Dennis 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
LADONNA R. DENNIS,

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

Case No. CIV-16-221-SPS

OPINION AND ORDER
The claimant Ladonna R. Dennis requests judicial review pursuant to 42 U.S.C.
§ 405(g) of the decision of the Commissioner of the Social Security Administration
denying her application for benefits under the Social Security Act. She appeals the
decision of the Commissioner and asserts that the Administrative Law Judge (“ALJ”)
erred in determining she 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 h[er] physical or mental impairment or impairments are of
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.

such severity that [s]he is not only unable to do h[er] previous work but cannot,
considering h[er] age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy[.]” 42 U.S.C. § 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
Judicial review of the Commissioner’s determination is limited in scope by 42
U.S.C. § 405(g). This Court’s review is limited to two inquiries: (1) whether the
decision was supported by substantial evidence, and (2) whether the correct legal
standards were applied. See Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997)
[citation omitted]. The term “substantial evidence” requires “‘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). However, the Court may not reweigh the
evidence nor substitute its discretion for that of the agency. See Casias v. Secretary of

2

Step one requires the claimant to establish that she is not engaged in substantial gainful
activity, as defined by 20 C.F.R. §§ 404.1510, 416.910. Step two requires the claimant to
establish that she has a medically severe impairment (or combination of impairments) that
significantly limits her ability to do basic work activities. Id. §§ 404.1521, 416.921. If the
claimant is engaged in substantial gainful activity, or if her impairment is not medically severe,
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. If the claimant suffers from a listed
impairment (or impairments “medically equivalent” to one), she is determined to be disabled
without further inquiry. Otherwise, the evaluation proceeds to step four, where the claimant
must establish that she lacks the residual functional capacity (RFC) to return to her past relevant
work. The burden then shifts to the Commissioner to establish at step five that there is work
existing in significant numbers in the national economy that the claimant can perform, taking
into account her age, education, work experience, and RFC. Disability benefits are denied if the
Commissioner shows that the claimant’s impairment does not preclude alternative work. See
generally Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988).

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Health & Human Services, 933 F.2d 799, 800 (10th Cir. 1991). Nevertheless, 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 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 on March 13, 1961, and was fifty-three years old at the
time of the administrative hearing (Tr. 32). She completed the twelfth grade, and has
worked as a cake decorator, cashier/stocker, and cook/supervisor (Tr. 45, 269). The
claimant alleges she has been unable to work since December 1, 2011 due to back
problems, depression, and pain in both hands and the left wrist (Tr. 268).
Procedural History
On May 3, 2012, the claimant applied for disability insurance benefits under Title
II of the Social Security Act, 42 U.S.C. §§ 401-434, and for supplemental security
income benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-85. Her
applications were denied. ALJ John Belcher conducted an administrative hearing and
determined that the claimant was not disabled in a written decision dated December 19,
2014 (Tr. 14-22). The Appeals Council denied review, so the ALJ’s decision represents
the Commissioner’s final decision for purposes of this appeal. See 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 found that
the claimant had the residual functional capacity (“RFC”) to perform less than the full
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range of light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), i. e., she
could lift/carry twenty pounds occasionally and ten pounds frequently with consistent
pushing/pulling limitations, stand/walk for six hours in an eight-hour workday, and sit for
six to eight hours in an eight-hour workday, and that she could frequently finger, handle,
and feel bilaterally (Tr. 19). The ALJ thus concluded that the claimant could return to her
past relevant work as either a cake decorator or cashier/stocker (Tr. 21).
Review
The claimant contends that the ALJ erred by: (i) failing to properly assess her
RFC, specifically as to her mental impairments, and (ii) failing to properly consider the
treatment records related to her mental impairments, particularly in relation to his
findings regarding the severity of her mental impairments. Neither of these contentions
have merit, and the decision of the Commissioner should therefore be affirmed.
The ALJ determined that the claimant had the severe impairments of degenerative
disc disease and bilateral wrist carpal tunnel syndrome, we all as the nonsevere
impairments of bilateral hand pain, obese/overweight, and anxiety (Tr. 16). The relevant
medical evidence reflects that the claimant was treated for anxiety and depression
through her primary care facility at least as far back as 2008 (Tr. 353-360).
Treatment notes from the Good Shepherd Clinic indicated the claimant’s reports
of mood swings and irritability, as well as prescription management through Greene
Country Behavioral (Tr. 400). In the latter part of 2013, the claimant began treatment
with Greene Country Behavioral Health Services, and was assessed with major
depressive disorder, recurrent, severe, without psychotic features (Tr. 405).
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The

“Interpretive Summary” states, in part, that the claimant would benefit with treatment and
would be able to stabilize, and that her prognosis was good but dependent on her ability
to participate in the services (Tr. 405). She reported some continued symptoms, but
continued to report improved symptoms (Tr. 415-425). On April 17, 2014, a provider
noted that the claimant was showing some areas of improvement, that she continued to
have anxiety where she would continue to withdraw from crowds, but that her prognosis
was good for her recovery work (Tr. 429-430). By August 2014, the claimant denied
depression or anxiety symptoms, stated her medications were working well, and that she
would occasionally have flashes of shadows going past her but denied audiovisual
hallucinations, and had no complaints or concerns (Tr. 436).
On July 21, 2012, Dr. Beth Jeffries conducted a mental status examination
(Tr. 367). Although overweight, the claimant was neat, clean, and appropriately dressed
for the appointment, and Dr. Jeffries noted that she spoke about her pain in the historical
sense (Tr. 368). She described her mood as a 3 out of 10, and was tearful at times during
the evaluation (Tr. 368). She was able to interpret common proverbs, concentration and
memory appeared intact, and her judgment and insight appeared intact (Tr. 369). Dr.
Jeffries assessed the claimant with, inter alia, panic disorder without agoraphobia, mild
(Tr. 369). She stated that the claimant’s appearance and behaviors were consistent with
such a diagnosis, but concluded that the claimant would be able to perform within an
occupational setting of her choice, as well as manage the pace and flexibility, and to
socialize within a work setting (Tr. 370). She did say that she believed the claimant
would benefit from “a few counseling” sessions and that she would be a good candidate
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for vocational rehabilitation, but also stated that the claimant could perform simple and
complex tasks and did not appear to have psychological, cognitive, and emotional deficits
that would significantly interfere with her ability to perform occupationally (Tr. 370).
On June 29, 2013, Dr. Jeffries conducted a second mental status examination
(Tr. 392). At that exam, Dr. Jeffries assessed the claimant with major depressive disorder
and panic disorder without agoraphobia (Tr. 394). She again noted that the claimant’s
appearance and behaviors were consistent with her reported symptoms, and further stated
that she believed the claimant’s panic and anxiety were related to her depression
(Tr. 394). She again recommended counseling for the claimant, and stated that with
treatment and compliance, the claimant could concentrate over an eight-hour workday
and forty-hour workweek, as well as manage the pace and flexibility and possess the
social skills to interact with co-worker, supervisors, and the public (Tr. 395). She also
again stated that the claimant could understand, remember, and carry out both simple and
complex instructions (Tr. 395).
On September 21, 2012, a state reviewing physician found the claimant’s anxiety
was nonsevere, indicating that she had mild limitations in the three areas of functional
limitations, as well as no episodes of decompensation (Tr. 92). These findings were
affirmed upon reconsideration, at which time the physician opined that the claimant’s
mental impairments pose minimal limitations to her daily functioning and her panic
disorder was mild (Tr. 123).
In his written opinion at step two, the ALJ found that the claimant’s anxiety was
medically determinable but nonsevere (Tr. 16-17). He then summarized Dr. Jeffries’ two
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mental status exams, as well as the treatment notes in the record from the various
facilities. He then concluded that the claimant had mild limitations in activities of daily
living, social functioning, and concentration, persistence, or pace, as well as no episodes
of decompensation, which direct a finding that her mental impairment was nonsevere
(Tr. 18). At step four, inter alia, the ALJ stated that he found the “claimant’s mental
impairments pose minimal limitations to her daily functioning and her panic disorder is
mild at this time” (Tr. 21). He continued, noting that she had stopped taking her antidepressant, and also that she reported no problem with activities of daily living. He
further noted that the state reviewing physicians had found her mental impairment to be
nonsevere, and gave such findings great weight (Tr. 21). He ultimately concluded that
the claimant was not disabled (Tr. 21-22).
The claimant’s arguments are that the ALJ should have found her mental
impairments to be severe, that the ALJ erred in failing to properly consider her intake
scores with Greene Country Behavioral Health and improperly relied on Dr. Jeffries’
assessments over the treatment notes from Greene Country Behavioral Health, and that
such errors are not harmless because this could significantly affect her RFC.
Furthermore, she asserts that the ALJ failed to consider all her impairments, particularly
her nonsevere mental impairment, throughout the sequential evaluation.
Because the ALJ did find that the claimant had severe impairments, any failure to
find the claimant’s additional impairments severe at step two is considered harmless error
because the ALJ would nevertheless be required to consider the effect of these
impairments and account for them in formulating the claimant’s RFC at step four. See,
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e. g., Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008) (“‘At step two, the ALJ
must ‘consider the combined effect of all of [the claimant’s] impairments without regard
to whether any such impairment, if considered separately, would be of sufficient severity
[to survive step two]. Nevertheless, any error here became harmless when the ALJ
reached the proper conclusion that Mrs. Carpenter could not be denied benefits
conclusively at step two and proceeded to the next step of the evaluation sequence.”),
quoting Langley v. Barnhart, 373 F.3d 1116, 1123-24 (10th Cir. 2004) and 20 C.F.R.
§ 404.1523. See also Hill v. Astrue, 289 Fed. Appx. 289, 292 (10th Cir. 2008) (“Once the
ALJ finds that the claimant has any severe impairment, he has satisfied the analysis for
purposes of step two. His failure to find that additional alleged impairments are also
severe is not in itself cause for reversal. But this does not mean the omitted impairment
simply disappears from his analysis. In determining the claimant’s RFC, the ALJ is
required to consider the effect of all of the claimant’s medically determinable
impairments, both those he deems ‘severe’ and those ‘not severe.’”) [emphasis in
original] [citations omitted]. Importantly, however, the Tenth Circuit has held that “a
conclusion that the claimant’s mental impairments are non-severe at step two does not
permit the ALJ simply to disregard those impairments when assessing a claimant’s RFC
and making conclusions at steps four and five.” Wells v Colvin, 727 F.3d 1061, 10681069 (10th Cir. 2013). “To sum up, to the extent the ALJ relied on his finding of nonseverity as a substitute for adequate RFC analysis, the Commissioner’s regulations
demand a more thorough analysis.” Well, 727 F.3d at 1069. More specifically, “if the

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ALJ finds mild restrictions in the first three functional areas, further analysis is required
at step four.” Boyer v. Colvin, 2016 WL 1170950, at *4 (D. Kan. March 23, 2016).
In Wells, the Tenth Circuit indicated that the ALJ is required at step four to
“provide a more detailed assessment of Ms. Wells’ ability to complete various job
functions.” Wells, 727 F.3d at 1069. (“[T]he ALJ did—as previously mentioned—
separately discuss Ms. Wells’ mental impairments to some degree, when assessing her
credibility as part of his RFC determination.

This discussion, though far from

comprehensive, might have satisfied the ALJ’s obligation at step four to provide a more
detailed assessment of Ms. Wells’ ability to complete various job functions as part of
determining her RFC.

But we need no determine whether the discussion was

procedurally adequate, because the ALJ’s conclusions on this point were not supported
by substantial evidence.”) (emphasis added).

In this case, the claimant’s RFC is

consistent with Dr. Jeffries’ opinions and the evidence in the treatment records.
Furthermore, the ALJ discussed the claimant’s mental impairments in his RFC analysis at
step four, including a discussion regarding functional limitations related to daily
activities, stress, handling instructions, and the ability to pay attention for long periods of
time (Tr. 21).

This demonstrates that the ALJ evaluated the claimant’s functional

limitations with regard to all impairments, including the nonsevere mental impairments.
As such, any error in finding that the claimant’s mental impairments were nonsevere at
step two became harmless when the ALJ then proceeded through the rest of the
evaluation and explicitly considered her mental impairments.

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The ALJ specifically noted every medical record available in the administrative
record, and still concluded that she could work. See Hill, 289 Fed. Appx. at 293 (“The
ALJ provided an extensive discussion of the medical record and the 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, 20 Fed. Appx. at 822 (“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. Essentially,
the claimant asks the Court to reweigh the evidence in the record, which the Court cannot
do. See Casias, 933 F.2d at 800 (“In evaluating the appeal, we neither reweigh the
evidence nor substitute our judgment for that of the agency.”).
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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