Goforth v. Commissioner of Social Security
Filing
23
MEMORANDUM OPINION and ORDER -- Having reviewed the medical evidence of record, the transcript of the administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties, the undersigned magistrate judge AFFIRMS the Commissioner's decision. Signed by Magistrate Judge Shon T. Erwin on 5/17/16. (mc)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JOHN GOFORTH,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.
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Case No. CIV-15-855-STE
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of
the final decision of the Commissioner of the Social Security Administration denying
Plaintiff’s application for benefits under the Social Security Act. The Commissioner has
answered and filed a transcript of the administrative record (hereinafter TR. ____). The
parties have consented to jurisdiction over this matter by a United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c).
The parties have briefed their positions, and the matter is now at issue. Based on
the Court’s review of the record and the issues presented, the Court AFFIRMS the
Commissioner’s decision.
I.
PROCEDURAL BACKGROUND
Plaintiff’s application for disability insurance benefits was denied initially and on
reconsideration. Following a hearing, an Administrative Law Judge (ALJ) issued an
unfavorable decision. (TR. 12-26). The Appeals Council denied Plaintiff’s request for
review. (TR. 1-3). Thus, the decision of the ALJ became the final decision of the
Commissioner.
II.
THE ADMINISTRATIVE DECISION
The ALJ followed the five-step sequential evaluation process required by agency
regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R.
§ 404.1520. At step one, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity since June 12, 2012, the application date. (TR. 14). At step
two, the ALJ determined that Mr. Goforth had the following severe impairments:
osteoarthritis of the left knee by history; right ACL tear without surgical repair by
history; obesity; major depressive disorder; learning disorder NOS; bipolar disorder;
and attention deficit hyperactivity disorder (ADHD) by self-report. (TR. 14). At step
three, the ALJ found that Plaintiff’s impairments did not meet or medically equal any of
the presumptively disabling impairments listed at 20 C.F.R. Part 404, Subpart P,
Appendix 1. (TR. 17).
At step four, the ALJ found that Plaintiff had no past relevant work. (TR. 25). The
ALJ further found Plaintiff had the residual functional capacity (RFC) to:
[L]ift and carry 20 pounds occasionally and 10 pounds frequently. The
claimant can sit for about 6 hours during an eight-hour workday and can
stand and walk for about 6 hours during an eight-hour workday. The
claimant can occasionally climb stairs, balance, stoop, kneel, crouch, and
crawl. The claimant can understand, remember, and carry out simple,
routine, and repetitive tasks. The claimant can respond appropriately to
supervisors, co-workers, and usual work situations, but have no contact
with the general public.
(TR. 19).
2
Based on the finding that Mr. Goforth had no past relevant work, the ALJ
proceeded to step five. There, he presented the limitations from the RFC to a vocational
expert (VE) to determine whether there were other jobs Plaintiff could perform. (TR.
51). Given the limitations, the VE identified three jobs from the Dictionary of
Occupational Titles. (TR. 51). The ALJ adopted the testimony of the VE and concluded
that Mr. Goforth was not disabled based on his ability to perform the identified jobs.
(TR. 26).
III.
ISSUES PRESENTED
On appeal, Plaintiff alleges: (1) a failure to include various mental work-related
limitations in the RFC and hypothetical to the VE, (2) a failure to develop the record
regarding the use of a cane, and (3) an erroneous credibility analysis.
IV.
STANDARD OF REVIEW
This Court reviews the Commissioner’s final “decision to determin[e] whether the
factual findings are supported by substantial evidence in the record and whether the
correct legal standards were applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir.
2010). “Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. (quotation omitted).
While the court considers whether the ALJ followed the applicable rules of law in
weighing particular types of evidence in disability cases, the court does not reweigh the
evidence or substitute its own judgment for that of the Commissioner. Bowman v.
Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quotations and citations omitted).
3
V.
NO ERROR IN THE EVALUATION OF PLAINTIFF’S MENTAL IMPAIRMENT
A.
The ALJ’s Duty in Assessing the Plaintiff’s Mental RFC
In assessing an individual’s mental impairment, the ALJ must employ a “special
technique” which involves rating the degree of functional limitation under four broad
functional areas. 20 C.F.R. § 404.1520a(b)-(c). This assessment is documented on a
Psychiatric Review Technique (PRT) form and is used to rate the severity of the mental
impairment at steps two and three of the sequential evaluation process. See Policy
Interpretation Ruling Titles II and XVI: Assessing Residual Functional Capacity in Initial
Claims, SSR 96-8p, 1996 WL 374184, at 6-7 (July 2, 1996) (SSR 96-8p).
Step four requires a more detailed assessment by itemizing various functions
contained in the broad categories which were summarized on the PRT. Id. In assessing
the RFC, the ALJ must consider the limitations and restrictions imposed by a claimant’s
severe impairments and express any mental limitations in terms of specific, workrelated mental activities he or she is able to perform. Id., at 6-7.
B.
Evidence of Plaintiff’s Mental Impairments
On March 20, 2013, non-examining State Agency consultant Dr. Cynthia
Kampschaefer reviewed Mr. Goforth’s records and completed two reports—the PRT
form and the Mental Residual Functional Capacity Assessment (MRFCA). (TR. 72-73, 7577). In the PRT form, Dr. Kampschaefer concluded that Mr. Goforth was “moderate”
impairment in the areas of “activities of daily living,” “maintaining social functioning,”
and “concentration, persistence, or pace.” (TR. 72).
4
In the MRFCA, Dr. Kampschaefer performed a more detailed analysis of the
broad findings from the PRT form. The MRFCA is divided into two parts. First, the
author is instructed to answer a series of questions “to help determine the individual’s
ability to perform sustained work activities.” (TR. 75). If the individual is limited in a
certain area, the author is required to rate the level of limitation. Second, after rating
the degree of limitation, the author is instructed to provide a narrative discussion
“which describes how the evidence supports each conclusion . . .” (TR. 75). This
narrative is considered “[t]he actual mental residual functional capacity assessment[.]”
(TR. 75).
First, Dr. Kampschaefer found that Mr. Goforth was “markedly” limited in his
ability to understand, remember, and carry out detailed instructions, as well as in his
ability to interact appropriately with the general public. (TR. 75-76). In the “narrative”
portion of the form, Dr. Kampschaefer stated:
The claimant is able to remember, understand and carry out simple,
routine instructions. He is able to related [sic] to supervisors and coworkers superficially for work related matters. He is not able to interact
with the general public.
(TR. 77). The ALJ accorded Dr. Kampschaefer’s opinions “great weight.” (TR. 22, 23).
C.
No Error in the RFC Regarding Mental Work-Related Limitations
Mr. Goforth alleges that the ALJ erred in his evaluation of the Plaintiff’s mental
impairments, including: (1) limitations that Plaintiff believes stem from a “mood
disorder” which the ALJ had deemed severe at step two, (2) Dr. Kampschaefer’s
findings on the PRT form, and (3) Dr. Kampschaefer’s opinions of specific work-related
limitations as expressed on the MRFCA.
5
1. The Severe Mental Impairment at Step Two
Plaintiff alleges: (1) the ALJ found a severe “mood” disorder at step two, (2) the
disorder caused stress and panic attacks, and (3) the RFC and hypothetical to the VE
should have reflected specific work-related limitations related to panic attacks. These
allegations are without merit.
At step two, the ALJ concluded that Mr. Goforth suffered from severe “major
depressive disorder” and “bipolar disorder.” (TR. 14). The Court assumes that one of
these mental impairments is the “mood disorder” which Plaintiff argues causes stress
and panic attacks. According to Mr. Goforth, the RFC limitation to “simple” work does
not properly reflect stress and panic attacks, which Plaintiff alleges will cause him to
distract other workers. As a result of the allegedly faulty RFC, Plaintiff also claims a lack
of substantial evidence to support the step five findings because the hypothetical to the
VE failed to include limitations relating to panic attacks.
Once the Plaintiff’s mental impairment was deemed severe at step two, the ALJ
had to discuss the impact of the impairment throughout the remainder of the disability
determination. 20 C.F.R. § 404.1545(a)(2). However, the presence of an impairment,
albeit severe, does not necessarily equate to corresponding limitations in the RFC.
Cavalier v. Colvin, 2014 WL 7408430, at 2 (N.D. Okla. Dec. 30, 2014) (unpublished op.)
As stated, Mr. Goforth alleges that the RFC for “simple” work failed to account
for the severe mood disorder, which caused stress and panic attacks which would
distract others at work. The Plaintiff may be correct regarding his allegation of “simple”
work. But the ALJ made an additional finding which encompassed Plaintiff’s ability to
6
work with others. The RFC stated: “The claimant can respond appropriately to
supervisors, co-workers, and usual work situations.” (TR. 19). This finding, in turn, was
based on a conclusion from Dr. Kampschaefer, who had reviewed Plaintiff’s records,
including a diagnosis of major depressive disorder. (TR. 73, 77). Acknowledging the
depression, Dr. Kampschaefer obviously believed that Plaintiff would not overly distract
others at work.
Mr. Goforth has not pointed to any evidence that he was being treated for panic
attacks or evidence which contradicted Dr. Kampschaefer’s conclusions regarding
Plaintiff’s ability to deal with his potential fellow workers. Mr. Goforth’s mere belief that
his depression will cause panic attacks which will distract others does not provide a
legal basis on which to find error in the RFC. As the record stands, the ALJ properly
adopted Dr. Kampschaefer’s opinions which accounted for Plaintiff’s ability to deal with
his co-workers. Accordingly, the Court: (1) rejects Plaintiff’s allegations that the RFC
failed to include limitations resulting from panic attacks which would cause him to
distract co-workers and (2) rejects Plaintiff’s allegations regarding step five which were
premised on an allegedly faulty RFC.
2. Findings on the PRT Form
On the PRT form, Dr. Kampschaefer concluded that Plaintiff was “moderately”
impaired in the areas of “activities of daily living,” “social functioning,” and
“concentration, persistence, and pace.” (TR. 72). According to Plaintiff, the RFC did not
properly reflect these findings. But these findings were opinions expressed on the PRT
form, which is “not an RFC assessment, but [is] used to rate the severity of mental
7
impairments) at steps 2 and 3 of the sequential evaluation process.” SSR 96-8p, at 4.
Thus, the ALJ had no duty to express these particular findings in the RFC. See Bales v.
Colvin, 56 Fed. Appx. 792, 798 (10th Cir. Aug. 15, 2014) (unpublished op.) (“[T]he ALJ’s
finding of a moderate limitation at step three does not necessarily translate to a workrelated functional limitation for purposes of the RFC assessment. . . .”).
3. Specific
Work-Related
Kampschaefer
Mental
Limitations
from
Dr.
In addition to the PRT findings, Dr. Kampschaefer also concluded that Plaintiff
suffered from “marked” limitations in his ability to understand, remember, and carry out
detailed instructions and interact appropriately with the general public. (TR. 75-76). Dr.
Kampschaefer translated these findings into work-related limitations and provided the
following mental RFC:
The claimant is able to remember, understand and carry out simple,
routine instructions. He is able to related [sic] to supervisors and coworkers superficially for work related matters. He is not able to interact
with the general public.
(TR. 77). The ALJ adopted these findings as reflected in the RFC. (TR. 19).
Plaintiff alleges error because the RFC failed to reflect Dr. Kampschaefer’s
specific findings that Mr. Goforth suffered from “marked” limitations in his abilities to:
(1) understand, remember, and carry out detailed instructions and (2) interact
appropriately with the general public. The Court rejects Mr. Goforth’s argument.
In Smith v. Colvin, __F.3d __, No. 15-1224, 2016 WL 2620519 (10th Cir. filed
May 9, 2016), the Tenth Circuit Court of Appeals addressed a similar challenge. There,
8
a consultative physician had completed a form to assess the plaintiff’s RFC, and opined
that the plaintiff was “moderately limited” in her ability to:
•
Maintain concentration, persistence, and pace,
•
Remain attentive and keep concentration for extended periods,
•
Work with others without getting distracted,
•
Complete a normal workday and workweek without interruption for
psychologically based symptoms,
•
Perform at a consistent pace without excessive rest periods,
•
Accept instructions and respond appropriately to criticism by supervisors,
•
Get along with coworkers or peers without distracting them or engaging in
behavioral extremes,
•
Respond appropriately to changes in the workplace, and
•
Set realistic goals or independently plan.
Smith, slip op. at 7-8. The form explained that the questions, which had yielded these
findings, “provided only an aid” to assess the plaintiff’s RFC. Id., slip op. at 8, n.1. The
form further instructed the psychologist to assess the actual RFC in a narrative. Id. In
the narrative, the psychologist stated that the plaintiff could: (1) engage in work that
was limited in complexity and (2) manage social interactions that were not frequent or
prolonged. Id., slip op. at 8. The ALJ’s RFC was similar to that authored by the
psychologist in the narrative. Id.
On appeal, the plaintiff questioned how the ALJ’s RFC had incorporated all of the
moderate limitations that the psychologist had listed. Id., slip op. at 9, n.2. In response,
the Court stated, “this is the wrong question.” Id. According to the Court, “[The
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psychologist’s] notations of moderate limitations served only as an aid to her
assessment of residual functional capacity. We compare the administrative law judge’s
findings to [the psychologist’s] opinion on residual functional capacity, not her notations
of moderate limitations.” Id. (emphasis added).
In rejecting the plaintiff’s challenge, the Court cited Lee v. Colvin, 631 Fed. Appx.
538 (10th Cir. Nov. 12, 2015) (unpublished op.). In Lee, the plaintiff asserted a similar
challenge, arguing that the ALJ had not expressly incorporated specific moderate
limitations into the RFC which had been given by a psychologist which the ALJ had
accorded “great weight.” Lee, 631 Fed. Appx. at 541. The Court rejected the challenge,
citing the Social Security Administration’s Program Operations Manual Systems (POMS)
which stated that “adjudicators are to use the . . . narrative as the RFC assessment”
rather than the accompanying worksheet which rated the degree of limitation in
particular areas. Id. In Lee, the ALJ had adopted the “narrative” section of the
psychologist’s RFC which accounted for the moderate limitations the psychologist had
listed, even though the narrative was not a verbatim recitation of the rated limitations.
Id. at 541-42.
In Smith, the Court adopted the approach taken in Lee and concluded:
The administrative law judges in Lee and in our case did not repeat the
moderate limitations assessed by the doctor. But both administrative law
judges incorporated these limitations by stating how the claimant was
limited in the ability to perform work-related activities.
Smith, slip op. at 10.
Smith is controlling in the instant case. Here, Dr. Kampschaefer had rated
Plaintiff’s degree of limitation in several areas, and found that Mr. Goforth was markedly
10
limited in his abilities to: (1) understand, remember, and carry out detailed instructions
and (2) interact appropriately with the general public. (TR. 75-76). But as in Smith and
Lee, the form that Dr. Kampschaefer completed stated that the narrative discussion, not
the specifically rated limitations, was considered the “actual mental residual functional
capacity . . . [which] described how the evidence supported each conclusion.” (TR. 75).
In the narrative, Dr. Kampschaefer translated her specific findings regarding “marked”
limitations into the following mental RFC:
The claimant is able to remember, understand and carry out simple,
routine instructions. He is able to related [sic] to supervisors and coworkers superficially for work related matters. He is not able to interact
with the general public.
(TR. 77). The ALJ accorded Dr. Kampschaefer’s opinion “great weight” and adopted her
RFC in the decision, verbatim. (TR. at 19). According to Smith, “[t]his approach is
acceptable in our circuit.” Smith, slip op. at 10.
Based on Smith, the Court rejects Mr. Goforth’s argument that the RFC failed to
properly account for the specific “marked” limitations. In turn, the Court also rejects Mr.
Goforth’s related argument challenging the hypothetical and jobs identified by the VE,
as Plaintiff’s argument was based on an allegedly faulty RFC which has been disproved.
VI.
NO ERROR IN DEVELOPMENT OF THE RECORD
At the hearing on January 21, 2014, Mr. Goforth testified that he had previously
used a cane for walking, but that approximately “a year and a half” prior to that time,
the cane had been destroyed or lost in a car wreck, and he had not replaced it. (TR. 4041). Mr. Goforth argues “Errantly there was no cane in the RFC . . .” (ECF No. 15:8).
According to Plaintiff his need for a cane is “so obviously necessary” that “[i]f the record
11
did not contain a prescription for a cane, the ALJ should have recontacted the physician
to determine if there was one.” (ECF No. 15:8). Mr. Goforth contends that the ALJ failed
to do so, thereby committing legal error in his duty to develop the record. The Court
rejects this argument.
A.
The ALJ’s Duty to Develop the Record
It is beyond dispute that the burden to prove disability in a social security case is
on the claimant.” Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997); 20 C.F.R. §
404.1512(a) (“[Y]ou must bring to our attention everything that shows that you are . . .
disabled.”). Nevertheless, because a social security disability hearing is a nonadversarial
proceeding, the ALJ is “responsible in every case to ensure that an adequate record is
developed during the disability hearing consistent with the issues raised.” Hawkins, 113
F.3d at 1164 (internal citation and quotation marks omitted). Generally, this means that
the “ALJ has the duty to . . . obtain [ ] pertinent, available medical records which come
to his attention during the course of the hearing.” Carter v. Chater, 73 F.3d 1019, 1022
(10th Cir. 1996).
The ALJ bears responsibility for ensuring that “an adequate record is developed
during the disability hearing consistent with the issues raised.” Henrie v. United States
Dep't of Health & Human Servs., 13 F.3d 359, 360–61 (10th Cir. 1993). As a result,
“[a]n ALJ has the duty to develop the record by obtaining pertinent, available medical
records which come to his attention during the course of the hearing.” Carter v. Chater,
73 F.3d 1019, 1022 (10th Cir. 1996). The duty to recontact medical sources is triggered
when the ALJ determines that there is not enough evidence in the record to determine
12
whether or not a claimant is disabled. See Greer v. Astrue, 2009 WL 799275, at 7 (W.D.
Okla. Mar. 24, 2009) (unpublished op). If the ALJ finds the evidence to be sufficient,
then he is not required to recontact a medical source. Id.
B.
Evidence and Findings Relating to the Cane
At the hearing, Plaintiff testified that a doctor from “Hope” told him he needed to
“get a cane to walk with.” (TR. 41). In the decision, the ALJ acknowledged the
testimony but found that “there [wa]s no medical recommendation for a cane or any
evidence that any medical provider prescribed the same.” (TR. 20). The ALJ also
concluded that there was no evidence of any medical basis for the use of an assistive
device and that Mr. Goforth was observed to ambulate without the need of any assistive
device. (TR. 20). As a result, the ALJ included no accommodations in the RFC related to
the use of a cane.
C.
No Error in Failing to Develop the Record Regarding the Cane
Mr. Goforth alleges that the RFC should have accounted for the use of a cane
and that the ALJ erred in failing to recontact a physician regarding whether the cane
had been prescribed. The Court disagrees, as there was insufficient evidence in the
record which would have triggered the ALJ’s duty in this regard.
As stated, at the hearing, Plaintiff testified that someone “at Hope” told him he
“needed to get a cane to walk with.” (TR. 41). The only other evidence in the record
relating to the cane are “Function Reports” submitted with his application, wherein Mr.
Goforth, his girlfriend, and his sister-in-law stated that Plaintiff had been prescribed a
cane by a doctor in October 2011. See TR. 195, 211, 231. But the records from Hope
13
Community Services indicated treatment only for Mr. Goforth’s mental impairments, not
his physical impairments. See TR. 302-319, 325-330. In fact, with the exception of a
State Agency consultative examination, the record contains no evidence of treatment
for Plaintiff’s physical impairments.
Nothing in the record before the Court suggests that the ALJ became aware of
any prescription or medical record indicating that the cane had been prescribed. In fact,
the record suggests that the “prescription” was nothing more than a “recommendation.”
See TR. 293 (July 31, 2012 notation from consultative physician Justin Bryant, that
Plaintiff reported that he had “recently beg[un] using a cane on the recommendation of
his PCP for assisting his ambulation.”).
In the absence of an actual prescription for a cane or medical records indicating
that a cane had been prescribed, the ALJ did not commit legal error by failing to
recontact a physician at Hope Community Services regarding whether a physician there
had prescribed a cane. As a result, the Court rejects Plaintiff’s claim. See Greer v.
Astrue, 2009 WL 799275, at 7 (W.D. Okla. Mar. 24, 2009) (unpublished op.) (rejecting
plaintiff’s allegation that ALJ failed to recontact physician when “nothing in the record
suggests that additional records from Dr. Abraham existed or needed to be procured for
the record.”); see also Huizar v. Astrue, 2012 WL 3631526, at 3 (C.D. Cal. Aug. 23,
2012) (unpublished op.) (no error in failing to recontact physician regarding allegedly
prescribed cane because the only “evidence” in the record regarding the need for a
cane was a statement in a “function report” that a doctor had prescribed a cane and
14
“the record contain[ed] no inadequate or ambiguous evidence from any treating
physician concerning a cane.”).
VII.
NO ERROR IN THE CREDIBILITY/PAIN ANALYSIS
Finally, Mr. Goforth argues error in the credibility analysis related to his
allegations that he suffers from debilitating knee pain. Plaintiff contends the ALJ “did
not properly apply any of the well-respected credibility factors and dispensed with
proper analysis.” (ECF No. 15:11). As a result of the allegedly improper credibility
determination, Mr. Goforth argues that the ALJ erroneously concluded that Plaintiff
could perform “light work.” See Tr. 19. The Court rejects Mr. Goforth’s claims. 1
A.
Evidence Regarding Mr. Goforth’s Knee Impairment and Pain
At the administrative hearing, Plaintiff testified that he constantly wore a brace
on his left knee and that he had used a cane in the past. (TR. 38-39). Plaintiff also
stated that he was unable to bend because his left knee might “pop out.” (TR. 44). A
consultative physician noted that Mr. Goforth complained of:
1
Intertwined in his challenge to the credibility determination, Plaintiff states “the ALJ was
required to discuss the evidence and explain why he found that Mr. Goforth was not disabled at
step three.” (ECF No. 15:12.). Mr. Goforth then cites Listing 1.05(C) and states that
“impairments of the musculoskeletal system, are established through detailed history, physical
examinations, x-rays, and the use of specific findings, such as pain, muscle spasm, and
significant limitation of motion in the spine and appropriate radicular destruction of
significant motor loss with muscle weakness and sensory and reflex loss [and] Mr.
Goforth has all of the symptoms highlighted above.” (ECF No. 15:12) (internal quotations marks
and citations omitted) (emphasis in original). But aside from noting the Listing and making a
bald allegation that he “has all of the symptoms highlighted above,” the Plaintiff does not
develop the argument by providing evidence that he had met Listing 1.05(C). As a result, the
Court will not consider this argument. See Wall v. Astrue, 561 F.3d 1048, 1065 (10th Cir. 2009)
(refusing to consider plaintiff’s contention that her impairments had equaled a listing because
she had “failed to support this contention with any developed argumentation.”) (internal citation
and quotation marks omitted).
15
•
chronic bilateral knee pain,
•
left knee swelling, and
•
the ability to stand for only 5 minutes before experiencing discomfort.
(TR. 293). The physician also noted that Mr. Goforth was unable to perform toe-andheel walking due to knee pain, and that he used a cane for ambulation upon entering
and exiting the exam. (TR. 293, 294).
B.
Administrative Law Judge’s Duty to Evaluate the Subjective
Complaints
The ALJ had to consider the evidence and decide whether he believed Mr.
Goforth’s complaints. See Social Security Ruling 96-7p, Policy Interpretation Ruling
Titles II and XVI: Evaluation of Symptoms in Disability Claims: Assessing the Credibility
of an Individual’s Statements, 1996 WL 374186, Westlaw op. at 1-2 (July 2, 1996). In
doing so, the ALJ had a duty to make specific findings and to link them to substantial
evidence. See Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (noting the duty to
“closely and affirmatively link[ ]” credibility findings to substantial evidence); Social
Security Ruling 96-7p, Policy Interpretation Ruling Titles II and XVI: Evaluation of
Symptoms in Disability Claims: Assessing the Credibility of an Individual’s Statements,
1996 WL 374186, Westlaw op. at 4 (July 2, 1996) (noting the duty to provide “specific
reasons for the weight given to the individual’s statements” “articulated in the
determination or decision” in a manner “sufficiently specific to make clear to the
individual and to any subsequent reviewers the weight” given “to the individual’s
statements and the reasons for that weight”).
16
Besides objective evidence, the ALJ may consider certain factors in evaluating a
claimant’s credibility, including the claimant’s daily activities; the location, duration, and
intensity of the claimant’s pain or other symptoms; factors that precipitate and
aggravate the symptoms; the type, dosage, effectiveness, and side effects of any
medication the individual takes or has taken to alleviate pain or other symptoms; any
treatment other than medications the individual receives or has received for pain or
other symptoms; any measures other than treatment the individual uses or has used to
relieve pain or other symptoms; and any other factors concerning the individual’s
functional limitations and restrictions due to pain or other symptoms. See SSR 96-7p, at
3; Keyes-Zachary, 695 F.3d 1156, 1167 (10th Cir. 2012). However, “an ALJ is not
required to address each factor in his decision.” Duncan v. Colvin, 608 Fed Appx. 566,
578 (10th Cir. 2015).
C.
No Error in the Evaluation
Impairment/Credibility Analysis
of
Mr.
Goforth’s
Knee
In assessing Plaintiff’s allegations of knee pain, the ALJ summarized the only
medical evidence in the record related to the impairment. This evidence was derived
from the Social Security consultative examination. The ALJ noted that Plaintiff had:
•
complained of bilateral knee pain,
•
used a cane upon entering and exiting the exam,
•
reported working one month prior to the exam doing construction and
moving furniture, while wearing a knee brace,
•
ambulated with a left legged limp, and
•
not been able to perform toe-and-heel walking due to pain.
17
(TR. 15). The ALJ also reported the physician’s findings that Plaintiff suffered from
osteoarthritis of the left knee by history and history of right ACL tear without surgical
repair. (TR. 15).
In assessing Mr. Goforth’s credibility, the ALJ outlined the proper procedure,
summarized the Plaintiff’s testimony, and made the following statement:
After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be
expected to cause the alleged symptoms; however, the claimant’s
statements concerning the intensity, persistence and limiting effects of
these symptoms are not credible for the reasons explained in this
decision.
(TR. 22).
The judge then explained why he had discounted Mr. Goforth’s subjective
allegations:
The claimant’s credibility is diminished for several reasons. The clinical
findings do not substantially corroborate his subjective complaints. The
claimant has sought very little medical treatment; this lack of treatment
diminishes the claimant’s credibility. The record reflects significant gaps in
the claimant’s history of treatment. The claimant said he was unable to
work because it would mess up his application status for SSI. Mental
status examination was within normal limits. He indicated he was good at
playing basketball. Although cane usage was noted at the physical
consultative examination in July 2012, the claimant was noted to
ambulate without a cane and without difficulty at the mental consultative
examination in February 2013. The Administrative Law Judge notes that
since the claimant’s protective filing date, he has sought treatment only
on June 22, 2012, on July 16, 2012, on July 24, 2012 (appears to be for
medication pick-up only), and on July 23, 2013. There were several noshows noted in the record.
(TR. 22) (citations omitted). Although the ALJ did not discount the pain allegations
citing each credibility factor, he was not required to do so. See Duncan v. Colvin, 608
Fed Appx. 566, 578 (10th Cir. 2015) (stating that “an ALJ is not required to address
18
each [credibility] factor in his decision”). But the ALJ considered the allegations and
supported his reasons with proper explanation and links to evidence in the record. First,
The ALJ noted that Mr. Goforth had sought very little treatment, which diminished his
credibility. Indeed, the record does not show that Mr. Goforth sought any treatment for
his knee impairment. The only medical evidence relating to the knee impairment was an
opinion from a consultative physician following an exam which had been ordered by the
agency.
Before an ALJ may rely on the claimant's failure to pursue treatment as support
for his determination of noncredibility, the ALJ should consider: (1) whether the
treatment at issue would restore claimant's ability to work; (2) whether the treatment
was prescribed; (3) whether the treatment was refused; and, if so, (4) whether the
refusal was without justifiable excuse. Frey v. Bowen, 816 F.2d 508, 517 (10th Cir.
1987). But the Tenth Circuit has held that the Frey test is not required in situations
where treatment has not been prescribed or recommended, but where the ALJ is simply
considering “what attempts plaintiff made to relieve [her symptoms] . . . in an effort to
evaluate the veracity of plaintiff's contention that [her symptoms were] so severe as to
be disabling.” Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000).
Here, the ALJ relied on Plaintiff’s lack of treatment, gaps in treatment, and “noshows” as support for his disregarding Mr. Goforth’s allegations. (TR. 22). The
explanation confirms that the ALJ was merely noting that Mr. Goforth had made very
few attempts to relieve his symptoms, suggesting that the knee pain was not as severe
as alleged. In support, the ALJ also cited the fact that Mr. Goforth had been employed
19
moving furniture and doing construction only one month prior to his consultative
examination. (TR. 293-94). Under Qualls, the ALJ properly relied on Mr. Goforth’s lack
of treatment as a basis for evaluating his veracity, especially in light of the fact that Mr.
Goforth did not attempt to excuse the failure.2
The ALJ also relied on Plaintiff’s inconsistent use of a cane as a basis to discount
the credibility. As the ALJ noted, although Mr. Goforth used a cane during the physical
consultative examination, he ambulated “with no evident difficulties” at the mental
consultative examination 7 months later. Compare TR. at 293 to TR. at 320. The ALJ
was entitled to rely on Plaintiff’s inconsistent use of a cane to discount his allegations of
pain. Morphew v. Colvin, 2014 WL 1373893, at 12 (D. Kan. Apr. 8, 2014) (unpublished
op.) (no error in ALJ’s reliance on contradictory information regarding plaintiff’s use of a
cane as a basis to discount credibility).
Finally, Mr. Goforth challenges the RFC based on an allegedly faulty credibility
assessment. According to Plaintiff, his knee impairment “should have caused this ALJ to
use limitations such as limited ability to stand for extended periods and the need for
extra breaks due to pain or difficulty walking for more than just a few minutes as a time
due to very severe knee pain from an unrepaired ACL tear that he noted as a severe
impairment at step two.” (ECF No. 13-15). But as discussed, the presence of an
impairment, albeit severe, does not necessarily equate to corresponding limitations in
2
Mr. Goforth argues that the ALJ should not have cited missed appointments as a basis for
discounting the credibility, because the missed appointments were owing to the fact that he
was in jail. The excuse may be valid, but it is immaterial to Mr. Goforth’s allegations of
debilitating knee pain, as the missed appointments were for a review of his depression and
insomnia medications and related mental health treatment (TR. 303, 327). The ALJ primarily
relied on Plaintiff’s lack of treatment overall, which he was entitled to do.
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the RFC. Cavalier v. Colvin, 2014 WL 7408430, at 2 (N.D. Okla. Dec. 30, 2014)
(unpublished op.). The ALJ acknowledged the knee pain, but properly discounted Mr.
Goforth’s credibility with a detailed explanation which was supported by substantial
evidence. The ALJ fulfilled his duty in this regard and was required to do no more.
Thus, there was no error in the ALJ’s credibility assessment.
ORDER
Having reviewed the medical evidence of record, the transcript of the
administrative hearing, the decision of the ALJ, and the pleadings and briefs of the
parties, the undersigned magistrate judge AFFIRMS the Commissioner’s decision.
ENTERED on May 17, 2016.
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