Oliver v. Social Security Administration, Commissioner of

Filing 16

MEMORANDUM AND ORDER: IT IS THEREFORE ORDERED BY THE COURT that Defendant's decision denying Plaintiff disability benefits is AFFIRMED. Signed by Chief District Judge Julie A Robinson on 11/21/17. (hw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ROBERT R. OLIVER,
Plaintiff,
Case No. 17-1071-JAR

v.
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL SECURITY,

Defendant.

MEMORANDUM AND ORDER
Plaintiff Robert R. Oliver seeks review of a final decision by the Commissioner of Social
Security (“Commissioner”) denying his application for supplemental security income under the
Social Security Act.1 Plaintiff alleges error with regard to the Administrative Law Judge’s
(“ALJ”) residual functional capacity assessment. Finding no error, the Court affirms the
Commissioner’s decision.
I.

Factual and Procedural Background
Plaintiff applied for supplemental security income on January 31, 2013, alleging an onset

date of January 31, 2013, due to depression, anti-social behavior, anxiety, low back arthritis, and
problems with both feet.2 The Commissioner denied Plaintiff’s application upon initial review
and upon consideration. Plaintiff timely requested a hearing before an ALJ. He appeared and
testified at a hearing before ALJ Robert Burbank on August 13, 2015.

1

42 U.S.C. §§ 401–434.

2

R. at 236.

1

The ALJ issued an unfavorable decision against Plaintiff on January 25, 2016. He
concluded that Plaintiff was not disabled within the meaning of the Act. The Appeals Council
denied Plaintiff’s request for review of the ALJ’s decision, and Plaintiff timely filed an appeal
with this Court pursuant to 42 U.S.C. § 405(g).
II.

Standard for Judicial Review
Judicial review under 42 U.S.C. § 405(g) is limited to whether the ALJ’s decision is

supported by substantial evidence in the record as a whole and whether the ALJ applied the
correct legal standards.3 The Tenth Circuit has defined “substantial evidence” as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”4 In the course
of its review, the Court may not re-weigh the evidence or substitute its judgment for that of the
agency.5
III.

Legal Standards and Analytical Framework
Under the Social Security Act, “disability” means the “inability to engage in any

substantial gainful activity by reason of any medically determinable physical or mental
impairment.”6 An individual “shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he is not only unable to do his
previous work but cannot, considering his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national economy.”7 The
Commissioner has established a five-step sequential evaluation process to determine whether a

3

42 U.S.C. § 405(g).

4

Castellano v. Sec’y of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994) (quoting Richardson
v. Perales, 402 U.S. 389, 401 (1971)).
5

Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (citing Casias v. Sec’y of Health & Human
Servs., 933 F.2d 799, 800 (10th Cir. 1991)).
6

42 U.S.C. § 423(d)(1)(A); § 416(i); § 1382c(a)(3)(A).

7

Id. § 423(d)(2)(A); § 1382c(a)(3)(B).

2

claimant is disabled.8 If the ALJ determines the claimant is disabled or not disabled at any step
along the way, the evaluation ends.9
The ALJ determined at step one that Plaintiff had not engaged in substantial gainful
activity since the alleged onset date. He determined at step two that Plaintiff has the following
severe impairments: anti-social personality disorder, depressive disorder, and polysubstance
abuse.10 He determined at step three that Plaintiff’s mental impairments did not meet or equal
the severity of one of the listed impairments in 20 C.F.R. §§ 404.1520(d), 404.1525, and
404.1526. Continuing, he determined that Plaintiff has the residual function capacity (“RFC”) to
perform a full range of work at all exertional levels, except:
[Plaintiff] is limited to jobs that involve understanding, remembering, and
carrying out instructions of intermediate complexity, consistent with semi-skilled
work. Additionally, [Plaintiff] is limited to jobs that involve no more than
occasional interpersonal contact with the general public or co-workers.11
He determined at step four that Plaintiff had no past relevant work. At step five, the ALJ
concluded that Plaintiff was not disabled because considering his age, education, work
experience, and RFC, he was capable of making a successful adjustment to jobs that exists in
significant numbers in the national economy. Specifically, Plaintiff would be able to perform the
requirements of representative jobs such as tumbler operator, laundry worker, bagger, bottling
line attendant, bonder, or final assembler.

8

Thompson v. Sullivan, 987 F.2d 1482, 1486 (10th Cir. 1993).

9

Id.

10

R. at 13. Plaintiff does not challenge the ALJ’s determination that “[t]he claimant does not have any
medically determinable and diagnosed physical impairments, alone or in combination, imposing significant, longterm physical functional limitations with his capacity to perform basic work-related activities.” R. at 14.
11

R. at 16.

3

IV.

Analysis
Stanley I. Mintz, Ph. D., a state agency psychological consultant, performed a

psychological consultative examination of Plaintiff on September 16, 2015. Plaintiff reported a
history of alcohol, marijuana, crack cocaine, and methamphetamine abuse. He also reported a
history of incarceration for robbery, breaking and entering, larceny, and destruction of property.
He has spent almost half of his life (about twenty-two years) incarcerated. Plaintiff told Dr.
Mintz, “I can’t work. I can’t get along with a lot of people.”12
Dr. Mintz summarized Plaintiff’s condition and recommended as follows:
Robert Oliver exhibits a history of mental illness symptoms, particularly
personality disorder symptoms. He appears capable of doing simple manual jobs
for a full 40 hour work week in my opinion. He appears able to understand
simple and intermediate job instructions. He appears capable of doing unskilled
and semi-skilled work tasks. He appears capable of being able to concentrate and
persist in terms of simple work tasks in a normal work day. He appears capable
of interacting in a limited capacity in terms of co-workers and supervisors and he
would have difficulty interacting well with the public in my opinion. He would
do best and adapt best in terms of simple job environment. He does not appear
capable of handling his own funds due to his history and his continued use of
alcohol and drugs.
Mr. Oliver exhibits psychologic impairment. If he were back within the full range
of mental health treatment, I would view him as being capable of minimal
improvement in the foreseeable future due to the fact that his most significant
symptoms related to an ingrained personality disorder and an antisocial lifestyle.
He continues using drugs and alcohol. In my opinion, his capacity for working
would be at least moderately increased from that of the present time if he were
fully abstinent in terms of alcohol and drugs.
The claimant’s symptoms appear consistent with my observations of him. He
appeared reasonably cooperative with the examination. His allegations were
reasonably well stated and I do not have reason to question the veracity of his
presentation.13

12

R. at 1071.

13

R. at 1073–74.

4

On Form HA-1152-U3, Dr. Mintz rated Plaintiff as having “mild” impairments with respect to
simple work, “moderate” and “marked” impairments with respect to complex work, “moderate”
limitations in interacting with the public, supervisor(s), and co-workers, and “moderate”
limitations in the ability to respond appropriately to usual work situations and changes in a
routine work setting.14
The ALJ extended significant weight to Dr. Mintz’s opinion that “Plaintiff had the
capacity to perform non-complex, detailed (semi-skilled) work with limited social
interactions.”15 The ALJ concluded Plaintiff had the following mental RFC:
The objective medical evidence of record supports a finding that the claimant has
impairments that impose symptoms and limitations that mentally preclude the
claimant from performing more than non-complex, semi-skilled work activity
with limited interaction with the public or coworkers. Weighing all relevant
factors, the undersigned concludes that the claimant’s subjective complaints do
not warrant any further limitation. The undersigned cannot find the allegation
that the claimant is incapable of all substantial gainful work activity credible
because of significant inconsistencies in the record as a whole.16
The ALJ asked the vocational expert (“VE”) to “assume . . . the claimant is limited to jobs that
involve understanding, remembering, and carrying out instructions of intermediate complexity,
consistent with semi-skilled work. Additionally, the claimant is limited to jobs that involve no
more than occasional interpersonal contact with the general public or co-workers.”17 The VE
identified two jobs from each exertional level that Plaintiff could perform: tumbler operation and
laundry worker for medium work; bagger and bottling line attendant for light work; and
bonder/semi-conduct and final assembler for sedentary work.18

14

R. at 1076–77.

15

R. at 20.

16

R. at 21.

17

R. at 366.

18

Id.

5

Plaintiff argues the ALJ did not assess an RFC that encapsulates Dr. Mintz’s opinion
because he omitted Dr. Mintz’s limitations regarding supervisor contact and work adaptability.
Defendant counters the ALJ did not omit the supervisor limitation because the term “coworkers” could include “supervisors.” Even if that was not the case, Defendant argues any error
was harmless because: 1) the jobs identified by the VE require the same amount of interaction
with supervisors as with coworkers, and 2) Plaintiff failed to raise this particular issue with the
VE. As to adaptability, Defendant argues the ALJ accounted for this limitation by limiting
Plaintiff to unskilled work.
“Residual functional capacity consists of those activities that a claimant can still perform
on a regular and continuing basis despite his or her physical limitations.”19 Under SSR 96–8p,
an RFC assessment “must include a narrative discussion describing how the evidence supports
each conclusion, citing specific medical facts . . . and nonmedical evidence.”20 The ALJ must
also discuss the individual’s ability to perform sustained work activities in an ordinary work
setting on a “regular and continuing basis” and describe the maximum amount of work-related
activity the individual can perform based on evidence contained in the case record.21 The ALJ
“must also explain how any material inconsistencies or ambiguities in the evidence in the case
record were considered and resolved.”22 However, “there is no requirement in the regulations for
a direct correspondence between an RFC finding and a specific medical opinion on the
functional capacity in question.”23

19

White v. Barnhart, 287 F.3d 903, 906 n.2 (10th Cir. 2001) (citing 20 C.F.R. § 416.945(a),(b),(c)).

20

SSR 96–8p, 1996 WL 374184, at *7 (July 2, 1996).

21

Id.

22

Id.

23

Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012).

6

The Court finds the “co-workers-include-supervisors” argument a prohibited post hoc
rationalization.24 Thus, the Court declines to make that assumption. Nevertheless, the Court
finds the ALJ’s omission of the supervisor limitation harmless because the jobs the VE identified
require the same amount of interaction with supervisors as with co-workers. An ALJ’s error is
harmless “where, based on material the ALJ did at least consider (just not properly), [the court]
could confidently say that no reasonable administrative fact finder, following the correct analysis
could have resolved the factual matter in any other way.”25 This Circuit requires courts to
exercise common sense and not insist on technical perfection.26
In Lane v. Colvin,27 the Tenth Circuit held that any error made by the ALJ in failing to
include claimant’s limitation on frequent and prolonged contact with supervisors and co-workers
in his RFC determination was harmless where the jobs identified by the VE did not involve
frequent or prolonged contact with supervisors or co-workers.28 As in Lane, all of the jobs
identified by the VE in this case are ones where taking instruction or helping is “Not Significant”
and the activity of talking is “Not Present.”29 Because these jobs do not involve frequent or
prolonged interaction with supervisors, there is no actual conflict between the supervisor

24

See Knipe v. Heckler, 755 F.2d 141, 149 n.16 (10th Cir.1985) (stating a court may not affirm a decision
on the basis of appellate counsel’s post hoc rationalizations for agency action); Grogan v. Barnhart, 399 F.3d 1257,
1263 (10th Cir. 2005) (stating a district court may not create post-hoc rationalizations to explain the Commissioner’s
treatment of evidence when that treatment is not apparent from the Commissioner’s decision itself.).
25

Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004).

26

Keyes–Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012).

27

643 F. App’x 766 (10th Cir. 2016).

28

Id. at 769–70.

29

Dictionary of Occupational Titles (DOT) (4th rev. ed. 1991) 369.685-034 (Tumbler Operator), 1991 WL
673068; DOT 920.687-042 (Laundry Worker I), 1991 WL 687971; DOT 920.687-018 (Bagger), 1991 WL 687965;
DOT 920.687-042 (Bottling Line Attendant), 1991 WL 687971; DOT 726.685-066 (Bonder, Semiconductor), 1991
WL 679631; and DOT 731.687-018 (Final Assembler), 1991 WL 679815.

7

limitation and the jobs identified by the VE. The Court thus concludes the ALJ’s omission of the
supervisor limitation was harmless error.30
As for the omission of the adaptation limitation, Plaintiff’s arguments are unpersuasive.
First, the Court rejects Plaintiff’s argument that this case closely resembles James v. Colvin31 and
warrants the same treatment. In James, the consultant’s opinion limited plaintiff to “simple
tasks,” but the ALJ determined plaintiff could do “simple to intermediate tasks.”32 The James
court remanded the matter for failure to comply with SSR 98-6 because the ALJ did not explain
why he failed to adopt that portion of the consultant’s opinion or address why he concluded that
plaintiff could perform intermediate tasks, despite according significant weight to the
consultant’s opinion.33 Here, Dr. Mintz opined that “Plaintiff appears capable of doing unskilled
and semi-skilled work tasks”34 and the ALJ said Plaintiff had the capacity to perform semiskilled work. This case is thus factually distinguishable from James.
The Court also rejects Plaintiff’s argument that a moderate limitation in adaptation means
he is unable to perform unskilled work because even that type of work requires an individual to
have the capacity to interact appropriately with supervisors, respond to usual work situations,
and adapt to changes in a routine work setting.35 Plaintiff contends the VE’s testimony that there
would be a 100% reduction of the job base if an individual has an occasional inability to adapt

30

See Bryant v. Berryhill, No. CIV-15-1151-HE, 2017 WL 401263, at *4 (W.D. Okla. Jan. 30, 2017)
(holding error by ALJ in rejecting or not explaining his weighing of medical opinions was harmless because there
was no inconsistency between the limitations outlined in the PRFC and Plaintiff being able to perform the job
identified by the ALJ).
31

Case No. 13-1387-JWL, 2014 WL 6610308 (D. Kan. Nov. 20, 2014).

32

Id. at *4.

33

Id. at *5.

34

R. at 1073.

35

Doc. 13 at 12.

8

proves his point. The Court disagrees. First, Dr. Mintz opined that Plaintiff had a moderate
limitation in adaptation. He did not say that Plaintiff was occasionally unable to handle the
normal stress and routine changes in an unskilled work environment. Plaintiff’s question to the
VE (“[what] if an individual occasionally would not be able to handle the normal stress and
routine changes in an unskilled work environment?”) was thus inconsistent with Dr. Mintz’s
opinion. Indeed, Dr. Mintz’s Form HA-1152-U3 defined a moderate limitation as “more than a
slight limitation but the person is still able to function satisfactorily.”36 This means that Dr.
Mintz opined that although limited, Plaintiff was able to function satisfactorily in responding to
usual work pressures and changes.
Second, Plaintiff’s reliance upon the Dictionary of Occupational Titles’ (“DOT”)
definition of occasionally is misplaced. Plaintiff conflates the limitations rating with the
frequency definitions of physical demands. Although the DOT defines “occasionally” as an
activity or condition existing up to one-third of the time, that definition generally relates to the
physical demands of a job.37 The title of Appendix C is Physical Demands and the introductory
paragraph explains this appendix describes the physical activities that an occupation requires of a
worker.
Third, even though the ALJ equated moderate with occasional in regard to limiting
interpersonal contact at work, this does not mandate applying the same logic to the adaptation
limitation. These skills are different. Moreover, as discussed above, doing so with the
adaptation limitation would essentially change Dr. Mintz’s opinion to Plaintiff having a
“marked” or “extreme” limitation with adaptation.

36

R. at 1081.

37

Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles (U.S.
Dept. of Labor, 1993 at C-3).

9

Finally, in Lee v. Colvin38 and Smith v. Colvin,39 the Tenth Circuit held that the ALJ
could account for moderate limitations in nine mental RFC categories, including responding
appropriately to changes in the workplace, by limiting plaintiff to simple, repetitive, and routine
tasks and by limiting their interaction with others.40 In those cases, the ALJ did not repeat the
moderate limitations assessed by the doctor. But the ALJs did incorporate the limitations by
restricting the claimant to certain work and interaction. The Court finds the ALJ applied the
same acceptable approach in this case.
V.

Conclusion
The ALJ’s omission of the supervisor limitation was harmless error. The ALJ accounted

for the adaptation limitation by restricting Plaintiff to semi-skilled work. Plaintiff has not shown
that the ALJ’s decision is inconsistent with the Social Security Act, regulations, and applicable
case law.
IT IS THEREFORE ORDERED BY THE COURT that Defendant’s decision denying
Plaintiff disability benefits is AFFIRMED.
IT IS SO ORDERED.
Dated: November 21, 2017
S/ Julie A. Robinson
JULIE A. ROBINSON
CHIEF UNITED STATES DISTRICT JUDGE

38

631 F. App’x. 538 (10th Cir. 2015).

39

821 F.3d 1264 (10th Cir. 2016).

40

Id. at 1268–69. See also Vigil v. Colvin, 805 F.3d 1199, 1204 (10th Cir. 2015) (“[T]he [administrative
law judge] accounted for [the claimant’s] moderate concentration, persistence, and pace problems in his [assessment
of residual functional capacity] by limiting [the claimant] to unskilled work.”).

10