Farmer v. Social Security Administration

Filing 24

OPINION AND ORDER by Magistrate Judge T Lane Wilson , remanding case (terminates case) (crp, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
KAREN FARMER,

)
)
Plaintiff,
)
)
vs.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security )
Administration,
)
)
Defendant.
)

Case No. 13-cv-511-TLW

OPINION AND ORDER
Plaintiff Karen Farmer seeks judicial review of the decision of the Commissioner of the
Social Security Administration denying her claims for disability insurance benefits, and
supplemental security income under Titles II and XVI of the Social Security Act (“SSA”), 42
U.S.C. §§ 416(i), 423, and 1382c(a)(3). In accordance with 28 U.S.C. § 636(c)(1) & (3), and
Fed. R. Civ. P. 73, the parties have consented to proceed before a United States Magistrate
Judge. (Dkt. 12). Any appeal of this decision will be directly to the Tenth Circuit Court of
Appeals.
INTRODUCTION
In reviewing a decision of the Commissioner, the Court is limited to determining whether
the Commissioner has applied the correct legal standards and whether the decision is supported
by substantial evidence. See Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005).
Substantial evidence is more than a scintilla but less than preponderance and is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion. Id. The Court’s
review is based on the record, and the Court will “meticulously examine the record as a whole,
including anything that may undercut or detract from the ALJ’s findings in order to determine if

the substantiality test has been met.” Id. The Court may neither re-weigh the evidence nor
substitute its judgment for that of the Commissioner. See Hackett v. Barnhart, 395 F.3d 1168,
1172 (10th Cir. 2005). Even if the Court might have reached a different conclusion, if supported
by substantial evidence, the Commissioner’s decision stands. See White v. Barnhart, 287 F.3d
903, 908 (10th Cir. 2002).
BACKGROUND
Plaintiff, then a forty-seven year old female, completed her applications for Titles II and
XVI benefits on October 4, 2010. (R. 131-32). Plaintiff alleged a disability onset date of August
10, 2010. (R. 131). Plaintiff claimed that she was unable to work due to symptoms and
limitations associated with fibromyalgia. (R. 190). Plaintiff’s claims for benefits were denied
initially on January 14, 2011, and on reconsideration on March 10, 2011. (R. 63-66; 68-80).
Plaintiff then requested a hearing before an administrative law judge (“ALJ”), and the ALJ held
the hearing on February 13, 2012. (R. 24-46). The ALJ issued a decision on March 28, 2012,
denying benefits and finding plaintiff not disabled because she was capable of performing past
relevant work. (R. 8-23). The Appeals Council denied review, and plaintiff appealed. (R. 1-5;
Dkt. 2).
The ALJ’s Decision
The ALJ found that plaintiff had not performed any substantial gainful activity since her
alleged onset date of August 10, 2010. (R. 13). At step two, the ALJ found that plaintiff had the
severe impairments of fibromyalgia and obesity. Id. After analyzing the “paragraph B” criteria
for mental impairments, the ALJ determined that plaintiff’s “medically determinable mental
impairments” were non-severe because they caused no more than a minimal limitation in her
ability to function in a work setting. (R. 13-14).

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At step three, the ALJ determined that plaintiff’s impairments did not meet or equal a
listed impairment. (R. 15). Therefore, after reviewing plaintiff’s testimony, the medical evidence,
and other evidence in the record, the ALJ concluded that plaintiff retained the RFC to:
occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds;
stand and/or walk for at least 6 hours out of an 8-hour workday; sit for at least 6
hours out of an 8-hour workday (all with normal breaks); and no more than
occasionally climb such things as ramps or stairs, balance, stoop, kneel, crouch, or
crawl (Light work is defined in 20 CFR 404.1567(b) and 416.967(b)).
(R. 15). At step four, the ALJ found that plaintiff was capable of performing her past relevant
work as a waitress, a cashier, or a store manager. The ALJ did not make an alternative step five
finding. Because he found that plaintiff could return to her past relevant work, the ALJ
determined that she was not disabled. (R. 19).
ANALYSIS
On appeal, plaintiff raises three issues: (1) that the ALJ failed to properly consider the
medical source opinions; (2) that the ALJ failed to properly consider plaintiff’s credibility; and
(3) that the ALJ’s RFC assessment is not supported by substantial evidence.1 (Dkt. 19 at 4). The
Court will address plaintiff’s credibility complaints first because the second issue is affected by
the ALJ’s credibility finding.
Credibility
Plaintiff argues that the ALJ failed to assess properly her credibility by taking evidence
out of context and by relying solely on minimal objective findings. (Dkt. 19). The Commissioner
responds that the ALJ properly discounted plaintiff’s credibility because her subjective
complaints were not borne out by objective medical findings. (Dkt. 20).

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Plaintiff does not develop an argument for this allegation of error, so it will not be considered
by the Court. See (Dkt. 19 at 4-9).
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This Court is not to disturb an ALJ’s credibility findings if they are supported by
substantial evidence because “[c]redibility determinations are peculiarly the province of the
finder of fact.” Cowan v. Astrue, 552 F.3d 1182, 1190 (10th Cir. 2008) (citing Diaz v. Secretary
of Health & Human Svcs., 898 F.2d 774, 777 (10th Cir. 1990)). Credibility findings “should be
closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of
findings.” Id. (citing Huston v. Bowen, 838 F.2d 1125, 1133 (10th Cir. 1988) (footnote
omitted)). The ALJ may consider a number of factors in assessing a claimant’s credibility,
including “the levels of medication and their effectiveness, the extensiveness of the attempts . . .
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, . . . and the
consistency or compatibility of nonmedical testimony with objective medical evidence.” Kepler
v. Chater, 68 F.3d 387, 391 (10th Cir. 1995).
After summarizing the regulations regarding credibility analyses (R. 16), the ALJ
summarized plaintiff’s testimony,
The claimant testified at the hearing that she was let go from her job because she
“started going to all these doctors.” She stated that she has extreme pain in her
legs and if she walks too far, they collapse. The claimant testified that she has
back pain and it feeling [sic] like her skin is burning. She stated that she is weak
and tired all the time and sometimes cannot lift anything. The claimant testified
that she can stand for about 4 minutes then has to sit down. She stated she has
difficulty walking because her legs shake. The claimant testified that she spends
most of the day sitting and sleeping in a recliner. She stated that her husband does
most of the household chores and shopping. The claimant testified that her
husband got her a laptop and she reads. She stated that she cannot remember
things and has problems writing.
Id. Next, the ALJ noted that the Tenth Circuit recognizes fibromyalgia as a disease with no
“dipstick” laboratory test. Id. (referencing Sisco v. U.S. Department of Health and Human
Services, 10 F.3d 739 (10th Cir. 1993)). He also noted that in 1990, the American College of
Rheumatology established classification criteria for a diagnosis of fibromyalgia “requiring pain

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in eleven (11) of eighteen (18) tender point sites on digital palpation.” (R. 16). The ALJ said that
his review of plaintiff’s fibromyalgia included an evaluation of the credibility of her hearing
testimony relating to the performance of work related functions. Id.
The ALJ briefly discussed plaintiff’s medical records and used that discussion to
determine the following regarding her credibility:
The medical evidence shows that although the claimant alleges disabling pain, her
physical examinations have revealed minimal objective findings other than
occasional swelling in her ankles and tenderness in some joints. The claimant has
had full strength in all extremities and full range of motion of her spine and hips
(Exhibits 1F, 2F, 3F, and 6F). This inconsistency reduces the claimant’s
credibility.
(R. 18) (emphasis added). The ALJ referred to plaintiff’s original function report, dated October
15, 2010, to further discredit her testimony and declare that her reported activities such as
“relax[ing] on the couch for an hour or so,” doing some light housework,” including laundry and
dishes, and a statement to Dr. Fesler that she was slowly decorating cakes, as evidence that
plaintiff could perform “light work activity.” Id. The ALJ also said that plaintiff’s credibility was
further diminished because she received unemployment for the last two quarters of 2010. Id.
Further, the ALJ noted that plaintiff’s “treating physicians did not place any functional
restrictions on her activities that would preclude light work activity with the previously
mentioned restrictions.” (R. 19).
An illustrative list of factors for the ALJ to consider in assessing credibility is set forth in
Luna v. Bowen, 834 F.2d 163-66 (10th Cir. 1987) and Huston, 838 F.2d at 1132 n.7. Those
factors include medication, attempts to seek treatment, daily activities, the consistency of the
medical evidence and plaintiff’s testimony, relationships and motivation of the witnesses, and
other subjective factors within the ALJ’s discretion. See Huston, 838 F.2d at 1132 n. 7. The ALJ
must link his credibility findings to the evidence. See Kepler, 68 F.3d at 291. However, the ALJ

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is not required to conduct a “formalistic factor-by-factor recitation of the evidence.” Qualls v.
Apfel, 206 F.3d 1368, 1372 (10th Cir. 2004).
Here the ALJ appears to focus his credibility determination on his own assumptions
rather than the results of a Luna analysis of plaintiff’s pain in conjunction with her severe
impairment of fibromyalgia. The ALJ consistently pulled evidence out of context to minimize
plaintiff’s pain complaints and show that her pain was not disabling. See (R. 18-19).
For example, plaintiff’s original Function Report, upon which the ALJ relied to support
his finding that plaintiff could perform light work, shows more limitation than the ALJ stated.
While the ALJ noted that plaintiff’s reported activities were “relaxing on the couch …, some
light housework, [and] vacuum[ing] a little at a time” (R. 18), he failed to mention that the “light
housework” amounted to a “small amount of dishes” and that plaintiff’s husband completed what
housework she could not. (R. 158). In that same report, plaintiff also wrote:
The more I walk the worse the pain gets. I am always in pain. But worse the more
I move. (R. 157);
The pain will wake me up a couple of times a day sometime [sic] not allowing me
to sleep. (R. 158);
Able to dress self, just takes a little bit due to pain. (R. 158);
Have to shower, it’s hard to get out of tub. (R. 158);
Unable to bend over to shave leg for very long. (R. 158);
[Regarding preparing meals] Sometime preparing small stuff. Husband cook [sic]
most of the meals. (R. 159);
[Regarding household chores] No outside, cleaning laundry, dishes [How long it
takes to perform tasks and how often are they done?] 2 or 3 times a week, it take
[sic] twice as long. (R. 159);
I can only take 10 to 15 steps before the pain really starts. (R. 162);
I have to have help getting in cars, and the most upsetting thing for me is I can’t
even lift my 1 ½ old [sic] grandson. I stay in constant pain all the time. (R. 164).
(R. 157-64).
In addition, plaintiff completed two “Disability Report – Appeals” forms, one on
February 25, 2011, and one on April 27, 2011, detailing increased pain. (R. 143-47, 150-54). She
noted on the February 25 appeals report that her pain had increased significantly, leaving her

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unable to cook, clean, wash dishes, or do laundry. She said she needed help to walk most of the
day. (R. 145). On the April 27 appeals report, plaintiff reported “[i]ncreased weakness in legs
causing increase in falls,” and “[i]ncreased headaches and difficulty concentrating” as changes in
her condition. She also reported needing a cane to walk, recommended by Dr. Fesler. (R. 150,
202). The ALJ did not discuss any of this information.
The ALJ appears to have used only selective portions of the Function Report and
Disability Report, ignoring those portions that did not support his credibility determination.
Doing so is error. See Sisco, 10 F.3d at 743 (an ALJ may not take “testimony out of context and
selectively acknowledge[] parts of [a claimant’s] statements while leaving important segments
out.”).
The ALJ also relied on plaintiff’s collection of unemployment for the last two quarters of
2010. Ordinarily, a person does not qualify for unemployment benefits unless that person
certifies that he or she is able and available for full-time work. However, plaintiff points out in
her reply brief that she received unemployment benefits under Kansas law. (Dkt. 21 at 4). Kansas
unemployment statute 44-706(a)(1) states that an individual who “was forced to leave work
because of illness or injury upon the advice of a licensed and practicing health care provider” is
not disqualified from receiving unemployment benefits. K.S.A. 44-706(a)(1).
The ALJ further attempted to discredit plaintiff by stating that she visited Dr. Fesler
infrequently. (R. 17). However, a review of the medical records shows that plaintiff consistently
complained of pain to Dr. Fesler and several other doctors, and she eventually tested positive for
18 out of 18 tender points for fibromyalgia. (R. 211-12, 217, 219-18, 220-21, 222-23, 228, 229,
230, 244-46, 250, 251, 275-76, 282-85; 286-87, 288-89, 290-91, 292-94, 297). Plaintiff’s
primary care physician received plaintiff’s records from every doctor that she visited; therefore,

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he had a well-rounded picture of her pain. Dr. Fesler placed plaintiff on several different pain
medications (R. 286), but the ALJ failed to discuss this fact.
Dr. Fesler also placed several restrictions on plaintiff’s functional ability, including
limited walking, sitting, and lifting. (R. 283, 286, 287, 288). Yet, the ALJ stated that “the
claimant’s treating physicians did not place any functional restrictions on her activities that
would preclude light work activity with the previously mentioned restrictions.” (R. 19). Clearly,
this statement is error. (R. 283, 286, 287, 288). Accordingly, the Court finds the issue of
credibility must be remanded to the ALJ for a proper analysis.
Medical Source Opinions
In light of the Court’s decision on credibility, the ALJ’s treatment of the medical source
opinions will not be addressed. However, it is worth noting that the ALJ relied on a Physical
RFC form completed by Nancy Armstrong, M.D. on January 13, 2011, to support an RFC for
light work. (R. 19). The ALJ’s reliance notwithstanding, Dr. Armstrong’s assessment found that
plaintiff could perform only sedentary work. (R. 266-73, 274).
CONCLUSION
For the foregoing reasons, the ALJ’s decision finding plaintiff not disabled is
REVERSED and REMANDED for further proceedings. Specifically, the ALJ should
reevaluate plaintiff’s credibility in light of the Luna factors and reconsider any other aspects of
the Decision as appropriate.
SO ORDERED this 11th day of February, 2015.

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