Bias 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
WENDY K. BIAS,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security Administration,
Defendant.

Case No. CIV-13-288-KEW

OPINION AND ORDER

Plaintiff Wendy K. Bias (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).

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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 July 4, 1967 and was 44 years old at the
time of the ALJ’s decision.
education.

Claimant completed her high school

Claimant has no past relevant work.

Claimant alleges

an inability to work beginning July 9, 2009 due to limitations
resulting from chronic obstructive pulmonary disease (“COPD”) and
degenerative disc disease.
Procedural History

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On

June

18,

2010,

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 February 15,

2012, an administrative hearing was held before Administrative Law
Judge (“ALJ”) Charles Headrick in Tulsa, Oklahoma.

By decision

dated March 21, 2012, the ALJ denied Claimant’s request for
benefits.

The Appeals Council denied review of the ALJ’s decision

on May 8, 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 a full range of light work.
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) failing to
perform a proper determination at steps 4 and 5; (2) failing to
properly evaluate the medical and non-medical source evidence; and
(3) failing to perform a proper credibility analysis.
Step Five Evaluation

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In his decision, the ALJ found Claimant suffered from the
severe impairments of degenerative disc disease and COPD. (Tr. 11).
The ALJ determined Claimant retained the RFC to perform a full range
of light work.

(Tr. 12).

After consultation with a vocational expert, the ALJ found
Claimant could perform the representative jobs of housekeeping
cleaner, self service store attendant, and cashier II, all of which
the vocational expert testified existed in sufficient numbers
nationally and regionally.

(Tr. 16-17).

concluded Claimant was not disabled.

The ALJ, therefore,

(Tr. 17).

Claimant contends the ALJ failed to consider her non-severe
mental impairments in his hypothetical questioning of the vocational
expert and in his RFC evaluation.

The ALJ concluded Claimant had

only a mild limitation in the “B” criteria category of
functioning.

social

The ALJ found the limitation to be non-severe.

(Tr.

12).
While

the

ALJ

must

consider

both

severe

and

non-severe

limitations in reaching his RFC determination, the fact he found
mild 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.).

The ALJ expressly stated that he considered the mild limitation in
social functioning in his RFC assessment but he did not find a

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functional limitation arising from it.

(Tr. 12).

He also assessed

the combined effect of Claimant’s mental limitations in determining
Claimant did not meet a listing.

(Tr. 12).

Contrary to Claimant’s

arguments, the ALJ did not ignore his finding of limitation.

As

such is the case, the ALJ did not err in failing to include the
limitation in the hypothetical questioning of the vocational expert
at step five.
Evaluation of Source Evidence
Claimant contends the ALJ failed to “apply the proper framework
to explain how he assessed the weight he gave” to the opinions of
the consultative examiners.

The ALJ referenced the consultative

examination by Dr. Traci Carney conducted September 4, 2010. In the
physical examination, Dr. Carney found Claimant did have some
decreased breath sounds with her chest symmetrical with equal
expansion bilaterally.

Lung fields were clear to auscultation with

no rales, rhonchi, or wheezes noted. Pain was elicited in all range
of motions of the lumbar spine with associated tenderness.

The

cervical spine was non-tender with full range of motion.

The

thoracic spine was non-tender with full range of motion. Claimant’s
gait was safe and stable with appropriate speed.

She did not

ambulate with the aid of assistive devices, had no identifiable
muscle atrophy, with normal heel/toe walking, and a tandem gait

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within normal limits.
Dr.

Carney

(Tr. 267-68).

assessed

Claimant

with

chest

pain,

probably

secondary to costochondritis vs. musculoskeletal; COPD, noting
Claimant has a 30 year pack history of tobacco abuse but also noting
Claimant reported the tobacco abuse had stopped; low back pain, with
a history of degenerative disc disease at L5-S1.

(Tr. 268).

Claimant was also evaluated for mental impairments by Dr.
Janice B. Smith on December 9, 2010 and Dr. Cynthia Kampschaefer who
reviewed Dr. Smith’s evaluation and the medical records on February
24, 2011.

(Tr. 281-93; 303).

any severe mental impairments.

Neither found Claimant suffered from
Id.

Claimant was evaluated for physical impairments by Dr. Penny
Aber on January 4, 2011 and Dr. James Metcalf who reviewed Dr.
Aber’s evaluation and the medical records on March 7, 2011.
296-99; 304).

(Tr.

These physicians supported the ALJ’s finding that

Claimant could perform light work.

Id.

Although Claimant is critical of the ALJ’s failure to include
the weighing analysis in detail with regard to these physicians’
records and opinions, the ALJ did discuss these medical evaluations
and adopted their findings in his RFC determination.

(Tr. 12).

Claimant does not, however, at any no point in her arguments state
how any of the referenced medical opinions supported her assertion
of disability or additional impairments or was contrary to the

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stated RFC.

Indeed, the cited medical evidence supports the RFC

assessment made by the ALJ for light work. As a result, any failure
of the ALJ to provide a weight analysis of these evaluations is
considered harmless error and does not warrant a reversal. See e.g.
Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004) (approving
harmless-error analysis when “based on material the ALJ did at least
consider (just not properly), we could confidently say that no
reasonable

administrative

factfinder,

following

the

correct

analysis, could have resolved the factual matter in any other
way.”).
Credibility Determination
Claimant

asserts

the

ALJ

failed

to

engage

in

a

proper

credibility determination by improperly evaluating her subjective
statements of limitation and pain.

The ALJ stated in his decision

that Claimant’s credibility was suspect because (1) she offered
inconsistent statements regarding which she quit smoking; (2) she
stated she used her medications inconsistently because of finances
when the record indicates she received her medication from the Good
Shepherd Clinic without cost; and (3) while Claimant alleged pain
at various times to be 8 out of 10 or 10 out of 10, her performance
during

the

consultative

physical

support for such debilitating pain.

8

examinations

provided

little

It is 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.”
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

9

reasons

for

the

determination

Kepler, 68 F.3d at 391.

based

upon

specific

evidence.

However, it must also be noted that the

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

discrepancies
credibility.

appropriately
in

linked

Claimant’s

the

testimony

medical
in

record

and

discounting

her

This Court finds no error in his assessment.
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 30th day of September, 2014.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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