Kelley v. Commissioner of Social Security
MEMORANDUM OPINION AND ORDER. The court affirms the Commissioners decision. Signed by Magistrate Judge Suzanne Mitchell on 12/1/17. (lb)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ZONA MARIE KELLEY,
COMMISSIONER OF SOCIAL
Case No. CIV-17-512-SM
MEMORANDUM OPINION AND ORDER
Zona Marie Kelley (Plaintiff) brings this action for judicial review of the
Defendant Acting Commissioner of Social Security’s (Commissioner) final
decision she was not “disabled” under the terms of the Social Security Act. See
42 U.S.C. §§ 405(g), 423(d)(1)(A). The parties have consented under 28 U.S.C.
§ 636(c) to proceed before a United States Magistrate Judge. Docs. 12, 13.1
Following a careful review of the parties’ briefs, the administrative record (AR),
and the relevant authority, the court affirms the Commissioner’s decision.
Citations to the parties’ pleadings and attached exhibits will refer to this
Court’s CM/ECF pagination. Citation to the state court records will refer to
the original pagination.
The Social Security Act defines “disability” as the “inability to engage in
any substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A). “This twelve-month duration requirement
applies to the claimant’s inability to engage in any substantial gainful activity,
and not just his underlying impairment.” Lax v. Astrue, 489 F.3d 1080, 1084
(10th Cir. 2007) (citing Barnhart v. Walton, 535 U.S. 212, 218-19 (2002)).
Burden of proof.
Plaintiff “bears the burden of establishing a disability” and of “ma[king]
a prima facie showing that he can no longer engage in his prior work activity.”
Turner v. Heckler, 754 F.2d 326, 328 (10th Cir. 1985). If Plaintiff makes that
prima facie showing, the burden of proof then shifts to the Commissioner to
show Plaintiff retains the capacity to perform a different type of work and that
such a specific type of job exists in the national economy. Id.
The ALJ assigned to Plaintiff’s case applied the standard regulatory
analysis and concluded Plaintiff had not met her burden of proof. AR 19-26;
see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also Wall v. Astrue, 561 F.3d
1048, 1052 (10th Cir. 2009) (describing the five-step analysis). Specifically, the
ALJ found Plaintiff:
was severely impaired, first, by dysfunction of major joints,
second, by obesity, third, by an affective disorder, fourth, by
a pain disorder with both psychological factors and a general
medical condition, fifth, by hypertension, sixth, by right
thigh pain/meralgia paresthetica, and seventh, by knee pain;
did not have an impairment or combination of impairments
that met or medically equaled the severity of a listed
had the residual functional capacity (RFC)2 to perform
sedentary work, with some limitations;
could perform her past relevant work as a telephone
operator; so, she
had not been under a disability, as defined in the Social
Security Act, from January 1, 2012 through February 12,
Appeals Council action.
The Social Security Administration’s (SSA) Appeals Council found no
reason to review the ALJ’s decision. Id. at 1-5. So, the ALJ’s decision is the
Residual functional capacity “is the most [a claimant] can still do despite
[a claimant’s] limitations.” 20 C.F.R. §§ 404.1545(a)(1); 416.945(a)(1).
Plaintiff’s amended onset date appears to have been June 3, 2013, but
the ALJ did not clearly accept that date. AR 35-36.
Commissioner’s final decision. See Krauser v. Astrue, 638 F.3d 1324, 1327
(10th Cir. 2011).
Judicial review of the Commissioner’s final decision.
A court reviews the Commissioner’s final “decision to determine whether
the factual findings are supported by substantial evidence and whether the
correct legal standards were applied.” Mays v. Colvin, 739 F.3d 569, 571 (10th
Cir. 2014) (internal quotation marks omitted). Substantial evidence is “more
than a scintilla, but less than a preponderance.” Lax, 489 F.3d at 1084. A
decision is not based on substantial evidence “if it is overwhelmed by other
evidence in the record.” Wall, 561 F.3d at 1052 (internal quotation marks
omitted). The court will “neither reweigh the evidence nor substitute [its]
judgment for that of the agency.” Newbold v. Colvin, 718 F.3d 1257, 1262 (10th
Cir. 2013) (internal quotation marks omitted).
Further, “if the ALJ failed to apply the correct legal test, there is a
ground for reversal apart from a lack of substantial evidence.” Thompson v.
Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993). However, the court “must
‘exercise common sense’ in reviewing an ALJ’s decision and must not ‘insist on
technical perfection.’” Jones v. Colvin, 514 F. App’x 813, 823 (10th Cir. 2013)
(quoting Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (2012)). The ALJ’s
decision must be evaluated “based solely on the reasons stated in the decision.”
Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004). A “post hoc
rationale is improper because it usurps the agency’s function of weighing and
balancing the evidence in the first instance.” Carpenter v. Astrue, 537 F.3d
1264, 1267 (10th Cir. 2008).
Plaintiff’s claims of error.
Plaintiff argues (1) the ALJ’s conclusion “Plaintiff has the [RFC] to
perform past relevant work is not based on substantial evidence,” and (2) “[t]he
ALJ failed to properly evaluate Plaintiff’s credibility and his findings are not
supported by substantial evidence.” Doc. 16, at 8, 16.
Though titled as a challenge to the ALJ’s past-relevant-work
determination, Plaintiff appears to challenge the ALJ’s conclusion that her
impairments “did not meet or equal any listing of impairment in 20 CFR Part
404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925 and 416.926).” Id. at 10 (quoting AR 21). Rather than
attack the RFC, she challenges the ALJ’s conclusion she was not disabled
under Listing 1.02 because he did not consider whether Plaintiff could
ambulate effectively. Id. at 10-16. She lists various medical reports involving
her left knee, including a diagnosis of osteoarthritis, notations of her reduced
mobility and need for a cane in March 2014. She also argues that twice in
2015, her physician recommended arthroplasty (which could not be performed
due to her obesity and her lack of insurance). Id. at 11-12. Plaintiff challenges
the ALJ’s “finding that her knee condition did not meet the severity
requirements of Listing 1.02A ‘due to the absence of evidence of the inability
to ambulate effectively,’ [which] indicates that the ALJ improperly discounted
the claimant’s credibility in describing her limitations.” Id. at 15-16 (quoting
The ALJ noted Plaintiff had “not been prescribed a cane, or a chair, and
[that she] was apparently advised that unless [she] lost weight, they would not
perform the knee surgery.” AR 37. The ALJ also noted Plaintiff’s testimony
“she uses a motorized wheelchair to get around.” Id. at 24, see Doc. 18, at 1.
At step three of the sequential evaluation process, the ALJ compares a
claimant’s impairment to the Listings (20 C.F.R. Pt. 404, Subpt. P, App. 1).
See Lax, 489 F.3d at 1085. If the impairment is equal or medically equivalent
to an impairment in the Listings, the claimant is presumed disabled. Sullivan
v. Zebley, 498 U.S. 521, 530-31 (1990). Plaintiff has the burden of proving that
a Listing has been equaled or met. Bowen v. Yuckert, 482 U.S. at 140-42 (1987);
Williams v. Bowen, 844 F.2d at 750-51 (10th Cir.1988). To be found disabled
based on the Appendix 1 Listing of Impairments, Plaintiff must show that her
condition satisfies all of the specified medical criteria of a particular Listing.
Sullivan, 493 U.S. at 530 (impairment does not meet Listing if it has only
“some of” the medical criteria, “no matter how severe”).
Listing 1.02 provides:
1.02 Major dysfunction of a joint(s) (due to any cause):
Characterized by gross anatomical deformity (e.g., subluxation,
contracture, bony or fibrous ankylosis, instability) and chronic
joint pain and stiffness with signs of limitation of motion or other
abnormal motion of the affected joint(s), and findings on
appropriate medically acceptable imaging of joint space
narrowing, bony destruction, or ankylosis of the affected joint(s).
A. Involvement of one major peripheral weight-bearing joint
(i.e., hip, knee, or ankle), resulting in inability to ambulate
effectively, as defined in 1.00B2b . . . .
20 C.F.R. Pt. 404, Subpt. P, App. 1, 1.02A.
Listing 1.00B2b defines the “inability to ambulate effectively.” Id. In
relevant part, Listing 1.00B2b provides:
(1) Definition. Inability to ambulate effectively means an extreme
limitation of the ability to walk; i.e., an impairment(s) that
interferes very seriously with the individual's ability to
independently initiate, sustain, or complete activities.
Ineffective ambulation is defined generally as having
insufficient lower extremity functioning . . . to permit
independent ambulation without the use of a hand-held
assistive device(s) that limits the functioning of both upper
extremities . . . .
(2) To ambulate effectively, individuals must be capable of
sustaining a reasonable walking pace over a sufficient distance
to be able to carry out activities of daily living. They must have
the ability to travel without companion assistance to and from
a place of employment or school. Therefore, examples of
ineffective ambulation include, but are not limited to, the
inability to walk without the use of a walker, two crutches or
two canes, the inability to walk a block at a reasonable pace on
rough or uneven surfaces, the inability to use standard public
transportation, the inability to carry out routine ambulatory
activities, such as shopping and banking, and the inability to
climb a few steps at a reasonable pace with the use of a single
hand rail. . . .
Id. at Listing 1.00B2b(1)-(2) (emphases added).
“The Listing of Impairments . . . describes for each of the major body
systems impairments that [are] consider[ed] to be severe enough to prevent an
[adult] from doing any gainful activity. . . .”
20 C.F.R. §§ 404.1525(a),
416.925(a). It is Plaintiff’s “step three burden to present evidence establishing
her impairments meet or equal listed impairments. . . .”
Barnhart, 431 F.3d 729, 733 (10th Cir. 2005). The failure to make findings at
Step Three requires remand only where the ALJ does not adequately supply
her reasoning elsewhere in her decision. Id. at 734 (remand not required “for
a more thorough discussion of the listings when confirmed or unchallenged
findings made elsewhere in the ALJ’s decision confirm the step three
determination under review”).
At the hearing, Plaintiff argued “she does have a significant
degeneration of a major weight-bearing joint that significantly impacts her
ability to function on a daily basis. She has difficulty with standing and
walking, and she has a severe pain syndrome.” AR 36. The ALJ discussed
Plaintiff’s limited ambulation, and also observed she drives, shops, handles
money, and attends church. Id. at 37. He inquired as to how Plaintiff’s weightloss plan was progressing, recognizing she must lose weight before having
Plaintiff responded that although she is trying her “best” to lose weight,
she performs no “cardio” or exercise, noting she can neither sit, stand, nor walk
“for long periods of time.” Id. at 40. Plaintiff testified her knee pain is “off the
charts,” “throbbing like someone is stabbing me right in the kneecap,” she does
only limited household chores with “a lot of breaks,” can only wash dishes while
sitting, can grocery shop with a motorized chair, visits friends two-to-three
times a week, sits with her legs propped up, and has gained about fifty pounds
over the past three or four years. Id. at 43-45, 48. The ALJ asked which was
worse, losing the weight and having the surgery or not having the surgery, and
Plaintiff responded “Well, it’s six and one half in a dozen . . . .” Id. at 39.
The ALJ found severe impairments included dysfunction of major joints
and knee pain, and limited her to sedentary work. Id. at 21, 23. Plaintiff
makes no effort to show how her impairments create the limitation of the use
of both upper extremities, which the listing requires. The ALJ understood the
recommended surgery and Plaintiff’s obesity complication.
Commissioner argues, even if Plaintiff’s obesity significantly impacts her knee
functioning, she still cannot satisfy each of the requirements of Listing 1.02.
Doc. 17, at 7; see Sullivan, 493 U.S. at 530 (“For a claimant to show that his
impairment matches a listing, it must meet all of the specified medical criteria.
An impairment that manifests only some of those criteria, no matter how
severely, does not qualify.”). The ALJ’s discussion of the evidence under the
Listing 1.02 and analysis, albeit terse, satisfied the ALJ’s legal obligation to
make specific findings. Finally, even if the ALJ technically erred, the ALJ’s
comprehensive discussion of the medical evidence throughout the decision is
sufficient. See Fischer-Ross, 431 F.3d at 733 (10th Cir. 2005); Clifton v. Chater,
79 F.3d 1007, 1009 (10th Cir. 1996).
Plaintiff lastly argues the ALJ’s conclusion her knee conditions did not
meet the severity requirements “due to the absence of evidence of the inability
to ambulate effectively” reflects an inappropriate evaluation of Plaintiff’s
credibility. See Doc. 16, at 15-16. The court next turns to that issue.
Substantial evidence supports the ALJ’s credibility
In reviewing an ALJ’s credibility determinations, the Court should “defer
to the ALJ as trier of fact, the individual optimally positioned to observe and
assess witness credibility.” Casias v. Sec’y of HHS, 933 F.2d 799, 801 (10th
Cir. 1991). “Credibility is the province of the ALJ.” Hamilton v. Sec’y of HHS,
961 F.2d 1495, 1499 (10th Cir. 1992). At the same time, the ALJ must explain
why specific evidence relevant to each factor supports a conclusion that a
claimant’s subjective complaints are not credible. See Kepler v. Chater, 68 F.3d
387, 391 (10th Cir. 1995). “Findings as to credibility should be closely and
affirmatively linked to substantial evidence and not just a conclusion in the
guise of findings.” Id. (quoting Huston v. Bowen, 838 F.2d 1125, 1133 (10th
Cir. 1988) (footnote omitted)). So long as she sets forth the specific evidence
on which she relies in evaluating claimant’s credibility, the ALJ is not required
to conduct a formalistic factor-by-factor recitation of the evidence. White v.
Barnhart, 287 F.3d 903, 909 (10th Cir. 2001); see Qualls v. Apfel, 206 F.3d
1368, 1372 (10th Cir. 2000). In making a finding about credibility, the ALJ
need not totally accept or totally reject the individual’s statements. See SSR
16-3p, 2016 WL 1119029 (Mar. 16, 2016).4
On March 16, 2016 (after the Commissioner’s decision became final),
SSR 16-3p superseded SSR 96-7p. The new ruling “eliminat[es] the use of the
The Tenth Circuit has set forth the framework for analyzing evidence of
subjective symptoms. See Thompson v. Sullivan, 987 F.2d 1482, 1488 (10th
Cir. 1993) (dealing specifically with pain). The relevant factors are (1) whether
claimant proves with objective medical evidence an impairment that causes
the subjective condition; (2) whether a loose nexus exists between the
impairment and the subjective condition; and (3) whether the subjective
condition is disabling based upon all objective and subjective evidence. See
Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994); Luna v. Bowen, 834 F.2d
161, 163-64 (10th Cir. 1987).
In the final step, the ALJ should consider the following factors: “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.” Huston, 838 at 1132;
term ‘credibility’ [and] clarif[ies] that subjective symptom evaluation is not an
examination of a [claimant]’s character.” 2016 WL 1119029, at *1. “Generally,
if an agency makes a policy change during the pendency of a claimant’s appeal,
the reviewing court should remand for the agency to determine whether the
new policy affects its prior decision.” Frantz v. Astrue, 509 F.3d 1299, 1302
(10th Cir. 2007). The new Ruling, however, does not appear to be a policy
change but, rather, a clarification.
see 20 C.F.R. §§ 404.1529(a) (“In determining whether you are disabled, we
consider all of your symptoms, include pain, and the extent to which your
symptoms can reasonably be accepted as consistent with the objective medical
evidence and other evidence.”); 416.929(a) (same); see also SSR 16-3p, 2016 WL
1119029, at *6 (“We will consider an individual’s statements about the
intensity, persistence, and limiting effects of symptoms, and we will evaluate
whether the statements are consistent with objective medical evidence and
In discounting Plaintiff’s credibility, the ALJ stated:
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 entirely credible for
the reasons explained in this decision.
In support of the foregoing finding regarding the claimant’s
credibility, the undersigned notes in Function Reports-Adult, the
claimant described daily activities including caring for her aging
parents, including driving them; cooking; laundry; doing dishes;
driving a car; shopping in stores; paying bills; handling a savings
account; using a checkbook/money orders; playing an1es; and
She stated she had no limitations on
understanding, following instructions, and getting along with
others. The claimant stated she was able to get along with
authority figures and had never been fired or laid off from a job
because of problems getting along with other people (Exhibits 5E
Moreover, in a Function Report-Adult-Third Party, Beverly
Phillips, the claimant’s sister, stated the claimant’s daily
activities included caring for her aging parents, with whom she
lives; preparing meals; laundry; dishes; driving a car; shopping in
stores; paying hills; handling a savings account; playing games;
and attending church. She indicated the claimant had no
limitations on memory, understanding, following instructions;
and getting along with others.
She stated the claimant followed written instructions “fairly well.”
She stated the claimant had a “good” ability to get along with
authority figures and had never been fired or laid off from a job
because of problems getting along with other people (Exhibit 4E).
The above findings, his consideration of the “entire record,” in addition
to his careful questioning of Plaintiff at the hearing regarding her knee pain,
her obesity, and her activities, provide substantial evidence supporting the
ALJ’s credibility determination. See also Wall v. Astrue, 561 F.3d 1048, 1070
(10th Cir. 2009) (explaining “[w]here, as here, the ALJ indicates he has
considered all the evidence our practice is to take the ALJ at his word”)
(citation and internal alterations omitted)). Plaintiff fails to demonstrate
The court affirms the Commissioner’s decision.
ENTERED this 1st day of December, 2017.
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