Johnson v. Social Security Administration
Filing
21
OPINION AND ORDER by Magistrate Judge Kimberly E. West (sjw, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
CHERYL L. JOHNSON,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social
Security Administration,
Defendant.
Case No. CIV-11-259-KEW
OPINION AND ORDER
Plaintiff Cheryl L. Johnson (the ''Claimantu} requests judicial
review of the decision of the Commissioner of the Social Security
Administration (the "Commissioner") denying Claimant's application
for disability benefits under the Social Security Act.
appeals the decision of the Administrative Law Judge
Claimant
("ALJ") and
asserts that the Commissioner erred because the ALJ incorrectly
determined
that
discussed
below,
Claimant
it
is
was
the
not
disabled.
finding
of
this
For
the
Court
reasons
that
the
Commissioner's decision should be and is 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
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
§423(d) (2) (A).
in
the
national
economy.
42
u.s.c.
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.
two
inquiries:
§
first,
405(g).
This Court's review is limited to
whether
the
1
decision was
supported by
Step one requires the claimant to establish that he is not
engaged in substantial gainful activity, as defined by 20 C. F. R. §§
404.1510, 416.910.
Step two requires that the claimant establish that
he has a medically severe impairment or combination of impairments that
significantly limit his ability to do basic work activities. 20 C.F.R.
§§ 404.1521, 416.921.
If the claimant is engaged in substantial gainful
activity (step one) or if the claimant's impairment is not medically
severe (step two), 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.
A claimant suffering from a listed
impairment or impairments "medically equivalent" to a listed impairment
is determined to be disabled without further inquiry.
If not, the
evaluation proceeds to step four, where claimant must establish that he
does not retain the residual functional capacity ("RFC") to perform his
past relevant work.
If the claimant's step four burden is met, the
burden shifts to the Commissioner to establish at step five that work
exists in significant numbers in the national economy which the claimant
- taking into account his age, education, work experience, and RFC - can
perform.
Disability benefits are denied if the Commissioner shows that
the impairment which precluded the performance of past relevant work does
not preclude alternative work.
See generally, Williams v. Bowen, 844
F.2d 748, 750-51 (lOth Cir. 1988).
2
substantial
evidence;
and,
Cir.
whether
the
correct
legal
Hawkins v. Chater, 113 F.3d 1162, 1164
standards were applied.
(lOth
second,
1997) (citation
omitted).
The
term
"substantial
evidence" has been interpreted by the United States Supreme Court
to require "more than a mere scintilla.
It means such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion."
Richardson v.
Edison
Perales,
Co.
v.
402 U.S.
NLRB,
389,
Consolidated
(1938)).
The court may not re-weigh the evidence nor substitute
Health
&
Human
Servs.,
933
F.2d 799,
U.S.
{1971)
(quoting
its discretion for that of the agency.
305
401
Casias v.
800
197,
229
Secretary of
{lOth Cir.
1991}.
Nevertheless, the court must review the record as a whole, and the
"substantiality of the evidence must take into 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
Claimant was born on July 1, 1962 and was 46 years old at the
decision.
Claimant completed her education
through the eleventh grade.
Claimant worked in the past as a
time of the ALJ' s
cashier at a truck stop.
beginning
August
14,
2006
Claimant alleges an inability to work
due
to
3
limitations
resulting
from
diabetes mellitus with neuropathy, degenerative disc disease of the
lumbar spine post surgery,
diminished
eyesight,
pain,
carpal
side effects from medications,
tunnel
and
syndrome,
migraine
headaches.
Procedural History
On August 18, 2006, Claimant protectively filed for disability
insurance benefits under Title II {42 U.S.C. § 401, et seq.} of the
Social Security Act.
Claimant's application was denied initially
and upon reconsideration.
On November 7, 2008, an administrative
hearing was held before ALJ Lantz McClain in Sallisaw, Oklahoma.
On January 29, 2009, the ALJ issued an unfavorable decision.
June
10,
decision.
2 00 9,
the Appeals
On
Council denied review of the ALJ' s
Claimant appealed the denial and obtained a reversal and
remand on appeal in this Court on August 24,
2010.
On March 9,
2011, a supplemental hearing was held before ALJ Osly F. Deramus in
Poteau,
Oklahoma.
unfavorable decision.
On
May
31,
2011,
the
ALJ
issued
The Appeals Council denied review.
another
As a
result, the decision of the ALJ represents the Commissioner's final
decision for purposes of further appeal.
20 C.F.R.
§§ 404.981,
416.1481.
Decision of the Administrative Law Judge
The ALJ made her decision at
4
step five
of the
sequential
evaluation.
He determined that while Claimant suffered from severe
impairments, she did not meet a listing and retained the residual
functional capacity (''RFC")
to perform a full range of sedentary
work with limitations.
Errors Alleged for Review
Claimant asserts the ALJ committed error in
(1)
improperly
discounting Claimant's treating physician's Attending Physician's
Statement; and (2} failing to reach a proper RFC.
Evaluation of the Treating Physician's Opinion
Claimant first contends the ALJ failed to properly consider
the opinion of her treating physician, Dr. Christina Jefferson.
Dr. Jefferson completed multiple Attending Physician's Statements.
In the first undated Statement which this Court discussed in its
prior decision, Dr. Jefferson writes on the statement that Claimant
would need to take unscheduled breaks in an 8 hour workday; would
experience "good days" and "bad days"; would be absent from work
more than four days per month; is not capable of working 8 hours
per
day
and
a
40
hour
work week;
is
not
expected
to make
a
fundamental or marked change for the better in the future; cannot
use her feed for repetitive movements such as for foot controls;
cannot
use
her
hands
for
repetitive
actions,
pushing and pulling, and fine manipulation.
5
simple
grasping,
She added a comment
"dropping things."
In
a
second
(Tr. 361).
Statement
completed
September
16,
2008,
Dr.
Jefferson found Claimant suffered from various conditions then
estimated the effect these conditions would have upon Claimant's
ability
to
work.
She
stated
Claimant
would
need
to
take
unscheduled breaks in an 8 hour workday, have "good days" and "bad
days", likely to be absent from work as a result of the impairments
or treatment more than 4 days per month, is not capable of working
8
hours
per
day
and
40
hours
per
week,
is
not
expected
to
experience a change of the better in the future, could not use her
feet for repetitive foot movements, and could not use her hands for
simple grasping, pushing and pulling, and fine manipulation.
the
"comments"
section of
"dropping things."
the
Statement,
Dr.
Jefferson
Under
stated
(Tr. 361).
Dr. Jefferson completed an identical Statement dated September
16,
2008.
(Tr.
275).
On
September
9,
2010,
Dr.
Jefferson
completed another such Statement with the only difference being the
omission of the "dropping things" comment.
The ALJ concluded that Dr.
{Tr. 755).
Jefferson's statements are not
supported by the medical evidence.
He concluded
With due deference to the "treating physician rule", the
undersigned is unable to give much weight to Dr.
Jefferson's disability statements because they are not
supported by appropriate clinical/diagnostic findings
6
that appear of record (including those of other reporting
medical providers), because they are inconsistent with
the preponderance of the credible evidence of record, and
because of all of the other factors discussed supra.
(Tr. 375).
The ALJ evaluated Dr. Jefferson's opinions under the factors
found in the regulations and in the case of Watkins v. Barnhart,
350 F.3d 1297,
extensive.
1300
(lOth Cir.
2003).
The ALJ's analysis was
He essentially rejected Dr. Jefferson's opinions stated
in the multiple Attending Physician's Statements because (1) while
Dr.
Jefferson
had
a
"bona
fide
treatment
relationship"
with
Claimant, the actual medical findings in her progress notes do not
support
her
opinion
on
Statements;
( 2)
opinion
is
deficient
medical
documentation;
disability
reflected
in
the
Attending
the Attending Statements' "check-off" disability
because
( 3)
it
does
no medical
not
have
evidence
any
supporting
from any other
physician supports the degree of functional limitation set forth by
Dr. Jefferson; and {4) Dr. Jefferson's disability opinion invades
the province of Defendant and the vocational expert witness.
This Court has reviewed Dr. Jefferson's treatment records.
Dr. Jefferson treated Claimant for a painful right breast from a
boil on September 23, 2008 (Tr. 278-79), cancelled appointment on
May 28, 2008
(Tr. 280-81), swollen right side of Claimant's face
and sinusitis on March 25,
2008
7
(Tr.
284-85),
and right upper
quadrant pain on February 28, 2008 which resulted in an impression
of a "normal radionuclide hepatobiliary scan."
review
of
Jefferson's
these
records,
subsequent
this
Court
conclusions
must
of
(Tr. 293).
conclude
extensive
From a
that
Dr.
disability
reflected on the Attending Physician's Statements are not supported
by her treatment
records
which provides support
for
the ALJ' s
ultimate conclusion on this point.
The Court next looks to whether support exists in the medical
record from other sources.
As this Court discussed in its prior
findings, on June 5, 2000, Claimant was evaluated by Dr. J. Michael
Stadefer.
He
diagnosed
her
with
L1-2
disc
protrusion
with
attendant focal canal stenosis, facet arthropathy, and clear-cut
foraminal stenosis on the left side.
(Tr. 350).
Claimant had a
longstanding history of back problems stemming back to her early
20's when she fell off of a cotton picker and fractured her back.
(Tr. 323).
On December 22, 2000, Claimant underwent surgery with
a fusion from T-11 through L-3.
In September of 2005,
Csaba Kiss.
(Tr. 324).
Claimant came under the care of Dr.
Dr. Kiss diagnosed Claimant with diabetes mellitus,
type II, chest pain syndrome, hypertension, hyperlipidemia, GERD,
and chronic sinusitis.
(Tr. 194).
In November of 2005, Claimant
was diagnosed by Dr. Kiss with carpal tunnel syndrome, depression,
fluid retention, and asthma attacks.
8
(Tr. 192).
In September of
2006, Dr. Kiss diagnosed Claimant with diabetes mellitus, type II,
hypertension,
asthma,
degenerative
joint
chronic
and
disc
dyslipidemia, and depression.
On December 19,
Ronald Schatzman.
low
2006,
back
disease
(Tr.
pain,
and
secondary
spinal
to
stenosis,
190).
Claimant was
also evaluated by Dr.
He diagnosed Claimant with diabetes mellitus,
low back pain status post surgery with hardware placed still with
pain and limited movements, ponderous and careful gait such that
she would benefit from a walking aid,
no sensation in stocking
distribution up to her knees, arrhythmia by history, and obesity.
(Tr.
210).
On May 21, 2008, Claimant was evaluated by Dr. Arthur Johnson
complaining of upper and lower back pain.
Dr. Johnson diagnosed
Claimant with lumbago, radiculopathy, degenerative disease of the
lumbar spine,
and post surgical changes.
X-rays revealed good
alignment of vertebral bodies with hardware spanning T-11 through
L3 levels.
In the lumbar spine, there was good preservation of
vertebral body height as well as good preservation of disc space
height with
some
disc
space narrowing
at
the
L-1/L-2
level.
Evidence of significant degenerative changes at the facet joints
were
noted
at
L-4/L-5.
He
medication for her condition.
On
January
3,
2007,
prescribed
(Tr.
therapy
and
324).
Claimant
9
physical
underwent
a
consultative
examination by Dr. Carmen Bird.
occasionally
Dr. Bird restricted Claimant to
lifting/carrying
lifting/carrying less than 10 pounds;
hours
in an
workday;
and
8 hour workday;
pounds;
10
frequently
standing and/or walking 2
sitting for
6 hours
unlimited pushing/pulling.
(Tr.
in an 8 hour
216).
Dr.
Bird
placed no other restriction upon Claimant.
A Psychiatric Review Technique form was completed on Claimant
by Dr. Laura Lochner on April 13, 2007.
Dr. Lochner found Claimant
suffered from the non-severe conditions of Affective Disorders and
Anxiety-Related
Disorders.
(Tr.
She
223).
determined
that
Claimant had mild limitations on her activities of daily living;
maintaining
social
functioning;
persistence, or pace.
and
maintaining
concentration,
(Tr. 233).
Dr. Lochner found Claimant's depression and anxiety did not
impair her ability to function.
at 90 or higher.
Her I.Q. was estimated as average
(Tr. 235).
As noted by the ALJ, the functional limitations found by these
physicians
are
sedentary work.
supports
Jefferson.
the
accommodated by and consistent with his
Certainly,
extent
In
sum,
of
nothing in these clinical findings
debilitating
this
RFC of
Court
limitations
finds
no
error
found
in
the
by
Dr.
ALJ' s
consideration, weighing, and assessment of Dr. Jefferson's opinions
represented in the Attending Physician's Statements.
10
RFC Determination
In his decision,
the ALJ found Claimant suffered from the
severe impairments of status post remote low back surgery, carpal
tunnel syndrome, and diabetes with diabetic neuropathy.
(Tr. 367) .
He concluded Claimant could perform a full range of sedentary work
except that she could stoop,
crouch,
crawl,
kneel,
balance,
and
climb stairs only occasionally, she was unable to climb ladders,
and she was unable to engage in activities requiring constant use
of the hands for repetitive tasks such as keyboarding.
(Tr. 371}.
Based upon the testimony of the vocational expert testifying at the
administrative hearing, the ALJ found Claimant could perform such
jobs as document preparer (referred to by the ALJ in his decision
as a
~document
disorder") .
(Tr. 382) .
Claimant first contends the ALJ failed to consider her hand
limitations.
The
ALJ
adequately
accommodated
Claimant's
hand
limitations in his RFC evaluation by limiting her in engaging in
the constant use of her hands.
Claimant next states the ALJ failed to consider her sitting
limitations.
Claimant is correct that sedentary work generally
requires a person to sit up to 6 hours in an 8 hour workday.
No
medical evidence has been identified in the record which would
limit Claimant to less than this requirement.
11
Claimant also asserts the ALJ failed to consider the side
effects of her medication.
While Claimant did state that her
medication made it unsafe for her to drive and made her sleepy, the
medical record does not document these as limitations upon her
ability to
function
or work.
No error is
found
in the ALJ' s
failure to include this limitation in his RFC assessment.
Conclusion
The decision of the Commissioner is supported by substantial
evidence and the correct legal standards were applied.
this Court finds,
Therefore,
in accordance with the fourth sentence of 42
U.S.C. § 405(g), the ruling of the Commissioner of Social Security
Administration should be and is
IT IS SO ORDERED this
AFFIRMED.
~ay
of July, 2012.
···.·.··.·· ... £~
~r
12
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