Green 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
JOHN R. GREEN,

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

Case No. CIV-16-024-KEW

OPINION AND ORDER

Plaintiff John R. Green (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 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

Security

Act

“only

if

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:
substantial

This Court’s review is limited to

first, whether the decision was supported by

evidence;

and,

second,

1

whether

the

correct

legal

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).

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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.”
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 August 16, 1987 and was 28 years old at
the time of the ALJ’s decision.

Claimant completed his high school

education and some college course work.

Claimant has worked in the

past as a spot welder, military crew member, feed loader, metal
cutter, and store attendant.

Claimant alleges an inability to work

beginning May 30, 2012 due to limitations resulting from chronic
knee

and

back

pain,

PTSD,

and

3

abdominal

and

gastrointestinal

problems.
Procedural History
On

January

27,

2015,

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 October 8, 2015,

an

administrative hearing was held before Administrative Law Judge
(“ALJ”) Edmund C. Werre in Muskogee, Oklahoma.

By decision dated

November 2, 2015, the ALJ denied Claimant’s request for benefits.
The Appeals Council denied review of the ALJ’s decision on December
2, 2015.

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, he did not meet a listing and retained the residual
functional capacity (“RFC”) to perform her past relevant work.

He

also found Claimant could perform medium work.
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) failing to
properly consider Claimant’s VA disability rating; (2) failing to

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properly evaluate opinion evidence; and (3) performing an improper
credibility analysis.

Consideration of the VA Rating
In his decision, the ALJ found Claimant suffered from the
severe impairments of degenerative disc disease fo the cervical and
lumbar spines, knee and hip impairments, status post abdominal
gunshot wound, major depressive disorder, and post traumatic stress
disorder (“PTSD”) (Tr. 13).
the RFC to perform

The ALJ determined Claimant retained

his past relevant work as a spot welder

(performed at the medium exertional level) and feed loader (also
performed at the medium exertional level).

(Tr. 18).

The ALJ also determined Claimant could perform medium work.
In so doing, he found Claimant was limited to lifting/carrying 50
pounds and 25 pounds frequently; sitting for six hours and standing
or walking for six hours in an eight hour workday.

Claimant was

able to understand, remember, and carry out simple instructions
consistent with unskilled work that is repetitive and routine in
nature

and

able

to

relate

and

interact

with

co-workers

and

supervisors on a work-related basis only with no to minimal
interaction with the general public.

Claimant could adapt to a

work situation with these limitations and his medications would not
preclude himn from remaining reasonably alert to perform required

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functions presented in a work setting.

(Tr. 15).

After consulting with a vocational expert, the ALJ concluded
that Claimant could perform the representative jobs of hardware
assembler, final inspector, and laminator, all of which the ALJ
determined existed in sufficient numbers in both the regional and
national economies.

(Tr. 19-20).

As a result, the ALJ determined

Claimant was not under a disability from May 30, 2012 through the
date of the decision.

(Tr. 20).

Claimant contends the ALJ failed to properly evaluate the
disability

rating

Administration

provided

(“VA”).

The

to

Claimant

VA

by

determined

the

Claimant

Veterans
was

30%

graduating up to 70% disabled due to PTSD, 10% from lumbar strain,
10% from left knee strain, 10% from right knee strain, and 10% from
right hip strain with limitation of extension of the thigh, all
effective on varying dates.

The agency also found Claimant was

entitled to individual unemployability effective August 26, 2013.
(Tr. 453).

The ALJ recognized this disability rating in his

decision, noting that the disability determination process between
the two agencies was “fundamentally different.”

He stated the VA

does not make a function-by-function assessment of an individual’s
capabilities or determine whether Claimant is able to perform work.
He, therefore, concluded the VA disability rating was “of little

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probative value in these proceedings” and gave it “little weight.”
(Tr. 17-18).
Claimant

draws

the

unsupported

conclusion

that

“[a]

100

percent disability in the VA is just like an individual who does
not have the RFC to perform any of the jobs available to a
hypothetical person.”

Claimant’s protestations to the contrary

notwithstanding, the difference between the evaluation standards of
the two agencies is significant and the ALJ was correct that the
lack of an individualized functional analysis makes a comparison of
the two agencies’ findings difficult.
“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

However, as the Tenth Circuit

stated in a case stemming from this Court, when an ALJ states he
considered a VA disability rating, he is taken at his word.
McFerran v. Astrue, 437 Fed. Appx. 634, 638 (10th Cir. 2011).

No

error is attributed to the ALJ’s assessment of the VA disability
rating.

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Evaluation of the Opinion Evidence
Claimant contends the ALJ improperly evaluated and rejected
the opinion of consultative mental examiner, Dr. Ronald Schatzman.
On August 27, 2013, Dr. Schatzman examined Claimant and diagnosed
him with abdominal pain from a gunshot wound, back pain, hip pain,
depression, PTSD, and stated “[t]his gentleman is significantly
impaired from activities of daily living.”

(Tr. 425).

The ALJ

noted this opinion but gave “little weight” to the portion of the
opinion

on

restrictions

in

activities

of

daily

living.

He

justified this assessment by finding “[t]here is nothing in the
objective evidence to show this opinion would be substantiated.”
(Tr. 16).
The ALJ is required to evaluate every medical opinion. Salazar
v. Barnhart, 468 F.3d 615, 625-26 (10th Cir. 2006).

Even non-

treating consultative physician’s opinions must be evaluated under
the factors listed in 20 C.F.R. §§ 1527(d) and 416.927(d).
v. Barnhart, 331 F.3d 758, 764 (10th Cir. 2003).

reference in that section are:

Doyal

The factors

(1) the length of the treatment

relationship and the frequency of examination; (2) the nature and
extent of the treatment relationship, including the treatment
provided and the kind of examination or testing performed; (3) the
degree to which the physician's opinion is supported by relevant

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evidence; (4) consistency between the opinion and the record as a
whole; (5) whether or not the physician is a specialist in the area
upon which an opinion is rendered; and (6) other factors brought to
the ALJ's attention which tend to support or contradict the
opinion.

After considering these factors, the ALJ must “give good

reasons” for the weight he ultimately assigns the opinion.

20

C.F.R. § 404.1527(d)(2); Robinson v. Barnhart, 366 F.3d 1078, 1082
(10th Cir. 2004)(citations omitted).

Any such findings must be

“sufficiently specific to make clear to any subsequent reviewers
the weight the adjudicator gave to the treating source’s medical
opinions and the reason for that weight.”

Id.

“Finally, if the

ALJ rejects the opinion completely, he must then give specific,
legitimate reasons for doing so.”

Watkins, 350 F.3d at 1301

(quotations omitted).
The

ALJ

appears

to

have

only

rejected

the

finding

activities of daily living from Dr. Schatzman’s report.

on
The

problem with the report is it does not contain any explanation for
the

finding

of

such

extreme

limitation.

Nothing

from

his

subjective discussions with Claimant indicates such limitations.
He undoubtedly suffers from pain but the “significantly impaired”
finding finds no support internally within the examination report and this is significant since a consultative examiner’s report is

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his only exposure in the record for review.

This Court finds no

error in the ALJ’s consideration of Dr. Schatzman’s opinion.
Claimant also contends the ALJ improperly evaluated the third
party report of Claimant’s mother and father.
30).

(Tr. 199-206, 222-

The ALJ did evaluate Claimant’s mother’s statement and found

it reported Claimant could perform many more activities than
Claimant testified.

While he did not expressly weigh the opinion,

he clearly accepted its content, concluding the activities reported
by Claimant’s mother “appear more consistent with the totality of
evidence than those given by Claimant.”

(Tr. 15). While the

father’s report is not referenced, it does not differ significantly
from the mother’s statement.

This Court finds no error in the

ALJ’s consideration of the lay witness statements.
Credibility Determination
The ALJ determined Claimant’s testimony of limitations and
pain were not “entirely credible.”
objective

x-rays

dislocation.

which

revealed

(Tr. 16).
no

displaced

He cited to
fracture

or

He referenced Dr. Schatzman’s physical examination

findings which included no point tenderness, normal grip strength,
an ability to perform gross and find tactile manipulation.

While

he had tenderness in both knees, his spine was non-tender with full
range of motion. Straight leg raising was negative bilaterally and

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his gait was safe and stable.

The ALJ also thoroughly discussed

the medical examination record which lends little support for the
extreme limitation to which Claimant testified.

(Tr. 16-18).

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

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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.

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.
Conclusion
The decision of the Commissioner is supported by substantial
evidence and the correct legal standards were 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

AFFIRMED.

IT IS SO ORDERED this 31st day of March, 2017.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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