Semore v. Social Security Administration
Filing
23
OPINION AND ORDER by Magistrate Judge Kimberly E. West (sjw, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
MARTHA M. SEMORE,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security Administration,
Defendant.
Case No. CIV-12-246-KEW
OPINION AND ORDER
Plaintiff Martha M. Semore (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.
Claimant
appeals the decision of the Administrative Law Judge (“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. § 405(g).
two inquiries:
substantial
This Court’s review is limited to
first, whether the decision was supported by
evidence;
and,
second,
1
whether
the
correct
legal
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 (10th Cir. 1988).
2
standards were applied.
Hawkins v. Chater, 113 F.3d 1162, 1164
(10th Cir. 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.
Perales,
402
U.S.
389,
401
(1971)
(quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
The
court may not re-weigh the evidence nor substitute its discretion
for that of the agency.
Casias v. Secretary of Health & Human
Servs., 933 F.2d 799, 800 (10th 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 February 22, 1963 and was 47 years old at
the time of the ALJ’s decision.
through the seventh grade.
Claimant completed her education
Claimant has no past relevant work.
Claimant alleges an inability to work beginning September 11, 2001
due to limitations resulting from neck pain, shoulder pain, low back
pain, hip pain, leg pain and numbness, and hepatitis C.
Procedural History
3
On
July
14,
2009,
Claimant
protectively
filed
for
supplemental security income pursuant to Title XVI (42 U.S.C. §
1381, et seq.) of the Social Security Act.
Claimant’s application
was denied initially and upon reconsideration. On November 5, 2010,
an administrative hearing was held before ALJ Lantz McClain in
Tulsa, Oklahoma. On January 27, 2011, the ALJ issued an unfavorable
decision.
On April 17, 2012, the Appeals Council denied review of
the ALJ’s decision. 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 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
sedentary
work
with
limitations.
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) failing to
properly consider all of the medical evidence; (2) failing to
include
and
consider
all
of
Claimant’s
impairments;
performing an improper credibility analysis.
Consideration of Other Medical Evidence
4
and
(3)
In his decision, the ALJ found Claimant suffered from the
severe impairments of degenerative disk disease of the spine, status
post two back surgeries; status post left arm surgery; depression;
and borderline intellectual functioning.
(Tr. 15).
The ALJ
determined Claimant retained the RFC to perform sedentary work
except that Claimant was limited to simple, repetitive tasks and to
have no more than incidental contact with the public.
(Tr. 17).
After consultation with a vocational expert, the ALJ found Claimant
could perform the representative jobs of a assembler, misc. labor,
and inspector/checker, which he found existed in sufficient number
nationally and regionally.
Claimant was not disabled.
(Tr. 22).
He, therefore, concluded
(Tr. 23).
Claimant first contends the ALJ failed to properly evaluate all
of the medical evidence contained in the record.
this point in error in an odd fashion.
Claimant raises
He enumerates several
exhibits and states the ALJ failed to reference them in the opinion
without specifically stating how these exhibits would have changed
the ALJ’s decision or support a finding of disability other than to
state that provide a “longitudinal picture of her complaints,
diagnoses, and history.” Additionally, Claimant generically refers
to the number of pages which she alleges the ALJ failed to consider,
again, without reference to the relevancy of these records to either
the issues of disability or functional limitation.
5
Certainly, it
is well-recognized in this Circuit that an ALJ is not required to
discuss every piece of evidence.
1009-10 (10th Cir. 1996).
Clifton v. Chater, 79 F.3d 1007,
To the extent the allegedly omitted
records can be identified, this Court will address each.
Exhibit 1F is a consultative examination by Dr. Ravinder
Kurella.
He found Claimant has full range of motion of her back
bilateral hip and knee joints, shoulder, elbow, and wrist joints,
negative straight leg raising tests, dorsi-flexion of the great toe
and dorsi-inversion of the foot were normal on both sides, and deep
tendon reflexes were normal on both sides.
(Tr. 181).
Dr. Kurella
found Claimant’s gait was normal. Both heel walking and toe walking
were also normal.
(Tr. 182).
finding of disability.
This report in no way supports a
Claimant’s counsel is forewarned that this
wholesale referencing of exhibits in the record which bear no
relevancy to or support for disability does not assist the Court in
its review and should be avoided in future filings.
Exhibit 5F is a treatment record by Dr. Humayun Tufail.
The
record shows Claimant complained of back pain. (Tr. 238). Claimant
was given medication.
(Tr. 242).
Nothing remaining in this record
supports Claimant’s position.
Exhibit 6F is a consultative examination report of Dr. Ron
Smallwood.
(Tr.
262-65).
Dr.
6
Smallwood
found
Claimant
was
moderately limited in the areas of the ability to understand and
remember detailed instructions and the ability to carry out detailed
instructions.
(Tr. 262).
The ALJ evaluated this Report and gave
it “great weight.” (Tr. 21). He also included a restriction in his
RFC
evaluation
Smallwood.
to
accommodate
the
limitations
found
by
Dr.
Again, Claimant’s reference to this report as being
omitted by the ALJ from his consideration is simply wrong.
Exhibit 7F is Dr. Smallwood’s Psychiatric Review Technique from
November of 2009.
He determined Claimant was moderately limited in
his difficulties in maintaining, concentration, persistence, or
pace.
(Tr. 276).
He noted Claimant had never sought mental health
treatment and never taken medication for the condition.
(Tr. 278).
Claimant’s argument to the contrary notwithstanding, this record was
expressly considered by the ALJ and given “great weight” and was
accommodated in the RFC.
(Tr. 21).
Exhibit 10F is a medical record from February of 2010 where
Claimant
sought
abdominal mass.
or GI symptoms.”
outpatient
treatment
for
the
excision
of
an
The mass had “no associated symptoms, weight loss
(Tr. 290).
This condition has not been alleged
as a severe impairment or a condition causing functional limitations
by Claimant.
Exhibit 11F is a consultative report from Dr. Suzanne Roberts.
It is entirely unremarkable in its findings and does not support a
7
finding of disability.
(Tr. 294).
Claimant references a report in which she states “[m]edical
evidence supporting Claimant’s neck and arm issues are reflected in
the notes by Claimant’s physical therapist at Exhibit 12F, which the
ALJ ignored.” Notes from the rehabilitation center used by Claimant
showed she was diagnosed with left arm pain and numbness with
decreased range of motion in the cervical spine.
She experienced
moderate difficulty preparing meals and walking up and down stairs
while she could not drive a car, lift objects overhead, donning
shoes and socks, and has difficulty getting in and out of the car.
(Tr.
295).
consistent
The
with
rehab
center
possible
found
cervical
Claimant’s
symptoms
radiculopathy.
strength was within normal limits - “5/5 throughout.”
motion was found to be within normal limits.
gait was found.
(Tr. 296).
were
Claimant’s
Range of
No deviations in her
Her potential for rehab was found to be “good.”
Nothing in these treatment and rehabilitation records
would support a finding of functional limitations precluding the
requirements of sedentary work.
Exhibit 13F are the treatment records of Dr. Brent Barnes for
one week in September of 2010.
treatment for hepatitis C.
The records concern Claimant’s
Claimant has not alleged any functional
limitations as a result of this condition.
Claimant next references the consultative examination by Dr.
8
William Cooper from September 17, 2009.
In the specific record
mentioned by Claimant in her brief, Dr. Cooper noted a difference
in leg length and circumference of Claimant’s arm.
(Tr. 227).
Claimant self-diagnoses the condition as atrophy.
No physician has
made
limitation
this
diagnosis
nor
has
any
functional
been
attributed to the relatively small differences in size Claimant has
noted.
Claimant also argues the ALJ failed to consider portions of the
mental consultative report of Dr. Beth Jeffries dated September 19,
2009.
Dr. Jeffries diagnosed Claimant with major depression,
recurrent,
hepatitis C.
severe;
borderline
(Tr. 235).
severe at that time.
intellectual
functioning;
and
She concluded her symptoms were fairly
She was having sleep disturbance and very
intense nightmares which were related to her depression.
recurrent thoughts of death.
She had
Dr. Jeffries believed Claimant had
a lower average to borderline intelligence, although she did not
formally test Claimant.
Claimant seemed to be isolating and
withdrawing herself even from people with whom she was comfortable.
Dr. Jeffries found Claimant’s depression was “impacting her ability
to perform occupationally and in social settings.”
(Tr. 235-36).
In evaluating Claimant’s social functioning, Dr. Smallwood
considered Dr. Jeffries’ report and translated the examination
findings into functional limitations in the PRT.
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(Tr. 278).
Dr.
Smallwood took Claimant’s depression and limitations in social
functioning into consideration in reaching his findings.
278).
(Tr. 276,
He noted Claimant had never sought mental health treatment
nor received medication for the condition. (Tr. 278). She reported
no problems with her daily functioning and her thought processes
were noted to be logical and goal directed.
insight were intact.
Id.
Her judgment and
This Court finds the ALJ took these
reports into consideration and accommodated Claimant’s restrictions
in his RFC determination of sedentary work while limiting her to
simple, repetitive tasks and no more than incidental contact with
the public.
(Tr. 17).
Consideration of All Impairments
Claimant contends the ALJ should have considered the effects
of the non-severe conditions of her neck impairment, shoulder pain,
neuropathy, radicular pain and numbness, hepatitis C, and fatigue.
The focus of a disability determination is on the functional
consequences of a condition, not the mere diagnosis. See e.g.
Coleman v. Chater, 58 F.3d 577, 579 (10th Cir. 1995)(the mere
presence of alcoholism is not necessarily disabling, the impairment
must render the claimant unable to engage in any substantial gainful
employment.); Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988)(the
mere diagnosis of arthritis says nothing about the severity of the
10
condition), Madrid v. Astrue, 243 Fed.Appx. 387, 392 (10th Cir.
2007)(the diagnosis of a condition does not establish disability,
the question is whether an impairment significantly limits the
ability
to
work);
Scull
v.
Apfel,
221
F.3d
1352
(10th
Cir.
2000)(unpublished), 2000 WL 1028250, 1 (disability determinations
turn on the functional consequences, not the causes of a claimant's
condition).
Claimant has failed to meet her burden of establishing
that these conditions limit her ability to engage in basic work
activities.
With regard to the mental limitations and conditions with which
Claimant
was
diagnosed,
the
ALJ
adequately
addressed
accommodated those condition in his RFC determination.
and
This Court
attributes no error to the ALJ’s analysis of Claimant’s conditions
and impairments.
Credibility Determination
Claimant
evaluation
of
contends
her
the
ALJ
credibility.
failed
It
to
is
perform
an
adequate
well-established
that
“findings as to credibility should be closely and affirmatively
linked to substantial evidence and not just a conclusion in the
guise of findings.”
1995).
Kepler v. Chater, 68 F.3d 387, 391 (10th Cir.
“Credibility determinations are peculiarly in the province
of the finder of fact” and, as such, will not be disturbed when
11
supported by substantial evidence.
Id.
Factors
to
be
considered in assessing a claimant’s credibility include (1) the
individual’s
frequency,
daily
and
activities;
intensity
of
(2)
the
the
location,
individual’s
pain
duration,
or
other
symptoms; (3) factors that precipitate and aggravate the symptoms;
(4) the type, dosage, effectiveness, and side effects of any
medication the individual takes or has taken to alleviate pain or
other
symptoms;
(5)
treatment,
other
than
medication,
the
individual receives or has received for relief of pain or other
symptoms; (6) any measures other than treatment the individual uses
or has used to relieve pain or other symptoms (e.g., lying flat on
his or her back, standing for 15 to 20 minutes every hour, or
sleeping on a board); and (7) any other factors concerning the
individual's functional limitations and restrictions due to pain or
other symptoms.
Soc. Sec. R. 96-7p; 1996 WL 374186, 3.
The ALJ makes the typical boilerplate finding which states
“claimant’s statements concerning the intensity, persistence and
limiting effects of these alleged symptoms are not credible to the
extent they are inconsistent with the above residual functional
capacity assessment.”
As this Court has stated on numerous
occasions, this rote statement reverses the appropriate analysis the ALJ should be evaluating Claimant’s testimony as evidence in
12
the case before reaching his RFC determination.
In reviewing the
ALJ’s credibility findings, however, he did not stop with this
improper
statement
but
then
proceeded
to
make
the
required
affirmative link between the objective medical record and his
conclusions on Claimant’s credibility.
(Tr. 18-21).
This Court
finds the ALJ’s credibility findings are supported by substantial
evidence in the record.
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.
IT IS SO ORDERED this 23rd day of September, 2013.
______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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