Tedrick v. Social Security Administration

Filing 18

OPINION AND ORDER by Magistrate Judge Steven P. Shreder affirming the decision of the ALJ. (tmb, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
ARTHUR F. TEDRICK,

)
)
Plaintiff,
)
)
v.
)
)
NANCY A. BERRYHILL,
)
Acting Commissioner of the Social )
Security Administration, 1
)
)
Defendant.
)

Case No. CIV-16-114-SPS

OPINION AND ORDER
The claimant Arthur F. Tedrick requests judicial review of a denial of benefits by
the Commissioner of the Social Security Administration pursuant to 42 U.S.C. § 405(g).
He appeals the Commissioner’s decision and asserts that the Administrative Law Judge
(“ALJ”) erred in determining he was not disabled. For the reasons discussed below, the
Commissioner’s decision is hereby 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
1

On January 23, 2017, Nancy A. Berryhill became the Acting Commissioner of Social
Security. In accordance with Fed. R. Civ. P. 25(d), Ms. Berryhill is substituted for Carolyn
Colvin as the Defendant in this action.

age, education, and work experience, engage in any other kind of substantial gainful work
which exists in the national economy[.]” Id. § 423 (d)(2)(A). Social security regulations
implement a five-step sequential process to evaluate a disability claim. See 20 C.F.R.
§§ 404.1520, 416.920. 2
Section 405(g) limits the scope of judicial review of the Commissioner’s decision
to two inquiries: whether the decision was supported by substantial evidence and whether
correct legal standards were applied. See Hawkins v. Chater, 113 F.3d 1162, 1164 (10th
Cir. 1997). Substantial evidence is “‘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); see also Clifton v. Chater, 79 F.3d 1007, 1009 (10th
Cir. 1996). The Court may not reweigh the evidence or substitute its discretion for the
Commissioner’s. See Casias v. Secretary of Health & Human Services, 933 F.2d 799,
800 (10th Cir. 1991). But the Court must review the record as a whole, and “[t]he
substantiality of evidence must take into account whatever in the record fairly detracts
2

Step one requires the claimant to establish that he is not engaged in substantial gainful
activity. Step two requires the claimant to establish that he has a medically severe impairment
(or combination of impairments) that significantly limits his ability to do basic work activities. If
the claimant is engaged in substantial gainful activity, or his impairment is not medically severe,
disability benefits are denied. If he does have a medically severe impairment, it is measured at
step three against the listed impairments in 20 C.F.R. Part 404, Subpt. P, App. 1. If the claimant
has a listed (or “medically equivalent”) impairment, he is regarded as disabled and awarded
benefits without further inquiry. Otherwise, the evaluation proceeds to step four, where the
claimant must show that he lacks the residual functional capacity (“RFC”) to return to his past
relevant work. At step five, the burden shifts to the Commissioner to show there is significant
work in the national economy that the claimant can perform, given his age, education, work
experience, and RFC. Disability benefits are denied if the claimant can return to any of his past
relevant work or if his RFC does not preclude alternative work. See generally Williams v.
Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988).

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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
The claimant was born October 29, 1948, and was sixty-five years old at the time
of the most recent administrative hearing (Tr. 54). He completed three semesters of
college, and has worked as a construction worker I and front-end loader (Tr. 21, 284).
The claimant alleges inability to work since November 1, 2005 due to osteoarthritis,
osteoporosis, heart problems, and high blood pressure (Tr. 284).
Procedural History
On December 16, 2010, the claimant applied for disability insurance benefits
under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. His application was
denied. ALJ Osly F. Deramus conducted an administrative hearing and determined that
the claimant was not disabled in a written opinion dated April 13, 2012 (Tr. 100-106), but
the Appeals Council vacated ALJ Deramus’s opinion and remanded the case back to him
with instructions on remand to properly consider the claimant’s 100% service-connected
disability rating with the Department of Veteran Affairs (VA) (Tr. 112-113). On remand,
ALJ Doug Gabbard, II, conducted a second administrative hearing and again determined
that the claimant was not disabled in a written decision dated June 27, 2014 (Tr. 10-24).
The Appeals Council then denied review, so ALJ Gabbard’s 2014 opinion is the
Commissioner’s final decision for purposes of this appeal. See 20 C.F.R. § 404.981.

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Decision of the Administrative Law Judge
The ALJ made his decision at step five of the sequential evaluation. He found that
the claimant had the residual functional capacity (“RFC”) to perform medium unskilled
work (work which needs little or no judgment to do simple duties that can be learned on
the job in a short period of time), but stated that the claimant must only occasionally be
required to understand, remember, and complete detailed instructions because he has
marked limitations in this area.

Furthermore, the ALJ found that the claimant’s

supervision must be simple, direct, and concrete; that he must work in a setting where he
can frequently work alone where interpersonal contact with supervisors and coworkers
must be incidental to the work performed (such as assembly work); there must be no
contact with the general public; and he must avoid even moderate exposures to dust,
fumes, gases, odors, and other pulmonary irritants and humidity and wetness (Tr. 17).
The ALJ concluded that although the claimant could not return to his past relevant work,
he was nevertheless not disabled because there was work he could perform, i. e., linen
room attendant (Tr. 21-22).
Review
The claimant’s sole contention of error is that the ALJ improperly discounted the
VA disability rating. The Court finds this contention unpersuasive for the following
reasons.
On remand, ALJ Gabbard determined that the claimant had the severe
impairments of chronic obstructive pulmonary disease, back and neck pain secondary to
degenerative disc disease, affective disorder, and substance addiction disorder (alcohol,
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reportedly in remission), as well as the nonsevere impairments of hypertension, ischemia
of the left eye, osteoarthritis and osteoporosis, multiple dental caries requiring complete
mandible and maxillary dentures, right leg muscles gone, previous fracture of the hip in
the 70s, legs and feet numb, cerebrovascular disease, tobacco abuse, obesity, GERD,
erectile dysfunction, sleep disorder, and surgical correction for testicular swelling (Tr. 1415). The medical evidence relevant to this appeal is largely treatment notes from various
Veteran’s Administration treatment facilities. The notes prior to the date last insured of
June 30, 2006 reveal that alcohol abuse and PTSD were on the claimant’s “Problem List”
at the VA (Tr. 377-378). There are, however, no mental health treatment records related
to that time (or thereafter), nor is there a record that the claimant was prescribed mental
health medications. The notes largely reflect that the claimant had vision problems
related to high blood pressure in October 2005, and that he was treated for dental
problems including an abscessed tooth and dentures (Tr., e. g., 391-392, 402). The
claimant was hospitalized for treatment of his COPD and high blood pressure in 2005,
and he was noted to have anxiety because he was not able to smoke while he was in the
hospital, which was treated with an as-needed medication (Tr. 483, 517).
Prior to the alleged onset date, a 2003 treatment notation from the Choctaw Clinic
indicates a diagnosis of Adjustment disorder and that the claimant was prescribed a
seven-day starter pack of Zoloft, but the diagnosis was not mentioned in the treatment
notes again nor was he prescribed further medications related to a mental impairment
(Tr. 700).

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The record nevertheless reflects that the claimant was awarded service-connected
disability benefits from the VA. He was found to have a 70% service-connected overall
rating for PTSD, but an overall 100% unemployability rating, effective June 24, 2003
(Tr. 271-276). The VA found that the claimant’s inability to maintain a job for a length
of time was due to complications related to his PTSD (Tr. 276). At the most recent
administrative hearing, the claimant testified, inter alia, that his drinking evolved from
his PTSD, as a way to treat himself (Tr. 78).
In his written opinion, the ALJ thoroughly summarized the claimant’s testimony,
as well as the medical evidence contained in the record. As relevant to this appeal, the
ALJ noted that the Appeals Council had remanded the case to address the claimant’s VA
disability rating, and proceeded to do so. At step four, the ALJ specifically summarized
all the records from the VA prior to the claimant’s date last insured, noting it was mostly
minimal treatment for COPD (Tr. 19-20). He then noted that there was some evidence in
the record that the claimant had diagnoses of affective disorder, alcohol abuse, and PTSD
prior to the date last insured, but that that claimant received no mental health treatment
and was not prescribed any psychotropic medications (Tr. 20). Further, he noted the
claimant’s hearing testimony in which he stated that many of his problems around the
time he was diagnosed with PTSD and awarded benefits through the VA were related to
his alcohol abuse (Tr. 20). Furthermore, the ALJ noted that there is no record of inpatient
mental health treatment, no record of prescription psychotropic medication, and only four
to five counseling sessions within two years of the most recent administrative hearing
(well past the date last insured) (Tr. 20). He then stated that he gave little weight to the
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VA’s 100% service-connected disability rating in light of the claimant’s lack of medical
treatment or medication management, as well as the claimant’s admitted alcohol abuse at
the same time period (Tr. 21). Additionally, he noted the differing standards between the
VA and the Social Security Administration, and thus found it of little probative value in
this case (Tr. 21).
The claimant contends that the ALJ improperly discounted the VA disability
rating and that the ALJ’s reasons for discounting the disability rating are inadequate.
“‘Although findings by other agencies are not binding on the Secretary, they are entitled
to weight and must be considered.’” Baca v. Department of Health & Human Services,
5 F.3d 476, 480 (10th Cir. 1993)), quoting Fowler v. Califano, 596 F.2d 600, 603 (3d Cir.
1979). Although an ALJ is not required to give controlling weight to the disability
ratings by the VA, see 20 C.F.R. § 404.1527(d)(1) (“We are responsible for making the
determination or decision about whether you meet the statutory definition of disability . .
. A statement by a medical source that you are ‘disabled’ or ‘unable to work’ does not
mean that we will determine that you are disabled.”), he is required to determine the
proper weight to give such findings by applying the factors in 20 C.F.R. § 404.1527. See
Grogan v. Barnhart, 399 F.3d 1257, 1262-1263 (10th Cir. 2005) (“Although another
agency’s determination of disability is not binding on the Social Security Administration,
20 C.F.R. § 416.904, it is evidence that the ALJ must consider and explain why he did
not find it persuasive.”), citing Baca, 5 F.3d at 480. Here, the ALJ’s reasoning, set forth
above, was sufficient.

The claimant argues that the ALJ erred in referencing the

claimant’s alcohol abuse as a reason for rejecting the VA’s disability rating, but the
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claimant himself testified as to the effect of alcohol on him at that time, and this did not
rise of the level of the ALJ rendering a medical opinion as contended by the claimant.
Indeed, the ALJ considered the VA’s rating, but noted the absence of treatment notes to
support any limitations, much less a finding of total disability. “Plaintiff proffers nothing
to suggest that this rationale was not adequate or that the failure to more specifically
compare and contrast the Commissioner’s rules to those that informed the VA’s decision
might yield a different result.” Rex v. Colvin, 26 F. Supp. 3d 1058, (D. Colo. 2014). See
also Breneiser v. Astrue, 231 Fed. Appx. 840, 845 (10th Cir. 2007) (“There is no dispute
that the ALJ considered the VA records and acknowledged the VA’s 100% disability
rating. . . . Mr. Breneiser argues that the ALJ should have given the VA’s rating more
weight, but . . . [t]he ALJ was not required to adopt the VA’s conclusion.”); Jones v.
Barnhart, 53 Fed. Appx. 45, 47-48 (10th Cir. 2002) (“Simply put, the . . . veterans
administration proceedings are entirely different and separate from a claim under the
Social Security Act, with different parties, different evidentiary standards, and different
bodies of law governing their outcomes.

While disability determinations by other

agencies should be considered, they are not binding on the Commissioner.”) (internal
citations omitted).
The essence of the claimant's appeal here is that the Court should re-weigh the
evidence and determine his RFC differently from the Commissioner, which the Court
simply cannot do. The ALJ specifically noted every medical record available in this case,
and still concluded that he could work. See Hill v. Astrue, 289 Fed. Appx. 289, 293 (10th
Cir. 2008) (“The ALJ provided an extensive discussion of the medical record and the
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testimony in support of his RFC finding. We do not require an ALJ to point to ‘specific,
affirmative, medical evidence on the record as to each requirement of an exertional work
level before [he] can determine RFC within that category.’”), quoting Howard, 379 F.3d
at 949. See also Corber v. Massanari, 20 Fed. Appx. 816, 822 (10th Cir.2001) (“The
final responsibility for determining RFC rests with the Commissioner, and because the
assessment is made based upon all the evidence in the record, not only the relevant
medical evidence, it is well within the province of the ALJ.”), citing 20 C.F.R.
§§ 404.1527(e)(2); 404.1546; 404.1545; 416.946.
Conclusion
In summary, the Court finds that correct legal standards were applied by the ALJ,
and the decision of the Commissioner is therefore supported by substantial evidence. The
decision of the Commissioner of the Social Security Administration is accordingly
hereby AFFIRMED.
DATED this 25th day of September, 2017.

______________________________________
STEVEN P. SHREDER
UNITED STATES MAGISTRATE JUDGE

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