Christie v. Social Security Administration

Filing 23

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
PATRICIA ANN CHRISTIE,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
Commissioner of Social
Security Administration,
Defendant.

Case No. CIV-16-544-KEW

OPINION AND ORDER

Plaintiff Patricia Ann Christie (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).
Security

Act

“only

if

A claimant is disabled under the Social
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;

standards were applied.

and,

second,

whether

the

correct

legal

Hawkins v. Chater, 113 F.3d 1162, 1164

1

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

(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 49 years old at the time of the ALJ’s decision.
Claimant completed her through the eleventh grade.

Claimant has

worked in the past as a kitchen helper, home health provider,
housekeeper, line worker, and laundry attendant.

Claimant alleges

an inability to work beginning July 1, 2013 due to limitations
resulting from constant pain in her back and knees, neuropathy in

her hands and feet, and diabetes.
Procedural History

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On July 18, 2013, Claimant protectively filed for 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.

Claimant’s applications

were denied initially and upon reconsideration.

2015,

On September 8,

Administrative Law Judge (“ALJ”) Deborah Rose conducted an

administrative hearing by video with Claimant appearing in Poteau,
Oklahoma and the ALJ presiding in Tulsa, Oklahoma.

On December 1,

2015, the ALJ entered an unfavorable decision. The Appeals Council
denied review on October 19, 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 four of the sequential
evaluation. She determined that while Claimant suffered from severe
impairments, she did not meet a listing and retained the residual
functional capacity (“RFC”) to perform her past relevant work.
Errors Alleged for Review
Claimant asserts the ALJ committed error in failing to properly
evaluate the medical opinion evidence.
Evaluation of the Opinion Evidence
In her decision, the ALJ found Claimant suffered from the

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severe

impairments

of

history

of

a

right

shoulder

injury,

degenerative disc disease, right knee bursitis and tendinopathy, and
diabetes with peripheral neuropathy.

(Tr. 17). The ALJ determined

Claimant retained the RFC to perform a range of light work.

She

could lift/carry up to ten pounds frequently and up to 20 pounds
occasionally; stand/walk six hours per day and sit six hours daily;
only occasionally climb ladders, ropes, or scaffolds, kneel, crouch,
and crawl; frequently climb ramps or stairs, balance, or stoop; only
occasionally

reach

overhead

with

the

dominant,

right

upper

extremity; and frequently, but not constantly, handle or finger with
her dominant, right upper extremity.

(Tr. 20).

After consultation with a vocational expert, the ALJ concluded
Claimant could perform her past relevant work as a housekeeper,
laundry attendant, line worker, and kitchen helper.

(Tr. 25).

Alternatively, the ALJ found at step five that Claimant could
perform the representative jobs of cashier II, produce sorter, and
small product assembler, all of which existed in sufficient numbers
both regionally and nationally.

(Tr. 27).

As a result, the ALJ

found Claimant was not under a disability from July 1, 2013 through
the date of the decision.

(Tr. 19).

Claimant contends the ALJ failed to properly consider the
medical opinion evidence.

Specifically, Claimant asserts that the

ALJ improperly discounted the opinion of Dr. Tony Brown.

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Dr. Brown

completed a medical source statement dated August 6, 2014 which
consisted of four documents.

In a document entitled “Medical

Opinion Re: Absences from Work”, Dr. Brown opines that Claimant
could miss work about three or more days per month.

He attributed

this estimation to Claimant’s “lumbar back pain w/radiation to the
[left] lower extremity which frequently gives way causing pt. to
have frequent falls. [Right] shoulder post-traumatic structural
abnormality w/limited ROM.”

(Tr. 379).

The second document is entitled “Medical Opinion Re: Clinical
Assessment of Pain.” Dr. Brown indicated “[p]ain is present to such
an extent as to cause a limitation(s) or restriction(s) having more
than a minimal effect on the ability to do basic work activities or
activities of daily living on a day-to-day basis.”
the

box

on

the

form

indicating

Claimant

would

He also checked
experience

an

“[i]ncrease of pain to such an extent that rest and/or medication
is necessary” while engaging in physical work activities. Dr. Brown
estimated that Claimant’s pain would reduce her ability to perform
basic mental work activities by stating “[a] reduction in basic
mental work activities to such a degree as to cause inadequate
functioning in such task(s) or total abandonment of task(s).”

Dr.

Brown also indicated Claimant’s medication would cause “[s]ome
limitations may be present but not to such a degree as to create a
serious problem in most instances.”

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He attributed these findings

upon his diagnosed impairments of anatomical derrangement of the
right shoulder with limited range of motion and radiculopathy. (Tr.
380).
Dr. Brown’s third document was entitled “Medical Opinion Re:
Sedentary Work Requirements.”

He concluded in this document that

Claimant could stand/walk up to two hours in an eight hour workday;
required the use of a hand held assistive device for even occasional
standing and/or walking; could not sit up to six hours in a normal
seated position; required elevation of her legs; could not carry ten
pounds; could lift five pounds on a repetitive basis; could not use
both hands for fine manipulation; could not sustain activity at a
pace and with the attention to task as would be required in a
competitive workplace; was likely to have significantly difficulty
concentrating due to impairments; would require unscheduled breaks
during an eight hour workday; could not sustain normal work stress
in a routine work setting on a day-to-day basis; could not be
expected to attend any employment on a sustained basis; and had nonexertional impairments which would substantially restrict Claimant’s
ability to function.
The

final

(Tr. 381).

document

from

Dr.

Brown

is

entitled

“Physical

Residual Functional Capacity Questionnaire.” Dr. Brown states that
he had attended Claimant for three years with monthly appointments.
He diagnosed Claimant with derrangement of the right shoulder,

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intervertebral lumbar disc problems.

(Tr. 382).

He limited

Claimant to less than two hours to sit, stand/walk in an eight hour
workday; a need to walk around in an eight hour workday every 30
minutes for ten minutes; a need to shift at will from sitting,
standing or walking; a need for unscheduled breaks approximately
every 45 minutes for 20 minutes at a time; a need for leg elevation;
use of an assistive device to stand/walk occasionally;

rarely

lift/carry less than ten pounds; never twist, stoop, crouch, climb
ladders, or climb stairs; significant limitations in reaching,
handling, or fingering due to the right shoulder; no overhead
reaching; and an estimation that Claimant would likely be absent
from work more than four days per month.

(Tr. 383-84).

Dr. Brown also found Claimant was limited by mental conditions,
including depression and anxiety. These conditions would frequently
interfere with attention and concentration. He determined Claimant
was incapable of handling work stress due to pain syndrome from her
injuries.

He also found Claimant could walk 1/4 block without rest

or severe pain.

Claimant could sit at one time 20-30 minutes and

could stand at one time for 30 minutes. Dr. Brown stated that these
limitations applied beginning four years prior.

(Tr. 386).

The ALJ acknowledged Dr. Brown’s assessment but gave it “little
weight” contending the limitations alleged were not consistent with
the overall evidence. In particular, the ALJ found that no evidence

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indicated

Claimant

had

significant

requiring an assistive device.

unsteadiness

in

her

gait

He also found Claimant’s pain was

well-controlled with medication and the record never indicated she
needed

a

specialist

referral,

surgery,

or

physical

therapy.

Objective testing revealed no more than minor degeneration in the
lumbar spine and right knee.

She demonstrated reduced range of

motion in her right arm but no similar limitation in her left arm
that would warrant overhead reaching with her left arm.

Her daily

activities of dressing, eating, getting out of bed and a chair, and
using the restroom without difficulty belied a finding of further
limitation.

The

ALJ

also

cited

to

Claimant’s

activities

in

vacuuming, washing dishes, and helping care for her grandchildren
on weekends to contradict Dr. Brown’s assessment.

(Tr. 23-24).

Claimant cites to Soc. Sec. R. 96-8p and 96-9p to support a
contention that the ALJ must determine the circumstances under which
an assistive device is required.

While the record indicates pain

Claimant’s knee, the record is devoid of any reference to a need for
an assistive device for Claimant to walk or stand or even a
reference to an unsteady or unstable gait.

Moreover, the objective

testing revealed only minimal degenerative changes in Claimant’s
lower back and knee.

(Tr. 475-78).

The ALJ was certainly within

her province to find a lack of support for this finding by Dr.

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Brown.
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.”

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) “wellsupported 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 specialist
in the area upon which an opinion is rendered; and (6) other factors

10

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).

Dr. Brown’s own treatment records do not support the level of
limitation he urged in his source statement.

Moreover, the level

and nature of Claimant’s activities of daily living contradict Dr.
Brown’s opinion and his restrictions are not supported by the other
medical evidence of record.

As a result, the ALJ did not err in

her assessment of Dr. Brown’s opinion and rejection of further
restrictions in the RFC.
Claimant also challenged the opinion offered by Ms. Michele
Shahan-Hale,
Claimant.

a

physical

therapist

who

rendered

treatment

to

On August 13, 2015, Ms. Shahan-Hale completed a source

statement which concluded Claimant could perform at less than a

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sedentary level with a maximum occasional lift restriction to ten
pounds.

(Tr. 461).

She also limited Claimant to standing and

walking for no more than one hour in an eight hour workday.
462).

(Tr.

Ms. Shahan-Hale found Claimant should never reach, handle,

finger, or pull and only occasionally push.

She should also never

work around heights or moving machinery. (Tr. 467). Based upon two
hours of observation, Ms. Shahan-Hale concluded Claimant could not
sustain normal exertion to work an eight hour workday or 40 hour
workweek.

She stated, “[Claimant’s] weakness, limited range of

motion, balance issues, and limited ability for reaching, stopping
(sic), crouching, climbing, kneeling, lifting, and carrying as
demonstrated during this evaluation would not be sustainable for job
performance and place her at risk for additional injury.”

(Tr.

468).
Ms. Shahan-Hale is not considered an “acceptable medical
source.”

20 C.F.R. §§ 404.1502, 404.1513; Soc. Sec. R. 06-03p.

Still, information from “other sources” are to be considered to
provide insight into the severity of an impairment and how it
affects a claimant’s ability to function. Soc. Sec. R. 06-03p. The
ALJ is required to explain the weight given to these “other sources”
such that a court can determine the ALJ’s reasoning.

Keyes-Zachary

v. Astrue, 695 F.3d 1156, 1163 (10th Cir. 2012).
The ALJ gave Ms. Shahan-Hale’s opinion “little weight” because

12

the overall evidence, including her own clinical findings, did not
support the level of limitation set forth in her assessment.

She

noted that Ms. Shahan-Hale’s notes showed Claimant was able to heel
and toe walk with no difficulty, could push over 100 pounds and
could pull 58 pounds.

Ms. Shahan-Hale did not test Claimant’s

lumbar or right knee range of motion or strength in her left arm or
lower extremities.

Claimant reported to Ms. Shahan-Hale that she

could dress, eat, get in and out of bed or a chair, and use the
restroom without difficulty.

MRI testing revealed only minor

degeneration of the lumbar spine and right knee.

(Tr. 25).

Claimant’s reported activities appears to belie the physical
therapist’s conclusion that she could never handle, finger, or
crouch.

It

was

appropriate

for

the

ALJ

to

rely

upon

these

activities in evaluating Ms. Shahan-Hale’s opinion. See Castellano
v. Sec. of Health & Human Servs., 26 F.3d 1027, 1029 (10th Cir.
1994).

Again, as with the somewhat extreme opinion of limitatoin

proffered by Dr. Brown, objective testing revealed only minimal
degeneration in Claimant’s lower back and knee.

(Tr. 474-78).

Utilizing the same factors as employed in evaluating Dr.
Brown’s opinion, the ALJ’s decision to give Ms. Shahan-Hale’s
opinion reduced weight was supported by substantial evidence in the
record, including Claimant’s own testimony as to her activities and
the objective testing in the record.

13

Claimant also challenges the ALJ’s decision to give the opinion
of the medical consultant, Dr. Charles Lee “great weight” since he
was not a treating source.

The ALJ is permitted to prefer a

consultant’s opinion over a treating physician’s opinion if she
explains the weight given and gives good reasons for the weight
given to the treating physician’s opinion.

Hamlin v. Barnhart, 365

F.3d 1208, 1215 (10th Cir. 2004). The ALJ did not entirely discount
the opinion of the treating physician but found support in the
objective record for the findings of the consultant while finding
inconsistencies between that record and the opinion of Dr. Brown and
Ms. Shahan-Hale.

The ALJ properly substantiated the weight given

to all of this opinion evidence.
Claimant also suggests that the ALJ was under an obligation to
further develop the record by recontacting sources or employing a
consultant.

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 the disability hearing consistent with the
issues raised.” Id. quoting Henrie v. United States Dep't of Health

14

& 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.”
73 F.3d 1019, 1022 (10th Cir. 1996).

Id. quoting Carter v. Chater,
This duty exists even when a

claimant is represented by counsel. 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.”

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

15

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 ALJ did not violate her 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, 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 26th day of March, 2018.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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