Ford v. Astrue
Filing
15
MEMORANDUM DECISION AND ORDER-IT IS HEREBY ORDERED that the Commissioner's decision is AFFIRMED because it is supported by substantial evidence and is free of reversible legal error. Signed by Magistrate Judge Samuel Alba on 9/30/10. (jmr)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
KARI FORD,
Plaintiff,
Case No. 2:10-cv-22-SA
v.
MICHAEL J. ASTRUE,
Commissioner of Social
Security Administration,
MEMORANDUM DECISION AND
ORDER
Defendant.
Before the Court is an action filed by Plaintiff, Kari Ford,
asking the Court to reverse the final agency decision denying her
application for Disability Insurance Benefits (hereafter “DIB”)
under the Social Security Act.
Ms. Ford argues the decision of
the Administrative Law Judge (hereafter “ALJ”) that Ms. Ford was
capable of making a successful adjustment to work that exists in
significant numbers in the national economy, and is therefore not
disabled, is not supported by substantial evidence and is legally
erroneous.
The Court reviews the Commissioner’s decision to determine
whether the factual findings are supported by substantial
evidence and whether correct legal standards were applied.
Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).
See
“Substantial
evidence is ‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion,’” Doyal v. Barnhart,
331 F.3d 758, 760 (10th Cir. 2003) (citation omitted), and
“requires more than a scintilla but less than a preponderance,”
Lax, 489 F.3d at 1084.
The Commissioner’s findings, “if
supported by substantial evidence, shall be conclusive.”
U.S.C. § 405(g).
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The Court may neither reweigh the evidence nor
substitute its judgment for that of the agency.
See Lax, 489
F.3d at 1084.
Having carefully considered the parties’ arguments, the
Court concludes that the ALJ’s decision is supported by
substantial evidence and is free of reversible legal error.
Credibility Finding
The Court first turns to Ms. Ford’s challenge of the ALJ’s
finding regarding Ms. Ford’s credibility.
The ALJ found that Ms.
Ford’s “allegations [were] somewhat out-of-proportion to the
medical findings, and generally not compatible or reasonably
consistent with the medical evidence record and all other
evidence - and therefore not fully persuasive.”
(Doc. 6, the
certified copy of the transcript of the entire record of the
administrative pleadings relating to Kari L. Ford (hereafter Tr.
__) 17.)
In making this determination, the ALJ set forth the
specific evidence he relied on in evaluating Ms. Ford’s
credibility, including the lack of objective medical evidence to
support the degree of impairment alleged, Ms. Ford’s daily
2
activities, and the degree of care Ms. Ford has required and with
which she has been treated. (Tr. 18-19).
206 F.3d 1368, 1372 (10th Cir. 2000).
See Qualls v. Apfel,
The ALJ said that he made
the above-stated determination regarding Ms. Ford’s credibility
after considering the record as a whole.
(Tr. 19.)
The Court has reviewed the parties’ arguments and the record
and concludes that the ALJ articulated specific, legitimate
reasons to support his finding, thus satisfying the criteria to
withstand judicial review.
See Qualls, 206 F.3d at 1372; Kepler
v. Chater, 68 F.3d 387, 391 (10th Cir. 1995).
Ms. Ford contests
the ALJ’s credibility finding by challenging specific findings
upon which the ALJ based his credibility finding; however, after
carefully reviewing the record, the Court rejects each of those
challenges.
For example, Ms. Ford disputes the ALJ’s finding
that “there is essentially no mention of leg elevation or
doctor’s orders to elevate [Ms. Ford’s] legs for her health” (Tr.
16); however, although Ms. Ford sets forth evidence to support
that she suffers from edema, the Court’s review of Ms. Ford’s
references to the record uncovered no mention of leg elevation in
the record other than Ms. Ford’s own testimony.1
In addition,
while Ms. Ford cites to record medical evidence indicating that
Ms. Ford cites to Dr. Pugh’s opinion that Ms. Ford needs to
sit in a recliner or lie down for at least an hour of an eight
hour work day (Tr. 605); however, this opinion could be based on
one of Ms. Ford’s other impairments, and does not specify that
this need is based on Ms. Ford’s edema.
1
3
Ms. Ford suffers from edema (which is noted to be only mild2 or
even trace), Dr. Khalaf found “[n]o tremors or LE edema” in Ms.
Ford’s extremities on September 19, 2008.3
(Tr. 346-47, 529, 539,
601.)
Another example of a specific argument underlying Ms. Ford’s
challenge to the ALJ’s credibility finding is that the ALJ failed
to recognize the limitations and accommodations with which Ms.
Ford needed to perform her daily activities; again, based on its
careful review of the record, the Court rejects this argument.
While Ms. Ford required her husband’s assistance to shave her
legs and needed to sit on a stool to get dressed, she explained
that she required this help because it was difficult to bend over
and otherwise did not indicate she usually needed help with
showering or dressing.
(Tr. 66.)
Ms. Ford explained that she
disliked going shopping and required her husband or daughter-inlaw to accompany her to the grocery store in case she “panicked
or something” (Tr. 58) and because she “wouldn’t” carry her own
groceries4 (Tr. 58), but did not indicate other significant
difficulties with grocery shopping.
See Doc. 13, at 3 & n. 3 (explaining that “1+ pitting
edema” is “mild” edema).
2
The ALJ also noted that no doctor had ever recommended that
Ms. Ford wear support hose. (Tr. 16.)
3
Further, the ALJ considered Ms. Ford’s testimony that she
could lift 30 to 40 pounds - which finding Ms. Ford has not
contested - in reaching his decision. (Tr. 16.)
4
4
As the Commissioner set forth in detail in his brief,
objective evidence contradicts other claims Ms. Ford made
regarding her limitations, including that Ms. Ford could not feel
with her upper and lower extremities (Tr. 44, 349-50, 560-64,
613) and that she had neuropathy (Tr. 161, 712).
Also, despite
her complaints of back pain, Ms. Ford did not attend physical
therapy even though her doctor recommended it (Tr. 708).
See
Luna v. Bowen, 834 F.2d 165-66 (10th Cir. 1987).
The Court has also considered Ms. Ford’s other arguments
challenging the ALJ’s credibility finding, and concludes they
lack merit.
For example, the Court rejects two of those
arguments because by November 2008, Ms. Ford’s hemoglobin level
had returned to 7% (normal for diabetics) (Tr. 709; Doc. 13 n.5),
and Ms. Ford has not argued that the ALJ omitted any mental
health limitations, making the ALJ’s error in that regard
harmless, see Bernal v. Bowen, 851 F.2d 297, 302-03 (10th Cir.
1988).
In summary, the Court rejects Ms. Ford’s challenge to the
ALJ’s credibility finding and instead concludes the ALJ gave
specific and legitimate reasons for his credibility finding,
which is supported by such relevant evidence as a reasonable mind
might accept as adequate to support the ALJ’s finding.
Rejection of Dr. Pugh’s Opinion
Second, the Court has examined Ms. Ford’s challenge to the
ALJ’s evaluation of Dr. Pugh’s medical opinion and has concluded
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that for the reasons set forth in the Commissioner’s brief (Doc.
13, at 13-16), the ALJ adequately addressed Dr. Pugh’s opinions
and explicitly gave them little weight because they were not well
supported by the rest of the record and were inconsistent with
Dr. Pugh’s own findings and Ms. Ford’s daily activities (Tr. 20).
See 20 C.F.R. § 404.1527(d)(2); Watkins v. Barnhart, 350 F.3d
1297, 1300 (10th Cir. 2003).
For example, Dr. Pugh noted that Ms.
Ford had “weakness” (Tr. 604, 721); however, every treatment
note, including Dr. Pugh’s treatment notes, indicated that Ms.
Ford had normal motor strength (Tr. 343, 347, 350, 538-39, 564,
612, 698).
Also, Dr. Pugh stated that Ms. Ford had diabetic
neuropathy (Tr. 604, 722), but the nerve conduction study
administered in 2009 concluded that Ms. Ford did not “meet
minimal conduction criteria for diabetic polyneuropathy” (Tr.
712.)
Ms. Ford argues that the ALJ’s finding is flawed “because
the ALJ has failed to cite to the record and has instead just
made conclusory statements with no supporting evidence.”
11, at 16.)
(Doc.
While the ALJ’s explanation of his finding is not
ideal, the ALJ did cite to Dr. Pugh’s completed questionnaires at
Exhibits 27F (Tr. 603-07) and 31F (Tr. 719-23), and explain that
the opinions expressed therein were not well supported by the
record and were not consistent with Dr. Pugh’s own findings at
Exhibits 8F (Tr. 336-52), 21F (Tr. 548-82), and 30F (Tr. 667718).
(Tr. 20.)
The ALJ also explained that Dr. Pugh’s opinions
6
were not consistent with Ms. Ford’s daily activities, which are
discussed in the ALJ’s opinion.
The Court concludes that, in
this case, the ALJ’s discussion was sufficient.
In summary, for the reasons set forth in detail in the
Commissioner’s brief (Doc. 13, at 13-16), the Court rejects Ms.
Ford’s argument regarding the ALJ’s treatment of Dr. Pugh’s
opinion.
Commissioner’s Subsequent Decision
Finally, Ms. Ford argues that this case must be remanded
because the ALJ’s decision is inconsistent with the
Commissioner’s later determination finding Ms. Ford disabled.
Ms. Ford attaches a May 14, 2010 decision from the Commissioner
that finds Ms. Ford has been disabled since January 2010 (Doc.
11-1), six months after the ALJ in this case found Ms. Ford was
not disabled (Tr. 22) and approximately 5-6 weeks after the
Appeals Council denied Ms. Ford’s request for review in this case
(Tr. 1).
Having considered this argument, the Court concludes
that Ms. Ford has not met her basic burden to show that the
timing of the two claims requires the Court to remand this case.
The only authority to which Ms. Ford cites in support of
this argument is the Hearing, Appeals, and Litigation Law Manual
(hereafter “HALLEX”) 1-5-3-17I(B).
HALLEX 1-5-3-17 gives
instructions “for processing subsequent disability claims while a
prior claim is pending review at the Appeals Council.”
Although
Ms. Ford explains the timing of the decisions in this case and
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Ms. Ford’s subsequent successful claim, Ms. Ford does not provide
the Court with any information as to whether the Appeals Council
issued its decision in this case before Ms. Ford filed her
successful subsequent claim.
Although HALLEX suggests that it is
the Commissioner’s burden to find and review successful
subsequent claims to see if they present new and material
evidence that may alter the Commissioner’s decision in a prior
unsuccessful claim, see HALLEX 1-5-3-17I(B)& III(A), Ms. Ford at
least has the minimal burden to show the Court that her situation
matches that addressed by HALLEX 1-5-3-17.
to meet that minimal burden.
Ms. Ford has failed
As a result, Ms. Ford has failed to
show that HALLEX 1-5-3-17 requires the Court to remand this case.
In summary, the Court rejects each of Ms. Ford’s arguments
for the reasons set forth above.
The Court emphasizes that
despite how sympathetic it is to Ms. Ford’s condition, the Court
must simply examine whether the ALJ’s decision is supported by
substantial evidence and free of legal error.
The Court is not
authorized to “‘reweigh the evidence or substitute [its] judgment
for the Commissioner’s’ . . . [and] may not ‘displace the
agenc[y’s] choice between two fairly conflicting views, even
though the [C]ourt would justifiably have made a different choice
had the matter been before it de novo.’”
(citations omitted).
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Lax, 489 F.3d at 1084
Having carefully considered the parties’ memoranda and the
complete record in this matter, the Court concludes that the
ALJ’s decision is free of reversible legal error and is supported
by such relevant evidence as a reasonable mind might accept as
adequate to support the ALJ’s conclusion.
decision is affirmed.
As a result, the ALJ’s
See Qualls v. Apfel, 206 F.3d 1368, 1371
(10th Cir. 2000).
ORDER
Based on the above analysis, IT IS HEREBY ORDERED that the
Commissioner’s decision is AFFIRMED because it is supported by
substantial evidence and is free of reversible legal error.
DATED this 30th day of September, 2010.
BY THE COURT:
Samuel Alba
United States Magistrate Judge
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