Patterson v. Social Security Administration

Filing 24

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
JERRY L. PATTERSON,

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

Case No. CIV-16-047-KEW

OPINION AND ORDER

Plaintiff Jerry L. Patterson (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,

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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).

2

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 55 years old at the time of the ALJ’s decision.
Claimant completed his education through the ninth grade.
has worked in the past as a coal miner.

Claimant

Claimant alleges an

inability to work beginning March 20, 2009 due to limitations
resulting from emphysema, hypertension, low blood sugar, and spine
issues.
Procedural History

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On August 14, 2013, Claimant protectively filed for disability

insurance benefits under Title II (42 U.S.C. § 401, et seq.) and on
August 15, 2013, Claimant filed for supplemental security income
under Title XVI (42 U.S.C. § 1381, et seq.) of the Social Security

Act.

Claimant’s

reconsideration.

applications

were

denied

initially

and

upon

On July 27, 2015, an administrative hearing was

held before Administrative Law Judge (“ALJ”) Lantz McClain by video
with Claimant appearing in Poteau, Oklahoma and the ALJ presiding
from Tulsa, Oklahoma.

By decision dated August 26, 2015, the ALJ

denied Claimant’s request for benefits. The Appeals Council denied
review of the ALJ’s decision on November 30, 2015.
the

decision

of

the

ALJ

represents

the

decision for purposes of further appeal.

As a result,

Commissioner’s

final

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) failing to
determine an appropriate RFC; (2) failing to properly evaluate

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Claimant’s ability to perform the representative jobs at step five;
and (3) failing to order a consultative mental examination.

RFC Determination
In his decision, the ALJ found Claimant suffered from the
severe impairment of emphysema in a smoker and hypertension.

(Tr.

15). The ALJ determined Claimant retained the RFC to perform light
work.

In so doing, the ALJ found Claimant could occasionally

lift/carry

20

pounds

and

frequently

lift/carry

ten

pounds,

stand/walk at least six hours in an eight hour workday with normal
breaks, sit at least six hours in an eight hour workday with normal
breaks, and work in an office-like environment.

(Tr. 16).

After consultation with a vocational expert, the ALJ found
Claimant could perform the representative jobs of mail room clerk

and retail attendant, both of which he found existed in sufficient
numbers in the regional and national economies.

(Tr. 23).

As a

result, the ALJ determined Claimant was not disabled from March 20,
2009 through the date of the decision.

Id.

Claimant contends the ALJ erred in his RFC assessment.

He

first argues that the ALJ failed to evaluate his subjective claims
appropriately.

As an initial matter, Claimant asserts that the

newly enacted Soc. Sec. R. 16-3p should be employed in evaluating
his subjective complaints.

The effective date of this new Ruling

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was expressly set as March of 2016.
WL 1119029.

See Soc. Sec. R. 16-3p, 2016

As a result, the prior Soc. Sec. R. 96-7p applies to

the evaluation of Claimant’s complaints for the purpose of this
appeal.
Under this Ruling, the ALJ was required to consider (1)
whether

Claimant

has

established

the

existence

of

medically

determinable physical or mental impairment that could reasonably be
expected to produce Claimant’s pain or other symptoms; and (2) if
so,

whether,

after

consideration

all

of

the

evidence,

the

intensity, persistence, and limiting effects of Claimant’s symptoms
limit his ability to engage in basic work activities.

See Soc.

Sec. R. 96-7p; see also Luna v. Bowen, 834 F.2d 161 (10th Cir.
1987).

The ALJ agreed that Claimant satisfied the first prong of

establishing a medically determinable impairment.

(Tr. 15).

The ALJ recited Claimant’s testimony in considerable detail.
Claimant testified to difficulties in breathing and resulting
fatigue.

Heat and humidity bothers his breathing and he runs out

of air with exertion.

(Tr. 17).

However, the ALJ cited to the record to indicate normal or
near normal oxygen saturation levels.

(Tr. 18-20; 318, 339, 343,

347, 350, 354, 357, 360). The ALJ also determined Claimant was not
“entirely

compliant

in

taking

prescribed

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medications,

which

suggests the symptoms may not have been as limiting as the claimant
has alleged . . . .”

(Tr. 21).

Although Claimant suggested he did

not have insurance, he did not produce evidence to indicate he had
been denied medication due to financial considerations.

Id.

Indeed, Claimant stated he went to a low income clinic and that
“they take people in.”
assistance.

(Tr. 45).

(Tr. 429).

He also received medication on

The record confirms Claimant was non-

complaint with his medications as noted by treating professionals.
(Tr. 338, 349).
The ALJ relied upon the opinions of state agency physicians to
conclude Claimant was not as restricted in his ability to engage in
basic work activity as his subjective complaints would suggest.
Dr. Adel Malati, a consultative examining physician, found Claimant
was able to sit, stand, and lie down without difficulty, had no
problem with his gait, full range of motion, good bilateral grip
strength, and minimal difficulty with heel and toe walking.
365).
with

(Tr.

Claimant does not direct this Court to any medical evidence
contradicts

the

ALJ’s

conclusions

with

regard

to

his

evaluation of Claimant’s subjective complaints or the RFC he
ultimately determined.

The ALJ’s opinion is well-supported by

substantial evidence.
Step Five Analysis

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Claimant also contends the ALJ erred in finding he could
perform the representative jobs of mail room clerk and retail
attendant.

In

citing

to

the

two

jobs’

requirements

in

the

Dictionary of Occupational Titles (“DOT”), Claimant relies upon his
subjective complaints which the ALJ appropriately discounted.
Claimant also engages in rank speculation in asserting that the
environmental restrictions noted by the vocational expert - office
environment, no temperature extremes, no dust or fumes – would
preclude these jobs because “[c]ustomers and co-workers both wear
perfume, cologne, body sprays, hairspray, deodorant, etc.”

These

assumptions are not contained in the record nor were they specified
by the vocational expert.

Claimant returns to the contention that

his subjective complaints demonstrate he was disabled.

This is

merely

without

a

reassertion

of

the

prior

argument

and

is

foundation.
Duty to Develop the Record
Claimant

contends

the

ALJ

should

have

ordered

a

mental

consultative examination. He cites to two references in the record
from Dr. Randy Cochran in January of 2014 and an unidentified
professional in February of 2014 - both reviewing agency mental
health professionals - who cite to statements from Claimant which
suggest he might have problems remembering.

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(Tr. 61, 87).

Again,

the sole basis for these findings were the subjective statements of
Claimant.

Numerous other records indicate Claimant had not mental

health issues and never raised any such impairments during the
course of the proceedings.

(Tr. 339, 343, 347, 350, 354, 357,

360).
Generally, the burden to prove disability in a social security
case is on the claimant, and to meet this burden, the claimant must
furnish

medical

disability.

and

other

evidence

of

the

existence

of

the

Branam v. Barnhart, 385 F.3d 1268, 1271 (10th Cir.

2004) citing Bowen v. Yuckert, 482 U.S. 137, 146 (1987).

A social

security disability hearing is nonadversarial, however, and the ALJ
bears responsibility for ensuring that “an adequate record is
developed during the disability hearing consistent with the issues
raised.”

Id. quoting Henrie v. United States Dep't of Health &

Human Services, 13 F.3d 359, 360-61 (10th Cir. 1993).

As a result,

“[a]n ALJ has the duty to develop the record by obtaining pertinent,
available medical records which come to his attention during the
course of the hearing.” Id. quoting Carter v. Chater, 73 F.3d 1019,
1022 (10th Cir. 1996).

This duty exists even when a claimant is

represented by counsel.

Baca v. Dept. of Health & Human Services,

5 F.3d 476, 480 (10th Cir. 1993).

The court, however, is not

required to act as a claimant’s advocate.

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Henrie, 13 F.3d at 361.

The duty to develop the record extends to ordering consultative
examinations and testing where required. Consultative examinations
are used to “secure needed medical evidence the file does not
contain such as clinical findings, laboratory tests, a diagnosis or
prognosis

necessary

for

decision.”

20

C.F.R.

§

416.919a(2).

Normally, a consultative examination is required if
(1) The additional evidence needed is not contained in
the records of your medical sources;
(2) The evidence that may have been available from your
treating or other medical sources cannot be obtained for
reasons beyond your control, . . .
(3) Highly technical or specialized medical evidence that
we need is not available from your treating or other
medical sources;
(4) A conflict, inconsistency, ambiguity or insufficiency
in the evidence mus be resolved, and we are unable to do
so by recontacting your medical source; or
(5) There is an indication of a change in your condition
that is likely to affect your ability to work.
20 C.F.R. § 416.909a(2)(b).
None

of

these

bases

for

ordering

examination exists in the record.

a

consultative

mental

The ALJ did not violate his duty

to develop the record by not ordering further such evaluations.
Conclusion
The decision of the Commissioner is supported by substantial

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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 28th day of September, 2017.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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