Hoover v. Social Security Administration

Filing 18

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
ROXANNE L. HOOVER,

)
)
)
)
)
)
)
)
)
)

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

Case No. CIV-17-242-KEW

OPINION AND ORDER

Plaintiff Roxanne L. Hoover (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 39 years old at the time of the ALJ’s decision.
Claimant completed her education through the tenth grade.

Claimant

has worked in the past as a gas station worker, restaurant cook, and
bowling alley manager.

Claimant alleges an inability to work

beginning December 31, 2005 due to limitations resulting from

epilepsy,

PTSD,

depression,

anxiety,

panic

disorder, breathing problems, COPD, and asthma.
Procedural History

3

attacks,

bipolar

On July 15, 2014, Claimant protectively filed for supplemental

security income pursuant to Title XVI (42 U.S.C. § 1381, et seq.)
of the Social Security Act.
initially

and

Administrative

upon

Law

Claimant’s application was denied

reconsideration.

Judge

(“ALJ”)

Luke

On

May

Liter

12,

2016,

conducted

an

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

On July 26,

2016, the ALJ entered an unfavorable decision. The Appeals Council
denied review on May 16, 2017.

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, she did not meet a listing and retained the residual
functional capacity (“RFC”) to perform a full range of work at all
exertional levels with certain specified non-exertional limitations.
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) failing to find
Claimant’s impairments met or equaled a listing; (2) reaching an
improper RFC determination; and (3) failing to demonstrate that
there are other jobs that Claimant could perform at step five.

4

Consideration of the Listings
In his decision, the ALJ found Claimant suffered from the
severe impairments of bipolar disorder II, panic disorder, and
seizure disorder.

(Tr. 12).

The ALJ determined Claimant retained

the RFC to perform work at all exertional levels with the following
non-exertional limitations:
The claimant cannot tolerate exposure to hazards such as
unprotected heights or dangerous moving machinery.
Driving should not be part of the job duties.
The
claimant should avoid climbing ladders, ropes, and
scaffolding.
The claimant is limited to simple
tasks(defined as un-skilled work with a specific
vocational preparation (SVP) of 1-2).
The claimant
should not have contact with the public. The claimant’s
contact with co-workers and supervisors should be
superficial (defined as doing the same thing over and
over again). Job duties should not include fast pace or
production quotas.
(Tr. 14).
After consultation with a vocational expert, the ALJ determined
Claimant could perform the representative jobs of mail clerk, office
helper, polisher, and addresser, all of which the ALJ concluded
existed in sufficient numbers in both the regional and national
economies.

(Tr. 19).

As a result, the ALJ concluded that Claimant

was not under a disability since July 15, 2014, the date the
application was filed.

(Tr. 20).

Claimant contends the ALJ should have found her impairments met

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or equaled a listing at step three.

Specifically, Claimant asserts

that he met Listing 11.02 related to seizure disorders.

This

listing provides:

11.02 Epilepsy — convulsive epilepsy, (grand mal or
psychomotor), documented by detailed description of a
typical seizure pattern, including all associated
phenomena; occurring more frequently than once a month in
spite of at least 3 months of prescribed treatment. With:
A. Daytime episodes (loss of consciousness and convulsive
seizures) or
B. Nocturnal episodes manifesting residuals which
interfere significantly with activity during the day.
20 C.F.R. pt. 404, subpt. P, app. 1, § 11.02.
The Social Security regulations include a requirement that “the
impairment

persists

despite

the

fact

that

following prescribed antiepileptic treatment.”
Subpt. P, App. 1, § 11.00A.

the

individual

is

20 C.F.R. Pt. 404,

The relevant regulation also states

that adherence to prescribed therapy can ordinarily be determined
from objective clinical findings in the report of the physician
providing treatment for epilepsy and that the evaluation must
include consideration of the serum drug levels.

Id.

Claimant must

satisfy all of these required elements for a Listing to be met.
Sullivan v. Zebley, 493 U.S. 521, 530 (1990).
The ALJ determined that “claimant’s condition does not meet the
requirements of Listing 11.02 regarding convulsive epilepsy because

6

she does not have seizures occurring at least once a month in spite
of three months treatment.”
before

she

began

her

(Tr. 12).2

regimen

of

Claimant testified that

anti-seizure

experienced four or five seizures per month.

medication,

(Tr. 40).

she

The record

indicates that while under the care of Dr. Jeannie McCance, Claimant
did not suffer any grand mal seizures in June and August of 2011 or
in January of 2012.

(Tr. 298-99).

In May of 2012, Claimant had

only suffered a pre-seizure jerking episode.

(Tr. 293).

In

November of 2012, Claimant suffered a seizure which she represented
was the “1st in a long time.”
(Tr. 291).

Claimant’s medication was increased.

In March of 2013, Claimant reported that her last

seizure was four months prior to her visit.

(Tr. 290).

In May of

2013, Claimant reported she was doing “pretty good”, although she
also reported certain indicators of oncoming seizure activity such
as a copper taste in her mouth.

(Tr. 289).

In October of 2013,

Claimant reported having two seizures per day and panic attacks due
to family issues.

(Tr. 288).

In May of 2014, Claimant went to the emergency room reporting
weakness and fatigue and a loss of consciousness.
reported no seizures.

(Tr. 312).

2

(Tr. 320).

She

Claimant did not seek treatment

The ALJ also addressed Listing 11.03. However, Claimant does not
assert the ALJ erred in his findings on this listing so it will not be
addressed further in this review.

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again for her seizure disorder until October of 2014 when she began
seeing Dr. Mark Rogow for medication refills.

She reported to him

that her last seizure was three weeks prior to the visit.

(Tr.

365).
In

November

of

2014,

Claimant

underwent

a

mental

status

examination with Dr. Theresa Horton. Claimant reported that she had
not been taking any medication for her seizures for about one year
prior to seeing Dr. Rogow.

She also reported that she experienced

three seizures per month while on medication.

(Tr. 344).

In January of 2015, Claimant reported she was off of her antiseizure medication for over a month and had minor and major seizures
since then. (Tr. 361). In August of 2015, Dr. Rogow noted Claimant
had been out of her anti-seizure medication and experienced a
seizure.
The

(Tr. 360).
medical

record

simply

does

not

support

Claimant’s

exaggerated seizure claims while Claimant was compliant with her
medication regimen. The record indicates that Claimant suffered one
seizure in November of 2012, a limited period of seizures due to
family issues in October of 2013 which was resolved by May of 2014,
and a seizure three weeks prior to seeing Dr. Rogow.
does not meet the requirements of Listing 11.02.

This activity
Moreover, Soc.

Sec. R. 87–6 entitled, “The Role of Prescribed Treatment in the
Evaluation of Epilepsy” provides in relevant part that: “[i]n every

8

instance, the record of anticonvulsant blood levels is required
before a claim can be allowed.” 1987 WL 109184, *2. The record does
not include Claimant’s anticonvulsant blood level testing.

As a

result, the ALJ did not err in finding Claimant’s impairments do not
meet or equal Listing 11.02.
RFC Determination
Claimant asserts several errors in the ALJ’s RFC findings. She
contends he did not include appropriate limitations for Claimant’s
seizure activity.

In particular, Claimant states that she must

recover during the postictal period when she stated that she sleeps.
Claimant’s daughter also offered a statement as to her observations
of Claimant during and after a seizure, including the statement that
Claimant “isn’t very lucid” and “can’t remember anything before she
had it.”

(Tr. 210).

Given the fact that the frequency of

Claimant’s seizure activity is greatly reduced from Claimant’s
testimony and during periods when she is medication compliant, this
Court finds further restrictions then those imposed by the ALJ are
not warranted.

No medical source has offered more stringent

restrictions than those found by the ALJ in order to protect
Claimant from the effects of her occasional seizure activity.
Claimant

contends

the

ALJ

erred

in

not

obtaining

a

detailed

description of one of Claimant’s seizures as referenced in 20 C.F.R.

9

Pt. 404, Subpt. P, App. 1, § 11.00(h)(2).

This provision applies

to assessing whether Claimant met a listing at step three, which
this Court has concluded she did not.

Claimant also carries the

burden in this showing of a medical source description of her
seizures.
Claimant

next

contends

the

ALJ

did

not

include

limitations in the RFC for her mental impairments.

adequate

Dr. Horton

diagnosed Claimant with Bipolar Disorder, Type II, most recent mood
depressed and Panic Disorder.
Ms. Hoover appears
and managing most
tasks. She likely
not adjust as well
and/or fast paced.

(Tr. 345).

She concluded that

capable of understanding, remembering
simple and complex instructions and
does not manage stress well and does
into areas that are densely populated

(Tr. 346).
Dr. Gary Lindsay and Dr. Jason Gunter acted as reviewing
consultative

mental

health

professionals

in

this

case.

They

concluded Claimant could understand, remember, and carry out simple
instructions with routine supervision; could relate to supervision
and a limited number of co-workers on a superficial work basis;
could not effectively relate to the public; and could adapt to a
work environment.

(Tr. 61, 74).

The ALJ gave these opinions “great weight” and provided a
detailed justification for doing so based upon the medical record.

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(Tr. 17, 18).

Based upon these opinions, the ALJ restricted

Claimant to simple tasks with an SVP of 1-2, no contact with the
public, “brief and cursory” contact with co-workers and supervisors
and no job duties which require fact pace or production quotas.
(Tr. 14).

No medical professional determined that Claimant’s

periodic panic attacks restricted her from any employment.

“[R]esidual functional capacity consists of those activities
that a claimant can still perform on a regular and continuing basis
despite his or her physical limitations.”

White v. Barnhart, 287

F.3d 903, 906 n. 2 (10th Cir. 2001).

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

11

capacity in question.”
Cir. 2012).

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

In this case, the ALJ did provide direct correlation

between the medical opinion evidence and his RFC findings.

The

ALJ’s RFC assessment was supported by substantial evidence.
Claimant also asserts the ALJ failed to perform a proper

It is well-established that “findings as to

credibility analysis.

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.

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,

12

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, non-compliance with medicine regimen, the objective
medical

testing,

and

the

inconsistencies

between

the

claimed

seizure activity and the medical record all provide specific and
legitimate

reasons

for

the

ALJ’s

questioning

of

Claimant’s

credibility.
Step Five Questioning of the Vocational Expert
Claimant follows the challenges to the RFC findings with the
obligatory

challenge

to

the

hypothetical

questioning

of

the

vocational expert, contending that the RFC was incorrect and,
therefore, the questioning did not accurately reflect Claimant’s
restrictions.

Since this Court found the RFC was supported by

substantial evidence and the questioning of the vocational expert
posed by the ALJ mirrored the RFC findings, no error is found at
step five.
Conclusion
The decision of the Commissioner is supported by substantial

13

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 25th day of September, 2018.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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