Orozco v. Berryhill

Filing 17

ORDER re 1 SOCIAL SECURITY COMPLAINT filed by Andres Orozco. The decision of the Commissioner is affirmed. Signed on 12/13/2018 by Magistrate Judge Willie J. Epps, Jr. (Epps, Willie)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
ANDRES C. OROZCO,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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No. 18-CV-3091-WJE

ORDER
Plaintiff Andres Cruz Orozco seeks judicial review1 of a final administrative decision of
the Commissioner of Social Security (Commissioner) denying his claim for disability insurance
benefits (DIB) under Title XVI of the Social Security Act (SSA), 42 U.S.C. §§ 401 et seq. Mr.
Orozco contends the administrative record (AR) does not contain substantial evidence to support
the Commissioner’s decision that he was not disabled during the relevant period. For the reasons
that follow, the Commissioner’s decision will be affirmed.
I.

Background

Mr. Orozco is a former U.S. military service-member who filed an application for DIB on
July 22, 2016. (AR 191). He alleged a disability onset date of January 1, 2015, when he was
twenty-one years old, stemming primarily from severe depression. (AR 191, 256). The claim was
initially denied on August 8, 2016, and denied again upon reconsideration on September 8, 2016.
(AR 93-110). Thereafter, Mr. Orozco filed a written request for a hearing on October 7, 2016,
pursuant to 20 C.F.R. §§ 404.929 et seq. (AR 111-12). Mr. Orozco appeared with counsel and
testified at a hearing before Administrative Law Judge (ALJ) Sherry L. Schallner on October 2,
2017, in Springfield, Missouri. (AR 33).
The ALJ heard Mr. Orozco’s testimony and reviewed evidence from a number of sources,
including Eleanor E. Cruise, Ph.D., Lori Brandon Souther, Ph.D, Lillian Horne, M.D., treating
physician Shayne Power, Psy.D., and treating psychologist Justin Baker, Ph.D. (AR 15-19). Each
of these medical opinions were afforded great weight. (AR 19). The ALJ also heard testimony
1

With the consent of the parties, this case was assigned to the United States Magistrate Judge pursuant to the
provisions of 28 U.S.C. § 636(c).

from vocational expert Jacqueline E. Crawford-Apperson (VE), who testified someone with Mr.
Orozco’s residual functional capacity (RFC) was capable of performing work existing in
significant numbers in the national economy. (AR 61-62). On October 27, 2017, the ALJ
ultimately found Mr. Orozco was not disabled. (AR 22).
II.

Disability Determination and the Burden of Proof

A claimant seeking DIB has the burden of establishing he or she suffers from a disability
as defined by the SSA in 42 U.S.C. § 423(d). Simmons v. Massanari, 264 F.3d 751, 754 (8th Cir.
2001); Roth v. Shalala, 45 F.3d 279, 282 (8th Cir. 1995). This requires demonstration of (1) a
medically determinable impairment that has lasted or will likely last for a period of at least one
year that (2) has rendered claimant unable to engage in any “substantial gainful activity” (3)
because of the impairment. Id.; 42 U.S.C. § 423(d)(1)(A); see also McMillian v. Schweiker, 697
F.2d 215, 220 (8th Cir. 1983). Based on these criteria, the Social Security Administration has
established a five-step, sequential evaluation process for appraising whether a claimant is disabled
and benefit-eligible. 20 C.F.R. §§ 404.1520(a) and 416.920(a); see also Kirby v. Astrue, 500 F.3d
705, 707 (8th Cir. 2007).
The Commissioner must evaluate:
(1) whether the claimant is presently engaged in a substantial gainful activity;
(2) whether the claimant has a severe impairment that significantly limits the
claimant’s physical or mental ability to perform basic work activities;
(3) whether the claimant has an impairment that meets or equals a presumptively
disabling impairment listed in the regulations;
(4) whether the claimant has the residual functional capacity to perform his or her
past relevant work; and
(5) if the claimant cannot perform the past work, the burden shifts to the
Commissioner to prove that there are other jobs in the national economy that
the claimant can perform.
Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir. 2003); Simmons, 264 F.3d at 754-55.
At step one, the Commissioner must determine whether the claimant is engaged in
substantial gainful activity (SGA). 20 C.F.R. §§ 404.1520(a)(4)(i) and 416.920(a)(4)(i).
“Substantial work activity” is work activity that involves doing significant physical or mental
activities. 20 C.F.R. § 404.1572(a). “Gainful work activity” is work that is usually done for pay
or profit, whether or not a profit is realized. 20 C.F.R. § 404.1572(b). If the claimant is engaged
in SGA, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(i) and 416.920(a)(4)(i). If
the claimant is not engaging in SGA, the analysis proceeds to the second step.

Next, at step two, the Commissioner must determine whether the claimant has a severe,
medically-determinable impairment that significantly limits the claimant’s physical or mental
ability to perform basic work activities. Dixon, 353 F.3d at 605. An impairment or combination
of impairments is not severe when evidence–medical or otherwise–establishes one or more slight
abnormalities that would have only a minimal effect on an individual’s ability to work. Kirby, 500
F.3d. at 707; 20 C.F.R. §§ 404.1521 and 416.921. If the claimant does not have one or more
severe, medically-determinable impairments, the claimant is not disabled under the SSA.
If the claimant is found to be severely impaired, the analysis proceeds to the third step
where the Commissioner must determine whether the claimant’s impairment(s) meet or medically
equal the severity criteria listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§
404.1520(d), 404.1525, 404.1526. If the impairment(s) meet the criteria and duration requirement,
the claimant is disabled. Otherwise, the analysis proceeds to the next step.
At step four, the Commissioner examines evidence provided by the claimant to assess the
claimant’s residual functional capacity (RFC). 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545(a)(4),
416.920(a)(4)(iv), 416.945(a)(4). RFC refers to a claimant’s ability to perform physical and
mental work activities on a sustained basis despite limitations from impairments. Id. At this stage
of the analysis, the Commissioner is responsible for developing the claimant’s complete medical
history, arranging for consultative examinations, and assisting claimant with gathering other
medical evidence. 20 C.F.R. §§ 404.1545(a)(3) and 416.945(a)(3). If a claimant retains the RFC
for work performed in the fifteen years prior to the onset of the alleged disability (“past relevant
work”), then the claimant is not disabled. If the claimant is unable to do or does not have any past
relevant work, the analysis proceeds to the final step and the burden shifts, thereafter requiring the
Commissioner to disprove disability.
At step five, the Commissioner considers the claimant’s RFC, age, education, and work
experience to determine whether the claimant is able to do any other work. Though the claimant
continues to bear the burden of proving disability, once he or she adequately shows an inability to
do past work, the Commissioner has the burden of proving the claimant retains the RFC to do
other types of work. Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000). The Commissioner is
then responsible for providing evidence that other work the claimant can perform exists in
significant numbers in the national economy. 20 C.F.R. §§ 404.1512(g), 404.1560(c), 416.912(g)

and 416.960(c). If the claimant is able to do other work, the claimant is not disabled. If the
claimant is not able to do other work and meets the duration requirement, the claimant is disabled.
III.

The ALJ’s Findings

The ALJ made the following findings:
1. Mr. Orozco meets the insured status requirements of the SSA through December 31, 2021.
2. Mr. Orozco engaged in SGA from January 2015 through November 2015. 20 C.F.R. §§
404.1571 et seq.
3. Mr. Orozco has not engaged in any SGA since December 1, 2015. 20 C.F.R. §§ 414.1571
et seq.
4. Mr. Orozco has the following severe impairments: degenerative disc disease of the lumbar
spine; major depressive disorder; and generalized anxiety disorder. 20 C.F.R. §
404.1520(c).
5. Mr. Orozco does not have an impairment or combination of impairments that meet or
medically equal the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart
P, Appendix 1. 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526.
6. Mr. Orozco has the RFC to perform medium work as defined in 20 C.F.R. § 404.1567(c)
except he can understand, remember, and carry out simple instructions and make simple
work-related decisions; he can interact occasionally with supervisors and co-workers, but
never with the general public; and he cannot perform production-paced work.
7. Mr. Orozco is unable to perform any past relevant work. 20 C.F.R. § 404.1565.
8. Mr. Orozco was born on May 13, 1993, and was 21 years old, which is defined as a younger
individual age 18-49, on the alleged disability onset date. 20 C.F.R. § 404.1563.
9. Mr. Orozco has at least a high school education and is able to communicate in English. 20
C.F.R. § 404.1564.
10. Transferability of job skills is not material to the determination of disability because using
the Medical-Vocational Rules as a framework supports a finding that Mr. Orozco is “not
disabled,” whether or not he has transferable job skills. See SSR 82-41 and 20 C.F.R. Part
404, Subpart P, Appendix 2.
11. Considering Mr. Orozco’s age, education, work experience, and RFC, there are jobs that
exist in significant numbers in the national economy that he can perform. 20 C.F.R. §§
404.1569 and 404.1569(a).

12. Mr. Orozco has not been under a disability, as defined in the SSA, from January 1, 2015,
through October 27, 2017. 20 C.F.R. § 404.1520(g).
IV.

Standard of Review

The Eighth Circuit requires the reviewing court to “determine whether the Commissioner’s
findings are supported by substantial evidence on the record as a whole.” Baker v. Barnhart, 457
F.3d 882, 892 (8th Cir. 2006). “Substantial evidence” is less than “a preponderance of the
evidence,” merely requiring that a reasonable person would find the evidence adequate to support
the Commissioner’s decision. Id.; Cox v. Barnhart, 345 F.3d 606, 608 (8th Cir. 2003). All
evidence, whether it supports or contradicts the Commissioner’s decision, should be examined to
determine whether the existing evidence is substantial. Baker, 457 F.3d at 892.
When reviewing the record to determine if there is substantial evidence to support the
administrative decision, the Court considers the educational background, work history, and present
age of the claimant; subjective complaints of pain or other impairments; claimant’s description of
physical activities and capabilities; the medical opinions given by treating and examining
physicians; the corroboration by third parties of claimant’s impairments; and the testimony of a
VE when based upon proper hypothetical questions that fairly set forth the claimant’s impairments.
McMillian v. Schweiker, 697 F.2d 215, 221 (8th Cir. 1983).
“As long as substantial evidence in the record supports the Commissioner’s decision, we
may not reverse it because substantial evidence exists in the record that would have supported a
contrary outcome or because we would have decided the case differently.” Baker, 457 F.3d at 892;
Schouten v. Berryhill, 685 F. App’x 500, 501 (8th Cir. 2017); Wright v. Colvin, 789 F.3d 847, 852
(8th Cir. 2015); Wheeler v. Apfel, 224 F.3d 891, 893-94 (8th Cir. 2000); Nguyen v. Chater, 75 F.3d
429, 431 (8th Cir. 1996).
V.

Discussion

Mr. Orozco argues remand is proper because the ALJ did not accurately formulate his
mental RFC. Specifically, Mr. Orozco contends the ALJ committed error by assigning “great
weight” to Dr. Power, but failing to consider all of Dr. Power’s findings in the RFC formulation
and hypothetical question posed to the VE. The Government has responded in opposition,
asserting that substantial evidence supports the ALJ’s decision and therefore affirmance is proper.
After a full review of the administrative record and consideration of the parties’ pleadings and oral

argument held on December 11, 2018, the Court finds the ALJ’s decision is supported by
substantial evidence on the record as a whole and must be affirmed.2
“The ALJ bears the primary responsibility for determining a claimant’s RFC and because
RFC is a medical question, some medical evidence must support the determination of the
claimant’s RFC.” Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010). While a treating
physician’s opinion is generally entitled to controlling weight, the opinion does not control when
other credible evidence in the record detracts from that opinion. Martise v. Astrue, 641 F.3d 909,
925 (8th Cir. 2011) (citing Heino v. Astrue, 578 F.3d 873, 880 (8th Cir. 2009)). Similarly,
assigning “great weight” to a physician’s medical opinion does not require the ALJ “to completely
adopt every opinion offered by [the physician].” McClure v. Colvin, No. 4:12 CV 1763 RWS, 2014
WL 824268, at *7 (E.D. Mo. Mar. 3, 2014).
Substantial evidence supports the ALJ’s decision to afford great weight to Dr. Power’s
medical opinions without including every such opinion in the RFC formulation. Dr. Power wrote
that Mr. Orozco was extremely impaired in his ability to understand and remember detailed
instructions, and markedly impaired when carrying out detailed instructions and concentrating for
extended periods. (AR 19, 744). However, Dr. Power noted these conclusions were “based on
quite limited information,” as Mr. Orozco was a relatively new patient at the time. (AR 19, 745).
Moreover, Dr. Power found Mr. Orozco to be only moderately impaired in other areas, including
understanding and carrying out short, simple instructions; responding appropriately to changes in
the workplace; and accepting instructions and responding appropriately to criticism from
supervisors. (AR 19, 744). And the ALJ indicated that all of Dr. Power’s opinions–including the
findings of extreme and marked limitations–did not ascribe any functional limitations to Mr.
Orozco. (AR 19).
Furthermore, the ALJ noted that Dr. Power believed continued evaluation and treatment
would improve Plaintiff’s symptoms. Id. Dr. Power opined that Mr. Orozco had not yet had
enough time to adjust to life outside of the military, and that he would likely respond positively to
treatment. Id. The ultimate RFC formulation essentially reflects the great weight given to Dr.
Power’s opinions, as the ALJ imposed significant limitations on the type of work available to Mr.

Plaintiff’s arguments in support of this appeal were carefully and fully considered. Any arguments that are not
specifically discussed in this order have been considered and determined to be without merit. This Court finds there
is substantial evidence in the record to support the decision of the ALJ.
2

Orozco. (AR 16). Accordingly, substantial evidence exists to support the ALJ’s decision to assign
great weight to Dr. Power while not adopting every one of Dr. Power’s specific opinions.
Other medical opinions and clinical findings in the record support the ALJ’s mental RFC
formulation as well. The ALJ emphasized that Dr. Baker, a treating psychologist, agreed with Dr.
Power that Mr. Orozco’s symptoms would improve with continued treatment in a civilian setting.
(AR 19). Dr. Baker ascribed only mild to moderate limitations to Mr. Orozco. (AR 19, 414). The
ALJ further explained that both state psychological consultants, Dr. Cruise and Dr. Souther, found
Mr. Orozco capable of performing simple, routine, repetitive tasks, despite some limitations with
attention and concentration. (AR 18-19). And the ALJ specifically noted a litany of examples
from Mr. Orozco’s medical records that suggest treatment has been relatively effective in
controlling Plaintiff’s mental health impairments. (AR 18). Indeed, after the alleged disability
onset date, Mr. Orozco worked as a dog trainer, and currently manages his finances, regularly goes
to the gym, uses a computer, plays video games, goes to appointments on time, cleans his home,
trains his dog, mows the grass, and drives a car. (AR 12, 39, 45-46, 48, 49, 265-69). Accordingly,
the record bears substantial evidence to support the ALJ’s decision.
As a consequence, Mr. Orozco’s argument of an improper hypothetical question posed to
the VE is unsubstantiated. As discussed, substantial evidence exists to support the ALJ assigning
great weight to Dr. Power’s medical opinions while nonetheless excluding some of his opinions
from the RFC formulation. The ALJ’s decision not to include each and every finding of Dr. Power
in the hypothetical question was likewise proper. Thus, the hypothetical question posed to the VE
was sufficient.
In sum, substantial evidence supports the ALJ’s formulation of the RFC, including the
weight given to Dr. Power’s medical opinions. The Court must therefore affirm the ALJ’s
decision.
VI.

Conclusion

For the reasons as set forth herein, the Court finds the Commissioner’s determination that
Mr. Orozco is not disabled to be supported by substantial evidence on the record as a whole, and
is affirmed. Judgment shall be entered in favor of Defendant and against Plaintiff.

Accordingly,
IT IS, THEREFORE, ORDERED that the decision of the Commissioner is affirmed as set
forth herein.
Dated this 13th day of December, 2018, at Jefferson City, Missouri.

WILLIE J. EPPS, JR.
United States Magistrate Judge