Brookshire 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
MYKOL T. BROOKSHIRE,
NANCY A. BERRYHILL, Acting
Commissioner of Social
Case No. CIV-15-441-KEW
OPINION AND ORDER
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
determined that Claimant was not disabled.
reasons discussed below, it is the finding of this 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).
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
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
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).
standards were applied.
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.”
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
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 was 43 years old at the time of the ALJ’s decision.
Claimant completed her high school education.
Claimant has worked
in the past as a county undersheriff and prison correctional
Claimant alleges an inability to work beginning June 1,
disorder (“PTSD”), low back pain, obesity, mood disorder, and antisocial personality disorder.
On July 13, 2012, 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 3, 2014, an administrative
hearing was held before Administrative Law Judge (“ALJ”) Lantz
McClain in Tulsa, Oklahoma.
By decision dated March 19, 2014, the
ALJ denied Claimant’s requests for benefits.
The Appeals Council
denied review of the ALJ’s decision on September 15, 2015.
result, the decision of the ALJ represents the Commissioner’s final
decision for purposes of further appeal.
20 C.F.R. §§ 404.981,
Decision of the Administrative Law Judge
The ALJ made his decision at step five of the sequential
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) failing to
properly evaluate the 100 percent disability rating by the Veterans
Administration (“VA”); (2) failing to properly consider the medical
source opinion evidence; and (3) failing to perform a proper
Consideration of Medical Opinion Evidence
In his decision, the ALJ found Claimant suffered from the
severe impairments of history of low back pain, obesity, a mood
disorder, and anxiety-related disorder (PTSD), and anti-social
The ALJ determined Claimant
retained the RFC to perform light work.
In so doing, the ALJ found
Claimant was able to lift and carry up to 20 pounds occasionally
and up to ten pounds frequently. Claimant was able to stand and/or
walk at least six hours in an eight hour workday and sit at least
six hours in an eight hour workday.
Regarding Claimant’s mental RFC, Claimant was able to perform
simple repetitive tasks where he only had a requirement for
relating to supervisors and co-workers on a superficial basis.
requirement for working with the general public.
After consultation with a vocational expert, the ALJ found
Claimant could perform the representative jobs of sorter and hand
packager, both of which the ALJ found existed in sufficient numbers
in both the regional and national economies.
result, the ALJ determined Claimant was not disabled from June 1,
2009 through the date of the decision.
Claimant contends the ALJ failed to properly evaluate the 100
percent disability rating given to him by the VA.
The ALJ noted in
his decision that Claimant was found to have PTSD
and received 100% VA benefits for this. However, the
parameters for finding disability are significantly
different between the VA and the Social Security
Administration, and are not binding on each other, per
The ALJ made reference to the VA disability rating in other
areas of the decision as well.
He determined Claimant performed
semi-skilled tasks associated with his job as a corrections officer
and skilled tasks as an undersheriff, in spite of the 100% VA
incarcerated for 27 months during this period.
“Although findings by other agencies are not binding on the
Secretary, they are entitled to weight and must be considered.”
Baca v. Dept. of Health & Human Serv., 5 F.3d 476, 480 (10th Cir.
1993) quoting Fowler v. Califano, 596 F.2d 600, 603 (3rd Cir.
1979). An ALJ is required to discuss the “significance of the VA’s
disability evaluation” in his decision.
F.3d 1257, 1263 (10th Cir. 2005).
Grogan v. Barnhart, 399
The ALJ “must consider and
explain why he did not find [the VA determination] persuasive.” Id
In this case, the ALJ recognized the different
Administration, noted the disability rating found by the VA, and
provided persuasive reasons for not accepting the rating.
is not required to find in lockstep with another agency’s findings
on disability. He adequately considered the VA rating and provided
a reasonable basis for rejecting its adoption.
Consideration of Medical Opinion Evidence
The ALJ took the testimony of Dr. Simonds, a consultative
Dr. Simonds testified that he had reviewed
Claimant’s medical records and determined he was diagnosed with
back pain with some decreased range of motion, some degenerative
changes on imaging studies, minimal scoliosis, muscle pain, joint
pain, gastroesophageal reflux, ringing in the ears, some hearing
loss, but not to the level of any kind of listing, and fatigue.
None of the conditions were found to interfere significantly with
On Claimant’s mental condition, Dr. Simonds found he was
diagnosed in the VA system with a mood disorder, non-specific, and
PTSD, but he had never been hospitalized for these conditions.
Claimant also reported some mild memory problems.
Dr. Simonds noted the finding by the VA of PTSD but that
Claimant continued to work after the diagnosis so it was hard to
see the severity of the condition. He noted the difference between
the VA system and Social Security system for PTSD to be considered
He did not find much in the way of follow-up
treatment or progress notes on the PTSD after January of 2012.
Dr. Simonds concluded Claimant did not meet listing 12.06 for
He noted moderate limitations in concentration
and pace under the “paragraph B” criteria.
Under examination by Claimant’s counsel, he found that the
record supported moderate symptoms of PTSD.
However, if the
condition were severe, Dr. Simonds stated that he would expect
Claimant to have problems dealing with groups of people, so only
superficial contact or no contact with the public and co-workers
should be included in the limitations.
In light of Claimant’s
moderate problems with concentration, counsel inquired as to “what
concentrating” in a job situation.
Dr. Simonds estimated that if
it were a simple job, only ten percent, but with a more complex
job, it would be about 25 percent.
re-characterized the testimony that “in a very simple job, a
person. . . would have difficulty - - moderate would mean 10
percent of the time they’d have difficulty concentrating in a very
simply type job” to which Dr. Simonds stated, “[t]hat would be just
In the RFC, the ALJ included limitations for Claimant to
simple, repetitive tasks which required relating to supervisors and
co-workers superficially and no working with the general public.
He gave Dr. Simonds’ opinion “great weight”, noting
that Dr. Simonds’ review of the record “was quite thorough, and
finds that his overall assessments and conclusions are consistent
with the record. . . .”
Claimant argues that the ALJ did not include Dr. Simonds’
finding that of Claimant’s “not doing ten percent of the job, but
being able to complete only 90 percent of it. . . .”
at p. 5). This mischaracterizes the questioning of Dr. Simonds and
An inability to concentrate for ten percent of the
time is not equivalent to an inability to do ten percent of a given
To the extent Claimant contends the ALJ failed to consider
the totality of Dr. Simonds’ opinion, this Court rejects Claimant’s
encompass the limitation on concentration.
Any further limitation
urged by Claimant based upon this testimony is not warranted.
Claimant carries the argument further by asserting the ALJ
failed to include the ten percent limitation in the hypothetical
questions posed to the vocational expert.
The question posed by
counsel in this vein to the vocational expert only further confused
Counsel asked the expert, “Do you think, over time, a
person that’s not doing 100 percent, but only doing 90 percent, is
going to keep the job?”
Again, this question mischaracterizes the
testimony provided by Dr. Simonds.
“Testimony elicited by hypothetical questions that do not
relate with precision all of a claimant’s impairments cannot
Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir.
In positing a hypothetical question to the vocational
expert, the ALJ need only set forth those physical and mental
impairments accepted as true by the ALJ.
F.2d 585, 588 (10th Cir. 1990).
Talley v. Sullivan, 908
Additionally, the hypothetical
questions need only reflect impairments and limitations borne out
by the evidentiary record.
(10th Cir. 1996).
Decker v. Chater, 86 F.3d 953, 955
Moreover, Defendant bears the burden at step
five of the sequential analysis.
Hargis, 945 F.2d at 1489.
The ALJ’s questioning of the vocational expert accurately
reflected the limitations supported by the medical evidence.
record does not support a finding that Claimant would be unable to
perform ten percent of the representative jobs.
Claimant also contends the ALJ failed to ascertain the precise
inclusion of the restriction to jobs with no co-workers.
does not include a limitation to no co-workers but rather to
Nothing in the record would
support further restrictions in this regard.
Claimant asserts the ALJ improperly relied upon the testimony
of Dr. Simonds since the testimony was erroneous in regard to the
effects of Claimant’s PTSD and the fact he worked after the
diagnosis of the condition.
The fact remains that Claimant was
employed while he still reported PTSD symptoms.
However, he was
never hospitalized for the condition and only received medication
from the VA.
Claimant does not direct this Court to
any medical record in the file which would indicate an inability to
work as a result of severe PTSD.
This Court finds no error in the
ALJ’s consideration of the medical opinion evidence or in the
hypothetical questioning of the vocational expert.
The ALJ determined Claimant credibility was undermined by (1)
conviction of a crime of moral turpitude (theft of money during
traffic stops while employed as an undersheriff); (3) untruths told
to medical professionals, such as reporting that he was terminated
as an undersheriff for missing too many days of work because of his
anxiety attacks when, in fact, he was arrested for theft (Tr. 107,
138-39); (4) inconsistencies in activities of daily living - he
reported he did not shop while his friend in a third party
statement reported he did (Tr. 113-14, 297, 305-06); (5) lack of
treatment for PTSD (Tr. 113); (6) evidence of drug seeking behavior
- Claimant became angry when the VA denied his request for opiates
because he had “no conditions that indicate [a] need for opiates”
(Tr. 112, 518, 520); and (7) the medical record did not support the
level of functional limitations urged by Claimant.
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.
The ALJ properly analyzed and considered Claimant’s testimony in
light of the objective medical record and no error is attributed to
his credibility analysis.
The decision of the Commissioner is supported by substantial
evidence and the correct legal standards were applied.
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 AFFIRMED.
IT IS SO ORDERED this 27th day of September, 2017.
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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