Bowie v. Social Security Administration
Filing
20
OPINION AND ORDER by Magistrate Judge Kimberly E. West affirming the decision of the ALJ.(sjr, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
AUDREY L. BOWIE,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security Administration,
Defendant.
Case No. CIV-15-177-KEW
OPINION AND ORDER
Plaintiff Audrey L. Bowie (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 Claimant was not disabled.
discussed
below,
it
is
the
finding
of
this
For the reasons
Court
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).
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 in the national economy. . .”
§423(d)(2)(A).
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;
standards were applied.
and,
second,
whether
the
correct
legal
Hawkins v. Chater, 113 F.3d 1162, 1164
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
(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
800
&
Human
Servs.,
933
F.2d
799,
(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 May 22, 1962 and was 51 years old at the
time of the ALJ’s decision.
Claimant completed her high school
education and attended vocational school for cosmetology. Claimant
has worked in the past as a childcare worker.
Claimant alleges an
inability to work beginning September 29, 2011 due to limitations
resulting from left arm problems as a result of an injury.
3
Procedural History
On
January
31,
2012,
Claimant
protectively
filed
for
disability insurance benefits under Title II (42 U.S.C. § 401, et
seq.) and for supplemental security income pursuant to Title XVI
(42 U.S.C. § 1381, et seq.) of the Social Security Act. Claimant’s
applications were denied initially and upon reconsideration.
March
21,
2013,
an
administrative
hearing
was
held
On
before
Administrative Law Judge (“ALJ”) Deborah Rose in Tulsa, Oklahoma.
He issued an unfavorable decision on April 12, 2013.
The Appeals
Council denied review of the ALJ’s decision on October 29, 2014.
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 four 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 her past relevant work.
Alternatively, the ALJ determined at step five that Claimant
retained the RFC to perform light work with limitations.
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) failing to
perform proper evaluations at steps 4 and 5; and (2) failing to
4
perform a proper credibility determination.
Steps Four and Five Evaluations
In his decision, the ALJ found Claimant suffered from the
severe impairment of a history of multiple fractures to the left
arm.
(Tr. 17).
The ALJ determined Claimant retained the RFC to
perform her past relevant work as a companion sitter.
(Tr. 21).
Alternatively, Claimant was found to be able to perform light work.
In so doing, the ALJ found Claimant could lift/carry 20 pounds
occasionally and up to 10 pounds frequently; stand/walk up to six
hours during an eight hour workday; and sit for about six hours in
an eight hour workday.
Claimant was found to be able to perform
tasks where there was no requirement for operating any arm or hand
controls with her non-dominant left upper extremity.
She was able
to perform tasks where there is no requirement for overhead
reaching with her non-dominant left upper extremity.
The ALJ
determined Claimant was able to perform tasks where there is only
an occasional requirement for handling and fingering with the left
upper extremity. Claimant was also able to perform tasks where she
may use her left upper extremity as a “helper” or “assist” arm.
(Tr. 19).
After consulting with a vocational expert, the ALJ
concluded that Claimant could perform the representative job of
companion for elderly or infirm.
(Tr. 22).
As a result, the ALJ
determined Claimant was not under a disability.
5
(Tr. 23).
Claimant first contends that the vocational expert identified
jobs
which
required
frequent
handling
and
fingering
in
contravention of the hypothetical question posed by the ALJ. After
the ALJ posed a question which included a restriction from frequent
handling
and
fingering,
the
vocational
expert
testified
that
Claimant had performed the job of day care worker, identified with
the Dictionary of Occupational Titles (“DOT”) number of “359.677014” - which is associated with the job of funeral attendant.
While Claimant is correct that the expert misidentified the number
for this job, it is apparent from the testimony that the expert
intended DOT #359.677-018 - which is the day care worker job. This
error was harmless.
The vocational expert testified Claimant had transferrable
skills from her prior employment such that she could work as a
companion sitter for the elderly or infirm, identified as DOT
#309.677-010.
Although this job required frequent handling and
fingering as well, the vocational expert testified
Based on my years of experience, this occupation very
often they really are just sitters for people in the
hospital or people that are elderly to make sure that
they don’t rise out of bed. For this job, the employee
numbers . . . For this job in this group, which is
grouped into the personal caring group, in the state of
Oklahoma, 10,000 and in the nation, 820,000. And in my
opinion, this job is absolutely consistent with your
hypothetical.
(Tr. 60).
6
While Claimant challenges the vocational expert’s use of the
term “very often”, it is apparent that she did not believe the
numbers of available jobs to be reduced by the elimination of the
frequent fingering and handling restriction when she then recited
the available numbers.
“Providing this type of professional,
experience-based evidence is precisely what reliance on evidence
from a VE is meant to accomplish. The whole point of vocational
testimony
is
to
go
beyond
facts
already
established
through
publications eligible for judicial or administrative notice and
provide an alternative avenue of proof.
Gay v. Sullivan, 986 F.2d
1336, 1340 (10th Cir. 1993); see also 20 C.F.R. § 404.1566(e)
(contemplating the use of vocational experts in determining complex
issues concerning the characteristics of specific occupations); SSR
00-4p at 2 (noting that information about job requirements not
listed in the DOT may come from a VE's experience in job placement
or career counseling).”
(10th Cir. 2009).
Rogers v. Astrue, 312 F. App'x 138, 142
The ALJ adequately explained the vocational
expert’s deviation from the DOT such that no error is found in her
acceptance of the testimony.
Credibility Determination
Claimant’s injury originated from September 24, 2011 when she
sustained a compound fracture of her left forearm. (Tr. 326). She
underwent surgery and, afterward, was able to move her fingers and
7
her pain was adequately controlled.
(Tr. 198).
In December of
2011, Claimant fell and fractured her left wrist and forearm. (Tr.
271). She again underwent surgery resulting in a very satisfactory
alignment.
(Tr. 254).
In February of 2012, Claimant had good finger extension but
experienced some limitation of flexion of the fingers and thumb.
(Tr. 250).
Claimant attended occupational therapy.
In April of
2012, Claimant had surgery to remove the pins and plate in her
forearm.
She was noted to be progressing well.
(Tr. 284).
Claimant complained of finger stiffness in May of 2012 and began
therapy again.
(Tr. 372, 389).
Claimant’s surgeon found that she
was “progressing slowly with therapy.”
(Tr. 280).
In July of
2012, her surgeon found that Claimant’s motion had improved but was
still limited.
(Tr. 308).
In August of 2012, he noted Claimant’s
motion had improved for her fingers and hand/wrist. (Tr. 387). In
a follow up visit with her surgeon in September of 2012, Claimant
showed active motion for her fingers/hand/wrist but experienced
pain.
He
management.
recommended
(Tr. 404).
that
Claimant
be
referred
for
pain
Claimant lacked the funds to attend pain
management and was referred to her primary physician.
(Tr. 402).
She received primary care from Lisa J. Clayton, an advanced
practice registered nurse.
(Tr. 409).
Her left forearm and wrist
demonstrated tenderness on palpation, abnormal motion with pain
8
elicited by motion.
and Naproxen.
(Tr. 410).
(Tr. 407).
Claimant was prescribed Flexeril
At a well woman exam in March of 2013,
Ms. Clayton noted Claimant was “in no acute distress.”
(Tr. 407).
At the hearing, Claimant testified that she was in pain and
took Naproxen to manage it.
her drowsy and constipated.
She stated that the medication made
(Tr. 39).
She testified that at the
end of a five hour workday, she was exhausted and in pain.
41).
(Tr.
Her arm has caused her to show up late for work and leave
early.
(Tr. 42).
The child care job she was then performing
called for her to sit in the classroom but on two or three
occasions, she had to leave the room.
(Tr. 43).
She was not able
to lift the children and change their diapers.
that she could not make a fist.
Claimant
anything.
testified
that
Id.
She stated
(Tr. 54).
she
could
not
grip
She needed help with doing her hair.
or
pick
(Tr. 53).
up
She
included in her original application that she could not prepare
“full course meals”, clean, or do laundry.
(Tr. 170).
The ALJ found Claimant’s allegations to not be fully credible.
(Tr. 20).
He based this conclusion on the fact she was not on
narcotic pain medication since November of 2012, had not returned
to her surgeon or occupational therapy, and was alone with four
infants in her child care job.
(Tr. 20).
It is well-established that “findings as to credibility should be
9
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.”
(10th Cir. 2000).
Qualls v. Apfel, 206 F.3d 1368, 1372
This Court finds that the ALJ’s findings on
credibility are affirmatively linked to the objective record and
are supported by substantial evidence.
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 9th day of September, 2016.
______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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