Tegtmeyer v. Social Security Administration, Commissioner of

Filing 22

MEMORANDUM AND ORDER - It is ordered that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner's final decision. Signed by District Judge John W. Lungstrum on 01/31/2017. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CINDY M. TEGTMEYER,

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)
Plaintiff,
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v.
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)
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
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Defendant.
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________________________________________ )

CIVIL ACTION
No. 16-2238-JWL

MEMORANDUM AND ORDER

Plaintiff seeks review of a decision of the Acting Commissioner of Social Security
(hereinafter Commissioner) denying Disability Insurance benefits (DIB) under sections
216(i) and 223 of the Social Security Act. 42 U.S.C. §§ 416(i) and 423 (hereinafter the
Act). Finding no reversible error, the court ORDERS that judgment shall be entered
pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner’s
final decision.
I.

Background

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On Jan. 20, 2017, Nancy A. Berryhill, became Acting Commissioner of Social
Security. In accordance with Rule 25(d)(1) of the Federal Rules of Civil Procedure,
Nancy A. Berryhill is substituted for Acting Commissioner Carolyn W. Colvin as the
defendant. In accordance with the last sentence of 42 U.S.C. § 405(g), no further action
is necessary.

Plaintiff applied for DIB, alleging disability beginning March 9, 2011. (R. 11,
151). Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial
review of the final decision denying benefits. She argues that the Administrative Law
Judge (ALJ) erred at step two by failing to find a severe condition of the cervical spine, in
failing to assess a residual functional capacity (RFC) limitation to occasional overhead
reaching, and by speculating that Plaintiff was “chronically unemployed and
underemployed throughout her adult life” (R. 17) as a reason to discount her allegations
of disabling symptoms.
The court’s review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052
(10th Cir. 2009). Section 405(g) of the Act provides that in judicial review “[t]he
findings of the Commissioner as to any fact, if supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). The court must determine whether the ALJ’s factual
findings are supported by substantial evidence in the record and whether he applied the
correct legal standard. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); accord,
White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001). Substantial evidence is more than
a scintilla, but it is less than a preponderance; it is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.
389, 401 (1971); see also, Wall, 561 F.3d at 1052; Gossett v. Bowen, 862 F.2d 802, 804
(10th Cir. 1988).
The court may “neither reweigh the evidence nor substitute [its] judgment for that
of the agency.” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting
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Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)); accord,
Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). Nonetheless, the
determination whether substantial evidence supports the Commissioner’s decision is not
simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by
other evidence or if it constitutes mere conclusion. Gossett, 862 F.2d at 804-05; Ray v.
Bowen, 865 F.2d 222, 224 (10th Cir. 1989).
The Commissioner uses the familiar five-step sequential process to evaluate a
claim for disability. 20 C.F.R. § 404.1520; Wilson v. Astrue, 602 F.3d 1136, 1139 (10th
Cir. 2010) (citing Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)). “If a
determination can be made at any of the steps that a claimant is or is not disabled,
evaluation under a subsequent step is not necessary.” Wilson, 602 F.3d at 1139 (quoting
Lax, 489 F.3d at 1084). In the first three steps, the Commissioner determines whether
claimant has engaged in substantial gainful activity since the alleged onset, whether she
has a severe impairment(s), and whether the severity of her impairment(s) meets or equals
the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt.
P, App. 1). Williams, 844 F.2d at 750-51. After evaluating step three, the Commissioner
assesses claimant’s RFC. 20 C.F.R. § 404.1520(e). This assessment is used at both step
four and step five of the sequential evaluation process. Id.
The Commissioner next evaluates steps four and five of the sequential process-determining at step four whether, in light of the RFC assessed, claimant can perform her
past relevant work; and at step five whether, when also considering the vocational factors
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of age, education, and work experience, claimant is able to perform other work in the
economy. Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In steps one
through four the burden is on Plaintiff to prove a disability that prevents performance of
past relevant work. Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006); accord,
Dikeman v. Halter, 245 F.3d 1182, 1184 (10th Cir. 2001); Williams, 844 F.2d at 751 n.2.
At step five, the burden shifts to the Commissioner to show that there are jobs in the
economy which are within the RFC assessed. Id.; Haddock v. Apfel, 196 F.3d 1084,
1088 (10th Cir. 1999). This case was decided at step four, and the burden did not shift.
The court addresses the alleged errors in the order they are reached in applying the
sequential evaluation process, and finds that any error by the ALJ was harmless, and
remand in this case would serve no useful purpose.
II.

Step Two
Plaintiff points out that Dr. Lange diagnosed Plaintiff with cervical spondylosis,

and Dr. Timmerman diagnosed Plaintiff with degernerative disc disease and opined that
as a result of this Plaintiff was limited to occasional overhead reaching. She notes that
the ALJ accorded significant weight to Dr. Timmerman’s opinion. Plaintiff argues that a
limitation to occasional overhead reaching has more than a minimal affect on Plaintiff’s
ability to perform basic work activities, and consequently the ALJ should have found at
step two that Plaintiff’s neck condition was a severe impairment.
As Plaintiff argues, to show a severe impairment at step two, a claimant need only
show that her impairment would have more than a minimal effect on her ability to
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perform basic work activities. Williams, 844 F.2d at 751. And, by showing that his neck
condition interferes with reaching overhead, he has done so here. However, the decision
reveals that the ALJ found that Plaintiff has a severe “disorder of the back” (R. 13), and
that “disorder” includes “cervical degenerative disc disease.” To be sure, the ALJ did not
state that Plaintiff’s cervical degenerative disc disease is severe, but he found that
Plaintiff’s disorder of the back is a severe impairment. Later, he clarified what he meant
when referring to “disorder of the back.” He specifically stated that “[w]ith regard to
[Plaintiff’s] back, impairment, radiograph imaging revealed mild degenerative changes in
the mid-dorsal thoracic spine; moderate to severe cervical degenerative disc disease, most
prominent at C3-C4; and a Chiari I malformation.” (R. 17). Based upon that explanation
there can be no doubt that the ALJ considered the cervical degenerative disc disease to be
a part of Plaintiff’s “disorder of the back” which he found to be a severe impairment at
step two. Plaintiff has shown no step two error.
III.

RFC Assessment
Based upon Dr. Timmerman’s opinion and the fact that the ALJ accorded it

significant weight, Plaintiff claims that it was error not to include a limitation to only
occasional overhead reaching, or at a minimum to explain why he rejected that limitation.
Plaintiff is correct that if an ALJ’s RFC assessment conflicts with a medical source
opinion, the ALJ must explain why he did not adopt that opinion. Soc. Sec. Ruling (SSR)
96-8p, West’s Soc. Sec. Reporting Serv., Rulings 150 (Supp. 2016). Plaintiff is correct
both that the ALJ purported to accord significant weight to Dr. Timmerman’s opinion,
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and that he did not assess an RFC limitation to only occasional overhead reaching in the
decision at issue here.
But, as the Commissioner argues, the ALJ included a limitation “to only
occasional overhead reaching and handling” in the hypothetical question he posed to the
vocational expert at the hearing. (R. 63). Based upon that hypothetical question, the
vocational expert testified that such a hypothetical individual would be able to perform
Plaintiff’s past relevant work, including work as a product assembler and a deli slicer. Id.
It was this testimony upon which the ALJ relied in the decision at issue and stated that he
“concurs with the testimony of the impartial vocational expert and finds that the claimant
is able to perform those jobs as actually and generally performed.” (R. 20). That was the
basis of the ALJ’s step four finding that Plaintiff is able to perform her past relevant work
and is therefore not disabled within the meaning of the Act. (R. 20-21).
There can be no doubt that the ALJ’s decision that Plaintiff can perform her past
relevant work was premised upon a limitation to only occasional overhead reaching.
Therefore, although the ALJ did not include that limitation in the RFC assessed in the
decision at issue, remand for him to do so would serve no useful purpose. Where there is
substantial evidence to sustain the ALJ’s decision despite an error, the error is harmless,
and the court will not remand merely for a ministerial correction. Wilson v. Sullivan, No.
90-5061, 1991 WL 35284, *2 (10th Cir. Feb. 28, 1991).
IV.

Credibility

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In her final claim of error, Plaintiff argues that the ALJ erred in his credibility
determination by considering work history as a factor affecting credibility, and while
doing so by speculating that Plaintiff was “chronically unemployed and underemployed
throughout her adult life” (R. 17) as a reason to discount her allegations of disabling
symptoms. The Commissioner argues that even if it was error to consider or to speculate
regarding Plaintiff work history, a credibility determination is deferential, the ALJ relied
upon other factors in making his credibility determination, and where the evidence
supports the determination, remand is not necessary merely for one questionable factor.
As the Commissioner argues, the court’s review of an ALJ’s credibility
determination is deferential. Credibility determinations are generally treated as binding
on review. Talley v. Sullivan, 908 F.2d 585, 587 (10th Cir. 1990); Broadbent v. Harris,
698 F.2d 407, 413 (10th Cir. 1983). They are “peculiarly the province of the finder of
fact” and will not be overturned when supported by substantial evidence. Wilson, 602
F.3d at 1144; accord Hackett, 395 F.3d at 1173. Therefore, in reviewing the ALJ’s
credibility determinations, the court will usually defer to the ALJ on matters involving
witness credibility. Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994). “However,
‘[f]indings as to credibility should be closely and affirmatively linked to substantial
evidence and not just a conclusion in the guise of findings.’” Wilson, 602 F.3d at 1144
(quoting Huston v. Bowen, 838 F.2d 1125, 1133 (10th Cir. 1988)); Hackett, 395 F.3d at
1173 (same).

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As the Commissioner points out, SSR 16-3p was not effective until March 28,
2016, so Plaintiff’s reliance upon that Ruling to assert error in the ALJ’s credibility
determination in a decision issued on October 6, 2014 is misplaced.
Following the Commissioner’s suggestion, the court will assume without deciding
that it was error for the ALJ when making his credibility determination to rely on his
finding that Plaintiff was “chronically unemployed and underemployed throughout her
adult life” and as a consequence her “ongoing unemployment is likely due, at least in
part, to non-medical factors, such as a lifestyle choice” as one reason to discount the
credibility of Plaintiff’s allegation of symptoms. (R. 17-18). However, the ALJ relied
upon several other bases to find that Plaintiff’s allegations are not credible. He provided
an extensive list of Plaintiff’s daily activities, including babysitting “her grandson from
seven o’clock in the morning until four-thirty in the afternoon.” (R. 14). He noted a
treating source statement that Plaintiff may have been engaging in symptom
magnification. (R. 17). He noted Plaintiff was released to return to full duty. Id. He
noted that Plaintiff told a doctor that oral steroids had helped her pain, while on the same
day she told a rehabilitation specialist that she was in “horrible pain.” Id. He noted that
Plaintiff’s treatment was “routine and conservative in nature.” Id. He noted that
Plaintiff’s March 2013 Adult Function Report was inconsistent with her allegations
elsewhere because there, she reported only that she was having trouble reaching and using
her hands, but denied any other limitations. (R. 18). Plaintiff’s only complaint regarding
the credibility determination was the ALJ’s use of her work history, and she suggests no
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error in any of these other bases used by the ALJ to discount the credibility of her
allegations.
As the Commissioner suggests in her Brief, in 2004 the Tenth Circuit held that
where the court has some concerns regarding the ALJ’s reliance on certain facts in
finding a claimant not credible, if it can conclude that the balance of the ALJ’s credibility
determination is supported by substantial evidence in the record, it will accept that
determination. Branum v. Barnhart, 385 F.3d 1268, 1274 (10th Cir. 2004). This is just
such a case.
Plaintiff has shown, at most, harmless error in the decision at issue.
IT IS THEREFORE ORDERED that judgment shall be entered pursuant to the
fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner’s final decision.
Dated this 31st day of January 2017, at Kansas City, Kansas.

s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge

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