v. Richard et al
Filing
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OPINION AND ORDER by Magistrate Judge Steven P. Shreder affirming the decision of the ALJ (Re: 2 Social Security Complaint) (dma, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
JALASCA J. RICHARD,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of the Social
Security Administration,
Defendant.
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Case No. CIV-10-223-SPS
OPINION AND ORDER
The claimant Jalasca Richard requests judicial review pursuant to 42 U.S.C. §
405(g) of the decision of the Commissioner of the Social Security Administration
denying her application for benefits under the Social Security Act. The claimant appeals
the decision of the Commissioner and asserts that the Administrative Law Judge (“ALJ”)
erred in determining she was not disabled. For the reasons discussed below, the decision
of the Commissioner is hereby AFFIRMED.
Social Security Law and Standard of Review
Disability under the Social Security Act is defined as the “inability to engage in
any substantial gainful activity by reason of any medically determinable physical or
mental impairment[.]” 42 U.S.C. § 423(d)(1)(A). A claimant is disabled under the
Social Security Act “only if h[er] physical or mental impairment or impairments are of
such severity that [s]he is not only unable to do h[er] previous work but cannot,
considering h[er] 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)(2)(A).
Social security regulations implement a five-step sequential process to
evaluate a disability claim. See 20 C.F.R. §§ 404.1520, 416.920.1
Judicial review of the Commissioner’s determination is limited in scope by 42
U.S.C. § 405(g). This Court’s review is limited to two inquiries: 1) whether the decision
was supported by substantial evidence, and 2) whether the correct legal standards were
applied. See Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997) [citation omitted].
The term “substantial evidence” requires “‘more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971), quoting Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). However, the Court may not reweigh the
evidence nor substitute its discretion for that of the agency. See Casias v. Secretary of
Health & Human Services, 933 F.2d 799, 800 (10th Cir. 1991). Nevertheless, the Court
must review the record as a whole, and “[t]he substantiality of evidence must take into
1
Step one requires the claimant to establish that she is not engaged in substantial gainful
activity, as defined by 20 C.F.R. §§ 404.1510, 416.910. Step two requires the claimant to
establish that she has a medically severe impairment (or combination of impairments) that
significantly limits her ability to do basic work activities. Id. §§ 404.1521, 416.921. If the
claimant is engaged in substantial gainful activity, or if her impairment is not medically severe,
disability benefits are denied. At step three, the claimant’s impairment is compared with certain
impairments listed in 20 C.F.R. pt. 404, subpt. P, app. 1. If the claimant suffers from a listed
impairment (or impairments “medically equivalent” to one), she is determined to be disabled
without further inquiry. Otherwise, the evaluation proceeds to step four, where the claimant
must establish that she lacks the residual functional capacity (RFC) to return to her past relevant
work. The burden then shifts to the Commissioner to establish at step five that there is work
existing in significant numbers in the national economy that the claimant can perform, taking
into account her age, education, work experience, and RFC. Disability benefits are denied if the
Commissioner shows that the claimant’s impairment does not preclude alternative work. See
generally Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988).
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account whatever in the record fairly detracts from its weight.” Universal Camera Corp.
v. NLRB, 340 U.S. 474, 488 (1951); see also Casias, 933 F.2d at 800-01.
Claimant’s Background
The claimant was born on November 12, 1958, and was fifty years old at the time
of the applicable administrative hearing (Tr. 23, 86). She has a GED, and has worked as
a cashier and waitress (Tr. 24, 41). The claimant alleges she has been unable to work
since November 23, 2006, due to fibromyalgia, chronic pain, and asthma (Tr. 57, 106).
Procedural History
On December 20, 2006, the claimant applied for supplemental security income
(“SSI”) payments under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-85. Her
application was denied. ALJ Osly F. Deramus conducted an administrative hearing and
determined that the claimant was not disabled in a written decision dated May 12, 2009
(Tr. 11-19). The Appeals Council denied review, so the ALJ’s decision represents the
Commissioner’s final decision for purposes of this appeal. See 20 C.F.R. § 416.1481.
Decision of the Administrative Law Judge
The ALJ made his decision at step five of the sequential evaluation. He found that
the claimant had the residual functional capacity (“RFC”) to perform light work, i. e., she
could lift ten pounds frequently and twenty pounds occasionally, sit/stand/walk six hours
in an eight-hour workday, but climb ramps/stairs, balance, stoop, kneel, crouch, and
crawl only occasionally, and never climb ladders, ropes or scaffolds. The ALJ also found
that the claimant had limited ability to maintain attention and concentration due to pain.
(Tr. 14-15). The ALJ concluded that although the claimant could not return to her past
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relevant work, she was nevertheless not disabled because there were jobs that she could
perform, i. e., sewing machine operator and ticket taker. (Tr. 17-18).
Review
The claimant contends that the ALJ erred: (i) by failing to find her spinal problems
to be a severe impairment; (ii) by failing to properly assess her RFC; (iii) by failing to
find that she was disabled according to “the grids,” i. e., by applying the MedicalVocational Guidelines; and (iv) by failing to properly assess her credibility. All of these
contentions lack merit.
The medical evidence reveals that the claimant had the severe impairments of
fibromyalgia and asthma. (Tr. 13). As for the relevant medical evidence, one of the
claimant’s treating physicians, Dr. Stokes, treated the claimant from 2005 to 2007. (Tr.
160-178). Dr. Stokes noted her neck and back pain, and the records indicate the claimant
regularly ordered pain medication refills; however, Dr. Stokes noted in March 2006,
September 2006, and January 2007 that the claimant was able to work despite her pain.
More specifically, he noted in January 2007 that the claimant was stable and could
function and hold a job with her current prescriptions, but indicated “wk to 5-6 hrs max,”
and noted right knee pain. (Tr. 160-164). In April 2007, Dr. Stokes noted that the
claimant was no longer working, but was doing “pretty well overall,” and that he would
need to “play [with] doses” of her pain medication. (Tr. 218).
A state agency physician examined the claimant on February 21, 2007. As to the
claimant’s extremities, he noted that the claimant had the full range of motion with her
hands, normal grip strength and hand function, and the ability to manipulate and grasp
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objects. As to her back, he noted that she appeared to have some pain during 25-degree
side bends and extensions, but that she could bend and walk normally. Additionally, he
reported that “[t]he patient says that she has pain whenever she is touched but did not
appear to have muscle spasms.” He assessed her with low back and leg pain, and asthma.
(Tr. 208-09).
Dr. George Alhaj, Jr., also treated the claimant for her back and neck pain during
2008 and 2009, and provided steroid injections. (Tr. 347-390). His treatment notes
indicate that the claimant was consistently positive for 5 of 18 fibromyalgia trigger points
(Tr. 347, 351, 356, 359, 363, 367, 373, 378, 384), that the claimant had mild to moderate
disc pain and joint tenderness (Tr. 347-385), and that the claimant had a “mildly limited”
range of motion in her lumbar spine (Tr. 347). Dr. Alhaj referred the claimant for an
MRI, which revealed “severe disc space narrowing with degenerative endplate changes at
C5-6,” as well as “a small right paracentral disc bulge at this level which results in
moderate right and mild left neural foraminal narrowing.” (Tr. 386).
On December 2008 through January 2009, Dr. Laurel Jordan treated the claimant
for pelvic pain and performed an endometrial biopsy. At both the initial and follow-up
examinations, the claimant reported her medical history of fibromyalgia but denied any
chronic pain and ranked her pain at 0 out of 10. (Tr. 315-325).
At the administrative hearing, the claimant testified that she suffers from “head to
toe chronic pain,” including pain in her neck, shoulders, arms, and legs, and muscle
spasms in her hips and legs. She stated that she had to rotate her pain medication to
ensure that it was effective, that she was seeing a doctor for pain management, and that
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she was receiving injections for her pain. (Tr. 26-32). She also stated that she sometimes
experiences numbness in her arms and hands. (Tr. 35-36). As for her activities of daily
living, she testified that she spends most of her days in bed, that she did not know how far
she could walk, and that she could lift five pounds, but that bending and squatting were
painful. Additionally, she stated that her daughter had to help her get in and out of her
bath, and with cleaning the house. (Tr. 37-40).
In his written opinion, the ALJ summarized the claimant’s hearing testimony, but
noted that the claimant had continued working after the alleged onset date, and had only
worked part time prior to the alleged onset date. He then stated that the issue was “not
the existence of pain, but rather the degree of incapacity incurred because of it.” (Tr. 16).
He found that the evidence “failed to demonstrate the presence of pathological clinical
signs, significant medical findings, or neurological abnormalities,” and that the
claimant’s allegation of disabling pain was therefore not credible. As to the medical
records, the ALJ noted that the claimant had complained of pain, but that the pain had
stabilized with prescription medications enough to enable employment in 2006 and 2007;
that although she had low back and leg pain, she was able to ambulate without assistance;
that the claimant reported problems gripping, but was assessed with normal grip strength
and hand functioning; that she reported tenderness at 5-8 fibromyalgia trigger points, but
that the pain was under control with pain medication; that she reported no muscle or joint
pain in January 2009, and reported that medications alleviated her pain in March 2009.
Regarding the claimant’s first contention, the Court finds no reversible error in the
ALJ’s treatment of the claimant’s spinal problems as severe. A claimant has the burden
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at step two of showing an impairment severe enough to interfere with the ability to work.
Bowen v. Yuckert, 482 U.S. 137 (1987). This determination is “based on medical factors
alone, and ‘does not include consideration of such vocational factors as age, education,
and work experience.’” Langley v. Barnhart, 373 F.3d 1116, 1123 (10th Cir. 2004),
quoting Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988). Although “the claimant
must show more than the mere presence of a condition or ailment[,]” Hinkle v. Apfel, 132
F.3d 1349, 1352 (10th Cir. 1997), the claimant’s step-two burden only requires a “de
minimis” showing of impairment. Hawkins v. Chater, 113 F.3d 1162, 1169 (10th Cir.
1997), citing Williams, 844 F.2d at 751. Thus, a finding of non-severity may be made
only when the medical evidence establishes a slight abnormality or a combination of
abnormalities that would have no more than a minimal effect on an individual’s ability to
work. Hinkle, 132 F.3d at 1352.
The evidence here reveals that the claimant was assessed with low back pain and
an MRI revealed “severe disc space narrowing with degenerative endplate changes at C56,” as well as “a small right paracentral disc bulge at this level which results in moderate
right and mild left neural foraminal narrowing.” The ALJ did not specifically discuss this
evidence, but assuming it constituted a de minimis showing of impairment under Yuckert,
the ALJ’s failure to find the that claimant’s spinal problems were severe does not require
reversal because the ALJ did find that her fibromyalgia and asthma were severe. See,
e. g., Hill v. Astrue, 289 Fed. Appx. 289, 292 (10th Cir. 2008) (“Once the ALJ finds that
the claimant has any severe impairment, he has satisfied the analysis for purposes of step
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two. His failure to find that additional alleged impairments are also severe is not in itself
cause for reversal.”) [emphasis in original].
If a claimant has any severe impairment, the ALJ must “consider the effect of all
of the claimant’s medically determinable impairments, both those he deems ‘severe’ and
those ‘not severe.’” Id., citing Soc. Sec. Rul. 96-8p. The ALJ in this case was therefore
required to consider the effects of the claimant’s spinal problems along with her asthma
and fibromyalgia in determining her RFC. In her second contention, the claimant asserts
that the ALJ failed to account for her spinal impairment in formulating her RFC. But the
Court does not agree. In discussing the medical record, the ALJ specifically noted her
assessment of low back pain, as well as her general complaints of pain all over her body.
He noted that, despite these complaints of pain, she was able to ambulate normally, had
full range of motion and grip strength, and that the claimant herself had reported that her
pain was under control with medication. (Tr. 16-17). The ALJ thus concluded, “after
careful consideration of the entire record, including the claimant’s testimony that she
experiences pain and the potential side effects from medications . . . that the claimant has
the residual functional capacity to perform light work.” (Tr. 17). When all the evidence
is taken into account, conclusion that the claimant could perform light work is supported
by substantial evidence. See Hill v. Astrue, 289 Fed. Appx. at 293 (“The ALJ provided
an extensive discussion of the medical record and the testimony in support of his RFC
finding. We do not require an ALJ to point to ‘specific, affirmative, medical evidence on
the record as to each requirement of an exertional work level before [he] can determine
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RFC within that category.’”), quoting Howard v. Barnhart, 379 F.3d 945, 949 (10th Cir.
2004).
The claimant’s third contention is that the ALJ should have been found her to be
disabled according to “the grids” because her spinal problems demonstrate she is unable
to perform light work. But as discussed above, the Court finds that substantial evidence
supports the ALJ’s determination that the claimant can perform light work. The third
contention is therefore without merit.
Finally, the claimant contends that the ALJ erred in his analysis of her credibility.
A credibility determination is entitled to deference unless the ALJ misreads the medical
evidence taken as a whole. Casias v. Secretary of Health & Human Services, 933 F.2d
799, 801 (10th Cir. 1991). An ALJ may disregard a claimant’s subjective complaints of
pain if unsupported by any clinical findings. Frey v. Bowen, 816 F.2d 508, 515 (10th Cir.
1987). But credibility findings “should be closely and affirmatively linked to substantial
evidence and not just a conclusion in the guise of findings.” Kepler v. Chater, 68 F.3d
387, 391 (10th Cir. 1995) [citation omitted]. An ALJ’s credibility analysis “must contain
‘specific reasons’ for a credibility finding; the ALJ may not simply ‘recite the factors that
are described in the regulations.’” Hardman v. Barnhart, 362 F.3d 676, 678 (10th Cir.
2004), quoting Soc. Sec. Rul. 96-7p, 1996 WL 374186, at *4 (July 2, 1996).
Regarding credibility, the ALJ noted that “the claimant’s statements concerning
the intensity, persistence and limiting effects of these symptoms are not credible,” and
that the “evidence of record failed to demonstrate the presence of pathological clinical
signs, significant medical findings, or neurological abnormalities which would establish
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the existence of a pattern of pain of such severity that would contraindicate claimant’s
engaging in [SGA].” (Tr. 15-16). He concluded that her “allegation of pain of an extent
as to be disabling is neither persuasive nor credible.” (Tr. 16). The ALJ mentioned the
applicable credibility factors and cited evidence supporting his reasons for finding that
the claimant’s subjective complaints were not credible. For example, the ALJ mentioned
that: (i) despite complaints of severe pain, the claimant reported relief from pain with
pain management; (ii) although not disqualifying SGA, the claimant’s history reflected
work activity after the alleged onset date; (iii) although assessed with low back pain, she
was able to ambulate normally when examined; (iv) although the claimant reported
problems gripping and manipulating, she had full range of motion and grip strength when
tested; (v) she had 5-8 out of 18 fibromyalgia trigger points; (vi) the claimant reported
that her pain was alleviated by steroid injections. (Tr. 15-17). The ALJ thus linked his
credibility determination to evidence as required by Kepler, and provided specific reasons
for his determination in accordance with Hardman. There is no indication here that the
ALJ misread the claimant’s medical evidence taken as a whole, and his determination of
her credibility is therefore entitled to deference. See Casias, 933 F.2d at 801.
Conclusion
In summary, the Court finds that correct legal standards were applied by the ALJ,
and the decision of the Commissioner is therefore supported by substantial evidence. The
Commissioner’s decision is therefore AFFIRMED.
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DATED this 20th day of September, 2011.
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