Graham v. Social Security Administration

Filing 19

FINDINGS AND RECOMMENDATION recommending that Kijakazi's final decision be affirmed and 2 Graham's Complaint be dismissed with prejudice. Objections due within 14 days of this Recommendation. Signed by Magistrate Judge Patricia S. Harris on 1/18/2023. (kdr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
JASON GRAHAM
VS.

PLAINTIFF
No. 4:21-cv-01149 KGB/ PSH

KILOLO KIJAKAZI, Acting Commissioner,
Social Security Administration

DEFENDANT

FINDINGS AND RECOMMENDATION
INSTRUCTIONS
The following recommended disposition has been sent to United States District
Judge Kristine G. Baker. You may file written objections to all or part of this
Recommendation. If you do so, those objections must: (1) specifically explain the
factual and/or legal basis for your objection; and (2) be received by the Clerk of this
Court within fourteen (14) days of this Recommendation. By not objecting, you may
waive the right to appeal questions of fact.
DISPOSITION
Plaintiff Jason Graham (“Graham”) appeals the final decision of the Acting
Commissioner of the Social Security Administration (defendant “Kijakazi”) to deny
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his claim for Disability Insurance Benefits (“DIB”) and Supplemental Security
Income (“SSI”). Graham maintains the Administrative Law Judge (“ALJ”) erred: (1)
by erroneously assessing Graham’s residual functional capacity (“RFC”) when the
ALJ disregarded the remand order from the Appeals Council directing the ALJ to
evaluate the opinions of the state agency physicians; (2) by relying on medical opinion
evidence that was internally inconsistent and inherently unreliable; and (3) by
improperly rejecting Graham’s subjective allegations.

The parties have ably

summarized the prior proceedings and testimony, which include six previous hearings
and five previous ALJ decisions dating from 2012. All of the ALJ decisions were
either voluntarily remanded in this Court or remanded by decision of the Appeals
Council. The most recent ALJ decision is from August 17, 2021, and is the subject
of this case. The Court has carefully reviewed the record, including the medical
records, to determine whether there is substantial evidence in the administrative record
to support Kijakazi’s decision. 42 U.S.C. § 405(g). The relevant period under
consideration is from September 1, 2010, the alleged onset date, through August 17,
2021, the date of the ALJ’s most recent decision.
The March 2021 Administrative Hearing:
In the most recent of the hearings, Graham, vocational expert William Elmore
(“Elmore”), and medical expert Dr. Steven Goldstein (“Goldstein”) testified.
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In response to questions posed by the ALJ, Graham stated he was 47 years old,
5'11", weighed 185, had a high school education, and lived with his fourteen year old
daughter in a ground floor apartment. Graham indicated he once held a commercial
driver’s license but did not retain the license at the time of the hearing. Graham stated
he worked eight hours a week, doing odd jobs1 for an older gentleman. His last full
time work was driving a forklift in 2015, a job which Graham said lasted “maybe 30
days.” (Tr. 633). Since 2015, Graham had not pursued full-time work because “I just
know that I’m not gonna be able to do it.” (Tr. 635). Problems preventing him from
working were, according to Graham, shoulder issues, lower back problems, lifting
limitations, inability to use his hands, and inability to sit in one location.
Graham elaborated on his impairments. He underwent a laminectomy on his
neck, saw pain doctors, took pain medications, and had injections, none of which
provided relief. His lower back problems had not been addressed by medical
personnel. At the time of the hearing, Graham was taking daily injections for
diabetes, and his treating physician adjusted the insulin dosage as needed. Exercise
was recommended for the diabetes. No medical treatment was being provided for
degenerative joint disease in his feet, ankles, and knees. Carpal tunnel release surgery
was performed on his right hand, but was ineffective. Due to the result on his right
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Graham described his tasks as “mostly outside work” but not mowing. (Tr. 632).
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hand, Graham opted against similar surgery on his left hand. Graham testified that his
hands are “like freezing up.” (Tr. 638). He further claimed that vision problems
impaired his ability to drive at night and to read signs during the day, but were not to
the point to warrant laser surgery. A bypass graft was done to address his coronary
artery disease, and “everything for now looks good.” (Tr. 639). Therapy and
medication were being utilized to address his anxiety, depression, and panic disorder.
Dr. Goldstein described the following as Graham’s severe impairments:
degenerative disc disease of the cervical and lumbar spine, diabetes, carpal tunnel
syndrome, coronary artery disease, and degenerative joint disease of the ankles, knees,
and feet. He termed Graham’s vision issues as non-severe. He assessed Graham’s
RFC to be for light work with postural, manipulative, and environmental limitations.
On further questioning by his attorney, Graham stated he did not work every
day. He also indicated he had suffered from diabetes since he was 12 years old and
had a family history of heart disease. The diabetes affected both his eyes and kidneys.
Daily activities included two naps and preparing meals and doing laundry for his
daughter. Graham also used a riding mower to tend to his mother’s yard. Graham
previously hunted and fished, but ended these activities fifteen years earlier.
Elmore, the vocational expert, testified. The ALJ posed a question, asking him
to consider a hypothetical worker of Graham’s age, education, and experience who
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could perform light work with the following restrictions: he could not climb ladders,
ropes, or scaffolds; he could occasionally stoop, crouch, crawl, or kneel; he could
occasionally reach overhead frequently2 (Tr. 658); he could frequently bilaterally
handle and finger; and he should avoid concentrated exposure to excessive vibration.
Elmore testified that such a hypothetical worker could not perform Graham’s past
relevant work. Elmore testified such a worker could perform some work in the
national economy, such as the jobs of cashier II or sales attendant.3 (Tr. 657-662).
ALJ’s Decision:
In his August 20, 2021, decision, the ALJ determined Graham had the
following severe impairments: degenerative disc disease of the cervical spine with
radiculopathy status-post laminectomy and post laminectomy syndrome; degenerative
disc disease of the lumbar and thoracic spine; diabetes mellitus; degenerative joint
disease of ankles, feet, and right knee; bilateral carpal tunnel syndrome status-post
release surgery on right hand; diabetic retinopathy; neuropathy; and coronary artery

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The wording of this limitation, with both occasional and frequent being used, is construed
to limit Graham to frequent reaching overhead bilaterally, which is the limitation used by the
ALJ in his decision.
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The ALJ altered the hypothetical question, asking Elmore if jobs existed if the hypothetical
worker could do no frequent, rapid, repetitive flexion or extension of the bilateral wrists, and
could do no nighttime driving. Elmore testified that jobs were available for such a worker,
including the jobs of parlor chaperone, school bus monitor, and usher. (Tr. 660-661).
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disease with angina status-post coronary artery bypass grafting. The ALJ added that
Graham had other medically determinable impairments of hypertension,
hypercholesterolemia, hyperthyroidism, hypogonadism, history of cut hand, and
glaucoma. These impairments, according to the ALJ, were either controlled with
medication or had few associated symptoms resulting in limitations.
The ALJ also determined that Graham’s mental impairments of depression and
anxiety, considered singly and in combination, were non-severe, as they did not cause
more than minimal limitation in his ability to perform basic mental work activities.
In reaching this conclusion, the ALJ considered the “paragraph B” criteria regarding
mental impairments. The ALJ found Graham had no limitation in any of the four
functional areas: (1) understanding, remembering, or applying information; (2)
interacting with others; (3) concentrating, persisting, or maintaining pace; and (4)
adapting or managing oneself.
The ALJ found that Graham did not have an impairment or combination of
impairments that met a listing in 20 C.F.R. Part 404, Subpart P, Appendix 1.
Specifically, the ALJ cited Listings 1.02, 1.04, 1.15, 1.16, 1.18, 2.03, 4.04, and 11.14.
The ALJ also discussed Graham’s diabetes. Finally, the ALJ noted that Dr. Goldstein
testified to finding no impairments which met or equaled the severity of any Listing.
The ALJ assessed Graham to have the residual functional capacity (“RFC”) to perform
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a range of light work with the restrictions which mirrored those detailed in the initial
hypothetical question posed to Elmore. The ALJ assessed Graham’s subjective
allegations, finding his statements “not entirely consistent with the medical evidence
and other evidence in the record.” (Tr. 506).
The ALJ summarized the medical evidence, beginning with a March 2012 visit
with a retina specialist for treatment of diabetic retinopathy. Subsequent treatment
records reflected visual acuity was improved and corrected with glasses. Graham’s
coronary artery disease was significantly improved following bypass grafting in 2018,
according to Graham’s cardiologist. This was consistent with Graham’s hearing
testimony.
The ALJ noted the 2016 right carpal tunnel release procedure, as well as the
absence of any recent medical care for this condition.
Graham’s ankle, knee, and feet issues were addressed by the ALJ, citing a 2014
right knee MRI, a 2015 left ankle x-ray, and 2016 x-rays of feet, knees, and ankles.
The ALJ also noted knee injections in 2020, as well as notes from the pain care
provider that Graham would be discharged from care due to testing positive for
methamphetamine and not responding to pill counts.
Imaging results consistently showed degenerative disc disease of Graham’s
cervical, thoracic, and lumbar spine. Imaging results were obtained three times in
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2010, in 2015, twice in 2016, twice in 2017, and in 2019. The ALJ detailed the results
of Graham’s 2019 visit to the Conway Regional Neuroscience Center, where MRIs
were reviewed. Graham was noted to ambulate without assistance, was not taking any
pain medications, had a normal gait, and could go from sitting to standing without use
of his arms with ease. In addition, Graham’s primary care provider found a normal
gait and no joint pain in August 2020.
Regarding diabetes, the ALJ noted poor compliance in the medical records. As
previously noted, Graham testified to being advised to get more exercise.
The ALJ also reviewed the opinions offered by the state agency physicians,
commenting that a great deal of additional evidence and testimony had accrued since
the 2011 assessments were performed. Further, the ALJ considered Dr. Goldstein’s
testimony, giving “some weight” to his opinion.

The ALJ differed from Dr.

Goldstein, who opined that Graham had no overhead reaching limitations. Instead,
the ALJ deemed limitations in this area appropriate.
The ALJ concluded that Graham was not capable of performing his past
relevant work. Relying on the Elmore’s testimony, the ALJ determined that Graham
could perform other jobs, such as cashier II or sales attendant, that exist in significant
numbers in the national economy. Accordingly, the ALJ decided Graham was not
disabled. (Tr. 499-512).
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Graham’s First Claim – ALJ error in evaluating his RFC by disregarding the
Remand Order from the Appeals Council
On September 23, 2020, the Appeals Council remanded the case to the ALJ
with four specific directives: (1) further evaluate Graham’s physical and visual
impairments, following SSR 14-2p’s guidance on diabetes, and obtain supplemental
evidence from a medical expert on the severity and functional limitations from the
impairments; (2) give further consideration to the non-treating source opinions and
explain the weight given to such opinion evidence; (3) give further consideration to
Graham’s RFC and provide appropriate rationale in support of the assessed
limitations; and (4) obtain supplemental evidence from a vocational expert to clarify
the effect of the assessed limitations on Graham’s occupational base. (Tr. 813-815).
Graham takes issue with the second item identified by the Appeals Council –
the directive to give further consideration to the non-treating source opinions and
explain the weight given to such opinion evidence. Graham contends the ALJ
repeated the error contained in two earlier ALJ decisions from October 2017 and
October 2019. The Appeals Council remand order of September 23, 2020 stated:

The hearing decision did not comply with the prior remand order. The
Administrative Law Judge found the claimant has the residual functional
capacity to perform a range of light work, except he can, in relevant part,
occasionally reach overhead bilaterally, frequently handle bilaterally and
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occasionally finger bilaterally. In giving little weight to the assessments
of the State agency medical consultants, the Administrative Law Judge
noted that the assessments were made in 2011 and the record has been
supplemented with testimony and additional medical evidence detailing
the presence of more physical impairments and medically determinable,
but not severe mental impairments. The State agency medical
consultants opined the claimant should have no frequent, rapid, repetitive
flexion extension of the wrists bilaterally and no overhead work
bilaterally. The Administrative Law Judge did not provide rationale of
why these more restriction limitations are not reflected in Finding 5 of
the hearing decision [Finding 5 is the ALJ’s RFC assessment]. This is
a similar deficiency noted in the prior remand order. Further evaluation
of the State agency medical consultant opinions is warranted.
(Tr. 814).
Graham is correct that the ALJ’s August 2021 decision contains language
similar to language in the previous decisions which resulted in a remand from the
Appeals Council. The August 2021 decision again notes the state agency opinions
were offered in 2011, and “a great deal of additional evidence and testimony” has
accrued since that time. (Tr. 505). It also discusses Dr. Goldstein’s testimony given
at the March 2021 hearing. A fair reading of the decision is that the ALJ is citing
some of the additional evidence and testimony which demonstrated why the details
of the 2011 assessments did not find their way into the RFC determination. In
addition, the ALJ explained that Graham underwent right carpal tunnel release five
years after the 2011 state agency assessments, and that Graham chose not to undergo
a left hand surgery. The ALJ also noted the absence of any recent medical treatment
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for carpal tunnel syndrome. These citations address the concerns voiced in the
remand order, and the Court finds no error in the ALJ’s compliance with the Appeals
Council’s directives.4
Graham’s Second Claim – ALJ error by relying on medical opinion evidence
that was internally inconsistent and inherently unreliable
Graham contends that Dr. Goldstein’s testimony, offered at both the September
2019 and March 2021 hearings, “was inherently inconsistent and unreliable.” Docket
entry no. 14, page 8. Graham recites Dr. Goldstein’s testimony from 2019, noting that
he was equivocal when asked to provide an RFC assessment. (Tr. 613-616). Graham
also points out that Dr. Goldstein’s 2021 testimony differed from his 2019 in certain
ways. For example, his testimony regarding carpal tunnel syndrome and overhead
work was not the same as his 2019 testimony. Determining how his testimony
differed does not address the primary question of whether substantial evidence exists
to support the ALJ’s RFC opinion rendered in August 2021. It is the August 2021
decision which is at issue here, not any of the prior decisions. It is noteworthy that Dr.
Goldstein acknowledged at the 2021 hearing that his testimony was based upon an
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Graham chose not to file written objections to the Appeals Council regarding the August
2021 ALJ decision, choosing instead to file this lawsuit. As a result, the ALJ’s decision
became the final decision of the Commissioner. As an additional result, the Appeals Council
did not weigh in on the compliance or noncompliance of the ALJ with the previous remand
order.
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examination of the entire medical record.5
The ALJ is required “to determine a claimant’s RFC based on all relevant
evidence, including medical records, observations of treating physicians and others,
and claimant’s own descriptions of his [or her] limitations.” Pearsall v. Massanari,
274 F.3d 1211, 1217 (8th Cir. 2001). In reaching his RFC determination, the ALJ was
not obliged to fully adopt Dr. Goldstein’s opinion, or the opinion of any other medical
care provider. Rather, the ALJ is tasked with a global assessment, taking into account
the various relevant factors. Here, the ALJ considered all the medical evidence,
Graham’s daily activities, the opinion of Dr. Goldstein and the state agency experts,
and Graham’s subjective statements. This approach was appropriate. The RFC
conclusion reached by the ALJ differed somewhat from the opinion offered by Dr.
Goldstein, and differed somewhat from the opinions of the state agency experts. The
question is not whether the ALJ mirrored a particular opinion, but whether substantial
evidence supports the ALJ’s RFC finding. Such evidence exists in this case. The ALJ
thoroughly addressed the relevant factors, including the reasons why he did not
include greater manipulative limitations on Graham.6 In this regard, the absence of
5

Dr. Goldstein actually reviewed more of the medical records for his 2021 testimony than for
his 2019 appearance. (reviewed exhibits 1F to 57F for his 2019 testimony and reviewed 1F
to 72F in 2021). (Tr. 609, 641).
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As noted in footnote three, even if the ALJ had imposed greater manipulative limitations
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recent medical treatment and the history of the carpal tunnel surgery were rightly
cited. There was no error in the treatment of Dr. Goldstein’s testimony, and
substantial evidence was adduced to support the RFC conclusion.
Graham’s Third Claim – ALJ error by improperly rejecting Graham’s
subjective allegations
The RFC determination is erroneous, according to Graham, because the ALJ
improperly evaluated his subjective complaints. Graham’s primary argument is that
the ALJ relied solely on the medical evidence rather than properly analyzing the other
relevant factors in assessing his subjective statements. While it is true that the ALJ
detailed the objective medical evidence, the decision, however, cites other factors in
assessing Graham’s statements and determining his RFC. For example, the ALJ noted
non-compliance by Graham with directions from his retina specialist Dr. David
Bradford. (Tr. 507). In addition, the ALJ noted Graham’s decision to forego carpal
tunnel surgery on his left hand, the absence of any pain medication being taken in
2019, conservative treatment at the Conway Regional Neuroscience Center, Graham’s
discharge from his pain management program, poor compliance with his diabetes
treatment, and his daily activities, including part-time work and caring for himself and

(i.e., no frequent, rapid, repetitive flexion or extension of the bilateral wrists) Elmore testified
that jobs remained available.
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his daughter. (Tr. 507-509). While Graham would no doubt have weighed the factors
differently, the ALJ complied with the pertinent regulations in his approach, and
substantial evidence supports his treatment of Graham’s subjective statements.
In summary, Kijakazi’s ultimate decision was supported by substantial evidence.
The Court is mindful that its task is not to review the record and arrive at an
independent decision, nor is it to reverse if some evidence supports a different
conclusion. The test is whether substantial evidence supports the ALJ’s decision.
See, e.g., Byes v. Astrue, 687 F.3d 913, 915 (8th Cir. 2012). This test is satisfied in this
case
Accordingly, The Court recommends that Kijakazi’s final decision be affirmed
and Graham’s complaint be dismissed with prejudice.
IT IS SO RECOMMENDED this 18th day of January, 2023.

UNITED STATES MAGISTRATE JUDGE

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