Doty v. Social Security Administration

Filing 20

OPINION AND ORDER by Magistrate Judge Kimberly E. West affirming the ruling of the Commissioner of Social Security Administration in accordance with the fourth sentence of 42 U.S.C. § 405(g). (adw, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
CHAD M. DOTY,

)
)
)
)
)
)
)
)
)
)

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

Case No. CIV-18-087-KEW

OPINION AND ORDER
Plaintiff Chad M. Doty (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.
discussed

below,

it

is

the

finding

of

this

For the reasons
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).

A claimant is disabled under the Social

Security

Act

“only

if

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 in the national economy. . .”
§423(d)(2)(A).

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

1

determination

is

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

limited in scope by 42 U.S.C. § 405(g).
limited

to

supported

two
by

inquiries:

substantial

first,
evidence;

correct legal standards were applied.
1162,

1164

(10th

Cir.

This Court’s review is

whether
and,

the

second,

decision

was

whether

the

Hawkins v. Chater, 113 F.3d

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 47 years old at the time of the ALJ’s decision.
Claimant completed his high school education.
3

Claimant has worked

in the past as a truck driver, yard spotter, and diesel mechanic.
Claimant alleges an inability to work beginning August 17, 2013
due to limitations resulting from right shoulder and arm problems
caused by a work accident.
Procedural History
On

February

1,

2016,

Claimant

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.
Administrative

Law

Judge

(“ALJ”)

Lantz

On April 3, 2017,

McClain

conducted

an

administrative hearing by video with Claimant appearing in Poteau,
Oklahoma and the ALJ presiding from Tulsa, Oklahoma.
2017, the ALJ issued an unfavorable decision.
2018, the Appeals Council denied review.
of

the

ALJ

represents

the

purposes of further appeal.

On June 6,

On February 28,

As a result, the decision

Commissioner’s

final

decision

for

20 C.F.R. §§ 404.981, 416.1481.

Decision of the Administrative Law Judge
The ALJ made his decision at step five of the sequential
evaluation.

He determined that while Claimant suffered from

severe impairments, he retained the residual functional capacity
(“RFC”) to perform sedentary work.
4

Error Alleged for Review
Claimant asserts the ALJ committed error in (1) reaching an
improper RFC determination (with several associated sub-issues
listed); and (2) finding Claimant could perform the jobs identified
in the decision at step five.
RFC Evaluation
In his decision, the ALJ determined Claimant suffered from
the severe impairments of status post right shoulder surgery,
status post implantation of stimulator, status post right carpal
tunnel

syndrome

surgery,

and

obesity.

(Tr.

concluded Claimant could perform sedentary work.

14).

The

ALJ

In so doing, he

found Claimant could lift and/or carry ten pounds occasionally,
and up to ten pounds frequently, could stand and/or walk at least
six hours in an eight hour workday, could sit for at least six
hours in an eight hour workday, could occasionally climb ladders,
ropes, scaffolds, and stairs, could occasionally balance, kneel,
crouch, and crawl, must avoid overhead work with the right upper
extremity, which was Claimant’s dominant extremity, and could
frequently use the right hand for handling, fingering, and feeling,
which was Claimant’s dominant hand.

(Tr. 16).

After consultation with a vocational expert, the ALJ found
5

Claimant could perform the representative jobs of food and beverage
order clerk and touch up screener, both of which were found to
exist in sufficient numbers in the regional and national economies.
(Tr. 20).

As a result, the ALJ found Claimant was not under a

disability from August 17, 2013 through the date of the decision.
Id.
Claimant first contends the ALJ failed to properly consider
the opinion of Claimant’s treating physician, Dr. Vestal Smith.
Dr. Smith completed a medical source statement dated March 8, 2017.
He found Claimant the lifting/carrying, standing/walking, and
sitting limitations consistent with the RFC.

(Tr. 508-09).

also

reaching

concluded

Claimant

was

“limited”

in

in

He
all

directions, including overhead, handling, fingering, and feeling
in the right upper extremity.

The basis for the finding was

“physical exam and functional capacity evaluation.

No overhead

[in the] RUE [right upper extremity] and only 10 lbs or less.”
(Tr. 510)(bracketed information added by this Court).
In the decision, the ALJ gave Dr. Smith’s opinion “great
weight” as being “consistent with the claimant’s thorough physical
examinations and Dr. Smith’s own contemporaneous notes” – in
particular, his Workers’ Compensation Evaluation.
6

(Tr. 18).

In

the document entitled “Worker’s Compensation Impairment Rating,”
Dr. Smith found a 14% impairment of the upper extremity for
worker’s compensation purposes.

(Tr. 500).

Additionally, in Dr.

Smith’s latest examination note dated July 20, 2016, he found
Claimant’s symptoms were stable for quite some time.
in acute distress.

He was not

No change in sensation or strength was noted.

He had 1+ edema in the right hand which was unchanged.

(Tr. 474).

Nothing in any of these medical records would indicate that
Dr. Smith was imposing a limitation greater than the “frequent2”
use provided in the RFC.

Indeed, he specifically found Claimant

could use the right upper extremity for ten pounds or less, only
restricting him to no overhead use.

(Tr. 510).

“[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

describing

how

the

“must
evidence

include
supports

a

narrative

each

discussion

conclusion,

citing

specific medical facts ... and nonmedical evidence.” Soc. Sec. R.
96–8p.

The ALJ must also discuss the individual's ability to

2 “Frequent” use is defined as “activity or condition exists from 1/3 to 2/3
of the time.” Dictionary of Occupational Titles, App. C, 1991 WL 688702.

7

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.

there

for

is

“no

requirement

in

the

regulations

However,
a

direct

correspondence between an RFC finding and a specific medical
opinion on the functional capacity in question.”

Chapo v. Astrue,

682 F.3d 1285, 1288 (10th Cir. 2012).
The ALJ’s RFC assessment concerning Claimant’s use of the
right upper extremity was supported by substantial evidence.

The

restriction to “frequent” handling, fingering, and feeling was
wholly consistent with Dr. Smith’s opinion and other medical
evidence of record.

The fact Claimant finds it “hard to imagine”

otherwise as stated in the briefing is of no moment.

Claimant

also states that the state agency physicians’ opinions conflicted
with the ALJ’s findings on manipulation of the right extremity.
Claimant misstates the evidence.

Dr. Walter Bell found that

Claimant’s handling, fingering, and feeling were “unlimited” and
that his reaching was limited to occasional.
Boatman’s assessment was identical.

8

(Tr. 55).

(Tr. 70-71).

Dr. Karl

Neither of

these opinions were inconsistent with either Dr. Smith’s opinion
or the RFC found by the ALJ.
Claimant’s next assertion of error contends that the ALJ
erroneously found Claimant’s mental impairments to be not severe.
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.”
F.3d

1067,

1070-71

(10th

Cir.

2007)

Flaherty v. Astrue, 515
quoting

Williamson

v.

Barnhart, 350 F.3d 1097, 1100 (10th Cir. 2003); Soc. Sec. R. 85-

9

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.”

20 C.F.R. § 416.920(c).

An impairment which

warrants disability benefits is one that “results from anatomical,
physiological,
demonstrable

or

by

psychological

medically

diagnostic techniques.”
determination

for

an

abnormalities

acceptable

clinical

which

and

42 U.S.C. § 1382c(a)(1)(D).
alleged

impairment

is

are

laboratory
The severity

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).
After

reciting

and

analyzing

the

evidence

of

Claimant’s

mental status, the ALJ found Claimant’s mental impairment caused
no more than mild limitations in any functional area.
the condition was found to be non-severe.

(Tr. 15).

Therefore,
The medical

record indicates Claimant’s mental conditions were sporadic at
best.

In a pre-surgical psychological evaluation dated December

22, 2014, Claimant was found to “endorse[] a minimal number of
depressive symptoms and a mild level of anxious symptoms” after
extensive

mental

testing.

He

psychiatric distress at that time.

10

did

not

indicate

(Tr. 387).

significant

In April of 2016,

Claimant presented with “moderate depressive symptoms.”
on medication.

He was

He indicated sadness because of his medical

condition with altered sleeping habits and denied anhedonia, a
change

in

appetite,

crying

spells,

decreased

ability

to

concentrate, fatigue, guilt, feelings of worthlessness, tendency
toward indecisiveness, or weight change.
ideation.

He had no suicidal

(Tr. 468).

In another screening done in June of 2016, Claimant described
that he had “serious depression.”

(Tr. 480).

appeared to stem from his medical conditions.

His problems

(Tr. 489).

At no point has a physician indicated Claimant is unable to
engage in basic work activities because of his mental condition.
The

state

agency

physicians

indicated

that

Claimant’s

mental

problems were attributed to chronic pain and medications rather
than a psychological issue.

(Tr. 53, 67).

Both reports noted

that Cooper Occupational Medicine Center in November of 2015 found
Claimant was negative for anxiety and depression.

Id.

The

medical evidence is simply insufficient to find Claimant’s mental
condition constituted a severe impairment.
Claimant also asserts the use of a spinal cord stimulator
restricts him to sitting when he uses the device and the ALJ
provided for no unscheduled breaks in the RFC.

11

While Claimant had

the stimulator put in place, the record does not indicate how often
Claimant engages it or any adverse effect that the device might
have upon his ability to engage in basic work activities.

He has

been limited to sedentary work which provides for sitting for up
to six hours in a workday.

Nothing in the record would indicate

Claimant’s use of the stimulator would fail to be accommodated by
these restrictions.

This Court finds no error in the RFC provided

by the ALJ.
Credibility Determination
Claimant challenges the ALJ’s credibility findings by failing
to consider Claimant’s work history, daily activities, functional
restrictions, treatment history, medication and side effects, and
“other factors.”

This Court agrees with Defendant that Claimant

failed to recognize that the regulations changed on the evaluation
of a claimant’s subjective symptoms in March of 2016.

Primarily,

the change eliminated the use of the term “credibility” and made
clear that the analysis did not involve “an examination of an
individual’s character.”
*4.

Soc. Sec. R. 16-3p, 2017 WL 5180304, at

The required analysis is described in the regulations as

follows:
Once the existence of a medically determinable
impairment that could reasonably be expected
to produce pain or other symptoms is
established,
we
recognize
that
some
12

individuals
may
experience
symptoms
differently and may be limited by symptoms to
a greater or lesser extent than other
individuals with the same medical impairments,
the same objective medical evidence, and the
same non-medical evidence.
In considering
the intensity, persistence, and limiting
effects of an individual's symptoms, we
examine the entire case record, including the
objective medical evidence; an individual's
statements about the intensity, persistence,
and limiting effects of symptoms; statements
and other information provided by medical
sources and other persons; and any other
relevant evidence in the individual's case
record.
Soc. Sec. Ruling 16-3p Titles II & Xvi:
Evaluation of Symptoms in Disability Claims,
Soc. Sec. R. 16-3P, 2017 WL 5180304, *4 (Oct.
25, 2017).
The ALJ described Claimant’s testimony and the medical record
as a whole.
objective

His findings on credibility are consistent with the

record

conclusions.

and

contain

supporting

statements

for

his

For instance, he found Claimant’s daily activities,

the medical findings, and the treatment received and results
obtained

as

being

inconsistent

with

intensity and resulting limitations.

Claimant’s

statements

of

(Tr. 17).

He also found

several inconsistencies in the functional capacity evaluation in
November of 2015 with his subjective statements.

(Tr. 18).

The

decision as a whole supports the ALJ’s conclusions on Claimant’s
credibility.

This Court attributes no error to the analysis.

13

Step Five Determination
Claimant challenges the ALJ’s step five findings based upon
the use of his RFC restrictions in the hypothetical questioning of
the vocational expert.

Since the RFC was found to be supported

by substantial evidence and the questioning was consistent with
the RFC, no error is found at step five.
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 30th day of September, 2019.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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