Varnell v. Social Security Administration
Filing
22
OPINION AND ORDER by Magistrate Judge Kimberly E. West (sjw, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
EARL W. VARNELL,
)
)
Plaintiff,
)
)
)
)
)
v.
MICHAEL J. ASTRUE,
Commissioner of Social
Security Administration,
Case No. CIV-11-276-KEW
)
)
}
)
Defendant.
OPINION AND ORDER
Plaintiff Earl W. Varnell (the "Claimant") 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,
standards were applied.
(lOth
Cir.
second,
whether
the
correct
legal
Hawkins v. Chater, 113 F.3d 1162, 1164
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 April 6, 1967 and was 43 years old at the
time of the ALJ' s
decision.
through the tenth grade.
driver,
saw
inability to
operator,
Claimant completed his education
Claimant worked in the past as a truck
and delivery man.
work beginning April
3
4,
2009
Claimant
due
to
alleges
an
limitations
resulting from back pain and leg numbness.
Procedural History
On April 6, 2009, Claimant protectively filed for disability
insurance benefits under Title II {42 U.S.C.
§
401, et seq.) and
supplemental security income pursuant to Title XVI
1381, et seq.} of the Social Security Act.
{42 U.S.C.
§
Claimant's applications
were denied initially and upon reconsideration.
On April 4, 2009,
an
ALJ
administrative
hearing
Kirkpatrick in Poteau,
was
Oklahoma.
issued an unfavorable decision.
held
before
On December 6,
On July 1,
Council denied review of the ALJ's decision.
Michael
2010,
2011,
A.
the ALJ
the Appeals
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 his decision at step five
evaluation.
of the sequential
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 wide range of sedentary
work.
Errors Alleged for Review
Claimant asserts the ALJ committed error in
(1)
failing to
include all of Claimant's impairments in his RFC assessment;
4
(2}
reached
an
improper
RFC
determination;
and
( 3}
engaged
in
an
improper step five analysis.
Evaluation of Claimant's Impairments
Claimant first contends the ALJ failed to include a mental
impairment or Claimant's gastrointestinal ailments and intestinal
bleeding in his step two findings.
Claimant's original problems
arose from a stab wound in his back in February of 1999.
suffered
weakness
of
the
right
lower
sensation in the left lower extremity.
extremity
Claimant
and
decreased
Claimant underwent surgery
where it was revealed that he had a bone fragment from T12 and a
contusion to his spinal cord.
He experienced marked weakness on
the right and walked with assistance.
Claimant was diagnosed with
a cord contusion at T12 secondary to a penetrating wound.
(Tr.
178) .
On July 10, 2009, Dr. Jimmie W. Taylor provided a consultative
physical examination of Claimant.
He found Claimant had residual
weakness and neuropathy of the right leg secondary to previous
stabbing, hyperlipidemea, and a history of rectal bleeding.
196) .
Claimant had good range of motion in his back.
his right leg but had a safe gait.
27,
2009,
He favored
Heel, toe, and tandem walk was
4/5, 4/5, and 3/5 with weakness in the right leg.
On April
(Tr. 195).
Claimant was attended by Dr.
5
(Tr.
Jennifer
Scoufus, complaining of a cough and bright red rectal bleeding.
(Tr. 214).
Dr. Scoufus ordered a colonoscopy which showed small
external hemorrhoids.
(Tr.
Claimant was later diagnosed
222) .
with chronic gastritis and received Prilosec for treatment.
(Tr.
221) .
On August
Source
10,
Statement
(Physical)
2009,
of
Dr.
Scoufus
Ability
on Claimant.
to
also completed a
Do
Work-Related
Medical
Activities
She found Claimant could occasionally
lift/carry less than 10 pounds, no weight frequently, stand and/or
walk less than 2 hours in an 8 hour workday, sit for less than 6
hours in an 8 hour workday, limited in his ability to push or pull
in his lower extremities.
(Tr. 218).
She estimated Claimant could
occasionally climb and kneel but never balance, crouch, or crawl.
She
stated that
climbing was
cannot
to
unsafe,
{Tr. 219).
were
nerve
damage
his balance was
kneel on his
painful.
feeling
due
right
leg,
to Claimant's
not good,
right
he falls
leg,
over,
and crouching and crawling was
Claimant's reaching, handling, fingering, and
unlimited.
vibration and hazards.
He
was
limited
in
his
exposure
to
(Tr. 220).
On December 1, 2009, Dr. Diane Brandmiller conducted a mental
status
examination
on
Claimant.
Claimant
experiencing flashbacks from the stabbing.
treatment but was nervous and left.
6
reported
he
was
He attempted to seek
Claimant's ex-wife tells him
that when the person who stabbed him gets out he will finish him
off.
Claimant's recent mood was "in the dumps" and had felt that
way for the past five to seven years.
night and sometimes has nightmares.
his concentration was "OK."
He sleeps two hours per
His energy level was low and
Dr. Brandmiller diagnosed Claimant
with mood disorder, NOS with a GAF of 61-70.
She found Claimant's
long
short
term
memory
was
intact
but
his
term
memory,
concentration, and abstract thinking were mildly impaired.
expressive and receptive language skills were intact.
He appeared
able to understand and carry out simple instructions.
need
assistance
in managing
funds
due
to
subtraction and inability to write checks.
On
January
14,
2010,
Dr.
Sally
his
suffered
depressive
from
syndrome
an
affective
He would
limitations
Varghese
disorder;
completed
specifically,
characterized by appetite disturbance with
(Tr.
She found Claimant had mild limitations in restriction on
activities of daily living,
functioning,
and
his
difficulties in maintaining social
difficulties
persistence, or pace.
In
a
She determined
change in weight, sleep disturbance, and decreased energy.
231-34).
in
(Tr. 226-30).
Psychiatric Review Technique form on Claimant.
Claimant
His
decision,
in
maintaining
concentration,
(Tr. 241).
the
ALJ
concluded
Claimant's
mental
impairment was not severe based upon the findings of Dr. Varghese
7
and considering the evaluation by Dr. Brandmiller.
(Tr. 20-21).
The burden of proof at step two is on the plaintiff. See Nielson v.
Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993} (the claimant bears
the
burden
claimant's
of
proof
showing
at
through
step
step
two
four
that
he
of
or
impairment has been described as ''de minimis."
113 F.3d 1162, 1169
F.2d 748,
severity") .
751
the
she
analysis) .
has
a
A
severe
Hawkins v. Chater,
(10th Cir. 1997); see Williams v. Bowen, 844
(10th Cir.
1988) ("de minimis
showing of medical
A claimant need only be able to show at this level
that the impairment would have more than a minimal effect on his or
her ability to do basic work activities.
751.
Williams,
844 F.2d at
However, the claimant must show more than the mere presence
of a condition or ailment.
If the medical severity of a claimant's
impairments is so slight that the impairments could not interfere
with or have a serious impact on the claimant's ability to do basic
work activities, the impairments do not prevent the claimant from
engaging in substantial work activity.
Thus, at step two, the ALJ
looks at the claimant's impairment or combination of impairments
only and determines the impact the impairment would have on his or
her ability to work.
Hinkle v. Apfel, 132 F.3d 1349, 1352
(10th
Cir. 1997).
No evidence in the record indicates that Claimant's affective
disorder, though diagnosed, affects his ability to engage in work
8
activity.
No medical professional has provided an opinion of
diminished mental capabilities caused by the disorder.
Claimant in
large measure simply seeks an award of benefits for the existence
of a medical condition which is without foundation.
Claimant
next
gastrointestinal
contends
ailments
impairments at step two.
the
and
ALJ
should
intestinal
have
bleeding
included
as
severe
The parties ·agree that three medical
records indicate some type of intestinal bleeding.
The first from
November 4, 2005 from the emergency room shows Claimant reported
bright red stools on three occasions with rectal discomfort.
159).
(Tr.
The second from March 28, 2001 indicates Claimant underwent
surgery for a radial hemorrhoidectomy.
{Tr. 175).
final record on this subject was from May 8,
complained
of
bloody
bowel
movements.
The third and
2009 when Claimant
Claimant
underwent
colonscopy but the bleeding was attributable to hemorrhoids.
a
(Tr.
222, 322-24).
Claimant speculates that this condition would "necessitate
greater-than-normal
breaks
to
use
the
restroom,
concentration due to the interference from his pain,
negative effects."
of severity.
years.
lack
of
and other
No medical professional has made such a finding
Indeed,
the time between treatments was several
Moreover, although Claimant characterizes the condition as
"intestinal
bleeding,"
in
fact,
9
the
diagnosis
was
external
hemorrhoids.
The ALJ did not err in failing
to include this
condition at step two as a severe impairment.
RFC Determination
Claimant also contends the ALJ reached an improper RFC by
failing to give the opinion of Dr. Scoufus controlling weight.
The
ALJ found Dr. Scoufus (1) was not a treating source whose opinion
was
entitled to
weight;
controlling weight
entitled to
substantial
(2) failed to identify any medical findings which support
a conclusion of disability;
Claimant
or
for
his
(3) did not provide pain medication to
condition;
and
(4)
rendered
a
opinion
not
supported by other evidence in the record.
This Court agrees with Defendant that the ALJ did not find Dr.
Scoufus
to
not
be
a
treating physician
as
Claimant
suggests.
Rather, the ALJ found her opinion was not entitled to controlling
weight because it was not supported.
repeatedly
found
Claimant's
Dr. Scoufus' treatment notes
abdomen,
extremities,
general appearance were within normal limits.
joints,
and
(Tr. 210-14).
The
ALJ examined Dr. Scoufus'
findings on physical limitations under
the Watkins v.
350
Barnhart,
F.3d 1297,
1300
{lOth Cir.
2003)
rubric and determined the opinions were not entitled to controlling
weight or any significant weight.
ALJ' s
assessment
This Court finds no error in the
of and reduction in weight
10
attributed to Dr.
Scoufus' opinion.
Claimant repeatedly states the ALJ had a duty to develop the
record in ordering additional consultative testing and evaluations
by Dr. Taylor and Dr. Brandmiller.
Generally, the burden to prove
disability in a social security case is on the claimant, and to
meet this burden,
the claimant must
furnish medical and other
evidence of the existence of the disability.
Branam v. Barnhart,
385 F.3d 1268, 1271 (lOth Cir. 2004) citing Bowen v. Yuckert, 482
u.s. 137, 146 (1987).
nonadversarial,
ensuring
that
A social security disability hearing is
however,
"an
and the ALJ bears
adequate
record
is
responsibility
developed
disability hearing consistent with the issues raised."
during
for
the
Id. quoting
Henrie v. United States Dep't of Health & Human Services, 13 F.3d
359, 360-61 (lOth Cir. 1993).
As a result, "[a]n ALJ has the duty
to develop the record by obtaining pertinent,
records
which come
hearing."
to his
available medical
attention during the
course of
the
Id. quoting Carter v. Chater, 73 F.3d 1019, 1022 (lOth
Cir. 1996).
This duty exists even when a claimant is represented
by counsel.
Baca v. Dept. of Health & Human Services, 5 F.3d 476,
480 (lOth Cir. 1993).
The court, however, is not required to act
as a claimant's advocate.
Henrie,
13 F.3d at 361.
The primary
consideration on review is whether the record was sufficiently
developed
to
reflect
( 1)
the
nature
11
of
a
claimant's
alleged
impairments; (2) the ongoing treatment and medication the claimant
is receiving; and
(3)
the impact of the alleged impairment on a
claimant's daily routine and activities.
F.2d 1371, 1375 (lOth Cir. 1992).
Musgrave v. Sullivan, 966
When a claimant is represented
by counsel at the administrative hearing, the ALJ should ordinarily
be
able
to
claimant's
rely
case
upon
in a
the
way
claimant's
such that
counsel
all
to
claims
present
are
the
adequately
explored without imposing an additional duty to develop the record
on the ALJ.
1997).
As
consultative
Hawkins v. Chater, 113 F.3d 1162, 1167-1168 (lOth Cir.
a
result,
examination
an
ALJ
unless
established in the record."
is
the
not
required
need
for
"to
one
order
is
a
clearly
Id. at 1168.
The evidence in the record did not give rise to a clear need
for a consultative examination to simply compare the reports of
different physicians "apples-to-apples" as Claimant urges.
this Court
finds
no error in the ALJ' s
failure
Thus,
to employ the
services of an additional consultative examiner.
Conclusion
The decision of the Commissioner is supported by substantial
evidence and the correct legal standards were applied.
Therefore,
this Court finds the ruling of the Commissioner of Social Security
Administration should be and is AFFIRMED.
12
IT IS SO ORDERED this
3D~y of July,
2012.
'
JUDGE
13
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