
opinion]—otherwise the opinions of consultative examiners would essentially be
worthless.” (Pl. Br. 17). This argument has a certain appeal, but it ignores that this
reason was not “by itself,” it was not the only reason given to discount Dr. Hackney’s
14

report. The ALJ also found that Dr. Hackney’s opinion was not consistent with the
findings in his report, Plaintiff was at least in the borderline range of intellectual
functioning, and he scored 28 out of 30 on the mini mental status exam, and Dr.
Hackney’s conclusions “are inconsistent with the improved functioning demonstrated in
the claimant’s mental health treatment records. (R. 27).
Finally, Plaintiff argues that the ALJ’s RFC assessment was inadequate because
the ALJ failed to discuss the uncontroverted evidence he chose not to rely upon, or the
significantly probative evidence he rejected. But Plaintiff has not shown uncontroverted
evidence which was not relied upon by the ALJ, or significantly probative evidence she
rejected. While the ALJ clearly assigned weight to the evidence differently than Plaintiff
does, Plaintiff has not shown that the ALJ ignored parts of the evidence or that the record
evidence will not support the weight assigned. Plaintiff has shown no error in the ALJ’s
RFC assessment.
Because Plaintiff has failed to show error in the RFC assessment, and because the
hypothetical questioning was based on that RFC assessment, Plaintiff does not show that
the hypothetical questioning was inadequate or that the testimony elicited in response was
erroneously relied upon.
III.

Credibility
Plaintiff claims that although the ALJ noted the correct legal standard for

evaluating credibility, she did not apply it properly, did not set forth specific reasons for
her credibility determination, did not affirmatively link her findings to substantial
evidence, and failed to engage in any meaningful assessment of credibility. (Pl. Br. 21).
15

She argues that rather than properly applying the credibility factors, the ALJ based her
determination “upon only those facts which supported her position as opposed to the
totality of the evidence in the record,” and “ignored substantial evidence that clearly
supported” Plaintiff’s allegations. Id. at 24.
A.

Standard for Determining Credibility

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 v. Sullivan, 987 F.2d
1482, 1490 (10th Cir. 1993) (“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).
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
16

objective and subjective, the claimant’s symptoms are in fact disabling. See, Thompson,
987 F.2d at 1488 (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; 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 also has recognized a nonexhaustive 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 v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (quoting Thompson, 987 F.2d at
1489).
B.

The ALJ’s Findings

The ALJ explained the standard for evaluating a claimant’s allegation of
symptoms, and she summarized Plaintiff’s allegations. (R. 24). She found that
Plaintiff’s
statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely consistent with the medical evidence and other
evidence in the record for the reasons explained in this decision.
Accordingly, these statements have been found to affect the claimant’s
17

ability to work only to the extent they can reasonably be accepted as
consistent with the objective medical and other evidence.
(R. 24).
Thereafter, she pointed out numerous inconsistencies between the record evidence
and Plaintiff’s allegations. She noted that after his surgeries Plaintiff’s “cardiac
examinations have consistently been normal” and that “restoration of the claimant’s
dorsalilc pedic pulses after stenting and his normal cardiac examinations are not
consistent with the degree of limitation alleged by the claimant.” (R. 25). She noted that
Plaintiff’s mental health improved with treatment, but that he reported going on
“benders” thereafter. (R. 25). She noted that the record indicated Plaintiff’s “last job
ended voluntarily, not due to his impairments.” Id. at 26. She found that Plaintiff’s
alleged difficulties with personal care “are not consistent with [his] unremarkable
examination findings after his stenting procedure,” and that he “is able to mow his three
acres when his grandchildren do not and [to] travel out of town to help his daughter.” Id.
C.

Discussion

Giving the credibility determination due deference, the court finds no error. The
ALJ provided specific reasons for her credibility finding, and those reasons are
affirmatively linked to substantial evidence (“such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Perales, 402 U.S. at 401.)
Although Plaintiff weighs the evidence differently than did the ALJ, he has not shown
that the evidence points but one direction. Moreover, Plaintiff has not shown that the
ALJ ignored the evidence. She addressed the medical opinions and explained her reasons

18

for discounting them, and she acknowledged Plaintiff’s tremors and alcohol dependence
although she did not accord it the weight Plaintiff suggests it deserves and did not find it
disabling.
Plaintiff has shown no error in the Commissioner’s decision.
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 final decision.
Dated August 2, 2018, at Kansas City, Kansas.

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

19