Bland v. Social Security Administration

Filing 19

OPINION AND ORDER by Magistrate Judge Kimberly E. West affirming the ruling of the Commissioner of Social Security in accordance with the fourth sentence of 42:405(g). (slr, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
SPENCER J. BLAND,

)
)
)
)
)
)
)
)
)
)

Plaintiff,

COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

Case No. CIV-19-394-KEW

OPINION AND ORDER
Plaintiff Spencer J. Bland (the “Claimant”) requests judicial
review of the decision of the Commissioner of the Social Security
Administration (the “Commissioner”) denying his 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 he 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, 416.920. 1
Judicial

review

of

the

Commissioner’s

determination

is

limited in scope by 42 U.S.C. § 405(g). This Court’s review is
limited to two inquiries: first, whether the decision was supported
by substantial evidence; and, second, whether the correct legal
standards were applied. Hawkins v. Chater, 113 F.3d 1162, 1164
(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
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).
1

2

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 41 years old at the time of the ALJ’s decision.
He has a ninth-grade education and worked in the past as a welder.
Claimant alleges an inability to work beginning on May 1, 2016,
due

to

limitations

resulting

from

manic

depression,

anxiety,

severe mood swings, anger issues, personality disorder, social
anxiety, and back and knee pain.
Procedural History
On May 23, 2017, Claimant protectively filed his applications
for a period of disability and disability insurance benefits under
Title II (42 U.S.C. § 401, et seq.) of the Social Security Act and
for supplemental security income benefits pursuant to Title XVI
(42 U.S.C. § 1381, et seq.) of the Social Security Act. Claimant’s
3

applications were denied initially and upon reconsideration. On
November 7, 2018, ALJ David W. Engel conducted an administrative
hearing

from

Fort

Smith,

Arkansas.

Claimant

was

present

and

testified. On January 3, 2019, the ALJ entered an unfavorable
decision. Claimant requested review by the Appeals Council, and on
September 26, 2019, it denied review. 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 five 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

sedentary

work,

with

additional limitations.
Errors Alleged for Review
Claimant asserts the ALJ committed error by (1) reaching an
improper

RFC

determination

(with

various

subparts),

and

(2)

finding he had the ability to perform the jobs identified by the
ALJ at step five of the sequential analysis.
RFC Assessment
In his decision, the ALJ found Claimant suffered from severe
impairments of spine impairment, left knee pain, bipolar disorder,
personality disorder, and post-traumatic stress disorder (PTSD).
(Tr. 35). He determined Claimant could perform sedentary work with
4

additional limitations. Claimant was limited to two hours of
walking and standing (combined total) of an eight-hour workday,
with regular work breaks. He could sit for six hours (combined
total) of an eight-hour workday, with regular work breaks. Claimant
could climb ramps or stairs only occasionally and bend stoop,
crouch, and crawl not more than occasionally. He was unable to
climb ropes, ladders, and scaffolds, or work in environments with
exposure to unprotected heights and dangerous moving machinery
parts. Claimant was unable to perform tasks that require overhead
reaching (for purposes of hand controls) more than occasionally
and was unable to perform tasks requiring the use of foot pedals
more than occasionally. (Tr. 37-38).
Regarding

mental

limitations,

Claimant

could

understand,

remember, and carry out simple instructions in a work-related
setting and interact with co-workers and supervisors with routine
supervision. He was unable to interact with the general public
more than occasionally, regardless of whether in person or over
the telephone. The ALJ also noted that Claimant “is afflicted with
symptoms from a variety of sources to include moderate intermittent
pain and fatigue, as well as mental disorders, all variously
described, that are of sufficient severity so as to be noticeable
to him at all times, but nevertheless is able to remain attentive
and responsive in a work-setting and would be able to perform work
assignments within the above-cited limitations. (Tr. 38).
5

After consultation with a vocational expert (“VE”), the ALJ
determined Claimant

could

perform

the

representative

jobs

of

document preparer and touch-up screener, both of which the ALJ
found existed in sufficient numbers in the national economy. (Tr.
46-47). As a result, the ALJ concluded Claimant was not under a
disability from May 1, 2016, through the date of the decision.
(Tr. 47).
Claimant argues the ALJ’s mental RFC assessment fails to
account for the severity of Claimant’s mental limitations. He
contends the ALJ failed to account for his mood, anger, and anxiety
issues in the RFC. He also argues the ALJ’s reasoning was “unsound”
when finding he was “not persuaded” by mental limitations imposed
by consulting psychologist, Theresa Horton, Ph.D. He next asserts
that the ALJ’s RFC assessment improperly relied upon his activities
as a justification for finding his mental impairments less severe.
Claimant further argues that the RFC did not include all his
physical limitations. In conclusion, Claimant asserts the ALJ
failed to properly evaluate his subjective complaints.
When assessing the RFC, the ALJ considered Claimant’s mental
impairments, including his mood swings, anger, and anxiety. The
ALJ discussed Claimant’s testimony that he could not shop due to
problems with social anxiety. (Tr. 39). The ALJ discussed treatment
records from Carl Albert Community Health Center (“Carl Albert”)
from May of 2017, wherein Claimant complained of depression,
6

anxiety, and mood swings. He was not taking medication and was
cooperative and willing and accepting of treatment. (Tr. 39-40).
Claimant returned for treatment at Carl Albert in July of 2017. He
reported very anxious moods and depression. His affect was anxious.
He was polite and cooperative. He denied homicidal ideation and
hallucinations and there was no evidence of psychosis. His memory
was intact. He was diagnosed with PTSD, rule out bipolar disorder,
alcohol abuse, and polysubstance abuse in remission. When he
returned in August of 2017, Claimant reported that he was sleeping
better, was doing well, and was not irritated. (Tr. 40).
The ALJ also discussed treatment notes from Carl Albert from
November of 2017 through April of 2018. Claimant reported in
November of 2018 that he was off his medication and did not think
he needed medication. When he returned in April of 2018, he again
indicated he was off his medications. His mood was labile and his
affect was congruent and appropriate. Claimant reported that he
drank and even made his own alcohol. He gardened and lived a “very
active lifestyle.” (Tr. 42).
The

ALJ

further

examination

with

Theresa

Claimant

July

25,

on

considered
Horton,

2017.

In

Claimant’s

Ph.D.

addition

Dr.
to

consultative

Horton
other

examined

complaints,

Claimant complained to Dr. Horton of anxiety, mood swings, anger
issues, and social anxiety. He reported to Dr. Horton that he had
no tolerance to be around people, did not do well socially, and
7

had a lot of problems with anger and anxiety. Claimant explained
that he had gotten into physical altercations with co-workers and
liked to be by himself and not around other people. (Tr. 41, 36364). When addressing the reliability of her report, although Dr.
Horton noted Claimant “appear[ed] to be a reliable historian[,]”
her report was “based on facts as presented

by the [C]laimant, in

addition to any information provided by Social Security for this
individual.”

She

further

stated

that

the

report

was

“based

principally on the validity of the self-report by the [C]laimant.”
(Tr. 363).
Upon examination, Claimant exhibited a friendly attitude and
his cooperation was appropriate during the exam. He was capable of
communicating in the setting, was socially appropriate, and was
mostly calm and euthymic. His affect was content congruent and
expressive. He had appropriate judgment, but his insight was poor.
Dr. Horton noted Claimant could manage benefits if awarded. She
diagnosed Claimant with unspecified mood disorder with anxious and
depressed features and Cluster B and C personality traits. Dr.
Horton

determined

Claimant

“appears

capable

of

understanding,

remembering and managing most simple and complex instructions and
tasks consistent with previous employment as a welder.” She noted
“[h]e likely does not cope well with stressors, including engaging
appropriately

with

coworkers

and

supervisors.”

She

further

determined that “[h]e likely does best when working in areas to
8

himself, and likely does not adjust as well under pressure in areas
that are fast paced and/or densely populated.” (Tr. 40-41, 36366).
Claimant contends that the ALJ’s reasoning for finding Dr.
Horton’s opinion unpersuasive is “unsound.” Because Claimant filed
her claims after March 27, 2017, the medical opinion evidence in
the

case

is

subject

to

evaluation

pursuant

to

20

C.F.R.

§§

404.1520c, 416.920c. Under the new regulations, the ALJ does not
“defer

or

give

any

specific

evidentiary

weight,

including

controlling weight, to any medical opinion(s)[.]” 20 C.F.R. §§
404.1520c(a), 416.920c(a). Instead, he must “articulate” in his
decision “how persuasive [he] find[s] all of the medical opinions
and all of the prior administrative medical findings in [the] case
record”

by

considering

a

list

404.1520c(b),

416.920c(b).

supportability,

(ii)

The

consistency,

of

factors.

20

factors
(iii)

C.F.R.

include:

relationship

§§
(i)

with

the

claimant (including length of treatment relationship, frequency of
examinations, purpose and extent of treatment relationship, and
examining

relationship),

(iv)

specialization,

and

(v)

other

factors that tend to support or contradict a medical opinion or
prior

administrative

finding

(including,

but

not

limited

to,

“evidence showing a medical source has familiarity with the other
evidence

in

the

claim

or

an

understanding

of

our

disability

program’s policies and evidentiary requirements.”). 20 C.F.R. §§
9

404.1520c(c),

416.920c(c).

The

most

important

factors

are

supportability and consistency, and the ALJ must explain how both
factors

were

considered.

See

20

C.F.R.

§§

404.1520c(b)(2),

416.920c(b)(2). Generally, the ALJ is not required to explain how
the other factors were considered. Id. However, if the ALJ finds
“that two or more medical opinions or prior administrative findings
about the same issue are both equally well-supported . . . and
consistent with the record . . . but are not exactly the same,
[he] will articulate how [he] considered the other most persuasive
factors

in

paragraphs

(c)(3)

through

(c)(5)[.]”

20

C.F.R.

§§ 404.1520c(b)(3), 416.920c(b)(3).
The Court finds no error in the ALJ’s evaluation of Dr.
Horton’s opinion. In conjunction with the regulations, the ALJ
evaluated Dr. Horton’s opinion and determined it was not consistent
with or supported by her examination. He referenced that she found
Claimant “would not cope well when engaging appropriately with
coworkers and supervisors.” He then noted that on examination, she
“found [Claimant] to be socially appropriate and was mostly calm
and euthymic[.]” The ALJ noted this indicated her opinion was
partly based on Claimant’s self-reports and not his presentation.
He also noted that Dr. Horton “did not provide her opinion in
vocationally relevant terms.” (Tr. 41).
The ALJ properly considered the evidence of Claimant’s mood
swings, anxiety, and anger. These reports were primarily made by
10

Claimant to Dr. Horton or by Claimant in his testimony at the
administrative hearing. Because the ALJ determined Dr. Horton’s
opinion

was

not

persuasive,

he

did

not

include

limitations

associated with Claimant’s complaints in the RFC.
Moreover, the ALJ’s consideration of Claimant’s activities of
daily living was merely one of several factors he considered when
evaluating Claimant’s symptoms and their consistency with the
evidence. He did not cite the activities solely to show that
Claimant could perform full-time work. There is no error in this
regard.
Claimant also asserts that the ALJ failed to include all his
physical limitations in the RFC. Specifically, he contends that
the ALJ should have included additional limitations in reaching
associated with pain and limited range of motion in his neck and
right upper extremity and atrophy in his right arm.
The record reveals that the ALJ appropriately considered
Claimant’s

neck

and

right

shoulder

pain.

He

discussed

the

consultative examination conducted by Christopher Sudduth, M.D.,
on November 16, 2017. Regrading physical complaints, Claimant
reported left knee pain, right shoulder pain, and neck pain.
Although Claimant was in acute distress during his examination,
his

neck

did

not

exhibit

any

thyromegaly,

thyroid

nodule,

lymphadenopathy, or mass appreciated. Dr. Sudduth noted Claimant’s
right upper extremity was notably smaller than his left upper
11

extremity

because

Claimant’s

muscle

of

the

strength

cervical
was

5/5

spine.
in

Upon

his

examination,

upper

and

lower

extremities. His sensory examination was normal and there was no
erythema, effusion, or deformity. His hands and fingers appeared
normal. Dr. Sudduth observed Claimant “button and unbutton a shirt,
pick up and grasp a pen and write a sentence and lift, carry and
handle personal belongings.” Claimant was able to squat and rise
from position with ease. He had a full range of motion through all
areas,

except

he

exhibited

a

decreased

range

of

motion

with

cervical spine extension and with right rotation. He also suffered
pain. (Tr.

41-42, 386-93).

The ALJ determined that Claimant had the physical RFC to
perform sedentary work, and in addition to other limitations, he
determined
overhead

Claimant

reaching

was

[for

“unable
purposes

to
of

perform
hand

tasks

controls]

requiring
more

than

occasionally[.]” (Tr. 37). Thus, the ALJ adequately accounted for
limitations in the RFC associated with Claimant’s neck and right
upper extremity pain. The Court will not re-weigh the evidence or
substitute its judgment for that of the Commissioner. See Casias,
933 F.2d at 800; Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir.
2007).
Claimant further argues that the ALJ failed to properly
evaluate his subjective complaints. He takes issue with certain
factors relied upon by the ALJ, including Claimant’s sporadic
12

employment, his non-compliance with his medication regimen, and
his variance in reports of his medical history and drug and alcohol
abuse. He maintains that these inconsistencies are manifestations
of Claimant’s impairments and detail the impact of his mental
impairments on his functioning.
Deference must be given to an ALJ’s evaluation of Claimant’s
pain or symptoms, unless there is an indication the ALJ misread
the medical evidence as a whole. See Casias, 933 F.2d at 801. Any
findings by the ALJ “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)
(quotation omitted). The ALJ’s decision “must contain specific
reasons for the weight given to the [claimant’s] symptoms, be
consistent with and supported by the evidence, and be clearly
articulated so the [claimant] and any subsequent reviewer can
assess how the [ALJ] evaluated the [claimant’s] symptoms.” Soc.
Sec. Rul. 16-3p, 2017 WL 5180304, at *10. However, an ALJ is not
required to conduct a “formalistic factor-by-factor recitation of
the evidence[,]” but he must set forth the specific evidence upon
which he relied. Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir.
2000).
As

part

of

his

evaluation

of

Claimant’s

pain

and

other

symptoms, the ALJ noted the two-step process for the evaluation of
symptoms

set

forth

in

Social

Security
13

Ruling

16-3p

and

the

requirements under 20 C.F.R. § 416.1529. (Tr. 38). After thoroughly
summarizing the medical evidence and other evidence in the record,
as well as Claimant’s testimony regarding his symptoms, the ALJ
determined Claimant’s medically determinable impairments could
reasonably cause his alleged symptoms, but he found that Claimant’s
statements

regarding

the

intensity,

persistence,

and

limiting

effects of his symptoms were not entirely consistent with such
evidence. (Tr. 38-42). The ALJ considered several factors when
evaluating Claimant’s symptoms. He noted Claimant’s sporadic work
history

prior

to

his

alleged

disability

onset

date,

inconsistencies in his reporting of when his mental health issues
began, his report of severe physical limitations was inconsistent
with his “very active lifestyle,” inconsistencies in his reports
of alcohol and drug use, activities inconsistent with his reports,
as well as other inconsistencies in the record. He noted that the
“enormous amount of inconsistencies cast a shadow of doubt on the
alleged severity and the impact on the [C]laimant’s ability to
participate in SGA.” (Tr. 42-45). Because the ALJ thoroughly
discussed the various inconsistencies in the medical evidence and
the lack of support for Claimant’s subjective complaints, no error
is ascribed to the ALJ’s evaluation.
“[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
14

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 capacity in question.”
Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012). The ALJ’s
RFC assessment is supported by substantial evidence. This Court
finds no error in the RFC determination.
Step Five Determination
Claimant argues that because the RFC was incomplete it could
not form the basis for the VE’s testimony that Claimant could
perform other jobs which existed in significant numbers in the
national economy.
“Testimony elicited by hypothetical questions that do not
relate with precision all of a claimant’s impairments cannot
constitute

substantial

evidence
15

to

support

the

Secretary’s

decision.” Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir.
1991). In positing a hypothetical question to the VE, the ALJ need
only set forth those physical and mental impairments accepted as
true by the ALJ. Talley v. Sullivan, 908 F.2d 585, 588 (10th Cir.
1990). Additionally, the hypothetical questions need only reflect
impairments and limitations borne out by the evidentiary record.
Decker v. Chater, 86 F.3d 953, 955 (10th Cir. 1996).
The Court finds no error in the ALJ’s questioning of the VE.
The hypothetical questions to the VE included those limitations
found to exist by the ALJ and included in the RFC. See Qualls, 206
F.3d at 1373 (finding an ALJ’s hypothetical questioning of the VE
provided an appropriate basis for a denial of benefits because the
question “included all the limitations the ALJ ultimately included
in his RFC assessment.”) (citation omitted).
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 31st day of March, 2021.

KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
16