Fox v. Social Security Administration
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
ASHLEY N. FOX,
NANCY A. BERRYHILL, Acting
Commissioner of Social
Case No. CIV-15-369-KEW
OPINION AND ORDER
Plaintiff Ashley N. Fox (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.
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.
For the reasons
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
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. . .”
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).
This Court’s review is limited to
first, whether the decision was supported by
standards were applied.
Hawkins v. Chater, 113 F.3d 1162, 1164
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).
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
Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
The court may not re-weigh the evidence nor substitute
its discretion for that of the agency.
Casias v. Secretary of
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.”
Corp. v. NLRB, 340 U.S. 474, 488 (1951); see also, Casias, 933 F.2d
Claimant was born on May 28, 1975 and was 38 years old at the
time of the ALJ’s decision.
Claimant completed her high school
education and two years of college course work.
worked in the past as a tax preparer, call center customer service
representative, waitress, dishwasher, and assembly line worker.
Claimant alleges an inability to work beginning April 15, 2009 due
to limitations resulting from him pain after a automobile accident
resulting in a broken femur.
On May 1, 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.
On September 19,
2013, an administrative hearing was held before Administrative Law
Judge (“ALJ”) Doug Gabbard, II in McAlester, Oklahoma.
an unfavorable decision on March 21, 2014.
The Appeals Council
denied review of the ALJ’s decision on July 22, 2015.
decision for purposes of further appeal.
As a result,
20 C.F.R. §§ 404.981,
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.
also determined Claimant could perform medium work at step five.
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) finding
Claimant’s anxiety and panic attacks as not medically determinable;
(2) failing to perform a proper determination at step four; and
(3) failing to perform a proper credibility determination.
Consideration of Medically Determinable Condition
In his decision, the ALJ found Claimant suffered from the
severe impairments of remote residuals of motor vehicle accident,
including fractures of the leg, hip, and ankle and history of right
After consulting with a vocational
expert, the ALJ determined Claimant retained the RFC to perform her
past relevant work as a call center customer service representative
and as a tax preparer.
He also found at step five that
Claimant could perform medium work with the ability to alternately
sit and stand every 60 minutes or so for the purpose of changing
positions but without leaving the workstation.
result, the ALJ determined Claimant was not under a disability from
April 15, 2009 through the date of the decision.
Claimant first contends that the ALJ failed to include her
Claimant relies most heavily upon the report of Dr.
Eric Broadway which was not available to the ALJ for his decision
but was provided to the Appeals Council for its consideration.
The Appeals Council determined that Dr. Broadway’s
report was not relevant in time, since the ALJ’s decision included
the time period through March 21, 2014 and the report involved a
Dr. Broadway found Claimant suffered from
alcohol dependence, cannabis abuse, PTSD, and obsessive compulsive
Although he recognized a past diagnosis for
subjective statements to him, he did not make the same diagnosis.
The regulations permit the submission of evidence to the
Appeals Council if it is new, material, and related to the period
on or before the date of the ALJ’s decision. Chambers v. Barnhart,
389 F.3d 1139, 1142 (10th Cir. 2004).
It is assumed that the
evidence meets the criteria if the Appeals Council accepts the
evidence. Krauser v. Astrue, 638 F.3d 1324, 1328 (10th Cir. 2011).
Whether evidence is “new, material and chronologically pertinent is
a question of law subject to our de novo review.”
Barnhart, 353 F.3d 1185, 1191 (10th Cir. 2003).
Dr. Broadway’s report is new - it was not before the ALJ when
he made his decision - but not material - the ALJ’s decision would
not have reasonably have been different if the new evidence had
been before him when the decision was rendered.
Chater, 75 F.3d 1421, 1426 (10th Cir. 1996); Cagle v. Califano, 638
F.2d 219, 221 (10th Cir. 1981).
The evidence is also not period
The Appeals Council did not err in failing to reverse
and remand the case to the ALJ for consideration of Dr. Broadway’s
An evaluation of the remainder of the medical record does not
offer support for Claimant’s position on the severity of her
anxiety and panic attacks.
The ALJ found Claimant received no
medication for the condition, and no continuing signs of the
condition when examined by the consultative physician.
anxiety a lot anymore.
She also testified that anxiety
does not have a big impact on her daily functioning, other than
determinable impairment by “medical evidence consisting of signs,
statement of symptoms.”
20 C.F.R. §§ 404.1508, 404.1512(c).
medical record simply does not support a finding that Claimant’s
anxiety constitutes a medically determinable impairment.
Step Four Analysis
Claimant also challenges the adequacy of the ALJ’s step four
Claimant contends the ALJ’s finding that she could
return to her call center job and tax preparer job was based upon
on RFC which contained no mental impairments. Claimant essentially
makes the same argument concerning the inclusion of her anxiety at
step four and in the questioning of the vocational expert.
this Court has found her anxiety was not medically determinable,
questioning or in the RFC.
Claimant also asserts the ALJ failed to perform the necessary
phased evaluation at step four. In analyzing Claimant’s ability to
engage in her past work, the ALJ must assess three phases.
first phase, the ALJ must first determine the claimant’s RFC.
Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996). This Court
has determined that the ALJ’s RFC assessment was not erroneous.
In the second phase, the ALJ must determine the demands of the
claimant’s past relevant work.
In making this determination,
the ALJ may rely upon the testimony of the vocational expert.
Doyal v. Barnhart, 331 F.3d 758, 761 (10th Cir. 2003).
vocational expert testified as to the DOT classification of the
The ALJ also inquired of Claimant as to the
demands of her past employment.
The ALJ satisfied
his obligation at the second phase in ascertaining the requirements
of her jobs as call center customer service representative and tax
The third and final phase requires an analysis as to whether
the claimant has the ability to meet the job demands found in phase
two despite the limitations found in phase one.
Winfrey, 92 F.3d
The ALJ asked the vocational expert whether someone at
Claimant’s determined RFC could perform the jobs which constituted
Claimant’s past relevant work.
The vocational expert stated
Claimant could perform the past relevant work of call center
customer service and tax preparer. (Tr. 65-66). Consequently, the
ALJ fulfilled his obligation in the third phase.
This Court finds
no error in the ALJ’s step four analysis.
The ALJ found Claimant was not “entirely credible.” (Tr. 30).
He based this conclusion upon a finding that she left her job as a
tax preparer because it ended rather than because her impairments
prevented her from effectively doing the job.
(Tr. 32, 53).
ALJ discounted Claimant’s credibility on the limiting nature of her
impairments based upon a lack of medical treatment in the record,
the fact that a consultative evaluation by Dr. Ronald Schatzman
found relatively unremarkable examination findings, and a lack of
a continuing need for medication - all of which worked against a
finding of disabling pain.
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.
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
Soc. Sec. R. 96-7p; 1996 WL 374186, 3.
The ALJ relied upon appropriate factors in evaluating the
credibility of Claimant’s statements.
The nature of Claimant’s
treatment, the objective medical testing, and the inconsistencies
between the claimed restrictions and Claimant’s activities all form
specific and legitimate reasons for the ALJ’s questioning of
The decision of the Commissioner is supported by substantial
evidence and the correct legal standards were applied.
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 March, 2017.
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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