Melton v. Social Security Administration

Filing 17

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
TOMMY H. MELTON,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

Case No. CIV-17-191-KEW

OPINION AND ORDER

Plaintiff Tommy H. Melton (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

discussed

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).
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 55 years old at the time of the ALJ’s decision.
Claimant completed his education through the eighth grade. Claimant
has worked in the past as a factory worker, machine operator,
caretaker for disabled people, and drummer in a band.

Claimant

alleges an inability to work beginning January 10, 2014 due to
limitations resulting from back pain, neuropathy associated with

diabetes, hypertension, and depression.
Procedural History

3

On

August

4,

2014,

Claimant

protectively

filed

for

protectively filed for disability insurance benefits under Title II
(42 U.S.C. § 401, et seq.) of the Social Security Act.

Claimant’s

application was denied initially and upon reconsideration. On June

6, 2016, Administrative Law Judge (“ALJ”) Lantz McClain conducted
an administrative hearing by video with Claimant appearing in
Poteau, Oklahoma and the ALJ presiding from Tulsa, Oklahoma.
June 28, 2016, the ALJ entered an unfavorable decision.
Appeals Council denied review on April 21, 2017.

On
The

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 his decision at step four 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 his past relevant work.
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) making an
improper RFC determination; and (2) failing to engage in a proper
analysis at step four.
RFC Determination
In his decision, the ALJ found Claimant suffered from the

4

severe impairments of obesity, diabetes mellitus with neuropathy,
degenerative disc disease, and hypertension.

(Tr. 19).

The ALJ

determined Claimant retained the RFC to perform less than a full
range of light work.

In so doing, the ALJ found Claimant could

occasionally lift/carry 20 pounds frequently and ten pounds, stand
or walk for at least six hours in an eight hour workday, and sit for
at least six hours in an eight hour workday, “with no requirement
for good balance.”

(Tr. 20-21).

After consultation with a vocational expert, the ALJ determined
Claimant could perform her past relevant work as a percussion
musician as actually and generally performed and a residential care
aide, as Claimant described his duties. (Tr. 27). As a result, the
ALJ concluded that Claimant was not under a disability from January
10, 2014 through the date of the decision.

Id.

Claimant first contends the ALJ’s RFC was erroneous.

He

contends that his diagnosed neuropathy from poorly controlled
diabetes in his lower extremities prevents him from walking and
standing for long periods of time, including the period designated
by the ALJ in the RFC.

Claimant cites to various medical records

which do not support further restrictions upon his ability to walk
or stand.

For instance, the range of joint motion evaluation chart

completed November 20, 2014 demonstrates no impairment of Claimant’s
range of motion of any joint.

(Tr. 330-31).

5

Claimant refers the

Court to the MRI of his right hip which is largely normal save for
a finding of right obturator externus bursitis. (Tr. 424). He also
includes a reference to a laboratory report dated January 20, 2014
which is entirely normal.

(Tr. 430).

The backsheet of the

lumbosacral spine does indicate a weakness in heel/toe walking but
is otherwise normal with no tenderness or muscle spasms. (Tr. 332).
An MRI of Claimant’s lumbar spine from March 5, 2016 does indicate
multilevel degenerative disc disease
with disc bulges and mild to moderate neural foraminal narrowing.
At L4-5, disc impingement of the descending nerve root was noted on
the

left

with

narrowings.

moderate

right

and

mild

left

neural

foraminal

(Tr. 398-99).

From this evidence, Claimant draws the unsupported conclusion
that he cannot perform walking and standing as outlined in the RFC.
In support of the ALJ’s finding, Dr. Luther Woodcock and Dr. Nancy
Armstrong, both consultative reviewers, concluded that Claimant was
capable of light work in conformity with the ALJ’s RFC. (Tr. 20-21,
60-62, 71-73).
professionals

As for Claimant’s neuropathy, the consultative
found

Claimant

had

not

been

compliant

with

his

medication. (Tr. 62). The ALJ relied upon these opinions to arrive
at his RFC.

(Tr. 27).

Claimant relies on the “he suffers from these conditions so he
must be more restricted in his ability to work” without further

6

support from the record demonstrating further limitations.

Such an

argument

medical

is

entirely

support.“[R]esidual

speculative

functional

and

capacity

without

consists

of

those

activities that a claimant can still perform on a regular and
continuing basis despite his or her physical limitations.”
v. Barnhart, 287 F.3d 903, 906 n. 2 (10th Cir. 2001).

White

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.

However, there is “no

requirement in the regulations for a direct correspondence between
an RFC finding and a specific medical opinion on the functional
capacity in question.”
Cir. 2012).

Chapo v. Astrue, 682 F.3d 1285, 1288 (10th

The ALJ’s basis for determining Claimant’s physical

limitations, including his ability to walk and stand, was supported
by substantial evidence.

7

Claimant also contends the ALJ failed to adequately address his
mental impairments.

Claimant attacks the ALJ’s mental assessment

on several fronts. He first contends his anxiety, depression, sleep
disturbance, anger, and “other problems” should have been considered
a severe impairment.

The ALJ considered these conditions as non-

severe, stating the record did not substantiate the severity of
these conditions.

(Tr. 19).

Where an ALJ finds at least one “severe” impairment, a failure
to designate another impairment as “severe” at step two does not
constitute reversible error because, under the regulations, the
agency at later steps considers the combined effect of all of the
claimant's

impairments

impairment,
severity.
2008).

if

without

considered

regard

separately,

to
would

whether
be

of

any

such

sufficient

Brescia v. Astrue, 287 F. App'x 626, 628–629 (10th Cir.

The failure to find that additional impairments are also

severe is not cause for reversal so long as the ALJ, in determining
Claimant's RFC, considers the effects “of all of the claimant's
medically determinable impairments, both those he deems ‘severe’ and
those ‘not severe.’” Id. quoting Hill v. Astrue, 289 F. App'x. 289,
291–292, (10th Cir. 2008).
Moreover, the burden of showing a severe impairment is “de
minimis,” yet “the mere presence of a condition is not sufficient
to make a step-two [severity] showing.”

8

Flaherty v. Astrue, 515

F.3d 1067, 1070-71 (10th Cir. 2007) quoting Williamson v. Barnhart,
350 F.3d 1097, 1100 (10th Cir. 2003); Soc. Sec. R. 85-28.

At step

two, Claimant bears the burden of showing the existence of an
impairment or combination of impairments which “significantly limits
[his] physical or mental ability to do basic work activities.”
C.F.R. § 416.920(c).

20

An impairment which warrants disability

benefits is one that “results from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically
acceptable clinical and laboratory diagnostic techniques.”
U.S.C. § 1382c(a)(1)(D).

42

The severity determination for an alleged

impairment is based on medical evidence alone and “does not include
consideration

of

such

factors

as

age,

education,

and

work

experience.” Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988).

The ALJ considered Claimant’s mental problems and the treatment
he received for the conditions.

(Tr. 23-24).

He also concluded

that the extent of limitation claimed by Claimant from the mental
impairments was not supported by the record or his own prior work
background.

(Tr. 20).

Claimant has not directed this Court to any

medical or evaluative evidence in the record which would suggest
that this impairment was severe.
Claimant also suggests that the ALJ failed to adequately
develop the record by failing to recontact Dr. Eric Broadway who

9

treated Claimant for his mental problems and obtain a functional
evaluation from him.

Generally, the burden to prove disability in

a social security case is on the claimant, and to meet this burden,
the

claimant

must

furnish

existence of the disability.

medical

and

other

evidence

of

the

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 record does not contain inadequate information for the ALJ
to have determined the extent of Claimant’s mental impairments or
any functional limitations arising from the conditions.

10

Indeed,

consultant Dr. Cynthia Kampschaefer, a psychologist who reviewed the
record,

indicated

that

Claimant

only

had

mild

limitations

in

activities of daily living, maintaining social functioning, and
maintaining

concentration,

decompensation.

(Tr. 70).

persistence,

or

pace

with

no

A review of the treatment records

largely demonstrated results within normal limits with treatment.
Dr. Kampschaefer also noted Claimant was not receiving regular
treatment but was still able to perform activities of daily living.
She concluded the condition was not severe and Claimant was capable
of performing both complex and simple, routine types of work.

Id.

The ALJ was not required to recontact Dr. Broadway to draw a
conclusion as to the severity of Claimant’s mental impairments or
determine the effect of them upon his ability to engage in basic
work activity.
Claimant also asserts the ALJ did not properly evaluate his
credibility.

The ALJ thoroughly examined Claimant’s statements of

limitation in light of the medical treatment record and found them
“exaggerated” at least as to some of his symptoms and limitations.
(Tr. 25).

His conclusions were well-supported by the record.

(Tr.

25-27).

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.”
11

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.

Id.

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
other symptoms.

Soc. Sec. R. 96-7p; 1996 WL 374186, 3.

The ALJ relied upon appropriate factors in evaluating the
credibility of Claimant’s statements.

The 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

12

Claimant’s credibility.
Step Four Analysis
Claimant also challenges the ALJ’s step four analysis of his
ability to engage in this past relevant work.

.

In analyzing

Claimant’s ability to engage in his past work, the ALJ must assess
three phases. In the first phase, the ALJ must first determine the
claimant’s RFC.
1996).

Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir.

This Court has discussed the ALJ’s findings on Claimant’s

RFC and found them to be adequate.
In the second phase, the ALJ must determine the demands of the
claimant’s past relevant work.

Id.

In making this determination,

the ALJ may rely upon the testimony of the vocational expert.
Doyal v. Barnhart, 331 F.3d 758, 761 (10th Cir. 2003).

The ALJ in

this case inquired of the vocational expert as to the demands of
Claimant’s past relevant work.

(Tr. 49-50).

The expert testified

the percussion musician position constituted light, skilled work
and the residential care aide was light, skilled work as performed.
Id.

The ALJ fulfilled his duty in the second phase.
The third and final phase requires an analysis as to whether

the claimant has the ability to meet the job demands found in phase
two despite the limitations found in phase one.
at

1023.

The

ALJ

compared

the

13

RFC

he

Winfrey, 92 F.3d

determined

with

the

requirements of Claimant’s past relevant work as a musician and
aide and found that he could perform the work with his limitations.
The ALJ also satisfied his required obligation in assessing this
third

phase.

No

error

is

found

in

the

ALJ’s

step

four

determination.

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 27th day of September, 2018.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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