Palmore v. Social Security Administration
Filing
20
OPINION AND ORDER by Magistrate Judge Kimberly E. West (sjw, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
VICKI ANN PALMORE,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security Administration,
Defendant.
Case No. CIV-13-244-KEW
OPINION AND ORDER
Plaintiff Vicki Ann Palmore (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 April 19, 1956 and was 56 years old at the
time of the ALJ’s decision.
education.
Claimant completed her high school
Claimant has worked in the past as an office assistant.
Claimant alleges an inability to work beginning March 1, 1999 due
to limitations resulting from back pain, anxiety, depression, and
neck and shoulder pain.
Procedural History
3
On October 8, 2009, 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 September 4, 2012, an administrative
hearing was held before Administrative Law Judge (“ALJ”) Doug
Gabbard, II in Paris, Texas.
By decision dated October 19, 2012,
the ALJ denied Claimant’s request for benefits.
The Appeals
Council denied review of the ALJ’s decision on March 28, 2013.
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 at all exertional levels with
some non-exertional limitations.
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) failing to
properly evaluate the opinion of Claimant’s treating physician; (2)
failing to perform a proper determination at steps four and five;
(3) performing an improper credibility analysis; and (4) failing to
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properly address Claimant’s obesity.
Consideration of the Treating Physician’s Opinion
In his decision, the ALJ found Claimant suffered from the
severe impairments of affective and anxiety disorders.
(Tr. 21).
The ALJ determined Claimant retained the RFC to perform at all
exertional levels but with the non-exertional limitations that she
be limited to unskilled work that needs little or no judgment to do
simple duties that can be learned on the job in a short period of
time where supervision is simple, direct, and concrete, where
interpersonal contact with supervisors and co-workers is incidental
to the work performed, such as assembly work, and where contact with
the general public is not required.
(Tr. 24).
After consultation with a vocational expert, the ALJ found
Claimant could perform the representative jobs of hand packer and
janitor, which the vocational expert testified existed in sufficient
numbers nationally and regionally.
(Tr. 36).
concluded Claimant was not disabled.
The ALJ, therefore,
Id.
Claimant contends the ALJ failed to properly evaluate the
opinions of her treating psychiatrist, Dr. Ronald Gleason.
Gleason treated Claimant since 1998.
(Tr. 372).
Dr.
On November 4,
2010, Dr. Gleason completed a Medical Assessment of Ability to Do
Work Related Activities (Mental) statement on Claimant.
5
He noted
Claimant had a “substantial loss of ability to perform . . . in
regular, competitive employment and, at best could do so only n a
sheltered work setting where special considerations and attentions
are provided” with regard to the activities of (1) the ability to
apply commonsense understanding to carry out detailed by uninvolved
written or oral instructions; (2) ability to demonstrate reliability
by
maintaining
regular
attendance
and
being
punctual
within
customary tolerances; (3) maintaining concentration for an extended
period (2 hours); (4) maintaining attention/stay on task for an
extended
period
(2
hours);
(5)
the
ability
to
perform
at
a
consistent pace without an unreasonable number and length of rest
periods/breaks; (6) the ability to accept instructions and respond
appropriately to criticism from supervisors; (7) the ability to get
along with co-workers or peers without unduly distracting them or
exhibiting behavioral extremes; (8) behaving in an emotionally
stable manner; (9) the ability to respond appropriately to changes
in a routine work setting; (10) the ability to cope with normal work
stresses without exacerbating pathologically based symptoms; and
(11) the ability to finish a normal work week without interruption
from psychologically based symptoms.
Dr.
Gleason
estimated
(Tr. 729).
Claimant’s
GAF
at
40.
Claimant’s
symptoms leading to the cited restrictions included crying spells,
anhedonia, appetite disturbance, sleep disturbance, low energy,
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chronic disturbances of mood, psychomotor retardation, difficulty
thinking/confusion,
chronic
hallucinations/delusions.
depression,
Id.
Dr.
suicidal
Gleason
thoughts,
would
and
anticipate
Claimant to be absent from work more than four days per month. (Tr.
730).
Dr. Gleason states that Claimant has been limited to
approximately the same extent since she began treatment with him.
(Tr. 729).
In addressing Dr. Gleason’s opinions, the ALJ initially states
that he considered giving it controlling weight but declined to do
so because “it is not well supported by medically acceptable
clinical and diagnostic techniques and because it is inconsistent
with other medical evidence of record.”
(Tr. 26).
The ALJ
dismisses Dr. Gleason’s report because it was offered almost eight
years after Claimant’s insured status lapsed.
Id.
The ALJ then
thoroughly discusses the deficiencies in Dr. Gleason’s testing and
submissions which warrants reduced weight and consideration.
The
noted deficiencies in the medically determinable findings track with
the requirements of the regulations on mental disorders.
Pt. 404, Subpt. P, App. 1, 12.00.
the
findings
related
to
20 C.F.R.
The ALJ painstakingly documents
treatment
before
the
expiration
of
Claimant’s insured status and finds that Dr. Gleason did not
document any disabling mental condition.
(Tr. 28-30).
In deciding how much weight to give the opinion of a treating
7
physician, an ALJ must first determine whether the opinion is
entitled to “controlling weight.”
1297, 1300 (10th Cir. 2003).
Watkins v. Barnhart, 350 F.3d
An ALJ is required to give the
opinion of a treating physician controlling weight if it is both:
(1) “well-supported by medically acceptable clinical and laboratory
diagnostic techniques”; and (2) “consistent with other substantial
evidence in the record.”
Id. (quotation omitted).
“[I]f the
opinion is deficient in either of these respects, then it is not
entitled to controlling weight.”
Id.
Even if a treating physician's opinion is not entitled to
controlling weight, “[t]reating source medical opinions are still
entitled to deference and must be weighed using all of the factors
provided in 20 C.F.R. § 404.1527.”
Id. (quotation omitted).
factors reference in that section are:
The
(1) the length of the
treatment relationship and the frequency of examination; (2) the
nature and extent of the treatment relationship, including the
treatment
provided
and
the
kind
of
examination
or
testing
performed; (3) the degree to which the physician's opinion is
supported by relevant evidence; (4) consistency between the opinion
and the record as a whole; (5) whether or not the physician is a
specialist in the area upon which an opinion is rendered; and (6)
other factors brought to the ALJ's attention which tend to support
8
or contradict the opinion.
Id. at 1300-01 (quotation omitted).
After considering these factors, the ALJ must “give good reasons”
for the weight he ultimately assigns the opinion.
20 C.F.R. §
404.1527(d)(2); Robinson v. Barnhart, 366 F.3d 1078, 1082 (10th
Cir.
2004)(citations
omitted).
Any
such
findings
must
be
“sufficiently specific to make clear to any subsequent reviewers
the weight the adjudicator gave to the treating source’s medical
opinions and the reason for that weight.”
Id.
“Finally, if the
ALJ rejects the opinion completely, he must then give specific,
legitimate reasons for doing so.”
Watkins, 350 F.3d at 1301
(quotations omitted).
The ALJ methodically proceeded through the Watkins factors in
assessing the weight which should be afforded Dr. Gleason’s opinion.
The ALJ’s assessment that the opinion is entitled to “little weight”
is supported by the ALJ’s analysis and the medical record as a
whole.
(Tr. 32).
Steps Four and Five Analysis
In
his
decision,
the
ALJ
found
Claimant
had
“moderate
restriction” in her activities of daily living, noting she was able
to drive and perform household chores and occasionally dined out
with her husband.
He also found Claimant was moderately restricted
in concentration, persistence, or pace.
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(Tr. 24).
Claimant
contends the ALJ failed to include these restrictions in either his
RFC or hypothetical questioning of the vocational expert.
While
the
ALJ
must
consider
both
severe
and
non-severe
limitations in reaching his RFC determination, the fact he found
limitations in the B criteria “does not necessarily translate to a
work-related functional limitation for the purposes of the RFC
assessment.”
Beasley v. Colvin, 2013 WL 1443761, 5 (10th Cir.).
Since the hypothetical questioning of the vocational expert must
mirror the ALJ’s RFC and the ALJ did not find the these limitations
as functional limitations and include them in his RFC, this Court
cannot find that the hypothetical questioning was erroneous with
regard to the paragraph “B” criteria.
legal limitation in his decision.
The ALJ acknowledges this
(Tr. 24).
Credibility Determination
The ALJ concluded that Claimant received little in the way of
actual medical treatment for her physical maladies during the
relevant time period.
(Tr. 33).
He found Claimant’s statements
were not supported by the medical record.
Id.
Again, the ALJ
engaged in an extensive recitation of the medical record and the
conflicts with Claimant’s testimony.
(Tr. 33-35).
It is well-established that “findings as to credibility should
be closely and affirmatively linked to substantial evidence and not
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just a conclusion in the guise of findings.”
F.3d 387, 391 (10th Cir. 1995).
Kepler v. Chater, 68
“Credibility determinations are
peculiarly in the province of the finder of fact” and, as such,
will not be disturbed when supported by substantial evidence.
Id.
Factors to be considered in assessing a claimant’s credibility
include (1) the individual’s daily activities; (2) the location,
duration, frequency, and intensity of the individual’s pain 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.
An ALJ cannot satisfy his obligation to gauge a claimant’s
credibility by merely making conclusory findings and must give
reasons
for
the
determination
Kepler, 68 F.3d at 391.
based
upon
specific
evidence.
However, it must also be noted that the
11
ALJ is not required to engage in a “formalistic factor-by-factor
recitation of the evidence.”
Qualls v. Apfel, 206 F.3d 1368, 1372
(10th Cir. 2000).
The ALJ’s analysis of Claimant’s testimony and the lack of
support for the level of limitation to which she testified in the
record
is
supported
by
substantial
evidence.
No
error
is
attributed to this analysis.
Consideration of Claimant’s Obesity
Claimant speculates that “Claimant’s obesity would surely
compound the pain from her back necessitating proper consideration
of obesity at steps 4 and 5.”
An ALJ is required to consider “any
additional and cumulative effects” obesity may have upon other
conditions from which a claimant suffers, recognizing that obesity
combined with other impairments may increase the severity of the
condition.
Soc. Sec. R. 02-1p; 20 C.F.R. Pt. 405, Subpt. P, App.
1 § 1.00(Q)(combined effect with musculoskeletal impairments).
At step three, “a listing is met if there is an impairment
that, in combination with obesity, meets the requirements of a
listing.”
Soc. Sec. R. 02-1p.
“[O]besity may increase the
severity of coexisting or related impairments to the extent that
the combination of impairments meets the requirements of a listing.
This
is
especially
true
of
musculoskeletal,
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respiratory,
and
cardiovascular impairments.”
another
impairment
may
or
Id. “Obesity in combination with
may
not
increase
the
functional limitations of the other impairment.”
evaluated on information in the case record.
severity
or
Each case is
Id.
However,
speculation upon the effect of obesity is discouraged.2
See, Fagan
v. Astrue, 2007 WL 1895596, 2 (10th Cir.).
The ALJ stated in his decision that he considered the combined
effects of obesity upon other impairments under the requirements of
Soc. Sec. R. 02-1p.
The ALJ expressly stated that the condition
existed for many years and likely was a progenitor of her high
blood pressure.
(Tr. 34).
This Court is required to take the ALJ
at his word that he considered the condition without speculating as
to its effects.
Indeed, the medical record does not indicate and
Claimant has not directed this Court to the presence of any
functional limitations which would stem from Claimant’s obesity.
Again, the diagnosis of the condition does not automatically
translate into functional limitations.
The ALJ did not err in his
consideration of Claimant’s obesity.
Conclusion
The decision of the Commissioner is supported by substantial
2
2 “[W]e will not make assumptions about the severity or functional
effects of obesity combined with other impairments.” Soc. Sec. R. 0201p.
13
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 30th day of September, 2014.
______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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