Shoup v. Social Security Administration

Filing 21

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
TYLER J. SHOUP,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social
Security Administration,
Defendant.

Case No. CIV-15-421-KEW

OPINION AND ORDER

Plaintiff Tyler J. Shoup (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 September 17, 1991 and was 22 years old
at the time of the ALJ’s decision.

Claimant completed his high

school education with vocational training as a welder.

He has

received his certification as a welder. Claimant has worked in the
past as a fast food employee, loader and unloader at a lumbar yard,
rock stacker, and manual laborer. Claimant alleges an inability to
work beginning December 17, 2012 due to limitations resulting from
low back pain due to a prosthetic leg and anxiety.

3

Procedural History
On

December

27,

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.
April

22,

2014,

Administrative
Oklahoma.
The

represents

administrative

Judge

(“ALJ”)

hearing

James

was

Bentley

held
in

before

McAlester,

He issued an unfavorable decision on August 25, 2014.

Appeals

September

Law

an

On

Council

10,
the

further appeal.

2015.

denied
As

a

review
result,

Commissioner’s

final

of

the

the

ALJ’s

decision

decision

for

decision
of

the

purposes

on
ALJ
of

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 light work with limitations.
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) reaching an
improper RFC; (2) finding at step five that Claimant could perform
other jobs; (3) performing an erroneous credibility assessment; and
(4) failing to fully develop the record.

4

RFC Evaluation and Duty to Develop the Record
In his decision, the ALJ found Claimant suffered from the
severe impairments of mild facet hypertrophy and mild foraminal
narrowing at L4, grade 1 anterolisthesis of L5 and S1 with probable
left L5 pars defect, and status post right above-knee amputation.
(Tr. 11).

The ALJ determined Claimant retained the RFC to perform

light work except that he required a sit/stand option, defined as
a temporary change in position from sitting and standing, and vice
versa, with no more than one changes in position every 20 minutes
and

without

production.

leaving

the

work

station

or

affecting

pace

or

(Tr. 13).

After consulting with a vocational expert, the ALJ concluded
that Claimant could perform the representative jobs of storage
facility rental clerk, parking lot attendant, reel assembler, and
circuit board assembler, all of which the ALJ determined existed in
sufficient numbers in both the regional and national economies.
(Tr. 17).

As a result, the ALJ determined Claimant was not under

a disability from December 17, 2012 through the date of the
decision.

(Tr. 18).

Claimant first contends that the ALJ erred by not developing
the record further by obtaining RFC assessments from consultative
examiners and treating sources.

“[R]esidual functional capacity

consists of those activities that a claimant can still perform on

5

a

regular

and

continuing

basis

despite

his

or

her

physical

limitations.” White v. Barnhart, 287 F.3d 903, 906 n. 2 (10th Cir.
2001).

A residual functional capacity assessment “must include a

narrative discussion describing how the evidence supports each
conclusion,

citing

specific

medical

evidence.” Soc. Sec. R. 96–8p.

facts

...

and

nonmedical

The ALJ must also discuss the

individual's ability to perform sustained work activities in an
ordinary work setting on a “regular and continuing basis” and
describe the maximum amount of work related activity the individual
can perform based on evidence contained in the case record. Id.
The

ALJ

must

“explain

how

any

material

inconsistencies

or

ambiguities in the evidence in the case record were considered and
resolved.”

Id.

However,

there

is

“no

requirement

in

the

regulations for a direct correspondence between an RFC finding and
a specific medical opinion on the functional capacity in question.”
Chapo

v.

Astrue,

682

F.3d

1285,

1288

(10th

Cir.

2012).

Accordingly, the administrative finding on a claimant’s residual
functional capacity need not be based upon an RFC espoused by a
physician but must only be supported by the medical record.

This

Court cannot conclude that the ALJ failed to perform his obligation
of developing the record by not obtaining further RFC assessments
from medical professionals.
Claimant asserts that the ALJ’s limitation for a sit/stand

6

option in the RFC does not adequately accommodate his partially
amputated leg and associated phantom limb pain and pain as a part
of the amputation itself.

Claimant testified at the hearing that

he could sit for about an hour at a time whereupon he must get up
and stretch. (Tr. 33). Claimant also testified he could stand for
about 30 minutes before having to either sit down or lay down.
(Tr. 34).

Additionally, the functional findings of the state

agency physicians indicate Claimant could perform at the light
exertional level.

(Tr. 58-59, 68-69).

This evidence fully

supports the ALJ’s sit/stand restriction and RFC assessment.
Claimant next contends the ALJ failed to consider the side
effects of the medication which he is prescribed which includes
Oxycontin.
lot.

Claimant testified the medication makes him sleepy a

(Tr. 37).

The ALJ noted the extensive narcotic pain

medication which Claimant’s physician prescribed and inquired
whether he had ever talked about cutting it back to which Claimant
responded “no, sir.”

Id.

In his decision, the ALJ found that Claimant had reported no
side effects associated with the medication he was prescribed.
(Tr. 360)(“The patient reports tolerating medications well with no
side effects.

He is satisfied with this medication regimen and

wishes to continue.”).
this

medical

record

The ALJ was within his prerogative to take
into

consideration

7

and

weigh

Claimant’s

testimony at the hearing for its credibility in light of the
record.

Claimant

also

asserts

the

ALJ

should

have

further

developed the record by recontacting Claimant’s treating physicians
concerning the need for his medications and any resulting side
effects.

The record was adequately developed for the ALJ to draw

the conclusions on this subject.
Claimant also suggests the ALJ erred by dismissing his low GAF
scores.

The ALJ recognized that Dr. Anitra S. Fay, who provided

psychotherapy services on four occasions to Claimant assessed a GAF
of 39 at each visit.

(Tr. 12).

He then specifically found that

the “GAF score is merely a snapshot of an individual’s level of
functioning at a particular point in time and should not be solely
relied upon to determine the severity of an individual’s mental
impairments.” He then did not give the GAF scores “any significant
weight” especially in light of Claimant’s minimal mental health
treatment.

Id.

“The GAF is a subjective determination based on a scale of 100
to 1 of the clinician's judgment of the individual's overall level
of functioning.”
(10th

Cir.

Langley v. Barnhart, 373 F.3d 1116, 1122 n. 3

2004).

The

Tenth

Circuit

through

a

series

of

unpublished decisions has made it clear that the failure to discuss
a GAF alone is insufficient to reverse an ALJ’s determination of
non-disability.

See, Lee v. Barnhart, 2004 WL 2810224, 3 (10th

8

Cir. (Okla.)); Eden v. Barnhart, 2004 WL 2051382, 2 (10th Cir.
(Okla.)); Lopez v. Barnhart, 2003 WL 22351956, 2 (10th Cir.
(N.M.)). The foundation for this statement is the possibility that
the resulting impairment may only relate to the claimant’s social
rather than occupational sphere.

Lee, supra at 3.

However, a GAF

of 50 or less does suggest an inability to keep a job.

Id. citing

Oslin v. Barnhart, 2003 WL 21666675, 3 (10th Cir. (Okla.)).
Specifically,

the

DSM-IV-TR,

explains

that

a

GAF

41

and

50

indicates “[s]erious symptoms (e.g., suicidal ideation, severe
obsessional

rituals,

frequent

shoplifting)

OR

any

serious

impairment in social, occupational, or school functioning (e.g., no
friends, inability to keep a job).”

Diagnostic and Statistical

Manual of Mental Disorders 34 (4th ed. 2000).
An ALJ is required to consider all relevant evidence in the
record.

Soc. Sec. R. 06-03p.

He is not, however, required to

discuss every piece of evidence in the record.
79 F.3d 1007, 1009-10 (10th Cir. 1996).

Clifton v. Chater,

A GAF score may be of

considerable help to the ALJ in formulating the RFC but it is not
essential to the RFC’s accuracy and “taken alone does not establish
an impairment serious enough to preclude an ability to work.”
Holcomb v. Astrue, 2010 WL 2881530, 2 (Okla.)(unpublished opinion)
citing Howard v. Comm. of Soc. Sec., 276 F.3d 235, 241 (6th Cir.
2002).

This Court finds the ALJ was under no legal obligation to

9

provide the GAF scores significant weight, in particular since
Claimant sought only minimal treatment.
Step Five Evaluation
Claimant

contends

the

hypothetical

questioning

of

the

vocational expert by the ALJ was flawed because the RFC from which
the

questions

were

formulated

did

not

include

all

of

his

limitations. Since this Court found the RFC to be accurate and the
questions posed to the expert were consistent with the RFC, the
ALJ’s step five questioning and findings were supported by the
record and the RFC.
Credibility Determination
Claimant also challenges the ALJ’s credibility findings.
While the ALJ did employ somewhat generic boilerplate language in
reaching his conclusions on Claimant’s credibility, he did not stop
his analysis.

He proceeded through the medical evidence to point

out the conflicts with the extensive limitations to which Claimant
testified.

Claimant testified that he suffered from back pain and

leg pain and had difficulty with functional activities. (Tr. 14).
Particularly, the ALJ found Claimant’s amputation of his leg above
the knee after a self-inflicted shotgun accident healed well and
that both his back condition and leg amputation required only
minimal

and

conservative

treatment.

(Tr.

14-15).

The

ALJ

accounted for Claimant’s restrictions through the sit/stand option

10

and the limitation to light work.

(Tr. 16).

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.

The ALJ relied upon appropriate factors in evaluating the
credibility of Claimant’s statements.

11

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
Claimant’s credibility.2
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 29th day of March, 2017.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

2

Since the ALJ’s decision in this matter, the Social Security
Administration has revised its rulings on evaluating statements related
to the intensity, persistence, and limiting effects of symptoms in
disability claims - what heretofore has been known as “credibility”
assessments.
Soc. Sec. R. 16-3p, 2106 WL 1119029 (March 16, 2016),
superceding Soc. Sec. R. 96-7p, 1996 WL 374186 (July 2, 1996). However,
nothing in the regulation or the law requires retroactive application if
this Court is not remanding the decision for further consideration on any
other issue.

12