Mays v. Social Security Administration

Filing 41

OPINION AND ORDER by Magistrate Judge Frank H McCarthy (Re: 2 Social Security Complaint ) (jcm, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
REBECCA L. MAYS,
Plaintiff,
vs.

Case No. 10-CV-506-FHM

CAROLYN W. COLVIN,
Acting Commissioner, Social Security
Administration,1
Defendant.
OPINION AND ORDER
Plaintiff, Rebecca L. Mays, seeks judicial review of a decision of the Commissioner
of the Social Security Administration denying Social Security disability benefits.2 In
accordance with 28 U.S.C. § 636(c)(1) & (3), the parties have consented to proceed before
a United States Magistrate Judge.
Standard of Review
The role of the court in reviewing the decision of the Commissioner under 42 U.S.C.
§ 405(g) is limited to a determination of whether the record as a whole contains substantial
evidence to support the decision and whether the correct legal standards were applied.
See Briggs ex rel. Briggs v. Massanari, 248 F.3d 1235, 1237 (10th Cir. 2001); Winfrey v.
Chater, 92 F.3d 1017 (10th Cir. 1996); Castellano v. Secretary of Health & Human Servs.,

1

Effective February 14, 2013, pursuant to Fed. R . C iv. P. 25(d)(1), C arolyn W . C olvin Acting
C om m issioner of Social Security, is substituted as the defendant in this action. No further action need
be taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security Act,
42 U.S.C . § 405(g).
2

Plaintiff's Novem ber 18, 2005, application for disability benefits was denied initially and on
reconsideration. A hearing before Adm inistrative Law Judge ("ALJ") Charles Headrick was held Novem ber
5, 2008. By decision dated January 14, 2009, the ALJ entered the findings that are the subject of this appeal.
The Appeals Council denied Plaintiff’s request for review on June 18, 2010. The decision of the Appeals
Council represents the Com m issioner's final decision for purposes of further appeal. 20 C.F.R. §§ 404.981,
416.1481.

26 F.3d 1027, 1028 (10th Cir. 1994). Substantial evidence is more than a scintilla, less
than a preponderance, and is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 1427, 28 L. Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)). The court may neither reweigh the evidence nor substitute its judgment
for that of the Commissioner. Casias v. Secretary of Health & Human Servs., 933 F.2d
799, 800 (10th Cir. 1991). Even if the court would have reached a different conclusion, if
supported by substantial evidence, the Commissioner’s decision stands. Hamilton v.
Secretary of Health & Human Servs., 961 F.2d 1495 (10th Cir. 1992).
Background
Plaintiff was 35 years old on the alleged date of onset and 40 on the date of the
ALJ’s denial decision. She has a high school education and formerly worked in a variety
of jobs: supervisor at a call center; janitor; mailroom clerk; seamstress; cashier; bartender;
waitress; advertising material distributor; sales representative; and news assistant for
newspaper. She claims to have been unable to work since May 14, 2004 as a result of low
back pain.
The ALJ’s Decision
The ALJ determined that Plaintiff retains the residual functional capacity (RFC) to
perform the full range of sedentary work. [R. 11]. Although Plaintiff is unable to perform
her past relevant work, based on the testimony of a vocational expert, the ALJ determined
that there are a significant number of jobs in the national economy that Plaintiff could
perform with these limitations. The case was thus decided at step five of the five-step

2

evaluative sequence for determining whether a claimant is disabled. See Williams v.
Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (discussing five steps in detail).
Plaintiff’s Allegations
Plaintiff asserts that the ALJ: failed to protect her due process rights by furnishing
a full and accurate transcript of the entire record of proceedings; failed to perform a proper
analysis of the medical source evidence; and failed to perform a proper credibility
determination.
Analysis
Due Process
Plaintiff claims she was denied her due process right to a full and accurate transcript
of the entire record which prevents proper review of her case by the Appeals Council and
the court. At the hearing before the ALJ, the ALJ allowed Plaintiff to withdraw the first page
of her treating doctor’s RFC form and accepted an amended first page of that form. [R.
53-54]. However, the administrative record submitted to the court contains the withdrawn
page, not the amended one. Plaintiff’s claim is based on the fact that the transcript of the
administrative record does not contain the page the ALJ accepted at the hearing as part
of the record.
The court rejects Plaintiff’s claim of error. The information from the amended page
is contained in the record in the form of the vocational expert’s testimony. The amended
page was given to the vocational expert, the vocational expert testified to the information
on the amended page, and in fact read the limitations contained on the amended page into
the record. The amended page is thus in the record in the transcript of the hearing. [R.

3

54]. The court can therefore fully review the case and Plaintiff’s due process right has not
been violated.
The Commissioner confused the analysis of this issue by contending in its response
brief that the ALJ did not consider the amended page. [Dkt. 39, p. 5]. That contention is
not supported by the record. The transcript of the hearing before the ALJ clearly shows
that the ALJ allowed Plaintiff to withdraw the first page of Exhibit 8F and accepted an
amended page. [R. 53-54]. The ALJ posed a hypothetical question to the vocational
expert which was based on the limitations contained in the amended page of Exhibit 8F.
Id. It is obvious that the ALJ considered the amended page.
Analysis of Medical Source Evidence
Plaintiff argues that the ALJ erred by not explaining why he rejected Dr. Chorley’s
opinion that Plaintiff will be “100% disabled until definitive surgical intervention.” [R. 282].
The ALJ noted the opinion Dr. Chorley expressed on September 28, 2005, [R. 13, 160],
and again on October 20, 2008, [R. 14, 282], that he considered Plaintiff to be 100%
disabled due to a back injury. The ALJ also noted the December 28, 2005 examination
findings by the consultative examiner including full range of motion of the spine, normal
strength, ambulation at an appropriate speed, and Plaintiff’s report to the consultative
examiner that if she stays on her medication the pain does not become severe. [R. 13,
14]. The ALJ also outlined the findings of the March 6, 2006 MRI and September 4, 2008
CT scan of the spine. [R. 13, 14]. The ALJ found that Dr. Chorley’s opinion was not
consistent with the objective medical evidence and Plaintiff’s statement to the consultative
examiner. [R. 16]. The court finds that the ALJ explained why he rejected Dr. Chorley’s

4

opinion and further, that the basis for rejecting the opinion is supported by substantial
evidence.
Plaintiff complains that the ALJ made comments that suggest the possibility that Dr.
Chorley may have been written his opinion at Plaintiff’s insistence in an effort to assist her.
[R. 15-16]. According to Plaintiff, these comments are purely speculation by the ALJ. The
presence of those comments does not change the court’s conclusion that the ALJ
explained why he rejected Dr. Chorley’s opinion and that the basis for rejecting the opinion
is supported by substantial evidence.
There is no merit to Plaintiff’s assertion that the ALJ miscast the evidence by
repeating the consultative examiner’s statement that there was no “inciting injury or
distinctive pathology on exam.” [R. 13, 178]. According to Plaintiff, the medical record
reveals that she injured her back while brush hogging. Actually, Plaintiff denied a specific
injury occurred, but reported that following a day of brush hogging on a tractor she was
sore and began to have pain. [R. 176]. In July 2004 Dr. Chorley recorded that Plaintiff
complained of back pain but had “no apparent injury.” [R. 173].
Regarding the comment that there was “no distinctive pathology on exam,” Plaintiff
points to several findings made by the consultative examiner and argues that those
findings of muscle spasms and painful range of motion of the back, are distinctive
pathology. [Dkt. 37, p. 5]. Whether or not the consultative examiner’s findings are
“distinctive pathology” is beside the point. It is clear that the consultative examiner
concluded, on the basis of his examination, that Plaintiff “should be able to function in a
work environment which would limit physical hardship.” [R. 178]. The ALJ clearly accepted
that assessment by limiting Plaintiff to an RFC of sedentary work.
5

Plaintiff argues that the decision should be reversed and the case remanded
because the ALJ failed to weigh the opinion of the state Disability Determination Service
(DDS) expert who reviewed Plaintiff’s records and rendered an opinion about her ability to
work. Based on review of Plaintiff’s medical records, the DDS expert opined that Plaintiff
could perform sedentary work. [R. 191-198]. The ALJ did not mention this opinion, but
found that Plaintiff could perform a full range of sedentary work. The court fails to see how
the ALJ committed reversible error by failing to discuss an opinion that Plaintiff can perform
work and which opinion does not conflict with the RFC finding.
The DDS expert opined that Plaintiff could only occasionally: climb stairs, ramps,
ladders, ropes, and scaffolds; balance; stoop; kneel; crouch; or crawl. [R. 193]. The ALJ’s
RFC for the full range of sedentary work does not include these limitations. Plaintiff argues
that the failure to include these limitations is error. The court finds that any such error is
harmless as the descriptions in the Dictionary of Occupational Titles for the jobs identified
by the vocational expert state that those activities are not required. See Dictionary of
Occupational Titles, Nos. 209.587-010, 692.685-266, 1991 WL 687797, 1991 WL 678774.
Credibility Determination
“Credibility determinations are peculiarly the province of the finder of fact, and [the
court] will not upset such determinations when supported by substantial evidence.
However, findings as to credibility should be closely and affirmatively linked to substantial
evidence and not just a conclusion in the guise of findings.” Hackett v. Barnhart, 395 F.3d
1168, 1173 (10th Cir.2005) (citation, brackets, and internal quotation marks omitted). The
ALJ cited grounds, tied to the evidence, for the credibility finding, including inconsistency
between Plaintiff’s complaints of the degree of pain and the objective medical evidence of
6

record, and Plaintiff’s comments to the consultative examiner that her pain does not
become severe if she stays on her medication. [R. 16]. The ALJ thus properly linked his
credibility finding to the record, therefore the undersigned finds no reason to deviate from
the general rule to accord deference to the ALJ’s credibility determination.
Conclusion
The Court finds that the ALJ evaluated the record in accordance with the legal
standards established by the Commissioner and the courts. The Court further finds there
is substantial evidence in the record to support the ALJ's decision. Accordingly, the
decision of the Commissioner finding Plaintiff not disabled is AFFIRMED
SO ORDERED this 26th day of March, 2013.

7