Cheater v. Social Security Administration

Filing 22

CORRECTED 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
SHANNON A. CHEATER,

)
)
)
)
)
)
)
)
)
)
)

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

Case No. CIV-16-142-KEW

CORRECTED
OPINION AND ORDER

Plaintiff Shannon A. Cheater (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
discussed

that
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).

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 42 years old at the time of the ALJ’s decision.
Claimant completed her high school education.

Claimant has worked

in the past as a material handler and daycare worker.

Claimant

alleges an inability to work beginning August 22, 2012 due to
limitations resulting from diabetes, high blood pressure, asthma,
right

ear

deafness,

muscle

deterioration,

syndrome.

3

and

carpal

tunnel

Procedural History
On March 23, 2012, Claimant protectively filed for disability

insurance benefits under Title II (42 U.S.C. § 401, et seq.) and
for supplemental security income benefits under Title XVI (42

U.S.C. § 1381, et seq.) of the Social Security Act.

Claimant’s

applications were denied initially and upon reconsideration.

July

29,

2014,

an

administrative

hearing

was

held

On

before

Administrative Law Judge (“ALJ”) James Bentley by video with
Claimant appearing in Poteau, Oklahoma and the ALJ presiding from
McAlester, Oklahoma.

By decision dated October 16, 2014, the ALJ

denied Claimant’s requests for benefits.

The Appeals Council

denied review of the ALJ’s decision on March 8, 2016.
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, she did not meet a listing and retained the residual
functional capacity (“RFC”) to perform light work.
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) reaching an RFC

4

which

was

not

supported

by

substantial

evidence;

(2)

posing

hypothetical questions to the vocational expert which did not
contain all of Claimant’s limitations; (3) failing to perform a
proper credibility analysis; and (4) failing to fully develop the
record.

RFC Determination
In his decision, the ALJ found Claimant suffered from the
severe impairments of diabetes mellitus, obesity, deafness in the
right ear, asthma, hypertension, and anxiety.

(Tr. 21).

The ALJ

determined Claimant retained the RFC to perform light work except
he

restricted

Claimant

to

lifting

or

carrying

20

pounds

occasionally and ten pounds frequently, pushing/pulling limitations
consistent with the weight limitations, stand/walk for six hours
out of an eight hour workday, and sitting for six to eight hours
out of an eight hour workday.

Claimant would need a sit/stand

option, defined as a temporary change in position from sitting to
standing, with no more than one change in position every 20 minutes
and without leaving the workstation so as not to diminish pace or
production.

The

ALJ

designated

that

Claimant

should

avoid

concentrate exposure to dust, fumes, odors, poorly ventilated
areas, and loud noises.

Claimant should never climb ropes,

ladders, and scaffolds. She was limited to only occasional contact

5

with co-workers, supervisors, and the general public.

(Tr. 24).

After consultation with a vocational expert, the ALJ found Claimant
could perform the representative jobs of electrical accessory

assembler and conveyor line bakery worker, both of which the ALJ
found existed in sufficient numbers in both the regional and
national economies.

(Tr. 29).

As a result, the ALJ determined

Claimant was not disabled from June 1, 2009 through the date of the
decision.

(Tr. 30).

Claimant contends the RFC is not supported because the ALJ did
not account for her diabetic neuropathy at step two in finding it
as a severe impairment and in the limitations in the RFC.

The ALJ

considered the evidence of Claimant’s peripheral neuropathy in the
decision.

While

Claimant

reported

the

condition,

the

ALJ

discounted its effects upon her ability to engage in basic work
activity because Claimant was walking and moving but had aching and
burning

in

her

lower

extremities.

However,

she

reported

improvement with changes in her diet and exercise program and ‘was
very happy with the way she was feeling at the time.”

Claimant

also had mixed up her diabetes medication and had not been taking
it as prescribed.

(Tr. 26).

She also did not take insulin despite

having an elevated blood sugar reading.

Medical professionals had

noted that Claimant had refused to take insulin on at least four

6

occasions.

(Tr. 512, 553, 558, 612).

The ALJ may consider the

failure to follow recommended medical treatment in his denial of
benefits.

Frey v. Bowen, 816 F.2d 508, 517 (10th Cir. 1987).

“[R]esidual functional capacity consists of those activities
that a claimant can still perform on 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
facts ... and nonmedical evidence.” Soc. Sec. R. 96–8p.

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.

The medical record does not support a finding that Claimant’s
neuropathy caused the level of limitation she now urges. The ALJ’s
failure to include neuropathy as a severe impairment at step two or
to include any further restrictions in the RFC attributable to this
condition was not error.

7

Step Five Analysis
Claimant next asserts the ALJ improperly found Claimant could
perform the representative jobs based upon the testimony of the
vocational expert.

This contention is based upon the assumption

that the ALJ should have included additional restrictions based
upon Claimant’s neuropathy in the RFC and, consequently, the
hypothetical questioning of the vocational expert.
rejected

the

inclusion

of

further

restrictions

This Court
due

to

this

condition.
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.
(10th Cir. 1990).
only

reflect

Additionally, the hypothetical questions need

impairments

evidentiary record.
1996).

Talley v. Sullivan, 908 F.2d 585, 588

and

limitations

borne

out

by

the

Decker v. Chater, 86 F.3d 953, 955 (10th Cir.

Moreover, Defendant bears the burden at step five of the

sequential analysis. Hargis, 945 F.2d at 1489. The questioning of
the vocational expert accurately mirrored Claimant’s limitations.
Credibility Determination
Claimant contends the ALJ did not conduct a proper credibility
analysis and specifically indicates he should have included an
analysis

of

the

side

effects

of

8

medication.

The

ALJ

found

Claimant’s

testimony

to

be

“partially

credible.”

He

cited

Claimant’s ability to perform her daily activities, including
housekeeping chores, shopping, driving, and attending PTA meetings.
She required a break periodically.

He included a sit/stand option

in the RFC “[b]ecause of the fatigue caused by diabetes and
hypertension.”

(Tr. 27).

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.

The ALJ properly analyzed and considered Claimant’s testimony
in arriving at the RFC.

Moreover, he accommodated the primary

limitation to which she testified.

The medical record does not

suggest limitations due to side effects from any of the medications
Claimant

was

recommended.

prescribed.

Indeed,

she

refused

insulin

when

This Court finds no error in the ALJ’s consideration

of Claimant’s testimony.
Duty to Develop the Record
Claimant asserts the ALJ should have obtained a consultative
examination “to get a better understanding of the extent of

9

[Claimant’s]

neuropathy.”

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 and other evidence
of the existence of the disability.

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

consistent with the issues raised.”

the

disability

hearing

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).
exists even when a claimant is represented by counsel.

This duty
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.
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.”

10

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 a consultative examination
exists in the record.

The record of Claimant’s diabetes and

associated conditions is adequately represented in the medical
record.

The ALJ did not violate his duty to develop the record by

not ordering further medical evaluations.
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.

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IT IS SO ORDERED this 25th day of September, 2017.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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