Miller 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
LADONNA M. MILLER,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security Administration,
Defendant.
Case No. CIV-13-302-KEW
OPINION AND ORDER
Plaintiff Ladonna M. Miller (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 REVERSED and REMANDED for
further proceedings.
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).
Security
Act
“only
if
A claimant is disabled under the Social
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:
This Court’s review is limited to
first, whether the decision was supported by
1
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
substantial
evidence;
and,
standards were applied.
second,
whether
the
correct
legal
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 August 19, 1974 and was 37 years old at
the time of the ALJ’s decision.
education.
Claimant completed her high school
Claimant has worked in the past as a nurse’s aide.
Claimant alleges an inability to work beginning June 1, 2000 due to
limitations resulting from vision problems, shortness of breath,
headaches,
obesity,
right
shoulder,
3
back,
and
neck
problems,
depression,
anxiety,
post-traumatic
stress
disorder
(“PTSD”),
substance abuse, and asthma.
Procedural History
On
April
15,
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
were denied initially and upon reconsideration.
On November 16,
2011, an administrative hearing was held before Administrative Law
Judge (“ALJ”) Gene Kelly in Tulsa, Oklahoma.
hearing was held on May 1, 2012.
A supplemental
By decision dated May 22, 2012,
the ALJ denied Claimant’s request for benefits.
The Appeals
Council denied review of the ALJ’s decision on May 15, 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 less than a full range of
light work with limitations.
Errors Alleged for Review
4
Claimant asserts the ALJ committed error in (1) failing to
properly evaluate, consider, and weigh the medical evidence; (2)
failing to consider all of Claimant’s impairments; (3) failing to
consider Claimant’s obesity; and (4) failing to perform a proper
credibility analysis.
Consideration of the Medical Evidence
In his decision, the ALJ found Claimant suffered from the
severe
impairments
headaches,
of
obesity,
depression,
anxiety,
vision
right
problems,
shoulder,
post-traumatic
shortness
back,
stress
and
of
breath,
neck
problems,
disorder
(“PTSD”),
substance abuse, and asthma. (Tr. 18). The ALJ determined Claimant
retained the RFC to perform less than a full range of light work by
occasionally lifting/carrying 20 pounds, frequently lifting/carrying
10 pounds, standing and/or walking for 6 hours in an 8 hour workday
at two hour intervals, and sitting for 6 hours in an 8 hour workday.
She was able to bend, stoop, squat, kneel, crouch, crawl, push/pull,
reach overhead with the right upper extremity and twist her head
occasionally.
environment.
Claimant required a low noise and low light work
The ALJ found Claimant should avoid work requiring
depth perception and fine vision.
She must avoid temperature
extremes, humidity, dust, fumes, and chemicals.
Claimant was
limited to simple repetitive tasks with limited contact with the
5
public, co-workers, and supervisors.
Claimant was found to be
afflicted with symptomatology from a variety of sources, mild to
moderate chronic pain, which is of sufficient severity as to be
noticeable to her at all times but that nonetheless, she would be
able to remain attentive and responsive in a work setting and could
carry out normal work assignments satisfactorily.
Claimant took
medication for relief of her symptomatology, but the medications do
not
preclude
her
from
functioning
at
the
sedentary
level
as
restricted and she would remain reasonably alert to perform required
functions presented by her work setting.
(Tr. 21).
After consultation with a vocational expert, the ALJ found
Claimant could perform the representative jobs of mail clerk, and
production assembler which the vocational expert testified existed
in sufficient numbers nationally and regionally.
(Tr. 30).
ALJ, therefore, concluded Claimant was not disabled.
The
(Tr. 30-31).
Claimant contends the ALJ gave the findings of consultative
examiner Dr. Larry Vaught “great weight” but failed to incorporate
all of his findings.
Specifically, Dr. Vaught completed a Medical
Source Statement (Mental) on Claimant dated January 12, 2012.
He
found Claimant was moderately limited in the areas of understanding
and
remembering
complex
instructions,
carrying
out
complex
instructions, the ability to make judgments on complex work-related
decisions,
interacting
appropriately
6
with
supervisors
and
co-
workers, and responding appropriately to usual work situations and
to changes in a routine work setting.
He was found to be markedly
limited in interacting with the public.
(Tr. 479-80).
The vocational expert testified that an individual with such
limitations on interacting with co-workers and supervisors might get
a job but would have difficulty keeping it.
Defendant
contends
the
presented at the hearing.
definition
of
(Tr. 100).
“moderate”
was
not
The form Dr. Vaught used contained a
somewhat different definition than as is usually considered in the
Social Security arena.
Nevertheless, the ALJ was responsible for
resolving any such conflict in the standard employed.
The fact
remains that the vocational expert testified that it would be
difficult for a moderately limited individual to keep the job.
“Testimony elicited by hypothetical questions that do not relate
with precision all of a claimant’s impairments cannot constitute
substantial evidence to support the Secretary’s decision.”
v. Sullivan, 945 F.2d 1482, 1492 (10th Cir. 1991).
Hargis
Either the ALJ
failed to adequately consider the full extent of the limitations to
which the vocational expert testified or the question posed by
counsel did not mirror Claimant’s limitations.
In either event,
further inquiry of the vocational expert and explanation of the
question posed is necessary in order to ascertain the full effect
7
of Claimant’s functional limitations.
incorporate
the
totality
of
Dr.
On remand, the ALJ shall
Vaught’s
limitations
in
his
hypothetical questions to the vocational expert.
Claimant also contends the ALJ gave only “some weight” to the
opinions of Claimant’s counselor, Tracy Settlemyre.
The ALJ
concluded Ms. Settlemyre’s testimony was based upon Claimant’s
subjective
exaggerate.
complaints
and
(Tr. 22-23).
that
Claimant
has
a
tendency
to
Ms. Settlemyre testified that her
opinions were based largely upon her observations during home
visits.
(Tr. 70).
On remand, the ALJ shall reconsider the weight
he afforded Ms. Settlemyre’s opinions and the basis for such
weight.
Claimant’s Impairments
Claimant contends the ALJ should have considered the effects
of her hand problems, arm pain, left leg pain, and hypertension
upon her ability to engage in basic work activity. She asserts the
ALJ did not state whether these impairments were severe, nonsevere, or medically non-determinable.
Claimant also contends
these conditions as well as her shortness of breath which was found
by the ALJ to be a severe impairment were not addressed in the
hypothetical questioning of the vocational expert.
record
documents
the
existence
8
of
these
The medical
conditions
but
not
necessarily any functional limitations arising from them.
On
remand, the ALJ shall insure that these conditions are addressed.
He shall expressly state whether they are impairments to Claimant’s
ability to engage in basic work activities.
Considering Claimant’s Obesity
Claimant speculates that her obesity would restrict her to
sedentary work. 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
cardiovascular impairments.”
another
impairment
may
or
musculoskeletal,
respiratory,
and
Id. “Obesity in combination with
may
not
increase
the
functional limitations of the other impairment.”
evaluated on information in the case record.
9
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.
This Court takes the ALJ at his word that the
effects were considered.
The medical record does not support the
level of functional limitations urged by Claimant.
No error is
attributed to this issue.
Credibility Determination
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
2
2 “[W]e will not make assumptions about the severity or functional
effects of obesity combined with other impairments.” Soc. Sec. R. 0201p.
10
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
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 found Claimant to be less than credible based largely
upon findings by Dr. Vaught and Ms. Settlemyre that Claimant may
exaggerate her condition.
Claimant’s statements.
(Tr. 28).
(Tr. 29).
has support in the medical record.
analysis.
11
He did not discount all of
The ALJ’s credibility analysis
No error is attributed to this
Conclusion
The
decision
of
the
Commissioner
is
not
supported
by
substantial evidence and the correct legal standards were not
applied. Therefore, this Court finds, 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
REVERSED and the
matter REMANDED for further proceedings consistent with this Opinion
and Order.
IT IS SO ORDERED this 30th day of September, 2014.
______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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