Arensman v. Apfel

• Decision Date: 13 January 1999
• Docket Number: No. Civ.A. 98-4042-DES.,Civ.A. 98-4042-DES.
• Parties: Connie L. ARENSMAN, Plaintiff, v. Kenneth F. APFEL, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — District of Kansas

40 F.Supp.2d 1249

Connie L. ARENSMAN, Plaintiff, v. Kenneth F. APFEL, Commissioner of Social Security, Defendant.

No. Civ.A. 98-4042-DES.

United States District Court, D. Kansas.

January 13, 1999.

COPYRIGHT MATERIAL OMITTED

Steven M. Tilton, Topeka, KS, for Connie L. Arensman, plaintiff.

Nancy M. Caplinger, Office of United States Attorney, Topeka, KS, for Social Security, Commissioner of, Kenneth F Apfel, defendant.

MEMORANDUM AND ORDER

SAFFELS, Senior District Judge.

I. INTRODUCTION

This matter is before the court on plaintiff's motion seeking reversal of the Social Security Commissioner's denial of disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq. (Doc. 10).

II. PROCEDURAL BACKGROUND

On June 9, 1994, plaintiff filed an application for disability benefits under Title II of the Social Security Act (the "Act"), 42 U.S.C. §§ 401 et seq., alleging that her disability began December 2, 1991. Her application was initially denied and was denied again on reconsideration. Plaintiff requested an administrative hearing. On March 7, 1996, the administrative hearing was held before an administrative law judge ("ALJ"). On April 26, 1996, the ALJ rendered a decision in which he found that Mrs. Arensman was not under a "disability" as defined in the Act.

Mrs. Arensman requested a review of that decision by the Appeals Council, and she submitted additional evidence to the Appeals Council, which was made part of the record. On March 30, 1998, the Appeals Council denied her request for review. Thus, the decision of the ALJ stands as the final decision of the Commissioner.

III. FACTUAL BACKGROUND

Mrs. Arensman was born on March 5, 1963. Plaintiff is a high school graduate; however, she was in special education classes while attending school. Plaintiff attended vocational classes in child care during her last year of high school.

Plaintiff lives with her husband and has no children, due to her Turner's Syndrome. She was last employed at Village Cleaners from December 30, 1993 to January 28, 1994. She was fired from that job because she was too slow.

Other facts relevant to plaintiff's medical history will be recited in the discussion below.

IV. STANDARD OF REVIEW

Title 42, § 405(g) of the United States Code provides for judicial review of a final decision of the Commissioner of the Social Security Administration ("SSA"). The reviewing court must determine whether the record as a whole contains substantial evidence to support the Commissioner's decision. 42 U.S.C. § 405(g); Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir.1994). Substantial evidence is adequate, relevant evidence that a reasonable mind might accept to support a conclusion. Hargis v. Sullivan, 945 F.2d 1482, 1486 (10th Cir.1991). "Evidence is insubstantial if it is overwhelmingly contradicted by other evidence." O'Dell v. Shalala, 44 F.3d 855, 858 (10th Cir.1994) (citation omitted). "A finding of no substantial evidence will be found only where there is a conspicuous absence of credible choices or no contrary medical evidence." Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir.1992) (quotations omitted). The reviewing court must also determine whether the Commissioner applied the correct legal standards. Washington, 37 F.3d at 1439. Reversal is appropriate not only for lack of substantial evidence, but also for cases where the Commissioner uses the wrong legal standards. Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir.1994).

V. COMMISSIONER'S DECISION

In the ALJ's April 26, 1996, decision, the ALJ made the following findings:

1. The claimant met the disability insured status requirements of the Act on December 2, 1991, the date claimant stated she became unable to work, and continues to meet them through December 31, 1998.

2. The claimant has not engaged in substantial gainful activity since December 1991.

3. The medical evidence establishes Turner's syndrome with right sided hemiparesis, borderline intellectual functioning with developmental reading and spelling disorders, leg length discrepancy, and pelvic obliquity; as well as discogenic degenerative disease of the cervical spine with scoliotic deformity, and diabetes; but that claimant does not have an impairment or combination of impairments listed in, or equal to one listed in Appendix 1, Subpart P, Regulation No. 4.

4. The claimant's complaints of disabling symptoms are not supported by the evidence and are not credible.

5. The claimant has the residual functional capacity to perform the requirements of work except for lifting or carrying more than 10 pounds, which is an exertional limitation; and non-exertional limitations in that she cannot perform activities more complex than simple repetitive activities, or activities not providing for a sit/stand option.

6. The claimant is unable to perform her past relevant work as a health care worker, day care worker, and retail courtesy clerk.

7. The claimant's residual functional capacity for the full range of sedentary work is reduced by her non-exertional limitations.

8. The claimant is 33 years old, which is defined as a younger individual.

9. The claimant has a limited education.

10. The claimant has no acquired work skills.

11. Based on an exertional capacity for sedentary work, and the claimant's age, education and work experience, Section 404.1569 of Regulation No. 4, and Rule 201.24, Table No. 1, Appendix 2, Subpart P, Regulation No. 4 would direct a conclusion of not disabled.

12. Vocational expert testimony establishes that the claimant's capacity for the full range of sedentary work has not been substantially compromised by her non-exertional limitations, and using the aforesaid Rule as a framework for decision making, the claimant is not disabled.

13. The claimant has not been under a disability, as defined in the Social Security Act, at any time through the date of this decision.

VI. DISCUSSION

In order to determine whether a claimant is under a disability, the ALJ must follow the five steps set forth in Reyes v. Bowen, 845 F.2d 242, 243 (10th Cir.1988). Those five steps are as follows:

(1) A person who is working is not disabled. 20 C.F.R. § 416.920(b).

(2) A person who does not have an impairment or combination of impairments severe enough to limit the ability to do basic work activities is not disabled. 20 C.F.R. § 416.920(c).

(3) A person whose impairment meets or equals one of the impairments listed in the regulations is conclusively presumed to be disabled. 20 C.F.R. § 416.920(d).

(4) A person who is able to perform work [he] has done in the past is not disabled. 20 C.F.R. § 416.920(e).

(5) A person whose impairment precludes performance of past work is disabled unless the [Commissioner] demonstrates that the person can perform other work. Factors to be considered are age, education, past work experience, and residual functional capacity. 20 C.F.R. § 416.920(f).

Id. If the Commissioner finds that a person is or is not disabled at any point in this process, then the review ends. Id.

In this case, plaintiff claims that the ALJ misapplied step five of the above process. Specifically, plaintiff asserts that the ALJ's findings numbered 4, 5, 6, 11, 12, and 13 on page eight of his decision are not supported by substantial evidence. The court will address each of plaintiff's arguments below.

A. Plaintiff's Allegations of Pain

Plaintiff first claims that the ALJ failed to follow the established Tenth Circuit standard for determining disability based upon pain. Specifically, plaintiff alleges that the ALJ did not examine the relevant factors for this determination. Instead, plaintiff asserts that the ALJ focused on an alleged lack of support in medical records for plaintiff's complaints of pain and a tendency to not be credible.

The framework for determining disability based upon pain was set forth in Luna v. Bowen, 834 F.2d 161 (10th Cir.1987). First, the agency decision maker must determine whether a pain-producing impairment, either psychological or physiological, is shown by objective medical evidence. Id. at 163. Next, the agency decision maker must determine if the impairment could reasonably be expected to produce the alleged pain. Id. Finally, the agency decision maker must consider all of the subjective and objective evidence in order to determine whether the claimant's pain is disabling. Id.

In this case, both parties agree that plaintiff meets the requirements of the first two steps in this evaluation. However, the parties dispute the application of the third step. At this final step, the ALJ determined that plaintiff's testimony was not credible. The defendant argues that the medical evidence does not show that the plaintiff is as impaired as she alleged. In support of this contention, the defendant notes that plaintiff's activities included doing light housework, driving, cooking, shopping, collecting stamps, and square dancing. Therefore, the defendant asserts that these activities are inconsistent with total disability and support the ALJ's determination that plaintiff could perform some sedentary work. Furthermore, the defendant notes that the use of relatively mild pain medication weighs against plaintiff's complaints of disabling pain.

In determining a claimant's credibility with regards to subjective claims of pain, there are several factors which should be considered, including the following: persistent attempts to find relief for the pain and willingness to try any treatment prescribed, regular use of crutches or cane, regular contact with a doctor, the possibility that psychological disorders combine with physical problems, claimant's daily activities, and the dosage, effectiveness, and side effects of medication. Luna v. Bowen, 834 F.2d at 165-66.

Although the ALJ must consider plaintiff's subjective complaints, the ALJ does not have to accept them as true. Underwood v. Bowen, 807 F.2d 141, 143 (8th Cir.1986). A credibility...