Arterberry v. Social Security Administration
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
GINA M. ARTERBERRY,
NANCY A. BERRYHILL, Acting
Commissioner of Social
Case No. CIV-16-233-KEW
OPINION AND ORDER
Plaintiff Gina M. Arterberry (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.
appeals the decision of the Administrative Law Judge (“ALJ”) and
asserts that the Commissioner erred because the ALJ incorrectly
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
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
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).
This Court’s review is limited to
first, whether the decision was supported by
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).
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.”
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
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 was 37 years old at the time of the ALJ’s decision.
Claimant completed her education through the eighth grade. Claimant
has worked in the past as a truck driver, crane operator, brick
loader and unloader, machine cleaner, floater on an assembly line,
fibromyalgia, shoulder injury, dyslexia, difficulty reading and
spelling, and bilateral carpal tunnel syndrome.
disability insurance benefits under Title II (42 U.S.C. § 401, et
seq.) and for supplemental security income pursuant to Title XVI
(42 U.S.C. § 1381, et seq.) of the Social Security Act.
applications were denied initially and upon reconsideration.
Administrative Law Judge (“ALJ”) Bernard Porter by video with
Claimant appearing in Ada, Oklahoma and the ALJ presiding in
By decision dated September 9, 2014, the ALJ
denied Claimant’s request for benefits. The Appeals Council denied
review on March 30, 2016.
As a result, the decision of the ALJ
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
He determined that while Claimant suffered from severe
impairments, she did not meet a listing and retained the residual
functional capacity (“RFC”) to perform a range of sedentary work.
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) failing to
properly evaluate the medical source evidence; and (2) failing to
make a proper credibility determination.
Consideration of the Medical Source Evidence
In his decision, the ALJ found Claimant suffered from the
severe impairments of fibromyalgia, carpal tunnel syndrome, left
shoulder injury, obstructive sleep apnea, migraine headaches,
lumbar disc disease, cervical disc disease, angina, left knee
strain/sprain, post-traumatic stress disorder, dyslexia, and major
The ALJ determined Claimant retained the
RFC to perform a range of sedentary work.
In so doing, the ALJ
found Claimant could lift/carry ten pounds occasionally and five
pounds frequently, sit for up to six hours, stand for up to two
hours, and walk for up to two hours.
Claimant could push and pull
as much as she could lift and carry.
Claimant was limited to
occasional use of hand controls, occasional overhead reaching, and
frequent handling, fingering, and feeling.
She could occasionally
climb ramps and stairs but must never climb ropes, ladders, or
Claimant was limited to frequent balancing, stooping,
and crouching were limited to frequent, occasional kneeling, and no
Claimant should not work around unprotected heights or
around moving mechanical parts and should avoid all environments
where there are temperature extremes.
Claimant was limited by the
ALJ to simple tasks, simple work related decisions, and frequent
interactions with supervisors and co-workers.
Time off task was
considered to be accommodated by normal breaks.
a sit/stand option, which allows for a change in position at least
every 30 minutes, lasting no more than three to four minutes at a
After consultation with a vocational expert, the ALJ found
Claimant could perform the representative jobs of document scanner,
address clerk, and assembly inspector. (Tr. 34). As a result, the
ALJ determined Claimant was not disabled from June 30, 2012 through
the date of the decision.
Claimant asserts the ALJ failed to properly consider and
evaluate the opinions of two treating physicians.
Dr. Aaron Brown
completed a mental medical source statement on Claimant on April
Complete loss of ability to perform the names (sic)
activity in regular, competitive employment and in a
sheltered work setting; could do so only to meet basic
needs at home.
This (sic) is no “useful” ability to
perform this activity in a competitive setting.
in the functional areas of the ability to accept instructions and
respond appropriately to criticism from supervisors and the ability
to behave in an emotionally stable manner.
He also found Claimant had a
Substantial loss of ability to perform the named activity
in regular, competitive employment and, at best, could do
so only in a sheltered work setting where special
considerations and attention are provided. Competitive
work – 8 hrs. (sic) day.
in the functional areas of the ability to demonstrate reliability
customary tolerances; maintaining concentration for an extended
period (being 2 hrs.); maintaining attention/stay on task for an
extended period (being 2 hrs.); the ability to perform at a
consistent pace without an unreasonable number and length of rest
periods/breaks; the ability to make simple work-related decisions;
the ability to ask simple questions or request assistance; the
ability to get along with co-workers or peers without unduly
distracting them or exhibiting behavioral extremes, the ability to
respond appropriately to changes in a routine work setting; the
ability to cope with normal work stresses (even those inherent in
symptoms; and the ability to finish a normal work week without
interruption from psychologically based symptoms.
Dr. Brown also found Claimant had a GAF of 50.
symptoms included crying spells, anhedonia, low energy, chronic
disturbances of mood, difficulty thinking/confusion, and chronic
Claimant was estimated by Dr. Brown to
require to be absent from work more than four days per month due to
The mental impairments were severe enough to be
present regardless of drug and alcohol abuse.
The ALJ gave Dr. Brown’s opinion “little weight” because (1)
it is inconsistent with the evidence of record as a whole showing
essentially normal mental status testing, including Dr. Brown’s own
testing; (2) Dr. Brown had only seen Claimant on two occasions
before rendering an opinion; (3) Claimant did not seek specialized
mental health treatment; and (4) Claimant’s treatment consisted of
hospitalizations or counseling services.
Claimant suggests that the ALJ picked out only the findings
which supported a finding of non-disability.
The ALJ provided
several specific reasons for according Dr. Brown’s opinion reduced
weight. Dr. Brown indicated in his treatment notes that Claimant’s
speech was low volume but coherent, her affect was constricted, her
mood was depressed with feelings of helplessness and worthlessness,
but without suicidal intent or perceptual disturbances.
alert to person, place, and situation, with average intelligence,
and fair insight and judgment throughout Dr. Brown’s treatment
(Tr. 710, 713, 752, 755).
The ALJ determined that these
findings did not support a marked limitation in the ability to
accept criticism or to behave in an emotionally stable manner.
(Tr. 31). Relying upon the inconsistency in a treating physician’s
own treatment notes and his opinion is reasonable.
v. Colvin, 68 Fed. App’x 384, 390 (10th Cir. 2015)(unpublished).
The ALJ also relied upon Dr. Brown’s sparse treatment record,
having only attended Claimant on a limited basis.
While this does
not bear upon the question of whether Dr. Brown constituted
Claimant’s treating physician, it does provide an indicator of the
limited base of knowledge from which Dr. Brown drew his extensive
conclusions of limitation in his source statement.
The ALJ also found the opinion to be inconsistent with the
record of assessments of Claimant’s condition by other providers.
Dr. William Cooper performed assessments on October 15, 2010 and
February 15, 2013.
With regard to Claimant’s mental status, he
found her to be “awake, alert, and oriented x 3.
memories are intact.
processes appear normal.
(Tr. 491, 598).
Recent and remote
Speech is 100% intelligible.
No signs of overt pathology are noted.”
Dr. Baha A. Abu-Esheh, a neurologist, found
Claimant’s speech to be normal, orientation was normal, attentoin
and calculation were normal, no impairment of abstract thinking,
impairment of short term memory.
The ALJ also considered the fact that Claimant did not seek
mental health treatment, outside of the limited visits to Dr.
Certainly, the ALJ is permitted to consider the failure to
See Bean v. Chater, 77 F.3d 1210, 1213 (10th Cir.
Claimant contends the mental consultative examination by Dr.
examination occurred in October of 2010, over a year before
Claimant’s onset date of June of 2012.
might be relevant to establish a longitudinal record of the
However, the fact remains that the report is also
information that supported the rejection of Dr. Brown’s opinion.
Claimant also argues the ALJ should have given weight to his
GAF score of 50.
“The GAF is a subjective determination based on
a scale of 100 to 1 of the clinician's judgment of the individual's
overall level of functioning.” Langley v. Barnhart, 373 F.3d 1116,
1122 n. 3 (10th Cir. 2004).
The Tenth Circuit through a series of
unpublished decisions has made it clear that the failure to discuss
a GAF alone is insufficient to reverse an ALJ’s determination of
See, Lee v. Barnhart, 2004 WL 2810224, 3 (10th
Cir. (Okla.)); Eden v. Barnhart, 2004 WL 2051382, 2 (10th Cir.
(Okla.)); Lopez v. Barnhart, 2003 WL 22351956, 2 (10th Cir.
(N.M.)). The foundation for this statement is the possibility that
the resulting impairment may only relate to the claimant’s social
Lee, supra at 3.
rather than occupational sphere.
However, a GAF
of 50 or less does suggest an inability to keep a job.
Oslin v. Barnhart, 2003 WL 21666675, 3 (10th Cir. (Okla.)).
indicates “[s]erious symptoms (e.g., suicidal ideation, severe
impairment in social, occupational, or school functioning (e.g., no
friends, inability to keep a job).”
Diagnostic and Statistical
Manual of Mental Disorders 34 (4th ed. 2000).
An ALJ is required to consider all relevant evidence in the
Soc. Sec. R. 06-03p.
He is not, however, required to
discuss every piece of evidence in the record.
79 F.3d 1007, 1009-10 (10th Cir. 1996).
Clifton v. Chater,
A GAF score may be of
considerable help to the ALJ in formulating the RFC but it is not
essential to the RFC’s accuracy and “taken alone does not establish
an impairment serious enough to preclude an ability to work.”
Holcomb v. Astrue, 2010 WL 2881530, 2 (Okla.)(unpublished opinion)
citing Howard v. Comm. of Soc. Sec., 276 F.3d 235, 241 (6th Cir.
This Court finds the ALJ was under no legal obligation to
discuss Claimant’s GAF score or the weight he assigned to it.
Claimant also contends the ALJ failed to properly consider the
opinion of Dr. Sangeeta Khetpal, also a treating physician.
Khetpal completed a medical source statement on June 12, 2014.
determined Claimant could “less than occasionally” lift, use his
hands, bend, climb, balance, stoop, kneel, crouch, or crawl.
He also could not stand or walk and could sit for less than
one hour to none.
Dr. Khetpal noted Claimant “can not perform any
His diagnoses included severe fibromyalgia, severe
irritable bowel syndrome, and severe depression.
Dr. Khetpal found Claimant had all 18 tender points for
headaches, temporomandibular joint dysfunction, sleep disorder,
severe fatigue, and cognitive dysfunction.
continuous severe pain.
place (sic) in work.”
He concluded that Claimant “can not be
He also stated Claimant would
have to elevate his legs 30-40 degrees.
bad days mostly.”
Claimant would suffer
He would experience “all
In an understatement, the ALJ concluded that Dr. Khetpal
“opinion appears to be an overestimate of the severity of the
claimant’s functional restrictions and contrasts sharply with his
own treatment records and other evidence in record.”
An ALJ must first determine whether the opinion of a treating
physician is entitled to “controlling weight.” Watkins v. Barnhart,
350 F.3d 1297, 1300 (10th Cir. 2003).
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.”
He must then decide the level of reduced weight the opinion is
to be accorded.
An individual with the level of limitations found
by Dr. Khetpal could find it difficult to exist.
Nothing in the
medical record supports such restrictive limitations in Claimant’s
determination to give Dr. Khetpal’s opinion “little weight” may be
generous but it certainly is not erroneous.
Claimant also challenges that the ALJ did not adequately
consider the statements of Mary Wells, Dr. Khetpal’s assistant, who
opined that Claimant needed the use of a power wheelchair.
Ms. Wells is not a medical professional whose opinion must
(Tr. 30), Franz v. Astrue, 509 F.3d 1299, 1301 (10th
The ALJ was also correct in pointing out that Ms.
Wells’ statement contradicted Dr. Khetpal’s finding that Claimant
had a normal gait.
The ALJ did not err in his
consideration of Ms. Wells’ assertion.
Claimant contends the ALJ failed to properly assess her
The ALJ concluded that her statements were “not
entirely credible” in boilerplate language.
However, the ALJ
continued further to explain his credibility finding.
complained of pain, the diagnostic testing did not support her
(Tr. 27, 431, 451, 642, 695).
Range of motion findings
were generally normal, albeit some with pain.
(Tr. 491, 501, 759,
Claimant’s pain was effectively managed without surgery.
The ALJ considered third party statements from
Claimant’s mother and daughter but ultimately gave them “little
weight” because of their subjectivity.
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.”
Kepler v. Chater, 68
F.3d 387, 391 (10th Cir. 1995).
“Credibility determinations are
peculiarly in the province of the finder of fact” and, as such,
will not be disturbed when supported by substantial evidence.
Factors to be considered in assessing a claimant’s credibility
include (1) the individual’s daily activities; (2) the location,
duration, frequency, and intensity of the individual’s pain or
other symptoms; (3) factors that precipitate and aggravate the
symptoms; (4) the type, dosage, effectiveness, and side effects of
any medication the individual takes or has taken to alleviate pain
or other symptoms; (5) treatment, other than medication, the
individual receives or has received for relief of pain or other
symptoms; (6) any measures other than treatment the individual uses
or has used to relieve pain or other symptoms (e.g., lying flat on
his or her back, standing for 15 to 20 minutes every hour, or
sleeping on a board); and (7) any other factors concerning the
individual's functional limitations and restrictions due to pain or
Soc. Sec. R. 96-7p; 1996 WL 374186, 3.
The ALJ relied upon appropriate factors in evaluating the
credibility of Claimant’s and the third parties’ statements.
nature of Claimant’s treatment, the objective medical testing, and
the inconsistencies between the claimed restrictions and Claimant’s
activities all form specific and legitimate reasons for the ALJ’s
questioning of Claimant’s credibility.
The decision of the Commissioner is supported by substantial
evidence and the correct legal standards were applied.
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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?