Duthie v. Astrue

Filing 20

Order that plaintiff's appeal is DENIED and that judgment shall be entered for defendant. Signed by Magistrate Judge Katherine P. Nelson on 6/28/2012. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SUSAN H. DUTHIE,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 11-0291-N

ORDER
Plaintiff files this appeal from the Commissioner’s denial of her claim for a period of
disability and disability insurance benefits. The parties have consented (doc. 18) to the exercise
of jurisdiction by the Magistrate Judge and this case has been referred (doc. 19) to the
undersigned to conduct all proceedings and order the entry of judgment. Oral argument was held
before the undersigned on May 2, 2012, at which Attorney Colin Kemmerly appeared on behalf
of the plaintiff and Assistant United States Attorney Patricia Beyer represented the
Commissioner. After careful consideration of the record, including the briefs of the parties and
the arguments of counsel, it is ORDERED that the decision of the Commissioner be upheld and
judgment entered for the Commissioner.
Plaintiff filed her administrative claim on April 18, 2007; it was denied administratively
on June 27, 2007, and plaintiff timely filed a Request for Hearing. The hearing was held before
the Administrative Law Judge (“ALJ”) on March 4, 2009, but was continued to allow plaintiff to
talk to an attorney. A supplemental hearing was held on May 1, 2009, at which plaintiff was
represented by counsel. The ALJ issued an unfavorable decision on August 4, 2009, and the

Appeals Council denied plaintiff’s request for review on April 29, 2011. The denial of benefits
thus became the final decision of the Commissioner.
Claims Presented
1.

The ALJ’s Residual Functional Capacity determination was not supported by substantial
evidence, as the ALJ rejected the opinions of plaintiff’s treating physician and substituted
her judgment for that of the treating physician, and did not seek clarification from
physician.
2. The ALJ erred in finding plaintiff had the RFC to perform light work despite finding that
plaintiff had limitations less than full range of light work.
Legal Standard
Scope of Judicial Review
A limited scope of judicial review applies to a denial of Social Security benefits by the
Commissioner. Judicial review of the administrative decision addresses three questions: (1)
whether the proper legal standards were applied; (2) whether there was substantial evidence to
support the findings of fact; and (3) whether the findings of fact resolved the crucial issues.
Washington v. Astrue, 558 F.Supp.2d 1287, 1296 (N.D.Ga. 2008); Fields v. Harris, 498 F.Supp.
478, 488 (N.D.Ga. 1980). This Court may not decide the facts anew, reweigh the evidence, or
substitute its judgment for that of the Commissioner. If substantial evidence supports the
Commissioner's factual findings and the Commissioner applies the proper legal standards, the
Commissioner's findings are conclusive. Lewis v. Callahan, 125 F.3d 1436, 1439-40 (11th Cir.
1997); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991); Martin v. Sullivan, 894 F.2d
1520, 1529 (11th Cir. 1990); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987); Hillsman v.
Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986); Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983). ASubstantial evidence@ means more than a scintilla, but less than a
preponderance. In other words, Asubstantial evidence@ means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion and it must be enough to
2

justify a refusal to direct a verdict were the case before a jury. Richardson v. Perales, 402 U.S.
389 (1971); Hillsman, 804 F.2d at 1180; Bloodsworth, 703 F.2d at 1239. AIn determining
whether substantial evidence exists, [the Court] must view the record as a whole, taking into
account evidence favorable as well as unfavorable to the [Commissioner's] decision.@ Chester v.
Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Even where there is substantial evidence to the
contrary of the ALJ's findings, the ALJ decision will not be overturned where Athere is
substantially supportive evidence@ of the ALJ's decision. Barron v. Sullivan, 924 F.2d 227, 230
(11th Cir. 1991). In contrast, review of the ALJ's application of legal principles is plenary. Foote
v. Chater, 67 F.3d 1553, 1558 (11th Cir. 1995); Walker, 826 F.2d at 999.
Statutory and Regulatory Framework
The Social Security Act's general disability insurance benefits program (“DIB”) provides
income to individuals who are forced into involuntary, premature retirement, provided they are
both insured and disabled, regardless of indigence. See 42 U.S.C. § 423(a). The Social Security
Act’s Supplemental Security Income (“SSI”) is a separate and distinct program. SSI is a general
public assistance measure providing an additional resource to the aged, blind, and disabled to
assure that their income does not fall below the poverty line. Eligibility for SSI is based upon
proof of indigence and disability. See 42 U.S.C. §§ 1382(a), 1382c(a)(3)(A)-(C). However,
despite the fact they are separate programs, the law and regulations governing a claim for DIB
and a claim for SSI are identical; therefore, claims for DIB and SSI are treated identically for the
purpose of determining whether a claimant is disabled. Patterson v. Bowen, 799 F.2d 1455,
1456 n .1 (11th Cir. 1986). Applicants under DIB and SSI must provide “disability” within the
meaning of the Social Security Act which defines disability in virtually identical language for

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both programs. See 42 U.S.C. §§ 423(d), 1382c(a)(3), 1382c(a)(3)(G); 20 C.F.R. §§ 404.1505(a),
416.905(a). A person is entitled to disability benefits when the person is unable to
Engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which 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), 1382c(a)(3)(A). A “physical or
mental impairment” is one resulting from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques. 42 U.S.C. §§ 423(d)(3),
1382c(a)(3)(D).
The Commissioner of Social Security employs a five-step, sequential evaluation process
to determine whether a claimant is entitled to benefits. See 20 C.F.R. §§ 404.1520, 416.920
(2010).
(1) Is the person presently unemployed?
(2) Is the person's impairment(s) severe?
(3) Does the person's impairment(s) meet or equal one of the specific impairments
set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?1
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the questions leads either to the next question, or,
on steps three and five, to a finding of disability. A negative answer to any
question, other than step three, leads to a determination of “not disabled.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart, 357 F.3d
1232, 1237–39 (11th Cir. 2004). Claimants establish a prima facie case of qualifying disability
once they meet the burden of proof from Step 1 through Step 4. At Step 5, the burden shifts to

1

This subpart is also referred to as “the Listing of Impairments” or “the Listings.”

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the Commissioner, who must then show there are a significant number of jobs in the national
economy the claimant can perform. Id.
To perform the fourth and fifth steps, the ALJ must determine the claimant's Residual
Functional Capacity (RFC). Id. at 1238–39. RFC is what the claimant is still able to do despite
his impairments and is based on all relevant medical and other evidence. Id. It also can contain
both exertional and nonexertional limitations. Id. at 1242–43. At the fifth step, the ALJ considers
the claimant's RFC, age, education, and work experience to determine if there are jobs available
in the national economy the claimant can perform. Id. at 1239. To do this, the ALJ can either use
the Medical Vocational Guidelines, 20 C.F.R. pt. 404 subpt. P, app. 2 (“grids”) ,or hear
testimony from a vocational expert (VE). Id. at 1239–40.
The grids allow the ALJ to consider factors such as age, confinement to sedentary or light
work, inability to speak English, educational deficiencies, and lack of job experience. Each
factor can independently limit the number of jobs realistically available to an individual. Id. at
1240. Combinations of these factors yield a statutorily-required finding of “Disabled” or “Not
Disabled.” Id.
Facts
On April 18, 2007, plaintiff filed an application for a period of disability and Disability
Insurance benefits. The agency denied her claim on June 27, 2007, following which she filed a
timely Request for Hearing. An Administrative Law Judge (“ALJ”) held a hearing on March 4,
2009, and conducted a supplemental hearing on May 1, 2009, to allow plaintiff to obtain
representation. The ALJ issued an unfavorable decision on April 29, 2011, finding that plaintiff

5

suffered from the following “severe”2 conditions: Coronary Artery Disease, Congestive Heart
Failure, Diabetes with Neuropathy and retinopathy, depression, osteoarthritis, and carpal tunnel
syndrome.
Plaintiff completed high school and attended three years of college. Her past relevant
work includes experience as a licensed practical nurse and a retail manager. At the time of the
final decision by the ALJ, plaintiff was 46 years of age.3 The ALJ determined that plaintiff
could not perform her past relevant work but could perform light work with some additional
limitations and, based on the opinion of a vocational expert, that there were sufficient jobs in the
local and national economy which plaintiff could perform subject to her limitations.
Plaintiff’s Testimony
Plaintiff was 45 years of age at the time of her hearing, had a college education and was
licensed as an LPN. She claimed disability beginning on May 22, 2006; prior to that time, she
had been employed as a nurse at Holman Prison. She testified that she stopped work on that day
due to a “legal issue” and decided not to return. She had been thinking of quitting because of
health problems including swelling of her feet, pain in her hands particularly when writing at
work, complications due to diabetes, and congestive heart failure. She stated that sometimes her
blood sugar was so high at work that she would suffer incontinence and vomiting, and other
times that it would be so low that she would have to leave a patient and get a snack, but that she

2

An impairment is "severe" if it significantly limits a claimant's physical or mental ability to do
basic work activities. See 20 C.F.R. § 404.1521(a).
3
In her written decision, the ALJ also found that plaintiff had suffered a recent history of urinary
incontinence but that condition was treated with surgery on March 11, 2009, which was generally
successful at relieving the symptoms. Plaintiff also had been diagnosed with possible multiple sclerosis,
but that her neurologist ruled out that condition in January 2009.

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would have to climb 3 flights of stairs to do so which caused discomfort and problems with her
heart.
Plaintiff had carpal tunnel surgery on her left hand. She testified that one her doctors, Dr.
Bassam, told her not to have the surgery because the carpal tunnel problems were related to her
diabetes and that surgery would not help. However, another doctor, Dr. Smith, convinced her to
try it. The surgery helped some, relieving some of her pain, but she still dropped things. When
the neuropathy gets bad, she can not feel what is in her hand. Doc. 12 at 52. Dr. Smith also
prescribed therapy for her shoulder, but that after three weeks, she still had limited range of
motion. One of the exercises she was to do at home involved leaning over a table, but after she
complained that this caused a burning pain in her lower back, the doctor told her that she might
have a bulging disc in her back.
Plaintiff testified that she had suffered from diabetes for 42 years. She stated that she
lived with her mother, aged 82, and her two children, ages 16 and 7; that she was able to drive,
but that, while driving on one prior occasion, she almost hit a car she did not see because of her
vision problems and therefore wasn’t comfortable driving and avoided driving alone. She thus
generally had her mother or daughter ride with her when she drove.
She estimated that she can lift a 5 pound bag of potatoes using both hands but 10 pounds
gets difficult because her wrist cannot take it and she cannot lift things very high because of her
shoulders. She stated that she does well with sitting as long as her legs are raised, because it
helps with her heart problems and with the constant neuropathy pain in her feet. However, she
gets stiff when she sits for more than 20-30 minutes at a time. She testified that she can stand for
five minutes to do the dishes, but has to keep stopping to sit, and that she gets short of breath if

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she walks too fast or walks farther than about fifty feet. She testified that she has to sit down in
the grocery store about three times per hour.
Plaintiff also stated that she has problems with her hands: she can hold a cup of coffee
with both hands if she is careful, but that she drops things, mostly with her left hand but with her
right sometimes as well. She can no longer cut her own toenails, so she has to pay to have it
done. She states that she cannot use buttons and wears button-down blouses only when her
daughter can help her get them on. She can not put on her own socks, so she wears socks only in
the winter. She compensates for these limitations by wearing clothes made of stretch materials
that she can slip on and off, and by wearing slip-on shoes. She says that after doing laundry and
dishes, she is worn out and takes a nap for two to three hours.
Plaintiff testified that her blood sugar goes up and down all the time, and that she still has
problems with neuropathy, blurred vision, heart problems, kidney problems, and retinopathy.
Her doctors had referred to her as being a “brittle” diabetic, meaning that her blood sugar is
particularly hard to control. She has fallen several times and was told that it was due to her
neuropathy. She also has arthritis in her left knee so she can not get back up when she falls or
kneels.
Plaintiff indicated that she could not take certain medications, including pain
medications, because her doctors were worried about their effect on her kidneys. Her kidney
specialist4 took her off Darvocet for that reason. She was given Lortab after the surgery, but was
taken off that pain medication quickly because of the kidney problems. She is prescribed
Ultram, but still suffers a great deal of pain. She can not take non-steroidal anti-inflammatory

4

Plaintiff has proteinurea, chronically high levels of protein in her urine, and stated that she has
been informed that she has stage one kidney disease.

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drugs. The ALJ asked plaintiff about side effects from her medications: plaintiff stated that she
was tired all that time and had been told that could be due to her Neurontin; however, when her
doctor took her off that medication, she remained tired so they put her back on. She takes a nap
every day. The Lasix makes her urinate frequently, but she still has swelling in her legs. She is
on insulin but still has wide swings in blood sugar. Plaintiff stated that she had some memory
problems. She stated that she had undergone treatment for depression, but stopped talking the
medications about a year prior to the hearing. She reported that she sometimes gets ‘really low,’
but that most of the time is ‘okay.’
She testified that her low blood sugar would cause her to black out “a lot,” id. at 52. Dr.
Yoder’s physician’s assistant, Ms. Janessa Quinley, disputed this report when told about it by
plaintiff and her mother. Ms. Quinley said that, if plaintiff had suffered a series of comas, as her
mother claimed, she would be in the hospital. Even if they were blackouts, as claimed by
plaintiff, Ms. Quinley also argued that, if they were blackouts as claimed by plaintiff, she could
only come out of a blackout if fed sugar, and she would be unable to swallow. However,
plaintiff’s mother told Ms. Quinley that she would put a dab of sugar on the end of her finger and
put it in plaintiff’s mouth; once the sugar dissolved, it would get plaintiff conscious enough that
she could drink something containing more sugar. Whether the dab of sugar or the passage of
time remedied the problem is unclear.
Shortly before the Social Security hearing, plaintiff underwent a heart catheterization
performed by Dr. Fanchez [phonetic] at Cardiology Associates. The doctor said that she had a
blockage, but that medication was the only thing they could do for it because her blood vessels
had shrunk due to her diabetes and that a shunt would risk rupturing her blood vessels. He also
did not recommend bypass surgery at that time. Dr. Fanchez prescribed medication for this

9

condition, but as it cost approximately $200 per month and was not covered by Medicaid, she
could not afford it.
The ALJ noted that plaintiff’s records contained some notes about non-compliance with
her prescribed diabetic medication. Plaintiff explained that, for several years, she could not find
a specialist to treat her diabetes who would accept Medicaid, and so was being followed by her
family doctor, Dr. Yoder, who did not “follow[] me real strictly.” Id. at 49. Her nephrologist,
Dr. Myer, was upset about her high readings. However, plaintiff eventually started seeing a
neurologist who changed the type of insulin prescribed and adjusted the dosage she was taking.
Plaintiff reports that she is currently compliant with the medications and, while they help, her
blood sugar remains highly variable. As an example, she stated that her blood sugar was 285 on
the morning of the hearing, which while generally considered high was low for her, and that it
got as low as 80 between lunch and supper the day before.
Medical Records
Plaintiff’s primary care physician was Dr. Jonathan E. Yoder. In January 2007, he
treated her for edema in both feet; that treatment continued on March 2 and March 28, 2007,
when it was noted that plaintiff wanted to discuss getting disability benefits. His notes state that
plaintiff has “a lot of problems associated with cardiac disease, high blood pressure,
hypercholesterolemia and poorly controlled diabetes.” He states that he thinks she would be a
candidate for disability but that she would have to investigate benefits for herself.5 Plaintiff

5

Plaintiff underwent an electrocardiogram which revealed normal sinus rhythm and other
abnormality of indeterminate age, and a cardiolite stress test which was ‘equivocal.’ Dr. Richard J.
Chernick, the cardiologist who performed the test, stated that the test showed a small area of inferospical
reversibility that appeared to be more consistent with attenuation shift[, but that i]schernia appeared to be
much less likely.” Doc. 12 at 289. In addition, during the same period, plaintiff had a brain magnetic
resonance imaging (MRI) test which revealed nonspecific abnormalities possibly "just" related to vascular
disease; a brain computerized tomography (CT) scan revealed prominent vertebral artery disease and

(Continued)
10

relies heavily on a Clinical Assessment of Pain form completed on March 5, 2009, by Dr.
Yoder’s office.6
Dr. Yoder referred plaintiff to Dr. Katharina V. Meyer, a nephrologist, who first saw
plaintiff on May 16, 2007, to be seen for proteinuria, edema, and stage one chronic kidney
disease.

Plaintiff at that time was taking Humulin, Zyprexa, Vytorin, Synthroid, Lasix,

Zaroxolyn, Lopressor, Spironolactone and Darvocet.

Dr. Meyer added Benicar for blood

pressure and proteinuria, insulin, and the Humalog pen so plaintiff could take insulin at
lunchtime.
On June 15, 2007, Jill Hall, PhD, performed a psychological consultive examination and
diagnosed plaintiff as suffering from adjustment disorder with depressed mood. She gave the
opinion that plaintiff
may have difficulty with the pressures of an ordinary work setting from a
psychological point of view due to some depression and a multitude of physical
problems. She has the ability to understand, carry out and remember instructions
at this time and should be able to respond appropriately to supervision and
coworkers.
Dr. Hall stated that, though plaintiff should continue mental health treatment for depression, “her
claim is much more of a physical nature than a psychological one.”
Plaintiff saw a neurologist, Bassam A. Bassam, M.D., on January 2, 2009, for complaints
of upper extremity pain and left hand disfunction, and lower extremity issues such as bilateral
foot numbness and tingling.

Dr. Bassam diagnosed plaintiff with likely diabetes-related

other, more questionable abnormalities (Tr. 531); an echocardiogram which showed overall preserved left
ventricular function and the absence of significant valvular regurgitation (Tr. 528-530); and a carotid
duplex scan which revealed right carotid artery thickening without hemodynamically significant stenosis
(Tr. 532).
6
A physician’s assistant at Dr. Yoder’s office completed the forms for Dr. Yoder’s signature

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peripheral polyneuropathy and likely musculo-skeletal difficulties causing the upper extremity
pain. Dr. Bassam adjusted plaintiff’s medications and ordered testing, which showed moderate
to severe polyneuropathy, left carpal tunnel syndrome and ulnar neuropathy. He prescribed a
wrist brace for plaintiff to wear.
Dr. Jeff Fahy, a gynecologist, treated plaintiff between February 19, and April 10, 2009,
for urinary incontinence.

He performed endometrial ablation on an endocervical polyp

discovered during testing and also implanted a ‘mini-arc device’ to help with the incontinence.
Analysis
Residual Functional Capacity
Plaintiff’s first claim on appeal is that the ALJ’s RFC determination was not supported by
substantial evidence. Plaintiff cites what she refers to as the improper rejection of the opinions
of plaintiff’s treating physician, Dr. Yoder, and substitution of the ALJ’s medical opinion.
Plaintiff argues that ALJ stated that Dr. Yoder’s treatment notes did not rule out work but failed
to seek clarification from Dr. Yoder over the purported difference between the treatment notes
and his opinion letter.
[A] treating physician'’ opinion about the nature and severity of a claimant's
impairment is generally given controlling weight if it is well supported and is not
inconsistent with the other substantial evidence. 20 C.F.R. § 404.1527(d)(2). A
treating physician's opinion is given “substantial or considerable weight unless
‘good cause’ is shown to the contrary.” Phillips [v. Barnhart], 357 F.3d [1232] at
1240 [11th Cir. 2004)]. Good cause exists when: (1) the treating physician's
opinion is not bolstered by the evidence; (2) evidence supports a contrary finding;
or (3) the treating physician's opinion was conclusory or inconsistent with the
physician's own medical records. Id. at 1240–41.
Silverio v. Commissioner of Social Security, 461 Fed.Appx 869, ___ *3 (11th Cir. 2012).
With regard to the Clinical Assessment of Pain form and the Diabetes Questionnaire, the
ALJ found them entitled to little weight.

12

While these forms were completed by an “other” medical source and an
“acceptable” treating source, they contain vague statements with very little
explanation of the evidence relied on in forming the opinions.7 Both forms
contain equivocal language acknowledging that [] the opinions were heavily
based on the subjective report of symptoms and limitations provided by the
claimant. The claimant presented to Ms. Quinley on March 5, 2009, with the
chief complaint of “I need my disability papers filled out.” Ms. Quinley noted the
claimant said her symptoms are “pain ‘level C on the papers’ i.e. inhibit
ADLs/functioning at work.” In the Diabetes Questionnaire, when asked to give
an opinion on the claimant’s ability to work, Ms. Quinley stated that it “depends
on activities required for specific employment.” Ms. Quinley further stated that
the answers given were “based on patient current report and the objective data
from her record in our office only.” In the CAP form, when asked whether the
claimant can engage in employment, Ms. Quinley answered “probably not, based
on patient report.” Further, Ms. Quinley noted in connection with completing the
forms that “she should seek employment as long as she can function in available
job capacities, in order to stay active [and] delay declining status.”
However, the undersigned [h]as considered the opinions rendered in Dr. Yoder’s
records in conjunction with the treatment notes, and finds that they support the
conclusion that the claimant is limited to performing no more than light work.
The undersigned does not read these opinions as ruling our work, and whatever
implication there is to that conclusion is not accepted as it is not supported by the
treatment notes. The undersigned also notes that the March 5, 2009, office visit
when the claimant requested the disability forms be completed, Ms. Quinley
stated in her review that the claimant first mentioned “frank ‘pain’ in our records”
was in July, 2007; and it has not been a consistent complaint during encounters.
Doc. 12 at 30.
As set forth above, this court is bound by a highly deferential standard of review in
considering the decision of the ALJ. The court may not make its own findings nor re-weigh the
evidence.

In this instance, the ALJ’s refusal to give controlling weight to the two forms

completed by Dr. Yoder’s office is supported by substantial evidence, which the ALJ detailed in
the written decision. The ALJ did not discount any other submissions from Dr. Yoder’s office,
and expressly relied on the treatment notes. The ALJ cited language from within the forms as

7

As with all such forms, the responses are multiple choice or short answer, without
provision for explanation except for a comment section at the end.

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well as portions of the treatment records of Dr. Yoder; this evidence is facially sufficient under
binding precedent to justify giving those opinions less than controlling weight. Nor does the
court find that the equivocal language in those forms—as found by the ALJ—required the ALJ
to seek clarification from Dr. Yoder; the language used is adequately clear and the mere fact that
the ALJ found that Dr. Yoder’s treatment records did not support his conclusions in the two
forms does not automatically require “clarification.” Accordingly, the court finds that plaintiff’s
first assignment of error does not justify remand.
Light Work
Plaintiff also argues8 that the ALJ’s RFC finding that plaintiff could perform light work
was not supported by substantial evidence particularly where the ALJ also found that plaintiff
had limitations within the range of light work. Plaintiff states that the ALJ “failed to cite any
evidence from acceptable medical sources to support her own medical opinion” and provided no
explanation for her finding.9
The ALJ found that plaintiff suffered the following limitations due to depression, pain
and diabetic neuropathy: she can lift and/or carry up to 20 pounds occasionally and 10 pounds
frequently; can stand or walk and can sit for up to 6 hours each in an eight hour day, with regular
breaks and the opportunity to alternate positions after 30 minutes; can bend forward with her

8

Plaintiff’s argument lacks significant development. The brief on this point consists of a
block quote from Social Security Ruling 83-10 defining the terms “light work” and “frequent;” a
statement that “Social Security Ruling 83-12 provides that light work does not include sit/stand
jobs;” and two sentences restating the issue. This theory was not developed further at oral
argument.
9

Plaintiff argues that the ALJ’s decision is internally inconsistent because the ALJ
rejected the opinions of Dr. Yoder but relied on his treatment notes. The court finds no such
inconsistency as the ALJ rejected the opinions contained in the two forms completed by Dr.
Yoder’s office staff, but did not reject the treatment notes or the opinions contained therein.

14

head down occasionally; can reach overhead with her left arm rarely. Her diabetic retinopathy
limits her ability to work in a job that requires good far distance vision. Her mental impairments
preclude semi-skilled and skilled jobs, but the ALJ found that plaintiff can understand, remember
and carry out simple repetitive tasks, attend for 2-hour periods, and adapt to infrequent changes
in the work setting. As a result of these limitations, the ALJ determined that plaintiff could
perform “a restricted range of light work.” Doc. 12 at 27-30. There is no indication that the ALJ
erroneously ignored the limitations she had found, as argued by plaintiff; the ALJ’s
determination specifically included those limitations and found that plaintiff was limited to a
“restricted range” of jobs within the light work category.
At the hearing, the ALJ asked the Vocational Expert four hypothetical questions, for all
of which the VE testified that there were available jobs. Doc. 12 at 63-65.10 These hypotheticals
addressed the RFC findings made by the ALJ in her decision and did not simply reiterate a
general limitation to light work. The court does not take plaintiff’s second grounds for appeal as
challenging the ALJ’s finding of any individual limitation; the plaintiff’s general objection and
her arguments raised in support of that challenge do not reach that far. Nonetheless, it appears
that the limitations found by the ALJ were supported by specific findings in the record.
Plaintiff’s second grounds for appeal is due to be denied.
Conclusion
For the foregoing reasons, it is hereby ORDERED that plaintiff’s appeal is DENIED and
that judgment shall be entered for defendant.
10

In addition, the plaintiff’s representative asked two further hypotheticals, the first
giving credence to plaintiff’s testimony that she had to nap for 2-3 hours each day, and the
second based on a finding that movement would cause distraction from or total abandonment of
task. In those instances, the VE stated that there would be no available jobs. Id. at 66-67.

15

DONE this the 28th day of June, 2012.

/s/ Katherine P. Nelson
UNITED STATES MAGISTRATE JUDGE

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