Estrada v. Colvin

Filing 22

MEMORANDUM AND ORDER - The decision of the Commissioner is affirmed pursuant to sentence four of 42 U.S.C. § 405(g). Final judgment will be entered by separate document. Ordered by Senior Judge Richard G. Kopf. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TERESA ANN ESTRADA,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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4:13CV3121

MEMORANDUM
AND ORDER

In this social security appeal, plaintiff Teresa Ann Estrada (“Estrada”) argues
that the Commissioner of Social Security committed reversible error in determining
that she is not entitled to disability insurance and supplemental security income
benefits. For the reasons discussed below, the Commissioner’s decision is affirmed.
I. BACKGROUND
On March 16, 2011, Estrada filed applications for disability insurance and
supplemental security income benefits. (Tr. 9, 117-29.) In her applications, Estrada
alleged that she has been disabled since December 31, 2008. (Tr. 13.) Estrada’s
application was denied initially and on reconsideration. (Id.) On May 17, 2012, an
administrative law judge (“ALJ”) issued a decision finding that Estrada was not
disabled under sections 216(i) and 223(d) of the Social Security Act. (Tr. 9-19.) In
his decision, the ALJ followed the five-step sequential analysis prescribed by the

Social Security Regulations to evaluate Estrada’s disability claim.1 See 20 C.F.R. §§
404.1520, 416.920. The ALJ found as follows:
1.

The claimant meets the insured status requirements of the Social
Security Act through December 31, 2015.

2.

The claimant has not engaged in substantial gainful activity since
December 31, 2008, the alleged onset date (20 CFR 404.1571 et
seq. and 416.871 et seq.).

3.

The claimant has the following severe impairments: disorders of
the back, obesity, degenerative joint disease in the right knee, and
a history of bone spurs in the feet (20 CFR 202.1520(c) and
416.920(c)).

4.

The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR

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The Social Security Administration uses a five-step process to determine
whether a claimant is disabled. These steps are described as follows:
At the first step, the claimant must establish that he has not engaged in
substantial gainful activity. The second step requires that the claimant
prove he has a severe impairment that significantly limits his physical or
mental ability to perform basic work activities. If, at the third step, the
claimant shows that his impairment meets or equals a presumptively
disabling impairment listed in the regulations, the analysis stops and the
claimant is automatically found disabled and is entitled to benefits. If the
claimant cannot carry this burden, however, step four requires that the
claimant prove he lacks the [residual functional capacity] to perform his
past relevant work. Finally, if the claimant establishes that he cannot
perform his past relevant work, the burden shifts to the Commissioner at
the fifth step to prove that there are other jobs in the national economy
that the claimant can perform.
Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006).
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404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and
416.926).
5.

After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b), in that, she can lift and carry 10 pounds frequently
and 10 pounds occasionally, stand or walk for six hours in an
eight-hour workday, and sit for six hours in an eight-hour
workday. Any job must allow for the claimant to alternate
between sitting and standing up to every 30 minutes as needed.
The claimant also has the following nonexertional limitations that
further limit her ability to perform light work: can occasionally
climb ramps or stairs, but should never climb ropes, ladders, or
scaffolds; can occasionally balance, stoop, kneel, crouch, and
crawl; should avoid prolonged exposure to cold temperature
extremes and vibrating machinery; and should avoid unprotected
heights and hazardous moving machinery. Secondary to reported
chronic pain, the claimant is limited to jobs that do not demand
attention to detail or complicated job tasks/instructions.

6.

The claimant is unable to perform any past relevant work (20 CFR
404.1565 and 416.965).

7.

The claimant was born on November 13, 1960 and was 48 years
old, which is defined as a younger individual age 18-49, on the
alleged disability onsent date. The claimant subsequently changed
age category to closely approaching advanced age (20 CFR
404.1563 and 416.963).

8.

The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).

9.

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 the claimant is “not disabled,”
whether or not the claimant has transferable job skills (See SSR
82-41 and 20 CFR Part 404, Subpart P, Appendix2).
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10.

Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exit in significant
numbers in the national economy that the claimant can perform
(20 CFR 404.1569, 404.1569(a), 416.969, and 416.964(a)).

11.

The claimant has not been under disability, as defined by the
Social Security Act, from December 31, 2008, through the date of
this decision (20 CFR 404.1520(g) and 416.920(g)).

(Tr. 11-19.) After the ALJ issued his decision, Estrada filed a request for a review
with the Appeals Council of the Social Security Administration. (Tr. 1-5.) On April
23, 2013, the Appeals Council denied Estrada’s request for review. (Id.) Thus, the
ALJ’s decision stands as the final decision of the Commissioner of Social Security.
II. STANDARD OF REVIEW
A denial of benefits by the Commissioner is reviewed to determine whether
the denial is supported by substantial evidence on the record as a whole. Hogan v.
Apfel, 239 F.3d 958, 960 (8th Cir. 2001). “Substantial evidence” is less than a
preponderance, but enough that a reasonable mind would find it adequate to support
the Commissioner’s conclusion. Id. at 960-61; Prosch v. Apfel, 201 F.3d 1010, 1012
(8th Cir. 2000). Evidence that both supports and detracts from the Commissioner’s
decision must be considered, but the decision may not be reversed merely because
substantial evidence supports a contrary outcome. See Moad v. Massanari, 260 F.3d
887, 890 (8th Cir. 2001).
This court must also review the decision of the Commissioner to decide
whether the proper legal standard was applied in reaching the result. Smith v.
Sullivan, 982 F.2d 308, 311 (8th Cir. 1992). Issues of law are reviewed de novo.
Olson v. Apfel, 170 F.3d 820, 822 (8th Cir. 1999); Boock v. Shalala, 48 F.3d 348, 351
n.2 (8th Cir. 1995).
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III. DISCUSSION
A.

Relevant Medical History and Opinions

In her Disability Report, Estrada alleged that bone spurs and a “bad back” were
the physical conditions that limited her ability to work. (Tr. 173.) However, Estrada’s
medical history also reveals a history of sinus problems and obesity.
On April 24, 2009, physician’s assistant Kimberling Cody (“Cody”) examined
Estrada for complaints of a moderate cough and general chest soreness. (Tr. 267-29.)
Cody noted that Estrada was a smoker, instructed her not to smoke, and prescribed an
inhaler, Robitussin, and Doxycyline. (Tr. 268.)
On March 19, 2010, Dr. Leland Lamberty (“Lamberty”) examined Estrada for
complaints of a swollen neck, lightheadedness, and a “funny” feeling heart. (Tr. 285.)
During the examination, Estratda stated she was working six days a week. (Id.) Dr.
Lamberty opined that Estrada’s symptoms were likely caused by stress and her
long-term smoking habit. (Id.)
On April 14, 2010, Estrada returned to Dr. Lamberty with a sore throat, body
aches, and a cough. (Id.) Dr. Lamberty prescribed medication. (Id.)
On May 29, 2010, Dr. Lamberty again examined Estrada for complaints of a
swollen throat and requests to refill medication for back pain. (Id.) Dr. Lamberty
noted that Plaintiff smoked less than one half of a package of cigarettes each day, but
she had smoked for 20 years. (Id.) Dr. Lamberty refilled her pain medication and
stated they would do a “Medrol Dosepak” to see if it would help alleviate her sense
of neck fullness. (Id.)
On March 18, 2011, Dr. Lamberty examined Estrada for complaints of neck
fullness, hoarseness, and lightheadedness. (Tr. 266, 284, 300, 304.) A computerized
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tomography (“CT”) of Estrada’s neck showed “sinus disease” and an enlarged lymph
node. (Tr. 266, 284, 288, 300, 304.)
On April 18, 2011, Dr. Lamberty examined Estrada for complaints of flu
symptoms, sinus issues, and difficulty swallowing. (Tr. 299, 303.) A diagnostic
imaging report indicated that Estrada had low-grade chronic sinusitis. (Tr. 302, 306.)
On May 4, 2011, David Lindley, M.D., conducted a consultative examination
of Estrada. (Tr. 311-15.) During the examination, Estrada stated she had experienced
back pain for more than 20 years and that it recently had increased. (Tr. 311.) Estrada
also complained of numbness, burning between her thighs, and shooting pains down
to her feet. (Id.) Estrada stated she could lift a gallon of milk, sit or stand for 20
minutes at a time, and walk half a block. (Id.) Estrada reported that she had not
worked full-time for approximately two years, but that she still shopped for groceries
for one of her clients. (Tr. 312.) Dr. Lindley noted that Estrada had reduced range of
motion in her back, hips, and neck. However, her muscle tone, power, and
coordination were generally intact. (Tr. 308-09, 314.) An x-ray of Estrada’s spine
indicated degenerative disc disease. (Tr. 314.) Dr. Lindley opined that Estrada’s
medical conditions would make it difficult for her to hold a full-time job. (Id.)
On May 12, 2011, Jerry Reed, M.D., conducted a physical residual functional
capacity assessment of Estrada. (Tr. 316-23.) Dr. Reed concluded that Estrada could
occasionally lift 20 pounds, frequently lift or carry 10 pounds, stand or walk (with
normal breaks) for a total of six hours in an eight-hour workday, and sit for about 6
hours in an 8-hour workday. (Tr. 316-17.) Dr. Reed concluded Estrada could
occasionally climb, balance, stoop, kneel, crouch or crawl, but must avoid
concentrated exposure to extreme cold, vibration and hazzards (machinery, heights
etc.). (Tr. 318, 320.) A. R. Hohensee, M.D. (“Hohensee”), reviewed all of the
evidence used by Dr. Reed and affirmed his findings. (Tr. 328.)

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On June 2, 2011, Todd Jensen, M.D., examined Estrada for complaints of back
pain. (Tr. 412-15.) Estrada described the pain as “moderate” in the area of her mid
lumber spine and lower lumbar spine. (Tr. 412.) Estrada stated that she had back pain
for “many years” but had recently “turned” in the shower and increased her pain. (Id.)
Estrada said she may have recently injured her back after “lifting and turning” (Id.)
Dr. Jensen prescribed medication to address Estrada’s pain, instructed her to apply ice
for 15 to 20 minutes four to six times a day, lift no more than 10 pounds, with no
bending, stooping, prolonged sitting, or strenuous activity, and to rest until she was
feeling better. (Tr. 414.)
On August 10, 2011, Deb Weaver, M.D., examined Estrada for complaints of
back pain. (Tr. 406-07.) Estrada described her pain as “moderate” in the area of her
lower lumber spine and radiating through her hips to her knees. (Tr. 406.) Dr.
Weaver’s examination of Estrada’s back was “normal” with some muscle spasms in
the left and right posterior. (Tr. 407.) Estrada’s extremities were nontender and she
exhibited normal range of motion. (Id.)
On December 23, 2011, Estrada returned to Dr. Jensen with complaints of
chronic back pain. (Tr. 437-39.) Estrada stated her pain was “severe” in her lower
lumbar spine. (Tr. 437.) Estrada reported that she had been working with the elderly
and “did too much.” (Id.) Dr. Jensen’s examination revealed that Estrada had
tenderness in the lumbar spine and that a muscle spasm was present. (Tr. 438.) Dr.
Jensen discharged Estrada in “improved condition” and instructed her to apply ice for
15-20 minutes 4-6 times a day and to limit lifting. (Tr. 437-38.) Upon discharge,
Estrada rated her pain a “3” out of 10. (Tr. 441.)
On January 17, 2012, Renee Angler, M.D., examined Estrada for complaints
of a cough, sinus pain, fever, and chills. (Tr. 428-31.) Dr. Angler instructed Estrada
to take Acetaminophen or Ibuprofen as needed for fever, not to work for three days
and to drink plenty of fluids. (Tr. 431.)

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On February 11, 2012, James Smith, M.D., examined Estrada for complaints
of pain in her right knee after a “twisting injury.” (Tr. 422-24.) Dr. Smith applied a
splint and advised Estrada to see a pain management specialist regarding her chronic
back pain. (Tr. 423.)
B.

Hearing Testimony

On May 2, 2012, Estrada testified at a hearing before an ALJ. (Tr. 25, 29-41.)
Estrada testified that she completed the twelfth grade, currently lived with her
boyfriend, and was raising her six-year-old granddaughter. (Tr. 29-30.) Estrada
testified that she stood five feet, eight inches tall and weighed approximately 300
pounds. (Tr. 29.) She said she smoked about 12 cigarettes a day. (Tr. 30.) During
her alleged period of disability, Estrada said that she worked as an in-home health
aide, but that she earned less than $600 per month. (Tr. 31.) She reportedly last
worked as an in-home health aide in February or March of 2012. (Tr. 32.) However,
she stopped working as an in-home health aide because she tore her medial collateral
ligament in her right leg and could no longer lift people, help them into the tub, or
dress them. (Tr. 31-32.) Estrada testified about her physical problems at the time of
the hearing, which included back pain, bone spurs on her feet, and burning sensations
and numbness in her legs. (Tr. 32, 39.) Estrada stated she could stand or walk for no
more than 10 to 15 minutes at a time and sit or lie down for no more than 10 to 20
minutes at a time. (Tr. 34, 35.) Estrada stated that she could wash dishes, cook meals,
help fold laundry, and shop for groceries with assistance. (Tr. 34, 36.)
A vocational expert also testified at the hearing. (Tr. 41-47.) The ALJ asked
if any occupation existed in significant numbers for a hypothetical person of Estrada’s
age, education, and work experience who could lift and carry 20 pounds occasionally,
10 pounds frequently, stand, walk, or sit for six hours of an eight-hour day, and
alternate between sitting and standing every 30 minutes as needed. (Tr. 44-45.) The
ALJ specified that the individual could occasionally climb stairs, but should never
climb ropes, ladders, or scaffolds. The hypothetical person could occasionally
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balance, stoop, kneel, crouch, or crawl, but should avoid prolonged exposure to
temperature extremes, vibrating machinery, unprotected heights and hazardous
moving machinery. (Tr. 44.) The ALJ also indicated the individual should not
perform work that demands attention to detail or complicated job tasks or instructions
(Tr. 44). The vocational expert responded that the individual could perform work as
an arcade attendant (41,200 jobs nationally and 120 jobs in Nebraska); storage facility
rental clerk (32,000 jobs nationally and 180 jobs in Nebraska); or parking lot attendant
(6,800 jobs nationally and 120 jobs in Nebraska). (Tr. 45.)
C.

Estrada’s Arguments on Appeal

In her appeal brief, Estrada argues that the ALJ’s opinion is not supported by
substantial evidence because the ALJ did not discuss (1) the specific facts that would
support a denial of benefits, (2) take all the medial evidence into consideration, and
(3) include all the medical facts in the hypothetical question to the vocational expert.
(Filing 14 at CM/ECF pp. 4-14.) The Commissioner contends that the ALJ’s decision
is supported by substantial evidence. (Filing 21 at CM/ECF pp. 9-19.) I agree with
the Commissioner.
1.

Discussion of Facts

First, Plaintiff argues that “the ALJ did not discuss the specific facts which
would support a denial of benefits.” (Filing 13 at CM/ECF p. 4.) In support of this
argument, Plaintiff cites to Fulfer v. Astrue, 917 F. Supp. 2d 883 (E.D. Wis. 2013).
In Fulfer, the ALJ determined that Mr. Fulfer’s condition did not satisfy Listing 1.04,
specifically stating:
No treating or examining physician has indicated findings that would
satisfy the severity requirements of any listed impairment. Specifically,
the undersigned has considered the claimant’s lumbar spine disorder
under Listing 1.04 concerning vertebrogenic disorders but concludes that
the claimant’s condition does not satisfy the severity requirements of this
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listed impairment, as the record does not document neurological
abnormalities, such as motor loss, sensory loss or muscle weakness.
Id. at 886. The court stated this discussion was far too general and it was “obliged to
conclude” that the ALJ failed to build an accurate and logical bridge between the
evidence and his conclusion. Id.
In contrast to Fulfer, the ALJ in this case did discuss the medical opinions in
the record in reaching his residual functional capacity finding. (Tr. 11-19.) The
ALJ’s opinion includes an extensive discussion of Estrada’s subjective complaints,
self-reported activities, treatment notes, opinion evidence, medical history, and
credibility factors. (Id.) The ALJ even considered Estrada’s medical records
regarding her sinus issues, though she did not allege any limitations based on a sinus
condition in her application or during her hearing. (Tr. 12, 25-47, 173.)
2.

Medical Evidence

Second, Plaintiff appears to argue that the ALJ failed to consider all of the
medical evidence or substituted his own judgment in place of the medical evidence.
(Filing 14 at CM/ECF pp. 3, 6-8.) “ALJs bear the primary responsibility for assessing
a claimant’s residual functional capacity based on all relevant evidence.” Wildman
v. Astrue, 596 F.3d 959, 969 (8th Cir. 2010). The residual functional capacity must
be supported by “at least some medical evidence.” Id. (internal quotation omitted).
Here, the ALJ’s evaluation of the medical evidence was consistent with the
Commissioner’s regulations and policies. See 20 C.F.R. §§ 404.1527, 416.927
(explaining the factors an ALJ considers in evaluating opinion evidence). The record
before the ALJ contained opinion evidence from consultative state agency physicians
Dr. Reed and Dr. Hohensee and opinion evidence from consultative examining
physician Dr. Lindley. (Tr. 16, 308-09, 311-24, 328.) The ALJ clearly described the

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weight that he assigned to each medical opinion in determining Estrada’s residual
functional capacity. (Tr. 16.)
The ALJ assigned “significant weight” to Dr. Lindley’s examination findings,
which indicated that Estrada had reduced range of motion in her back, hips, and neck,
but her muscle tone, power, and coordination were generally intact. (Tr. 16, 308-09,
314.) However, the ALJ assigned “minimal weight” to Dr. Lindley’s conclusory
opinion that it would be “difficult for [Estrada] to hold down a full-time job.” (Tr. 15,
16, 314.) Indeed, such an assignment was appropriate because the ultimate question
of whether Plaintiff is disabled is an issue reserved for the Commissioner. See 20
C.F.R. §§ 404.1527(d), 416.927(d); Social Security Ruling (SSR) 96-5p; House v.
Astrue, 500 F.3d 741, 745 (8th Cir. 2007) (“A treating physician’s opinion that a
claimant is disabled or cannot be gainfully employed gets no deference because it
invades the province of the Commissioner to make the ultimate disability
determination.”). The ALJ explained that Dr. Lindley’s opinion about Estrada’s work
appeared to be broad and based on Estrada’s subjective complaints that she could not
lift more than one gallon of milk, walk more than one-half block, and sit or stand more
than 20 minutes at a time. (Tr. 16, 311.)
The ALJ also properly assigned “significant weight” to the opinions of Dr.
Reed and Dr. Hohensee. (Tr. 16, 316-24, 328.) Dr. Reed concluded that Estrada
could occasionally lift 20 pounds, frequently lift or carry 10 pounds, stand or walk
(with normal breaks) for a total of six hours in an eight-hour workday, and sit for
about six hours in an eight-hour workday. (Tr. 316-17.) Dr. Reed concluded Estrada
could occasionally climb, balance, stoop, kneel, crouch or crawl, but must avoid
concentrated exposure to extreme cold, vibration and hazzards (machinery, heights
etc.). (Tr. 318, 320.) Dr. Hohensee reviewed all of the evidence used by Dr. Reed and
affirmed his findings. (Tr. 328.)

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3.

Hypothetical Question

Last, Estrada generally argues “[i]t is obvious that the ALJ’s hypothetical
question to the vocational expert did not include all of the medical facts reflected in
the testimony of the claimant and the medical records.” (Filing 14 at CM/ECF p. 13.)
Although Plaintiff does not specify what “medical fact” the ALJ excluded, she cites
to Friesmuth v. Astrue, 920 F. Supp. 2d 943 (E.D. Wis. 2013). In Freismuth, te
medical record included numerous opinions that the claimant would need frequent
breaks. Id. at 953. However, the ALJ’s hypothetical question to the vocational expert
failed to include limitations for frequent breaks. Id. In contrast to Freismuth, the
ALJ’s hypothetical question to the vocational expert in this case did include a
limitation for breaks consistent with the ALJ’s determined residual functional capacity
assessment:
Q
Okay. I’m going to present you a couple of hypothticals.
The first one: Assume we have an individual of the same age,
educational background as the claimant with the same work history. For
the first hypothetical, assume that she retains the capacity to lift and
carry 20 pounds occasionally, 10 pounds frequently; walk or stand six of
eight hours; sit for six of eight hours. She could occasionally climb
stairs. She probably should never climb ropes, scaffolds, or ladders;
occasionally balance, stoop, crouch, kneel, and crawl. She should avoid
prolonged exposure to extreme cold temperatures and vibrating
machinery. She should avoid unprotected heights and hazardous moving
machinery. She would be limited to jobs that would allow her to
alternate between sitting and standing as needed. In addition, she would
be limited to jobs that do not demand attention to details or complicated
job tasks or instructions. Could this person return to her past relevant
work?
A
No sir.

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Q
Would you be able to identify other jobs in the local,
national, or regional economy this hypothetical person could perform?
A
When you say alternate sit/stand as needed, that eliminates
all work in my opinion.
Q
Okay. Well, what if we put that at 30-minute periods?
A
30-minute--okay. That’s my–
Q
No more than 30-minute periods.
A
Yeah. That’s my break right there.
So yes.
Q
It wouldn’t be every 30 minutes, but if she needed to
A
Right, Right
Q
– she could to it –
A
Okay
Q
Arcade attendant with a DOT of 342.667-014. It’s a light,
SVP of 2.There are 120 jobs in Nebraska; 41,200 in the nation.
Storage facility rental clerk with a DOT of 295.367-026. There are
180 jobs in Nebraska; 32,000 in the nation.
Parking lot attendant with a DOT of 915.473-010. Also light, SVP
of 2. There are 120 in Nebraska; 6,800 in the nation.
Q
Okay. Now just so I’m clear: If I was to find that this
claimant was limited to a range of sedentary work, there would be no
jobs transferrable--no transferable skills and no jobs at sedentary; is that
correct?
A
That’s correct.
(Tr. 43-45.)
In short, because the ALJ’s residual functional capacity finding was supported
by substantial evidence, it was proper for the ALJ to consider vocational expert
testimony premised on the residual functional capacity finding.

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IV. CONCLUSION
For the reasons explained above, I find the ALJ’s decision is supported by
substantial evidence on the record as a whole and is not contrary to law.
Accordingly,
IT IS ORDERED that the decision of the Commissioner is affirmed pursuant
to sentence four of 42 U.S.C. § 405(g). Final judgment will be entered by separate
document.
DATED this 20th day of August, 2014.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The
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