Wickliffe v. Social Security Administration, Commissioner of

Filing 12

MEMORANDUM AND ORDER: The judgment of the Commissioner is affirmed pursuant to sentence four of 42 U.S.C. § 405(g). Signed by U.S. District Senior Judge Sam A. Crow on 7/25/17. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

SHAWN DWAYNE WICKLIFFE,
Plaintiff,
vs.

Case No. 16-2556-SAC

NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,1
Defendant.

MEMORANDUM AND ORDER
This is an action reviewing the final decision of the
Commissioner of Social Security denying the plaintiff disability
insurance benefits.

The matter has been fully briefed by the

parties.
I.

General legal standards
The court's standard of review is set forth in 42 U.S.C.

§ 405(g), which provides that "the findings of the Commissioner
as to any fact, if supported by substantial evidence, shall be
conclusive."

The court should review the Commissioner's

decision to determine only whether the decision was supported by
substantial evidence and whether the Commissioner applied the
correct legal standards.

1

Glenn v. Shalala, 21 F.3d 983, 984

On January 20, 2017, Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of Social Security.
1

(10th Cir. 1994).

Substantial evidence requires more than a

scintilla, but less than a preponderance, and is satisfied by
such evidence that a reasonable mind might accept to support the
conclusion.

The determination of 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 really constitutes mere
conclusion.

Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).

Although the court is not to reweigh the evidence, the findings
of the Commissioner will not be mechanically accepted.

Nor will

the findings be affirmed by isolating facts and labeling them
substantial evidence, as the court must scrutinize the entire
record in determining whether the Commissioner's conclusions are
rational.
1992).

Graham v. Sullivan, 794 F. Supp. 1045, 1047 (D. Kan.

The court should examine the record as a whole,

including whatever in the record fairly detracts from the weight
of the Commissioner's decision and, on that basis, determine if
the substantiality of the evidence test has been met.

Glenn, 21

F.3d at 984.
The Social Security Act provides that an individual shall
be determined to be under a disability only if the claimant can
establish that they have a physical or mental impairment
expected to result in death or last for a continuous period of
twelve months which prevents the claimant from engaging in
2

substantial gainful activity (SGA).

The claimant's physical or

mental impairment or impairments must be of such severity that
they are not only unable to perform their previous work but
cannot, considering their age, education, and work experience,
engage in any other kind of substantial gainful work which
exists in the national economy.

42 U.S.C. § 423(d).

The Commissioner has established a five-step sequential
evaluation process to determine disability.

If at any step a

finding of disability or non-disability can be made, the
Commissioner will not review the claim further.

At step one,

the agency will find non-disability unless the claimant can show
that he or she is not working at a “substantial gainful
activity.”

At step two, the agency will find non-disability

unless the claimant shows that he or she has a “severe
impairment,” which is defined as any “impairment or combination
of impairments which significantly limits [the claimant’s]
physical or mental ability to do basic work activities.”

At

step three, the agency determines whether the impairment which
enabled the claimant to survive step two is on the list of
impairments presumed severe enough to render one disabled.

If

the claimant’s impairment does not meet or equal a listed
impairment, the inquiry proceeds to step four, at which the
agency assesses whether the claimant can do his or her previous
work; unless the claimant shows that he or she cannot perform
3

their previous work, they are determined not to be disabled.

If

the claimant survives step four, the fifth and final step
requires the agency to consider vocational factors (the
claimant’s age, education, and past work experience) and to
determine whether the claimant is capable of performing other
jobs existing in significant numbers in the national economy.
Barnhart v. Thomas, 124 S. Ct. 376, 379-380 (2003).
The claimant bears the burden of proof through step four of
Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th

the analysis.
Cir. 1993).

At step five, the burden shifts to the

Commissioner to show that the claimant can perform other work
that exists in the national economy.

Nielson, 992 F.2d at 1120;

Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).

The

Commissioner meets this burden if the decision is supported by
substantial evidence.

Thompson, 987 F.2d at 1487.

Before going from step three to step four, the agency will
assess the claimant’s residual functional capacity (RFC).

This

RFC assessment is used to evaluate the claim at both step four
and step five.

20 C.F.R. §§ 404.1520(a)(4), 404.1520(e,f,g);

416.920(a)(4), 416.920(e,f,g).
II.

History of case
On March 25, 2016, administrative law judge (ALJ) Timothy

G. Stueve issued his decision (R. at 24-37).

Plaintiff alleges

that he has been disabled since December 26, 2014 (R. at 24).
4

Plaintiff is insured for disability insurance benefits through
December 31, 2019 (R. at 26).

At step one, the ALJ found that

plaintiff has not engaged in substantial gainful activity since
the alleged onset date (R. at 26).

At step two, the ALJ found

that plaintiff had severe impairments (R. at 26).

At step

three, the ALJ determined that plaintiff’s impairments do not
meet or equal a listed impairment (R. at 27).

After determining

plaintiff’s RFC (R. at 28), the ALJ found at step four that
plaintiff is unable to perform any past relevant work (R. at
35).

At step five, the ALJ found that plaintiff could perform

other jobs that exist in significant numbers in the national
economy (R. at 36-37).

Therefore, the ALJ concluded that

plaintiff was not disabled (R. at 37).
III.

Did the ALJ err in the relative weight accorded to the

various medical opinions?
The opinions of physicians, psychologists, or psychiatrists
who have seen a claimant over a period of time for purposes of
treatment are given more weight than the views of consulting
physicians or those who only review the medical records and
never examine the claimant.

The opinion of an examining

physician is generally entitled to less weight than that of a
treating physician, and the opinion of an agency physician who
has never seen the claimant is entitled to the least weight of
all.

Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004).
5

When a treating source opinion is inconsistent with the other
medical evidence, the ALJ’s task is to examine the other medical
source’s reports to see if they outweigh the treating source’s
reports, not the other way around.

Treating source opinions are

given particular weight because of their unique perspective to
the medical evidence that cannot be obtained from the objective
medical findings alone or from reports of individual
examinations, such as consultative examinations.

If an ALJ

intends to rely on a nontreating physician or examiner’s
opinion, he must explain the weight he is giving to it.
v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004).

Hamlin

The ALJ must

provide a legally sufficient explanation for rejecting the
opinion of treating medical sources in favor of non-examining or
consulting medical sources.

Robinson, 366 F.3d at 1084.

A treating physician’s opinion about the nature and
severity of the claimant’s impairments should be given
controlling weight by the Commissioner if well supported by
clinical and laboratory diagnostic techniques and if it is not
inconsistent with other substantial evidence in the record.
Castellano v. Secretary of Health & Human Services, 26 F.3d
1027, 1029 (10th Cir. 1994); 20 C.F.R. §§ 404.1527(d)(2),
416.927(d)(2).

When a treating physician opinion is not given

controlling weight, the ALJ must nonetheless specify what lesser
weight he assigned the treating physician opinion.
6

Robinson v.

Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004).

A treating

source opinion not entitled to controlling weight is still
entitled to deference and must be weighed using all of the
following factors:
(1) the length of the treatment relationship and the frequency
of examination;
(2) the nature and extent of the treatment relationship,
including the treatment provided and the kind of examination or
testing performed;
(3) the degree to which the physician’s opinion is supported by
relevant evidence;
(4) consistency between the opinion and the record as a whole;
(5) whether or not the physician is a specialist in the area
upon which an opinion is rendered; and
(6) other factors brought to the ALJ’s attention which tend to
support or contradict the opinion.
Watkins v. Barnhart, 350 F.3d 1297, 1300-1301 (10th Cir. 2003).
After considering the above factors, the ALJ must give good
reasons in his/her decision for the weight he/she ultimately
assigns the opinion.

If the ALJ rejects the opinion completely,

he/she must then give specific, legitimate reasons for doing so.
Watkins, 350 F.3d at 1301.
The court will not reweigh the evidence or substitute its
judgment for that of the Commissioner.

Hackett v. Barnhart, 395

F.3d 1168, 1173 (10th Cir. 2005); White v. Barnhart, 287 F.3d
903, 905, 908, 909 (10th Cir. 2002).

Although the court will

not reweigh the evidence, the conclusions reached by the ALJ
must be reasonable and consistent with the evidence.

See Glenn

v. Shalala, 21 F.3d 983, 988 (10th Cir. 1994)(the court must

7

affirm if, considering the evidence as a whole, there is
sufficient evidence which a reasonable mind might accept as
adequate to support a conclusion).
the sufficiency of the evidence.

The court can only review

Although the evidence may

support a contrary finding, the court cannot displace the
agency’s choice between two fairly conflicting views, even
though the court may have justifiably made a different choice
had the matter been before it de novo.

Oldham v. Astrue, 509

F.3d 1254, 1257-1258 (10th Cir. 2007).
The ALJ’s decision discussed in some depth plaintiff’s
medical records (R. at 29-31, 32-34).

In regards to plaintiff’s

physical RFC limitations, the ALJ gave great weight to the
opinions of Dr. Parsons (R. at 31), a non-examining physician
who reviewed the medical records and provided an opinion in
regards to plaintiff’s physical RFC on December 2, 2015 (R. at
125-129).

The ALJ gave little weight to the opinion of the VA

that plaintiff had the following physical disabilities: limited
use of arm (20%), chronic obstructive pulmonary disease (10%),
and tinnitus/hearing loss (10%) (R. at 1003) (R at 31).
The ALJ noted that there is no direct correlation between a
VA disability and the inability to perform substantial gainful
activity that exists in significant numbers in the national
economy (R. at 31).

The court would note that the VA

determination does not indicate the effect of those disability
8

ratings on plaintiff’s exertional, postural, manipulative,
visual, communicative, and environmental limitations (R. at 125127).

Plaintiff’s physical RFC limitations includes lifting,

carrying and postural limitations, limitations in the use of his
left non-dominant arm, limitations in noise exposure (only
moderate noise), and environmental limitations (R. at 28).
There is no medical opinion evidence in the record that disputes
the physical RFC limitations found by the ALJ, or that states
that plaintiff has limitations not included in the ALJ’s
physical RFC findings.
The court will not reweigh the evidence.

The court finds

that substantial evidence supports the ALJ’s physical RFC
limitations.

There was no clear error by the ALJ in his

analysis of the medical and medical opinion evidence regarding
plaintiff’s physical limitations.
In regards to plaintiff’s mental limitations, the ALJ
limited plaintiff to understanding, carrying out and remembering
simple, routine, repetitive tasks involving only simple, workrelated decisions with few, if any workplace changes.

He is

also limited to no fast-moving assembly line-type work, and no
interaction with the public (R. at 28).
The ALJ, in making his mental RFC findings, gave
significant weight to the opinions of two non-examining
psychological consultants (R. at 34).
9

Dr. Adams offered her

opinions on May 7, 2015 (R. at 102-104, 109-110), and Dr.
Schulman offered his opinions on November 18, 2015 (R. at 122124, 129-131).

The ALJ found these opinions consistent with

plaintiff’s activities of daily living, but the ALJ further
limited plaintiff to simple, routine, repetitive tasks secondary
to his occasionally circumstantial speech and occasional
distractibility (R. at 34).
The ALJ only gave minimal weigh to the VA assignment of a
70% disability rating due to post-traumatic stress disorder
(PTSD) (R. at 34).

The ALJ noted that there is no direct

correlation between a VA disability and the ability or inability
to perform substantial gainful activity that exists in
significant numbers in the national economy (R. at 34-35).

The

ALJ also relied on a statement from plaintiff’s last employer
that plaintiff only quit his last job in December 2014 because
of a shoulder injury (R. at 35).

The employer indicated that

plaintiff fell off his roof putting up Christmas lights.

The

employer further stated that plaintiff had no difficulties
performing the job either mentally or physically, and further
stated that he was a great employee (R. at 309-311).
The ALJ also considered a psychological assessment, dated
April 16, 2015, from Dr. Jordan, a licensed psychologist.

Dr.

Jordan diagnosed PTSD, but found that plaintiff is able to
understand and follow directions, his ability to attend and
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concentrate is adequate, and that plaintiff was cooperative and
appeared to have appropriate social skills,

She found

significant PTSD symptoms, and physical symptoms resulting from
his combat injuries, but concluded that he presented as a
generally well-functioning man (R. at 787-792).

The ALJ

accorded only partial weight to this opinion, noting that her
findings were based on a single examination, and the ALJ found
that her findings were inconsistent with plaintiff’s generally
abnormal mood and occasional distractibility as noted in a
progress report (R. at 35).
Although the VA indicated that plaintiff has a 70%
disability due to PTSD, the VA did not indicate the effect of
this disability in regards to specific mental limitations.

The

ALJ reasonably relied on the opinions of Dr. Adams, Dr.
Schulman, Dr. Jordan and the medical records in establishing
plaintiff’s mental RFC.

Plaintiff’s last employer stated that

plaintiff had no mental difficulties performing his job and
further stated that he was a great employee.

There is no

medical opinion evidence that disputes the mental RFC
limitations found by the ALJ, or that states that plaintiff has
limitations not included in the ALJ’s mental RFC findings.
The court will not reweigh the evidence.

The court finds

that substantial evidence supports the ALJ’s mental RFC
limitations.

There was no clear error by the ALJ in his
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analysis of the medical and medical opinion evidence regarding
plaintiff’s mental limitations.

The court further finds that,

on the facts of this case, the ALJ fully and fairly developed
the record in regards to plaintiff’s impairments and
limitations.
IV.

Did the ALJ err in his credibility analysis?
Plaintiff also alleges error in the ALJ’s credibility

analysis and in his consideration of the statements from
plaintiff’s mother.

Credibility determinations are peculiarly

the province of the finder of fact, and a court will not upset
such determinations when supported by substantial evidence.
However, findings as to credibility should be closely and
affirmatively linked to substantial evidence and not just a
conclusion in the guise of findings.
387, 391 (10th Cir. 1995).

Kepler v. Chater, 68 F.3d

Furthermore, the ALJ cannot ignore

evidence favorable to the plaintiff.

Owen v. Chater, 913 F.

Supp. 1413, 1420 (D. Kan. 1995).
When analyzing evidence of pain, the court does not require
a formalistic factor-by-factor recitation of the evidence.

So

long as the ALJ sets forth the specific evidence he relies on in
evaluating the claimant’s credibility, the ALJ will be deemed to
have satisfied the requirements set forth in Kepler.

White v.

Barnhart, 287 F.3d 903, 909 (10th Cir. 2002); Qualls v. Apfel,
206 F.3d 1368, 1372 (10th Cir. 2000).
12

Furthermore, the ALJ need

not discuss every relevant factor in evaluating pain testimony.
Bates v. Barnhart, 222 F. Supp.2d 1252, 1260 (D. Kan. 2002).

An

ALJ must therefore explain and support with substantial evidence
which part(s) of claimant’s testimony he did not believe and
why.

McGoffin v. Barnhart, 288 F.3d 1248, 1254 (10th Cir.

2002).

It is error for the ALJ to use standard boilerplate

language which fails to set forth the specific evidence the ALJ
considered in determining that a claimant’s complaints were not
credible.
2004).

Hardman v. Barnhart, 362 F.3d 676, 679 (10th Cir.

On the other hand, an ALJ’s credibility determination

which does not rest on mere boilerplate language, but which is
linked to specific findings of fact fairly derived from the
record, will be affirmed by the court.

White, 287 F.3d at 909-

910.
The court finds no clear error by the ALJ in his
credibility analysis, or in his finding that the statements of
plaintiff’s mother was not fully credible.

The ALJ reasonably

relied on the medical evidence, the medical opinion evidence,
and the testimony from plaintiff’s last employer in finding that
plaintiff was not fully credible, and that the statements from
plaintiff’s mother were not fully credible.

As the ALJ stated,

plaintiff’s work record suggests his symptoms are not as
limiting as alleged (R. at 30).

The balance of the ALJ’s

credibility analysis was supported by substantial evidence in
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the record.

See Barnum v. Barnhart, 385 F.3d 1268, 1274 (10th

Cir. 2004)(while the court had some concerns about the ALJ’s
reliance on plaintiff’s alleged failure to follow a weight loss
program and her performance of certain household chores, the
court concluded that the balance of the ALJ’s credibility
analysis was supported by substantial evidence in the record).
V.

Did the ALJ err in finding that plaintiff could perform work

as a laundry sorter, photocopy machine operator, and a mail
clerk?
The ALJ’s RFC findings limited plaintiff to only
occasionally pushing/pulling with the non-dominant left arm, no
overhead reaching with the left arm, and only occasionally
reaching in front and laterally with the left arm (R. at 28).
The VE identified 3 jobs that plaintiff could perform, laundry
sorter, photocopy machine operator, and mail clerk.

The VE

described these jobs as basically one-armed jobs (R. at 75), and
stated that they could be performed one-armed (R. at 75-76).
The ALJ adopted these findings by the VE, and found that
plaintiff could perform these jobs in the national economy (R.
at 36).

The ALJ noted that although the DOT (Dictionary of

Occupational Titles) indicates that the above jobs require
frequent reaching, the VE testified that plaintiff could perform
these jobs with one arm (R. at 36-37).

14

Plaintiff claims that because these jobs require frequent
reaching, they conflict with the DOT.

SSR 00-4p states that

before relying on VE evidence to support a disability
determination or decision, an ALJ must identify and obtain a
reasonable explanation for any conflicts between occupational
evidence provided by vocational experts and information in the
DOT [Dictionary of Occupational Titles] (including its companion
publication, the Selected Characteristics of Occupations Defined
in the Revised Dictionary of Occupational Titles (SCO)) and
explain in the decision how any conflict that has been
identified was resolved.

2000 WL 1898704 at *1.

In making

disability determinations, defendant will rely primarily on the
DOT for information about the requirements of work.
Occupational evidence provided by a VE should be consistent with
the occupational information supplied by the DOT.

When there is

an apparent unresolved conflict between the VE evidence and the
DOT, the ALJ must elicit a reasonable explanation for the
conflict before relying on the VE evidence to support a decision
about whether a claimant is disabled.

At the hearing level, as

part of the ALJ’s duty to fully develop the record, the ALJ will
inquire, on the record, as to whether or not there is such
consistency.

If a conflict exists, the ALJ must resolve the

conflict by determining if the explanation given by the VE is
reasonable and provides a basis for relying on the VE testimony
15

rather than on the DOT information.

2000 WL 1898704 at *2;

Haddock v. Apfel, 196 F.3d 1084, 1091 (10th Cir. 1999)(we hold
that the ALJ must investigate and elicit a reasonable
explanation for any conflict between the DOT and expert
testimony before the ALJ may rely on the expert’s testimony as
substantial evidence to support a determination of
nondisability).
In the case of Segovia v. Astrue, 226 Fed. Appx. 801, 804
(10th Cir. March 23, 2007), the court held as follows:
Both the ticket-taker and cafeteriaattendant positions require...“frequent”
reaching, see SCO §§ 09.05.02, 09.05.08;
Aplt.App. at 439, 446, while Ms. Segovia is
limited to occasional overhead reaching. For
purposes of the SCO, however, “reaching” is
defined as “[e]xtending hand(s) and arm(s)
in any direction.” SCO at C-3 (emphasis
added). The SCO does not separately classify
overhead reaching. Thus, under the SCO, even
a job requiring frequent reaching does not
necessarily require more than occasional
overhead reaching. The VE was aware of Ms.
Segovia's limitations on overhead reaching,
and he testified both that she could perform
the jobs he identified and that his opinion
of the jobs open to her was consistent with
the DOT's specifications. Aplt.App. at 39192, 395. In these circumstances, the VE's
testimony does not conflict with the DOT and
SCO so much as it clarifies how their broad
categorizations apply to this specific case.
See Carey v. Apfel, 230 F.3d 131, 146 (5th
Cir.2000) (“To the extent that there is any
implied or indirect conflict between the
vocational expert's testimony and the DOT in
this case, ... the ALJ may rely upon the
vocational expert's testimony provided that
the record reflects an adequate basis for
16

doing so.... [A]ll kinds of implicit
conflicts are possible and the categorical
requirements listed in the DOT do not and
cannot satisfactorily answer every such
situation.”). Further, the DOT descriptions
for cafeteria attendant and ticket taker do
not indicate that these jobs predominantly
involve overhead reaching rather than other
types of reaching. See DOT §§ 311.677-010,
344.667-010; Aplt.App. at 437, 445.
(emphasis added).
In the case of Williams v. Astrue, Case No. 09-1341-SAC (D.
Kan. Oct. 26, 2010), plaintiff was limited to work that did not
require significant use of the non-dominant left upper extremity
(Doc. 19 at 19).

The four jobs identified by the VE and the ALJ

as jobs that plaintiff could perform in that case required the
frequent ability to reach, handle and finger.

The court held as

follows:
The DOT and the SCO do not separately
classify reaching, handling or fingering
with one hand, or both hands, or the
dominant or non-dominant hand. Thus, under
the SCO, a job requiring frequent reaching,
handling and fingering does not necessarily
require that a claimant be able to
frequently reach, handle and/or finger with
both hands or with the non-dominant hand.
As was the case in Segovia, the VE was aware
of plaintiff’s limitation with the nondominant left hand, and he testified that
plaintiff could perform the jobs he
identified and that his opinion was
consistent with the DOT [citations to record
omitted]. The court finds that in these
circumstances, the VE’s testimony does not
conflict with the DOT and SCO so much as it
clarifies how their broad categorizations
apply to this specific case. The court
17

finds no clear error by the ALJ in his
findings at step five.
Williams v. Astrue, Case No. 09-1341-SAC (D. Kan. Oct. 26, 2010;
Doc. 19 at 20-21).

In the case of Bennett v. Colvin, Case No.

14-2505-SAC (D. Kan. Jan. 27, 2016; Doc. 26 at 7-11), the court,
relying on the above cases, found no error when the ALJ
determined that plaintiff could not engage in frequent
repetitive activity with his left upper extremity and cannot
perform work at a production pace, such as on an assembly line,
but that plaintiff could perform work that required the ability
to reach, handle and finger frequently.

See Mitton v. Colvin,

2015 WL 8780537 at *11-12 (D. N.J. Dec. 15, 2015)(the court
found no conflict with the VE testimony and the DOT when
claimant limited to occasional fingering and handling with nondominant hand and the VE identified jobs which required frequent
fingering and handling; the court noted that the DOT does not
require full bilateral dexterity to satisfy handling and
fingering requirement); Gholston v. Colvin, 2015 WL 6167824 at
*22 (D. Iowa Oct. 21, 2015)(VE testified that claimant with full
functional capabilities in dominant arm and a limitation to
occasional gross manipulation in non-dominant arm could perform
jobs requiring frequent reaching and handling, VE further
testified that testimony consistent with DOT; court noted DOT
does not specify a bilateral versus unilateral requirement for

18

reaching and handling, and held that ALJ could reasonably have
concluded that there is no conflict between hypothetical
question and DOT); Mendoza v. Colvin, 2015 WL 4572321 at *2 (D.
Nev. July 29, 2015)(court noted majority of district courts in
9th Circuit have held that a job description in the DOT does not
conflict with a claimant’s inability to fully reach with one arm
or hand unless the description requires bilateral reaching).
The facts of this case are identical to those in Williams
and Bennett.

The VE was informed that plaintiff was limited in

the use of his left hand, and the VE identified jobs that could
be performed one-armed.

Although those jobs require frequent

reaching, the VE testified that plaintiff could perform those
jobs.

Based on the above case law, the court finds no error by

the ALJ in her findings at step five in regards to this issue.
IT IS THEREFORE ORDERED that the judgment of the
Commissioner is affirmed pursuant to sentence four of 42 U.S.C.
§ 405(g).
Dated this 25th day of July 2017, Topeka, Kansas.

s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

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