Wells v. Social Security Administration

Filing 18

OPINION AND ORDER by Magistrate Judge Steven P. Shreder affirming the decision of the ALJ (dma, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
ARLES R. WELLS,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of the Social
Security Administration,
Defendant.

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Case No. CIV-11-19-SPS

OPINION AND ORDER
The claimant Arles R. Wells requests judicial review of a denial of benefits by the
Commissioner of the Social Security Administration pursuant to 42 U.S.C. § 405(g). He
appeals the Commissioner’s decision and asserts that the Administrative Law Judge
(“ALJ”) erred in determining he was not disabled. For the reasons set forth below, the
Commissioner’s decision is hereby AFFIRMED.
Social Security Law and Standard of Review
Disability under the Social Security Act is defined as the “inability to engage in
any substantial gainful activity by reason of any medically determinable physical or
mental impairment[.]” 42 U.S.C. § 423(d)(1)(A). A claimant is disabled under the
Social Security Act “only if his physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work but cannot, considering his
age, education, and work experience, engage in any other kind of substantial gainful work
which exists in the national economy[.]” Id. § 423 (d)(2)(A). Social security regulations

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implement a five-step sequential process to evaluate a disability claim. See 20 C.F.R. §§
404.1520, 416.920.1
Section 405(g) limits the scope of judicial review of the Commissioner’s decision
to two inquiries: whether the decision was supported by substantial evidence and whether
correct legal standards were applied. See Hawkins v. Chater, 113 F.3d 1162, 1164 (10th
Cir. 1997). Substantial evidence is “‘more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Richardson v. Perales, 402 U.S. 389, 401 (1971), quoting Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938); see also Clifton v. Chater, 79 F.3d 1007, 1009 (10th
Cir. 1996). The Court may not reweigh the evidence or substitute its discretion for the
Commissioner’s. See Casias v. Secretary of Health & Human Services, 933 F.2d 799,
800 (10th Cir. 1991). But the Court must review the record as a whole, and “[t]he
substantiality of evidence must take into account whatever in the record fairly detracts
from its weight.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); see also
Casias, 933 F.2d at 800-01.
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Step One requires the claimant to establish that he is not engaged in substantial gainful
activity. Step Two requires the claimant to establish that he has a medically severe impairment
(or combination of impairments) that significantly limits his ability to do basic work activities. If
the claimant is engaged in substantial gainful activity, or his impairment is not medically severe,
disability benefits are denied. If he does have a medically severe impairment, it is measured at
step three against the listed impairments in 20 C.F.R. Part 404, Subpt. P, App. 1. If the claimant
has a listed (or “medically equivalent”) impairment, he is regarded as disabled and awarded
benefits without further inquiry. Otherwise, the evaluation proceeds to step four, where the
claimant must show that he lacks the residual functional capacity (“RFC”) to return to his past
relevant work. At step five, the burden shifts to the Commissioner to show there is significant
work in the national economy that the claimant can perform, given his age, education, work
experience, and RFC. Disability benefits are denied if the claimant can return to any of his past
relevant work or if his RFC does not preclude alternative work. See generally Williams v.
Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988).
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Claimant’s Background
The claimant was born January 10, 1957, and was fifty-two years old at the time
of the administrative hearing. (Tr. 28, 100). He graduated high school, and has worked
as carpenter. (Tr. 19, 131). The claimant alleges that he has been unable to work since
June 1, 2007, due to heart problems and severe gout. (Tr. 124).
Procedural History
On August 25, 2008, the claimant applied for disability insurance benefits under
Title II of the Social Security Act, 42 U.S.C. §§ 401-434, and for supplemental security
income benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-85. His
applications were denied. ALJ Michael A. Kirkpatrick conducted an administrative
hearing and determined that the claimant was not disabled in a written opinion dated June
21, 2010. (Tr. 11-20). The Appeals Council denied review, so the ALJ’s written opinion
is the Commissioner’s final decision for purposes of this appeal.

See 20 C.F.R.

§§ 404.981, 416.1481.
Decision of the Administrative Law Judge
The ALJ made his decision at step five of the sequential evaluation. He found that
the claimant retained the residual functional capacity (RFC) to perform the full range of
light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b). (Tr. 15). The ALJ
concluded that although the claimant could not return to his past relevant work, he was
nevertheless not disabled under Rule 202.14 of the Medical-Vocational Guidelines, i. e.,
“the Grids.” (Tr. 17).

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Review
The claimant contends that the ALJ erred by (i) finding that he had the RFC to
perform light work and (ii) failing to perform a proper credibility analysis. In support of
his first contention, the claimant argues, inter alia, that his non-exertional impairment of
pain combined with his advancing age precluded application of the Grids. The Court
finds these arguments unpersuasive.
The medical evidence reveals that the claimant had the severe impairments of
atrial fibrillation and gout with occasional flare-ups. (Tr. 14). Medical records from the
VA indicate that the claimant was treated for flare-ups of his gout on February 1, 2008
and August 31, 2007. (Tr. 186-191). An August 2007 X-ray of the claimant’s knee
revealed mild degenerative change and knee joint effusion. (Tr. 232).

On August 24,

2007, the claimant presented to the VA to establish care and reported his history of atrial
fibrillation, stating that his last episode had been six months previous. (Tr. 189). The
claimant wore a Holter monitor in 2006, with a follow-up report noting that the Holter
monitoring was unremarkable. (Tr. 196). The claimant also was taken to the emergency
room for a legal blood draw, and entered treatment for alcohol dependence after he was
arrested and charged with his fourth DUI on October 31, 2008. (Tr. 240-241). Treatment
notes indicate that the claimant attended regularly and participated appropriately. (Tr.
264-335).
At the administrative hearing, the claimant testified as to his impairments and
attributed his inability to work to his atrial fibrillation which occurred three to four times
a month, as well as gout in both feet. (Tr. 30). He stated that when he has an episode of
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atrial fibrillation he takes a Tylenol and lies down, that the episodes last forty-five
minutes to half a day, and that he usually has to rest at least half a day because the
episodes exhausted him. (Tr. 31-33). The claimant explained that the episodes usually
resolved on their own, but that he had “been to the emergency room several times over
the years.” (Tr. 32). As to his gout, the claimant stated that it would flare up three to
four times a year, that the flare-ups would last one to three weeks and would affect his
feet and sometimes his knees. (Tr. 33-34). He testified that when he has gout, he cannot
stand or walk because his feet swell and he has to elevate them. (Tr. 34-35). The
claimant further testified that when he is not having an atrial fibrillation or gout attack, he
can generally sit and stand. (Tr. 36).
The ALJ summarized the claimant’s hearing testimony, as well as all of the
medical evidence.

He then found that the medical evidence did not support the

claimant’s allegations of severity and frequency because there was very little evidence of
treatment for either of his severe impairments and all of the treatment was conservative,
and noted that claimant’s own reports as to his atrial fibrillation were that his episodes
were occasional and fairly well controlled. (Tr. 16). Additionally, the ALJ noted that the
claimant’s gout had largely been treated with prescription medication, that the August
2007 gout attack had resolved by September 25, 2007 with the use of prescription
medication as well as a prescription for Naproxen. The prescription medication was also
used to resolve his February 2008 gout attack. (Tr. 16-17).

The ALJ noted that the

claimant attended the substance abuse program with no indication of missed sessions due
to his gout or atrial fibrillation. (Tr. 17-18). Additionally, the ALJ noted that although it
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was not substantial evidence, he gave some consideration to his own observations at the
administrative hearing that the claimant gave no outward signs of physical limitation.
(Tr. 18). Further, the ALJ found the claimant not credible because his testimony did not
match the sparse medical evidence and there was evidence that, contrary to the claimant’s
own hearing testimony, the claimant had worked since his alleged onset date, as
evidenced by the claimant’s report during a July 2009 psychological evaluation and his
work activity report to the Social Security Administration. (Tr. 18-19).
The claimant first contends that he did not have the RFC to perform light work
and the ALJ erred in applying “the grids” to determine he was disabled. In support, the
claimant argues that he cannot perform light work because he cannot walk and stand for
six hours in an eight-hour workday, and that an RFC of sedentary work would render him
disabled under the Grids. The Court does not agree that the ALJ erred in his RFC
assessment. Claimant cites a number of medical records in support of his claim that he
cannot perform light work, but those records only indicate that the claimant was treated
for allergic rhinitis, the two aforementioned gout flare-ups, a sore throat, his heart
condition (and the unremarkable Holter monitor results), and an eyeglasses exam. (Tr.
175-176, 185-186, 206, 220, 222, 224-231). The ALJ specifically noted every medical
record available in this case with the exception of the claimant’s eye exams, and still
concluded that he could perform light work. See Hill v. Astrue, 289 Fed. Appx. 289, 293
(10th Cir. 2008) (“The ALJ provided an extensive discussion of the medical record and
the testimony in support of his RFC finding. We do not require an ALJ to point to
‘specific, affirmative, medical evidence on the record as to each requirement of an
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exertional work level before [he] can determine RFC within that category.’”), quoting
Howard v. Barnhart, 379 F.3d 945, 949 (10th Cir. 2004).
An ALJ may rely conclusively on “the grids” to find that a claimant is not disabled
if: (i) the claimant has no significant nonexertional impairment; (ii) the claimant can do
the full range of work at some RFC level on a daily basis; and (iii) the claimant can
perform most of the jobs in that level. “Each of these findings must be supported by
substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1488 (10th Cir. 1993).
Thus, use of “the grids” is inappropriate if a claimant has a nonexertional impairment,
unless the evidence supports a finding that such impairment is insignificant. Id. at 149091; 20 C.F.R., pt. 404, subpt. P, app.2, § 200.00(e). The claimant contends that the ALJ
did not fully account for his non-exertional impairment of pain. In assessing allegations
of pain, an ALJ “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.” Musgrave v. Sullivan, 966 F.2d 1371, 1375-76 (10th Cir.
1992), citing Luna v. Bowen, 834 F.2d 161, 163-64 (10th Cir. 1987). Because there was
objective evidence that the claimant has pain-producing impairment, the ALJ was thus
required to consider the claimant’s allegations of pain and the extent to which it was
disabling. Here, the ALJ reported every instance the claimant sought treatment for his
atrial fibrillation and gout, and noted each medication the claimant took during those
times, particularly that the claimant was prescribed Naproxen (a pain medication)
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following his September 2007 gout flare-up, and that he took aspirin when he
experienced atrial fibrillation, but ultimately found that the medical evidence did not
support the claimant’s reports of frequency and severity of his impairments. (Tr. 15-16).
The ALJ therefore did link the medical evidence and the claimant’s own reports to his
physicians to his finding as to the claimant’s RFC. See Frey v. Bowen, 816 F.2d 508, 515
(10th Cir. 1987) (an ALJ may disregard a claimant’s subjective complaints of pain if
“unsupported by any clinical findings.”). See also Mann v. Astrue, 284 Fed. Appx. 567,
571 (10th Cir. 2008) (“Insubstantial or infrequent attempts to obtain relief from a painful
condition are inconsistent with allegations of disabling pain.”) [unpublished opinion],
citing Branum v. Barnhart, 385 F.3d 1268, 1274 (10th Cir. 2004).
Last, the claimant contends that the ALJ erred in his credibility analysis. A
credibility determination is entitled to deference unless the ALJ misreads the medical
evidence taken as a whole. Casias v. Secretary of Health & Human Services, 933 F.2d
799, 801 (10th Cir. 1991). An ALJ may disregard a claimant’s subjective complaints of
pain if unsupported by any clinical findings. Frey v. Bowen, 816 F.2d 508, 515 (10th Cir.
1987). But credibility findings “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 Cir. 1995) [citation omitted]. An ALJ’s credibility analysis “must contain
‘specific reasons’ for a credibility finding; the ALJ may not simply ‘recite the factors that
are described in the regulations.’” Hardman v. Barnhart, 362 F.3d 676, 678 (10th Cir.
2004), quoting Soc. Sec. Rul. 96-7p, 1996 WL 374186, at *4 (July 2, 1996). Here, the
ALJ noted that “the claimant’s statements concerning the intensity, persistence and
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limiting effects of these symptoms are not credible to the extent they are inconsistent with
the above residual functional capacity.” (Tr. 16). Although this boilerplate language is
not ideal, see Bjornson v. Astrue, 2012 WL 280736 at *4-5 (7th Cir. Jan. 31, 2012) (slip
op.) (in addressing nearly identical language, “[T]he passage implies that ability to work
is determined first and is then used to determine the claimant's credibility. That gets
things backwards. The administrative law judge based his conclusion that Bjornson can
do sedentary work on his determination that she was exaggerating the severity of her
headaches. Doubts about credibility were thus critical to his assessment of ability to
work, yet the boilerplate implies that the determination of credibility is deferred until
ability to work is assessed without regard to credibility, even though it often can't be.”),
the ALJ further developed his credibility analysis at other points in his written opinion.
The ALJ mentioned the applicable credibility analysis and cited evidence supporting his
reasons for finding that the claimant’s subjective complaints were not credible, including
(i) the lack of objective medical support during testing, (ii) the conservative nature of the
claimant’s treatment, (iii) the medical history and treating physician notes, (iv) the
claimant’s own demeanor at the hearing, (v) the “marked discrepancies between” the
claimant’s allegations and the information in the record, (vi) the discrepancy as to
whether the claimant had worked after his alleged onset date, and (vii) the discrepancy
between the claimant’s testimony that he sometimes went to the emergency room for his
atrial fibrillation and the medical records which only contained one visit to the ER—
when the claimant was arrested for his DUI. (Tr. 16-19). The ALJ thus linked his
credibility determination to evidence as required by Kepler, and provided specific reasons
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for his determination in accordance with Hardman. There is no indication here that the
ALJ misread the claimant’s medical evidence taken as a whole, and his determination of
his credibility is therefore entitled to deference. See Casias, 933 F.2d at 801.
Conclusion
In summary, the Court FINDS that correct legal standards were applied by the
ALJ, and the Commissioner’s decision is therefore supported by substantial evidence.
The Commissioner’s decision is accordingly AFFIRMED.
DATED this 10th day of September, 2012.

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