Dodd 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
CHRIS ALLEN DODD,

)
)
)
)
)
)
)
)
)
)
)

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

Case No. CIV-13-344-KEW

OPINION AND ORDER

Plaintiff Chris Allen Dodd (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 October 2, 1962 and was 49 years old at
the time of the ALJ’s decision.
education.

Claimant completed his high school

Claimant has worked in the past as an installer of

underground electric and as a dump truck driver.

Claimant alleges

an inability to work beginning August 12, 2009 due to limitations
resulting from back and leg pain, left hand/wrist problems from a

3

work-related injury.
Procedural History
On March 13, 2010, 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 February 27, 2012, an administrative

hearing was held before Administrative Law Judge (“ALJ”) Charles
Headrick in Tulsa, Oklahoma. By decision dated March 30, 2012, the
ALJ denied Claimant’s request for benefits.

The Appeals Council

denied review of the ALJ’s decision on May 31, 2013.
the

decision

of

the

ALJ

represents

the

decision for purposes of further appeal.

As a result,

Commissioner’s

final

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, he 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 find
Claimant’s injuries to his left hand and arm to be a severe
impairment; (2) reaching an RFC which did not include all of

4

Claimant’s limitations; and (3) performing an improper credibility
analysis.
Step Two Analysis
In his decision, the ALJ found Claimant suffered from the
severe impairments of remote fracture of the hips and low back pain.
(Tr. 16).

The ALJ determined Claimant retained the RFC to perform

a full range of light work.

Id.

After consultation with a vocational expert, the ALJ found
Claimant could perform the representative jobs of a small products
assembler

and

fast

food

worker,

which

the

vocational

expert

testified existed in sufficient numbers nationally and regionally.
(Tr. 21).

The ALJ, therefore, concluded Claimant was not disabled.

Id.
Claimant contends the ALJ failed to consider his left hand and
arm injuries as a severe impairment.

Since the ALJ determined

Claimant suffered from other severe impairments, the sole question
presented by Claimant’s arguments is whether the inclusion of
Claimant’s left extremity problems further limited his ability to
engage in basic work activities.
On January 7, 2009, Claimant underwent a procedure to the left
fifth finger proximal interphalangeal joint arthroplasty utilizing
small bone innovations proximal interphalangeal joint replacement

5

prosthesis and antibiotic impregnated cement.
from

severe

traumatic

osteoarthritis

Claimant suffered
at

the

interphalangeal joint in the left fifth finger.
performed by Dr. Christopher Deloache.

proximal

The procedure was

(Tr. 221).

In March of

2009, Claimant still experienced pain and limited functional use of
the left hand.

He continued with therapy.

(Tr. 238).

As late as

February of 2012, Claimant was noted to have weakness in the hand
which caused him to drop objects and he felt tightness in his
fingers.

He also was developing a mass in his hand that was

worsening.

(Tr. 570).

Dr. Brian Chalkin suspected Claimant was

developing carpal tunnel syndrome.

(Tr. 571).

At step two, Claimant bears the burden of showing the existence
of an impairment or combination of impairments which “significantly
limits

[his]

activities.”
disability

physical

or

mental

20 C.F.R. § 416.920(c).
benefits

is

one

that

ability

to

do

basic

work

An impairment which warrants
“results

from

anatomical,

physiological, or psychological abnormalities which are demonstrable
by

medically

techniques.”

acceptable
42

U.S.C.

clinical
§

and

laboratory

1382c(a)(1)(D).

The

diagnostic
severity

determination for an alleged impairment is based on medical evidence
alone and “does not include consideration of such factors as age,
education, and work experience.”

Williams v. Bowen, 844 F.2d 748,

6

750 (10th Cir. 1988).
The burden of showing a severe impairment is “de minimis,” yet
the presence of a medical condition alone is not sufficient at step
two.

Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997); Soc.

Sec. R. 85-28.

A claimant must demonstrate he has a severe

impairment

“results

that

from

anatomical,

physiological,

or

psychological abnormalities which are demonstrable by medically
acceptable clinical and laboratory diagnostic techniques.”

42

U.S.C. § 1382c(a)(1)(D).
A claimant’s testimony alone is insufficient to establish a
severe impairment.

The requirements clearly provide:

An individual's statement as to pain or other symptoms
shall not alone be conclusive evidence of disability as
defined in this section; there must be medical signs and
findings, established by medically acceptable clinical or
laboratory diagnostic techniques, which show the
existence of a medical impairment that results from
anatomical, physiological, or psychological abnormalities
which could reasonably be expected to produce the pain or
other symptoms alleged and which, when considered with
all evidence required to be furnished under this
paragraph (including statements of the individual or his
physician as to the intensity and persistence of such
pain or other symptoms which may reasonably be accepted
as consistent with the medical signs and findings), would
lead to a conclusion that the individual is under a
disability. Objective medical evidence of pain or other
symptoms established by medically acceptable clinical or
laboratory techniques (for example, deteriorating nerve
or muscle tissue) must be considered in reaching a
conclusion as to whether the individual is under a disability.
42 U.S.C.A. § 423(d)(5)(A).
The functional limitations must be marked and severe that can

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be expected to result in death or to last for a continuous period
of not less than 12 months.

42 U.S.C. § 1382c(a)(1)(C)(i); 20

C.F.R. § 416.927(a)(1).

The effect of Claimant’s hand problems is readily apparent
through the vocational expert’s testimony.

He stated at the

hearing that if Claimant was limited to no more than occasional use
of the non-dominant left hand and if it affecting his ability to
handle, grasp, and grab, it would eliminate the jobs he identified
as representative of those available to Claimant.

(Tr. 50).

Claimant sustained his burden of establishing a severe impairment
in his left hand which would affect his ability to engage in basic
work activities as identified by the vocational expert.

On remand,

the ALJ shall consider this additional impairment and incorporate
it into his RFC analysis.
Step Five Analysis
Claimant also contends the ALJ should have considered his back
problems and mental impairments in his RFC assessment.
indicates

that

he

was

diagnosed

with

mental

Claimant

impairments

but

references little in the way of functional limitations brought about
by this condition.

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

8

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 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 his burden

of establishing that his mental impairments limit his ability to
engage in basic work activities beyond the restrictions placed upon
his work activity contained in the ALJ’s RFC.
With

regard

to

his

back

condition,

Claimant

testified

concerning the limitations the condition places upon his ability to
stand, walk, and sit.

(Tr. 36-38).

The analysis of this condition

and any associated limitation necessarily turns upon the rejection
by the ALJ of Claimant’s credibility.
Credibility Determination
The ALJ’s sole evaluation of Claimant’s credibility turns upon
the oft-used and legally insupportable statement that Claimant’s
testimony is not credible “to the extent [his statements] are
inconsistent

with

the

assessment.”

(Tr. 18).

above

residual

functional

capacity

Little additional analysis is provided.

9

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
reasons

for

the

determination

Kepler, 68 F.3d at 391.

based

upon

specific

evidence.

However, it must also be noted that the
10

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 credibility analysis is scant and unsupported.

On

remand, the ALJ shall reassess Claimant’s credibility employing the
analysis suggested in Soc. Sec. R. 96-7p.

Upon doing so, the ALJ

shall also re-evaluate Claimant’s back condition at step five and
determine

whether

further

functional

restrictions

should

be

supported

by

included in his RFC.
Conclusion
The

decision

of

the

Commissioner

is

not

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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