Wilson 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
MICHAEL GENE WILSON,

)
)
)
)
)
)
)
)
)
)
)

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

Case No. CIV-16-215-KEW

OPINION AND ORDER

Plaintiff

Michael

Gene

Wilson

(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 Claimant was not disabled.

For the

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

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 53 years old at the time of the ALJ’s decision.
Claimant obtained a GED.

Claimant has worked in the past as a

driller, roughneck, industrial cleaner, hand packager, welder, and
construction

worker.

Claimant

alleges

an

inability

to

work

beginning July 1, 2009 due to limitations resulting from COPD,
degenerative arthritis, cellulitis, deep vein thrombosis, systemic
lupus erythematosus, and insomnia.

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Procedural History
On

December

15,

2011,

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. On May

6,

2014,

Administrative

Law

Judge

(“ALJ”)

Doug

Gabbard,

II

conducted an administrative hearing on Claimant’s applications. By
decision dated October 3, 2014, the ALJ denied Claimant’s requests
for benefits. The Appeals Council denied review on March 23, 2016.
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 her 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 a full range of light work
with limitations.
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) failing to
properly consider the medical source opinion evidence of Claimant’s

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treating physician; (2) failing to perform a proper analysis at
steps four and five; and (3) failing to properly apply the MedicalVocational Guidelines.

Consideration of the Medical Opinion Evidence
In his decision, the ALJ found Claimant suffered from the
severe impairments of cervical, thoracic, and lumbar degenerative
disc disease, status post left shoulder rotator cuff tear and
scapular fracture, right shoulder degenerative changes, generalized
arthritis, rheumatoid arthritis, systemic lupus erythematosus by
laboratory results, COPD, and pulmonary fibrosis.

(Tr. 20).

The

ALJ found Claimant retained the RFC to perform a full range of
light work.
lift/carry

In so doing, the ALJ determined Claimant could
20

pounds

occasionally

and

ten

pounds

frequently,

stand/walk for about six hours in an eight hour workday, and sit
for about six hours in an eight hour workday.

Claimant could only

occasionally

occasionally

climb,

stoop,

and

crouch

and

reach

overhead bilaterally. Claimant must avoid even moderate expsure to
dust, odors, fumes, gases, and other pulmonary irritants.

He must

be allowed to alternately sit and stand, but without leaving the
workstation.

Claimant could stand for as long as one to one and a

half hours at a time before sitting, and he could sit for as long
as two hours at a time before standing.

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(Tr. 26).

After consultation with a vocational expert, the ALJ found
Claimant could perform the representative jobs of production small
products assembler and arcade attendant, both of which the ALJ
determined existed in sufficient numbers in both the regional and
national economies.

(Tr. 41).

As a result, the ALJ concluded

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

Id.

Claimant asserts the ALJ failed to properly consider the
opinion

of

Dr.

physicians.

Mark

R.

Rogow,

one

of

Claimant’s

treating

Dr. Rogow authored a medical source statement dated

May 9, 2014.
stand/walk.

He found Claimant could “infrequently” sit and
“Infrequently” is defined on the form used by Dr.

Rogow as “0-1 hrs.”

(Tr. 632).

He estimated that Claimant could

frequently lift/carry less than ten pounds.

Dr. Rogow also stated

Claimant could “infrequently” use his arms for reaching, pushing,
and pulling.

Claimant could “occasionally” use his hands for

grasping, handling, fingering, or feeling.
defined on the form as “2-3 hrs.”
pain.

“Occasionally” is

He also needs rest because of

In the supporting medical findings section, Dr. Rogow

narratively states “cervical & lumbar disc disease & radiculitis;
arthritis

of

osteoarthritis.”

shoulders.

Arthritis

Id.

6

in

hip.

Generalized

The ALJ did not give Dr. Rogow’s opinion “controlling weight”,
finding
it is not consistent with other substantial evidence in
the record, including diagnostic images of the claimant’s
lumbar and cervical spine, which show no anatomical cause
of radiculitis (with only mild/grade I anterolisthesis
and no evidence of nerve root impingement, and findings
on examination, including his own examination findings,
which do not support the degree of limitation he opines.
(Tr. 36).
The ALJ explained further that he was giving Dr. Rogow’s
opinion “little, if any, weight” because (1) Dr. Rogow is not a
specialist in neurology, orthopedics, or rheumatology, but rather
a general practice physician; (2) his treatment of Claimant, which
consisted of refilling prescription medication, was not consistent
with the degree of limitation he asserts; (3) Dr. Rogow rarely made
changes to Claimant’s medication, even when Claimant complained of
increased symptomatology; (4) diagnostic imaging did not support an
anatomical cause for Claimant’s radiculopathy and Dr. Rogow only
recorded

Claimant’s

subjective

statements

on

this

pain;

(5)

straight leg raising testing was positive only in the supine
position; (6) abnormal range of motion findings on Claimant’s right
shoulder only occurred on one occasion when he had normal range of
motion on other occasions; (7) no evidence of arthritis of the hip
appears in the record - only hip tenderness; (8) osteoarthritis
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only resulted in joint swelling but no loss of range of motion; (9)
Claimant had normal hand skills and grip strength with a safe and
stable gait without the use of an assistive device; (10) Dr.
Rogow’s limitations were inconsistent with Claimant’s own testimony
that he could stand up one to one and a half hours at a time and
sit for two hours at a time; and (11) Dr. Rogow’s degree of
limitation was inconsistent with Claimant’s reported physical
activities.

(Tr. 36-37).

The ALJ also found Dr. Rogow’s opinion

was contradicted by state agency physicians who determined Claimant
could perform a full range of light work, although the ALJ included
additional limitations not found in the state agency reviewer’s
reports.

(Tr. 37).

Contrary to Claimant’s arguments, the ALJ was authorized to
consider as one factor that Dr. Rogow is not a specialist, since
the regulations permit an ALJ to give more weight to a specialist
than a non-specialist in the areas for which an opinion is offered.
See 20 C.F.R. § 404.1527(c)(5).

Dr. Rogow’s reliance upon the

examination by Dr. Jim Burke wherein he found range of motion of
the shoulders, elbows, wrists, and hands to be within normal limits
was reasonable.

(Tr. 523).

Even the records to which Claimant

cites to support further restrictions of the left shoulder indicate
“[o]verall findings were normal” noting some decreased range of

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motion.

(Tr. 566).

In deciding how much weight to give the opinion of a treating
physician, an ALJ must first determine whether the opinion is
entitled to “controlling weight.”
1297, 1300 (10th Cir. 2003).

Watkins v. Barnhart, 350 F.3d

An ALJ is required to give the

opinion of a treating physician controlling weight if it is both:
(1) “well-supported by medically acceptable clinical and laboratory
diagnostic techniques”; and (2) “consistent with other substantial
evidence in the record.”

Id. (quotation omitted).

“[I]f the

opinion is deficient in either of these respects, then it is not
entitled to controlling weight.”

Id.

Even if a treating physician's opinion is not entitled to
controlling weight, “[t]reating source medical opinions are still
entitled to deference and must be weighed using all of the factors
provided in 20 C.F.R. § 404.1527.”

Id. (quotation omitted).

factors reference in that section are:

The

(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 evidence; (4) consistency between the opinion
and the record as a whole; (5) whether or not the physician is a

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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.

Id. at 1300-01 (quotation omitted).

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 in this case provided very specific and accurate
reasons

for

rejecting

Dr.

Rogow’s

restrictive medical source statement.

rather

brief

but

overly

No error is attributed to

the ultimate bases for rejecting the opinion.
Claimant also contends the ALJ failed to weigh Dr. Burke’s
opinion.

The ALJ acknowledged Dr. Burke’s finding with regard to

his upper extremity testing (Tr. 29), knee and joint pain findings,
(Tr.

30),

COPD

findings

(Tr.

31),

strength

and

neurological

findings (Tr. 31-32), and found his findings to be consistent with

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the other state agency physicians whose opinions he gave “some
weight.”

(Tr. 37).

Defendant contends the ALJ considered all of Dr. Burke’s
findings and accepted them.

However, Defendant argues Dr. Burke’s

findings do not constitute a medical opinion that must be weighed.
As Defendant indicates, “[m]edical opinions are statements from
physicians . . . that reflect judgments about the nature and
severity of your impairment(s), including your symptoms, diagnosis
and prognosis, what you can still do despite impairment(s), and
your physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(2).
Dr.

Burke

offers

diagnostic

findings

which

acknowledges and, for the most part, accepts.

the

ALJ

readily

He does not render

an opinion as to Claimant’s occupational restrictions which would
translate to the RFC.

As a result, the ALJ did not err in failing

to specifically state a weight for Dr. Burke’s diagnostic report.
Step Four and Five Analysis
Claimant contends the ALJ should have included additional
restrictions in the RFC based upon Dr. Rogow’s medical source
statement.

The ALJ’s rejection of Dr. Rogow’s opinion has been

affirmed by this Court.

Consequently, no further restrictions

based upon Dr. Rogow’s conclusions were required in the RFC or the
hypothetical questioning of the vocational expert.

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Claimant also asserts the ALJ should have included additional
limitations in the RFC for various medical and mental conditions.
The ALJ accounted for Claimant’s limitations in reaching.
26).

(Tr.

No additional restriction for pushing or pulling was alleged

or warranted by the evidence.
Claimant
standing.

contends

his

COPD

restricted

his

walking

and

The ALJ considered the evidence regarding Claimant’s

respiratory condition, noting his smoking habit and testing which
he concluded did not require further restrictions.

(Tr. 31).

Claimant asserts the ALJ should have included restrictions for
his hands.

The evidence did not support further motor or sensory

deficits for which additional limitations in the RFC were required.
(Tr. 22, 30).
Claimant also contends the ALJ should have included the
“paragraph B” limitations in the RFC.

The social security ruling

on assessing a claimant's RFC cautions that “[t]he adjudicator must
remember that the limitations identified in the ‘paragraph B’ ...
criteria are not an RFC assessment but are used to rate the
severity of mental impairment(s) at steps 2 and 3 of the sequential
evaluation process.”
specifically

found

Soc. Sec. R. 96–8p.
that

the

failure

to

The Tenth Circuit has
include

a

moderate

limitation in social functioning, for example, in the RFC based

12

solely upon the finding at step three is not error.
Colvin, 520 Fed. Appx. 748, 754 (10th Cir. 2013).

Beasley v.
No error is

attributable to failing to include the “paragraph B” criteria in
the RFC.
Claimant follows through with this argument and contends the
ALJ should have included additional limitations in the hypothetical
questioning of the vocational expert.

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.
Talley

v.

Sullivan,

Additionally,

the

908

F.2d

hypothetical

585,

588

questions

(10th
need

Cir.
only

1990).
reflect

impairments and limitations borne out by the evidentiary record.
Decker v. Chater, 86 F.3d 953, 955 (10th Cir. 1996).

The ALJ’s

questioning accurately reflected the limitations supported by the
evidentiary record.
Application of the Grids
Claimant asserts the ALJ should have applied the MedicalVocational Guidelines to his limitations.

This Court finds no

error in the RFC restricting Claimant to light work. An individual
of Claimant’s age, education, and work experience who is limited to
the full range of light work is presumptively not disabled.
C.F.R. Pt. 404, Subpt. P, App. 2, Table No. 2 § 202.14.

13

See 20
The ALJ

did not err in declining to apply the grids in this case.
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 28th day of September, 2017.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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