Guadagno v. Social Security Administration
Filing
19
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). (slr, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
SHERI LYNN GUADAGNO,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.
Case No. CIV-18-095-KEW
OPINION AND ORDER
Plaintiff
Sheri
Lynn
Guadagno
(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).
A claimant is disabled under the Social
Security Act “only if his physical or mental 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. . .” 42 U.S.C. § 423(d)(2)(A).
Social
Security regulations implement a five-step sequential process to
evaluate a disability claim. See 20 C.F.R. § 404.1520. 1
Judicial
review
of
the
Commissioner’s
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.
1997)
determination
is
This Court’s review is
whether
and,
the
second,
decision
was
whether
the
Hawkins v. Chater, 113 F.3d
(citation
omitted).
The
term
“substantial evidence” has been interpreted by the United States
Supreme Court to require “more than a mere scintilla. It means
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. 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. 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, 75051 (10th Cir. 1988).
2
such
relevant
evidence
as
a
reasonable
adequate to support a conclusion.”
mind
might
accept
as
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 53 years old at the time of the ALJ’s decision.
She has a limited education and worked in the past as a home health
aide. Claimant alleges an inability to work beginning on April 1,
2015,
due
(“COPD”),
spinal
to
asthma,
high
blood
stenosis,
chronic
obstructive
pressure,
Raynaud’s
cervical
syndrome,
pulmonary
spinal
carpal
disease
degeneration,
tunnel
syndrome,
migraines, anxiety disorder, and depression.
Procedural History
On May 11, 2015, Claimant filed for a period of disability and
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.
3
On November 8, 2016,
the Administrative Law Judge(“ALJ”) Christopher Hunt conducted a
video hearing from Tulsa, Oklahoma, and Claimant appeared in
Poteau, Oklahoma.
On February 28, 2017, the ALJ entered an
unfavorable decision.
Claimant requested review by the Appeals
Council, and on February 8, 2018, it denied review.
the
decision
of
the
ALJ
represents
the
As a result,
Commissioner’s
final
decision for purposes of further appeal. 20 C.F.R. § 404.981.
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, she did not meet a listing and retained the residual
functional
capacity
(“RFC”)
to
perform
light
work,
with
limitations.
Errors Alleged for Review
Claimant asserts the ALJ committed error by (1) failing to
reach a proper RFC determination with regard to her physical
impairments; (2) failing to reach a proper RFC determination with
regard to her mental impairments; and (3) failing to sustain his
burden at step five.
Physical RFC Determination
In his decision, the ALJ found Claimant suffered from severe
impairments
of
asthma,
chronic
obstructive
pulmonary
disease
(“COPD”), bilateral carpal tunnel syndrome (“CTS”), status post
release
surgeries,
major
depressive
4
disorder,
and
generalized
anxiety disorder.
(Tr. 18).
He determined Claimant could perform
less than the full range of light work.
In so doing, the ALJ found
Claimant could occasionally lift and/or carry up to twenty pounds,
frequently lift and/or carry ten pounds, and sit, stand and/or
walk up to six hours in an eight-hour workday.
Claimant could not
climb ladders, ropes, or scaffolding, but she could occasionally
climb ramps and stairs and balance, stoop, kneel, crouch, and
crawl.
She was limited to simple, repetitive and routine tasks,
with only occasional contact with supervisors and co-workers and
superficial contact with the general public.
things rather than people.
She should work with
Claimant should not be subject to
strict production standards “such as might be required of a poultry
line worker or an assembly line worker but not a bottling line
attendant who merely does quality assurance and removes defective
product.”
Claimant could frequently use her upper extremities for
grasping, handling, and fingering.
(Tr. 23).
After consultation with a vocational expert (“VE”), the ALJ
determined Claimant could perform the representative jobs of small
products assembler, electronics assembler, and plastic products
assembler, all of which the ALJ found existed in sufficient numbers
in the national economy. (Tr. 30-31).
As a result, the ALJ
concluded that Claimant was not under a disability from April 1,
2015, through the date of his decision. (Tr. 31).
5
Claimant contends the ALJ’s RFC assessment with regard to her
physical
impairments
is
unsupported
by
substantial
evidence.
“[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. Rul. 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.”
Chapo v. Astrue, 682 F.3d 1285, 1288 (10th
Cir. 2012).
Claimant first asserts that even though the ALJ determined
she suffered from severe impairments of asthma and COPD, he failed
to include any environmental limitations in the RFC.
The ALJ
specifically discussed the Claimant’s COPD and asthma in his
6
summary of the medical evidence.
The ALJ noted Claimant smoked
for 23 years, but she stopped in 1999.
Treatment records from Dr.
Jeffrey Hamby indicated that he advised Claimant that her breathing
would get better if she stopped smoking.
(Tr. 25, 492, 495).
Claimant was provided a nebulizer and prescribed Ventolin and then
later prescribed Advair and Albuterol.
(Tr. 25, 494, 501).
The
ALJ referenced a topography scan of Claimant’s chest from July of
2014,
which
showed
minimal
plural
scarring
and
scattered
emphysematous changes in the lungs, but it was otherwise normal.
(Tr. 26, 371).
He further referenced Dr. Hamby’s treatment notes
from November of 2015, which noted Claimant showed no breathing
problems
and
was
clear
to
wheezing, rhonchi, or rales.
Based
“medically
on
this
auscultation
with
no
(Tr. 26, 408).
evidence,
determinable
bilaterally
the
impairments
ALJ
of
determined
COPD
and
Claimant’s
asthma
when
considered with her other severe impairments would limit her to
light work activity.”
He noted she was taking medication, but she
could “manage her symptoms without any severe exacerbations or
significant functional limitations.”
He further considered that
she had not testified to any significant breathing issues or
chronic shortness of breath, and that his finding was consistent
with the findings of consulting physician Azhar Shakeel, M.D. (Tr.
26, 395-402).
Thus, the ALJ considered Claimant’s asthma and COPD
when assessing the RFC.
See 20 C.F.R. § 404.1545(a)(2) (noting
7
the ALJ must consider both severe and non-severe impairments when
assessing the RFC).
Claimant also contends the ALJ failed to consider and include
limitations in the RFC pertaining to her non-severe impairments of
degenerative disc disease of the cervical spine, degenerative disc
disease of the lumbar spine, and migraines.
The focus of a
disability determination is on the functional consequences of a
condition, not the mere diagnosis. See, e.g., Coleman v. Chater,
58 F.3d 577, 579 (10th Cir. 1995)(the mere presence of alcoholism
is not necessarily disabling, the impairment must render the claimant
unable to engage in any substantial gainful employment.); Higgs v.
Bowen, 880 F.2d 860, 863 (6th Cir. 1988)(the mere diagnosis of
arthritis says nothing about the severity of the condition), Madrid
v. Astrue, 243 Fed.Appx. 387, 392 (10th Cir. 2007) (the diagnosis
of a condition does not establish disability, the question is
whether an impairment significantly limits the ability to work);
Scull v. Apfel, 221 F.3d 1352 (10th Cir. 2000) (unpublished), 2000
WL 1028250, at *1 (disability determinations turn on the functional
consequences, not the causes of a claimant's condition).
To the extent Claimant contends her degenerative disc disease
of the cervical spine, degenerative disc disease of the lumbar
spine,
and
migraines
should
have
been
included
as
a
severe
impairment at step two, where an ALJ finds at least one “severe”
impairment, a failure to designate another impairment as “severe”
8
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 without regard to whether
any
such
impairment,
if
considered
separately,
would
be
of
sufficient severity. Brescia v. Astrue, 287 Fed. Appx. 626, 628–
629
(10th
Cir.
2008).
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 Fed. Appx. 289, 291–292 (10th Cir. 2008).
Although the ALJ did not find Claimant’s degenerative disc
disease of the cervical spine, degenerative disc disease of the
lumbar spine, and migraines were severe impairments at step two,
he did consider them in his decision and in formulating the RFC.
The ALJ thoroughly detailed the medical evidence with regard to
these
impairments
in
his
step
two
analysis.
Based
on
that
evidence, he determined that “[C]laimant’s medically determinable
degenerative disc disease of the cervical spine and lumbar spine
did not cause more than minimal limitation in the [C]laimant’s
ability to perform basic work activities[.]” (Tr. 19-20).
further
discussed
the
evidence
of
Claimant’s
The ALJ
migraines
and
concluded that “[C]laimant’s medically determinable impairment of
migraine headaches did not cause more than minimal limitation in
9
the [C]laimant’s ability to perform basic work activities.” (Tr.
20).
The ALJ further concluded that he “considered all of the
[C]laimant’s medically determinable impairments including those
that are not severe, when assessing the [C]laimant’s [RFC].”
(Tr.
21).
The ALJ also considered these non-severe impairments in his
summary of the medical evidence when assessing the RFC.
He noted
that “the [RFC] has been assessed based on all the evidence with
consideration of the limitations and restrictions imposed by the
combined effects of all the [Claimant’s] medically determinable
impairments.” (Tr. 23).
When discussing the medical evidence, he
referenced findings with regard to Claimant’s lumbar and cervical
spines and her complaints of migraines. (Tr. 25).
The ALJ’s
decision demonstrates that he did not simply disregard Claimant’s
degenerative disc disease of the lumbar spine or the cervical spine
and that he considered her migraines when assessing the RFC.
The
record indicates that the ALJ considered the effects of both severe
and
non-severe
404.1545(a)(2).
Claimant
impairments
in
his
decision.
20
C.F.R.
§
The Court finds no error.
argues
the
ALJ
inappropriately
considered
the
physical findings by consulting physician Azhar Shakeel, M.D.,
when determining the RFC.
She contends the ALJ should have
discarded the opinion because it was inconsistent with the record
as a whole.
The ALJ discussed Dr. Shakeel’s examination findings
10
in detail, noting they were “unremarkable except for some noted
back pain.”
Claimant’s
He noted that Dr. Shakeel’s findings did not support
allegations,
but
the
one-time
examination
“entirely consistent with other evidence in the file.”
was
not
The ALJ
gave “significant but not great weight” to Dr. Shakeel’s findings.
(Tr. 25).
The ALJ is required to consider every medical opinion,
as he did with Dr. Shakeel’s opinion.
See Hamlin v. Barnhart, 365
F.3d 1208, 1215 (10th Cir. 2004) (“An ALJ must evaluate every
medical opinion in the record[.]”).
As noted by Claimant, Dr.
Shakeel did not impose any functional limitations on Claimant.
There is no error here.
Claimant further argues the opinions from the non-examining
state agency physicians, Donald Baldwin, M.D. and James Metcalf,
M.D., are not substantial evidence to support the ALJ’s RFC.
The
ALJ referenced the physicians’ opinions, noting they determined
Claimant “could perform light work activity with certain postural
and environmental limitations. (Tr. 29, 78-80, 95-97). He afforded
“some but not great weigh[t] to the opinions of the State Agency
medical consultants[.]” (Tr. 29).
The ALJ was entitled to rely on
the state agency physicians’ opinions, see Flaherty v. Astrue, 515
F.3d 1067, 1071 (10th Cir. 2007) (noting that a non-examining
medical source is an opinion the ALJ may consider), and the Court
finds no error by him for doing so.
11
Mental RFC Determination
Claimant contends the ALJ’s RFC with regard to her mental
impairments is unsupported by substantial evidence.
Claimant
contends that although the ALJ afforded “great” weight to the
opinions of consulting psychologist Theresa Horton, Ph.D., he
failed to account for all the mental limitations assessed by Dr.
Horton without explaining why.
Specifically, Claimant asserts Dr.
Horton determined that Claimant “likely would not adjust well into
areas that are densely populated and/or fast paced.”
(Tr. 407).
The ALJ discussed Dr. Horton’s examination of Claimant in the
decision and noted her determination that Claimant would not adjust
well in densely populated and/or fast paced areas.
The ALJ
assigned “great” weight to Dr. Horton’s opinions, noting they were
supported by her clinical assessment, consistent with Claimant’s
limited history of specialized mental health treatment, and took
into account her level of daily activities.
(Tr. 28).
The ALJ
included a limitation in the RFC that “[C]laimant should work with
thing[s] rather than people,” and he limited Claimant’s contact
with others, including occasional contact with supervisors and coworkers and superficial contact with the general public.
23).
(Tr.
The ALJ’s RFC sufficiently accounted for the limitation by
Dr. Horton.
Claimant also asserts the ALJ failed to include limitations
from the non-examining state agency psychologists in the RFC even
12
though he gave their opinions “partial” weight.
Specifically,
Claimant contends the ALJ failed to include limitations for a
structured setting in order for her to carry out instructions and
assignments in an appropriate time frame.
(Tr. 81, 98).
However,
the ALJ accounted for this limitation in the RFC, finding that
Claimant “should not be subject to strict production standards
such as might be required of a poultry line worker or an assembly
line worker but not a bottling line attendant who merely does
quality assurance and removes defective product.”
Claimant
further
contends
the
ALJ
(Tr. 23).
should
have
included
additional restrictions in the RFC to accommodate her moderate
limitation in concentration, persistence, or pace.
established,
however,
that
“the
ALJ's
finding
It has been
of
a
moderate
limitation in concentration, persistence, or pace at step three
does
not
necessarily
translate
to
a
work-related
functional
limitation for the purposes of the RFC assessment in this case.”
Bales v. Colvin, 576 Fed. Appx. 792, 798 (10th Cir. 2014); see
also
Soc.
Sec.
1996)(“[T]he
Rul.
96–8p,
limitations
1996
WL
identified
374184,
in
the
at
*4
(July
‘paragraph
B’
2,
and
‘paragraph C’ criteria are not an RFC assessment but are used to
rate the severity of mental impairment(s) at steps 2 and 3 of the
sequential evaluation process.
The mental RFC assessment used at
steps 4 and 5 of the sequential evaluation process requires a more
detailed assessment by itemizing various functions contained in
13
the broad categories found in paragraphs B and C of the adult
mental disorders listings.”).
The Court finds no error in this
regard.
Step Five Determination
Claimant asserts the VE’s testimony as to the jobs Claimant
could perform with the RFC was inconsistent with the Dictionary of
Occupational Titles (“DOT”) and the ALJ failed to resolve the
conflict.
Specifically, Claimant argues the job of small parts
assembler (DOT # 706.684-022) required an employee to frequently
be a member of a group.
ALJ’s
limitation
in
Claimant asserts this is contrary to the
the
RFC
that
Claimant
only
occasionally
interact with co-workers.
The small parts assembler job requires that the employee
“[f]requently works at bench as member of assembly group assembling
one or two specific parts and passing unit to another worker.”
DOT # 706.684-022.
Referencing “Taking Instructions – Helping”
involving people, interaction with people is noted to be “not
significant.”
Although the position does not appear to require
the type of frequent “group” exposure to co-workers suggested by
Claimant, the VE also testified Claimant could perform the jobs of
electronics assembler and plastic products assembler.
(Tr. 64).
He testified the electronics assembler job had 320,000 jobs in the
national economy and the plastic products assembler job had 67,000
jobs in the national economy.
The ALJ included this information
14
in the decision.
(Tr. 31).
Thus, to the extent the VE’s testimony
as to the small parts assembler job was in conflict with the DOT,
the error is harmless, because the jobs of electronics assembler
and plastic products assembler remain and exist in significant
numbers in the national economy.
See Stokes v. Astrue, 274 Fed.
Appx. 675, 684 (10th Cir. 2008) (finding harmless error when jobs
that should not have been considered were eliminated and 152,000
jobs still remained).
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
15
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