Holbrook v. Social Security Administration

Filing 20

OPINION AND ORDER by Magistrate Judge T Lane Wilson (crp, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
PHILLIP D. HOLBROOK,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of the Social Security
Administration,
Defendant.

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Case No. 10-cv-755-TLW

OPINION AND ORDER
Plaintiff Phillip D. Holbrook, pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3),
requests judicial review of the decision of the Commissioner of the Social Security
Administration denying his applications for disability benefits under Titles II and XVI of the
Social Security Act (“Act”). In accordance with 28 U.S.C. § 636(c)(1) and (3), the parties have
consented to proceed before the undersigned United States Magistrate Judge, and any appeal of
this decision will be directly to the Tenth Circuit Court of Appeals. (Dkt. # 8).
Plaintiff protectively filed a Title II application for disability insurance benefits and filed
a Title XVI application for SSI on January 18, 2007. Plaintiff alleged disability beginning
September 5, 2004. Both claims were initially and upon reconsideration, denied. [R. 9]. The
ALJ conducted a hearing on January 26, 2009. [R. 21]. Following an entry by the ALJ denying
benefits, the Appeals Council denied plaintiff’s request for review on October 6, 2010. [R. 1].
The decision of the Appeals Council represents the Commissioner’s final decision for purposes
of further appeal. 20 C.F.R. §§ 404.981, 416.1481. On November 29, 2010, plaintiff filed the
subject action with this Court. (Dkt. # 2).

Plaintiff appeals the decision of the Administrative Law Judge (“ALJ”) and asserts the
Commissioner erred because the ALJ incorrectly determined that plaintiff was not disabled. For
the reasons discussed below, the Court AFFIRMS the Commissioner’s decision.
Background
Plaintiff was born December 7, 1961 and was 47 years old on the date of the hearing
before the ALJ. [R. 22, 243]. Plaintiff finished the eleventh grade and did not obtain a GED.
[R. 22]. He was married on October 8, 1983 to Krista Holbrook who passed away in 1986. [R.
90]. He has two children over the age of 18. Id. Currently, plaintiff lives with his mother, who
is disabled herself. [R. 113, 120, 135, 163, 170]. He admits to smoking 1-2 packs of cigarettes
per day for 15-20 years. [R. 208, 211].
Beginning in 1994, plaintiff was employed by Gerard Chimney Company [R. 97-99] and
carried out manual labor activities which included “demolition, repair and cleaning, and
refurbishing of industrial smoke stacks.” [R. 206]. Plaintiff sustained “repetitive cumulative
trauma” to his lungs through exposure to soot, chemical debris, coal byproducts, and bird
droppings. Id. In 2004, following a smoke stack cleaning operation in Iowa, plaintiff presented
with symptoms of nausea, vomiting, fever, and shortness of breath. [R. 174, 177, 206]. X-rays
revealed pulmonary nodules. [R. 206]. Plaintiff’s main diagnoses are pulmonary histoplasmosis
and hypertension. [R. 191].
Decision of the Administrative Law Judge
The plaintiff had a hearing before an ALJ on January 26, 2009. [R. 19]. The ALJ found
that he had not engaged in gainful employment since September 5, 2004.

[R. 11].

He

determined plaintiff’s severe impairments to be status post pulmonary histoplasmosis,
hypertension, and left wrist tendonitis. Id. However, not one or a combination of impairments
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met or medically equaled one of the listed impairments. The ALJ placed specific emphasis on
sections 1.02 (Major dysfunction of a joint(s) (due to any cause)), 3.00 (Respiratory System), and
4.00 (Cardiovascular System) in making this assessment. [R.11-12]. The ALJ determined that
plaintiff had the residual functional capacity (“RFC”) to perform light work, except with some
residual shortness of breath with weakness in his left wrist and hypertension. [R. 12]. This
precluded the plaintiff from performing any past relevant work. [R. 16].
The ALJ concluded plaintiff was not disabled by relying on 20 C.F.R. pt. 404, Subpt. P,
App. 2, rule 202.18 for light work. [R. 17]. The ALJ relied solely on the grids, because there
were no nonexertional limitations present. This finding was made at the fifth step in the five step
inquiry outlined in Williams v. Bowen, 844 F.2d 748, 750-752 (10th Cir. 1988) (discussing the
five steps in detail).1 Based on plaintiff’s age, education, work experience, RFC, and the
Medical-Vocational Guidelines (“grids”), the ALJ determined plaintiff could make a successful
adjustment to other work that exists in significant numbers in the national economy. [R. 17].
The ALJ also noted that transferability of job skills was not material when using this specific
grid because a finding of “not disabled” would result regardless. [R. 16].
Plaintiff identified two specific errors on appeal. First, the plaintiff argues the ALJ failed
at step 5 of the sequential evaluation process by “mistakenly” applying the grids and thus
creating an internally inconsistent decision. Second, plaintiff argues the ALJ failed to perform a
proper credibility determination.

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The five-step sequence provides that the plaintiff (1) is not gainfully employed, (2) has a
severe impairment, (3) has an impairment which meets or equals an impairment presumed by the
Secretary to preclude substantial gainful activity, listed in Appendix 1 to the Social Security
Regulations, (4) has an impairment which prevents them from engaging in their past
employment, and (5) has an impairment which prevents them from engaging in any other work,
considering their age, education, and work experience. Ringer v. Sullivan, 962 F.2d 17 (10th
Cir. 1992) (unpublished) (citing Williams v. Bowen, 844 F.2d at 750-752).
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Review
When applying for disability benefits, a plaintiff bears the initial burden of proving that
he or she is disabled. 42 U.S.C. § 423(d)(5); 20 C.F.R. §§ 404.1512(a), 416.912(a). “Disabled”
under the 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).
Social Security regulations implement a five-step sequential process to evaluate a disability
claim. 20 C.F.R. §§ 404.1520, 416.920; Williams, 844 F.2d at 750. “If a determination can be
made at any of the steps that a Claimant is or is not disabled, evaluation under a subsequent step
is not necessary.” Id. A plaintiff is disabled under the 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 in the national economy. See 42 U.S.C. § 423(d)(2)(A).
The role of this Court in reviewing a decision by the Commissioner under 42 U.S.C. §
405(g) is limited to determining whether the decision is supported by substantial evidence and
whether the decision contains a sufficient basis to determine that the Commissioner has applied
the correct legal standards.

Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005).

Substantial evidence is more than a scintilla, less than preponderance, and is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion. Id. The
Court’s review is based on the record, and the Court will “meticulously examine the record as a
whole, including anything that may undercut or detract from the ALJ’s findings in order to
determine if the substantiality test has been met.” Id. The Court may neither re-weigh the
evidence nor substitute its judgment for that of the Commissioner. See Hackett v. Barnhart, 395
F.3d 1168, 1172 (10th Cir. 2005). Even if the Court might have reached a different conclusion,
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if supported by substantial evidence, the Commissioner’s decision stands. White v. Barnhart,
287 F.3d 903, 908 (10th Cir. 2002).
Discussion
Plaintiff contends the ALJ failed at Step 5 of the sequential evaluation process by a
mistaken application of the grids. (Dkt. # 14 at 2). The ALJ may not rely conclusively on the
medical-vocational grids in a Social Security disability case unless he or she finds that plaintiff
has no significant nonexertional impairment, that plaintiff can do the full range of work at some
RFC level on a daily basis, and that plaintiff can perform most of the jobs at that RFC level; each
of these findings must be supported by substantial evidence. Social Security Administration
Regulations, Part 404, Subpart P, App. 2, § 200.00 et seq., 42 U.S.C.A.App. See Thompson v.
Sullivan, 987 F.2d 1482 (10th Cir. 1993).
The ALJ complied with the regulatory requirements in assessing plaintiff’s RFC.    In
finding that plaintiff has the RFC to perform light exertional work, the ALJ determined that he
could frequently lift and/or carry up to 10 pounds, occasionally lift and/or carry 20 pounds, stand
and/or walk at least 6 hours in an 8-hour workday, and sit for at least 6 hours in an 8-hour
workday. [R. 12]. The only restriction was one related to heavy lifting. In determining the
RFC, the ALJ determined that plaintiff’s status post pulmonary histoplasmosis, hypertension,
and left wrist tendonitis were severe impairments, but not so severe as to rise to the level of one
specified in the Listing of Impairments.

[R. 11].

The ALJ applied listings 1.02 (Major

dysfunction of a joint(s) (due to any cause)), 3.00 (Respiratory System), and 4.00
(Cardiovascular System) to evaluate the severe impairments. [R. 11-12].
The ALJ reviewed the objective medical evidence; the records and comments of
plaintiff’s examining physicians, treating specialist, and worker’s compensation outpatient
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evaluation; and his hospital records. The ALJ rounded out his review by considering the
opinions reached by two qualified state agency physicians. Though the ALJ concluded that
plaintiff’s current RFC precludes him from returning to his past relevant work, he also concluded
that plaintiff was capable of performing work at a light exertional level. [R. 16].
After an ALJ determines a plaintiff’s RFC, the grids are used to determine whether,
considering the plaintiff’s age, education, and experience, the claimant is disabled. 20 C.F.R.,
Pt. 404, Subpt. P., App. 2 (1988). Yet, “where nonexertional impairments are also present, the
grids alone cannot be used to determine the claimant’s ability to perform alternative work.”
Trimiar v. Sullivan, 966 F.2d 1326, 1333 (10th Cir. 1992) (citations omitted). “In such a case,
vocational expert testimony is required to determine ‘whether jobs exist for someone with the
claimant’s precise disabilities.’” Id. Courts will overturn “determinations of ‘not-disabled’
where the ALJ conclusively applied the grids without sufficiently considering the plaintiff’s
nonexertional impairments.” Channel v. Heckler, 747 F.2d 577, 581 (10th Cir. 1984). However,
“[t]he presence of nonexertional impairments precludes reliance on the grids only to the extent
that such impairments limit the range of jobs available to the claimant.” (Ray v. Bowen, 865 F.2d
222, 226 (10th Cir. 1989) (emphasis added)).
Nonexertional limitations include those “mental, sensory, postural, manipulative, or
environmental (e.g., inability to tolerate dust or fumes) limitations” that affect a plaintiff’s ability
to work. Desrosiers v. Sec’y of Health and Human Servs., 846 F.2d 573, 579 (9th Cir. 1988)
(Pregerson, J., concurring). The ALJ may not disregard subjective evidence of a nonexertional
impairment where objective evidence of a medically determinable cause exists (Hammock v.
Bowen, No. 87-3089, slip op. 1141, 1148 (9th Cir. Feb. 9, 1989)), because the effects of a

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nonexertional impairment are dependent on the circumstances of each individual case. Channel
at 580.
In this case, the plaintiff complains of weakness in his left wrist. The ALJ found plaintiff
has a severe impairment of left wrist tendonitis. [R. 11]. Plaintiff testified that he cannot “grip
anything very well with [his] left hand” and after repetitive activity, it would “cramp up.” [R.
23-24].

Plaintiff reported problems with his left wrist in 2004 to the Social Security

Administration. [R. 118, 129, 140, 164, 166, 168]. Yet, this ailment was not noted in the
medical records until July 9, 2007 during Dr. Angelo Dalessandro’s physical consultative
examination. Dr. Dalessandro noted plaintiff complained of pain in the left wrist, cramping, and
occasional pain in the left forearm but “rule[d] out left wrist tendonitis.”

[R. 212-13].

Additionally, the ALJ noted that “DDS physicians Woodcock, M.D., and Marks-Snelling, D.O.,
also concluded the [plaintiff]’s physical impairments were not ‘severe’ within the meaning of the
applicable regulations.” [R. 15]. The objective evidence only shows that plaintiff has a weaker
grip in his left hand. Id.
The left-wrist weakness, however, is not a nonexertional limitation, because
nonexertional limitations do not directly affect a plaintiff’s strength. 20 C.F.R. pt. 404, subpt. P,
app. 2 § 200.00(d), (e); Desrosiers, 846 F.2d at 579 (Pregerson, J. concurring). Additionally, the
regulations explain that some nonexertional limitations will have a negligible effect at a
particular functional level while others will significantly narrow the opportunity to have a
meaningful employment opportunity. 43. Fed. Reg. 55,349, 55,358 (1978). For example, “loss
of fine dexterity would narrow the range of sedentary work much more than it would for light,
medium or heavy work.” Id. at 55,358–59. Dr. Dalessandro conducted a series of tests to
determine plaintiff’s range of motion and ability to manipulate his left hand. Upon completion
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of these tests, Dr. Dalessandro noted that plaintiff had normal range of motion, could oppose the
thumb to fingertip, manipulate small objects, and effectively grasp tools such as a hammer. [R.
15]. Additionally, plaintiff testified that he is right-handed. [R. 24].
There is substantial evidence to support the ALJ’s determination that the nonexertional
limitation has little or no effect on the occupational base of unskilled, light work.2 Based on an
examination of the full record, the ALJ concluded plaintiff could perform light work in which
“he should not be required to do heavy lifting.” [R. 12]. This is substantially all of the strength
demands required under the RFC of light work. The reliance on the grids, therefore, was proper
because of the absence of nonexertional limitations. See Thompson v. Sullivan, 987 F.2d 1482,
1488 (10th Cir.1993) (holding, in relevant part, that “an ALJ may not rely conclusively on the
grids unless he finds ... that the plaintiff has no significant nonexertional impairment”).
Plaintiff also contends that Vocational Expert (“VE”) testimony was required to
determine “whether jobs exist for someone with the claimant’s precise disabilities.” (Dkt. # 14
at 4) (citing Ash v. Sullivan, 748 F. Supp. 804, 809 (D.Kan. 1990)). The “use of a vocational
expert is required only where plaintiff’s nonexertional impairments cause a limitation on the
range of work available in a particular occupational base and where no other evidence (either in
the record or in occupational resources upon which the Commissioner may rely) establishes that
a significant number of jobs of which plaintiff is capable are available.” Denison v. Astrue, 2011
WL 3236071 (D.Kan. 2011).

The ALJ determined plaintiff did not have any significant

2

Though the ALJ included medium jobs in his assessment of occupations identified in the
national economy [R. 17], this is a harmless error because the substance of the ALJ’s
determination of “not disabled” was based on a determination of light work as evidenced by the
selection of grid 202.18. Id. The ALJ needed only to rely on evidence that plaintiff could
perform one or more occupations existing in significant numbers. Evans v. Chater, 55 F.3d 530,
532 (10th Cir. 1995).
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nonexertional limitations that would impact his ability to perform light work. An RFC of “light
work” means there are “1,600 separate sedentary and light unskilled occupations [that] can be
identified.” 20 C.F.R. pt. 404, Subpt. P, App. 2, § 202.00(a). Where the grids establish that a
significant number of jobs exist in the economy, the Commissioner need not introduce evidence
of specific available jobs. Heckler v. Campbell, 461 U.S. 458, 468–70 (1983).
Next, plaintiff contends the ALJ “failed to properly consider all of the impairments
documented in the record.” (Dkt. # 14 at 4). This includes the inability to complete tasks,
forgetfulness, dizziness, fatigue, coughing episodes, and a hearing problem. Id. The ALJ did
consider each of these complaints, as supported by evidence in the record. Based on the
information available to the ALJ, there was no objective evidence in the medical record to
support inability to complete tasks or forgetfulness.
There was not sufficient evidence to show an impairment of dizziness. Initially, at the
time of plaintiff’s hospital admission in 2004, the attending physician noted that plaintiff was
“nonfocal.” Yet, a few months later in 2005 and after receiving treatment, the Physical Residual
Functional Capacity Assessment did not include any postural or exertional limitations. [R. 300].
Additionally, in Dr. Delassandro’s 2007 consultative examination, he notes plaintiff “denie[d]
vertiginous episodes,” can “heel-and-toe walk,” and has “normal gait to speed, stability, and
safety.” [R. 212-213]. Furthermore, the July 2007 RFC Assessment by Dr. Woodcock noted no
problems with plaintiff’s walking or stability. [R. 226-227]. Based on the record, the ALJ was
correct in not considering dizziness.
The hearing problem alleged is referenced in the medical record one time, during the
2007 consultative examination by Dr. Delassandro. [R. 211]. In fact, Dr. Delassadro merely
noted that “tinnitus is present” but did not even identify which ear. In his testimony before the
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ALJ, plaintiff stated he has a “constant ringing…like a whistle” in his left ear. [R. 28]. This
statement is not supported by any prior medical examination. There is also no indication
plaintiff sought treatment for this ailment and neither RFC assessment (2005 and 2007) indicate
any hearing limitations. [R. 229, 302]. The examinations by the treating physician following
plaintiff’s initial 2004 hospital stay do not reveal any reported or suspected problems with the
ear. [R. 182, 191, 193, 197]. Thus, the ALJ’s determination that there was “little to no
evidence” to support the left ear problem is supported by substantial evidence. [R. 11].
Plaintiff was not diagnosed with “chronic fatigue” and “[a]t this point there is no
‘dipstick’ laboratory test [available] for [a diagnosis of] chronic fatigue syndrome.” Wilson v.
Astrue, 302 F.3d 1136, 1143 (10th Cir. 2010) (citing Sisco v. U.S. Dep’t of Health & Human
Servs., 10 F.3d 739, 744 (10th Cir.1993)). The 2007 consultative examination is also the only
reference in the medical record to “chronic fatigue.” [R. 212]. The other mentions of fatigue
arise from the plaintiff’s own testimony and in the plaintiff’s own Function Reports. [R 27-28,
115, 140, 165]. Though plaintiff was not diagnosed with “chronic fatigue” by any physician, the
ALJ did consider his complaints of fatigue, shortness of breath, and exertional limitations when
concluding plaintiff could work at a light exertional level with mild exertional limitations
(avoiding heavy lifting). [R. 13-16]. Thus, substantial evidence supports the ALJ’s finding of
no fatigue limitations.
Finally, plaintiff claims that the ALJ did not consider his episodes of coughing. (Dkt. #
14 at 4). The ALJ listed histoplasmosis as a severe impairment. Coughing is a symptom of
histoplasmosis. [R. 171]. The ALJ also noted that the plaintiff was “doing well” when under
treatment for histoplasmosis with only an intermittent cough and no shortness of breath. [R. 14].
Moreover, the ALJ noted plaintiff’s failure to continue medical treatment for his post status
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pulmonary histoplasmosis [R. 16], as well as plaintiff’s decision to continue smoking 1-2 packs
of cigarettes per day. [R. 15]. The ALJ did adequately consider the episodic coughing and
concluded that other factors could be reasonably expected to cause the symptoms alleged by the
plaintiff. [R. 14]. There is sufficient evidence in the record to support the conclusion that the
ALJ properly weighed all evidence and conditions presented by plaintiff in making his
determination.
Plaintiff’s second specific error raised on appeal argues the ALJ failed to perform a
proper credibility determination. The ALJ determined that plaintiff’s statements regarding the
intensity, persistence and limiting effects of his symptoms were not credible. Id. An ALJ’s
credibility findings warrant particular deference because he is uniquely able to observe the
demeanor and gauge the physical abilities of the plaintiff in a direct and unmediated fashion.
White v. Barnhart, 287 F.3d 903, 909 (10th Cir. 2002). Credibility determinations are peculiarly
within the province of the finder of fact, and [this Court] will not upset such determinations
when supported by substantial evidence.” McGoffin v. Barnhart, 288 F.3d 1248, 1254 (10th
Cir.2002) (quotation omitted). This Court reviews the ALJ’s factual findings underlying its
credibility determination to ensure that it is “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) (internal quotation omitted).
Plaintiff argues the ALJ improperly used “meaningless boilerplate” language to make his
credibility determination. (Dkt. # 14 at 5) (relying on a Seventh Circuit opinion in Parker v.
Astrue, 597 F.3d 920). He goes further to contend that such “boilerplate language” is disfavored.
Id. (citing Hardman v. Barnhart, 362 F.3d 676, 679 (10th Cir. 2004)). This Court is not bound
by the Seventh Circuit. The language used by the ALJ in this case is also not identical to the
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“boilerplate” language disfavored by the Seventh Circuit, nor to the “boilerplate language”
deemed insufficient by the Tenth Circuit. Furthermore, this Court has found this language
satisfactory in the past when supported by evidence. See Babb v. Astrue, 2012 WL 405150
(N.D. Okla. 2012).

The ALJ accurately set forth the relevant factors when assessing the

credibility of the plaintiff’s statements. [R. 13]. He then referred to specific evidence relied on
when making the credibility determination.
The ALJ must cite specific evidence relevant to the factors used in evaluating a
claimant’s subjective complaints and explain why he concludes those complaints are not
credible. See id. See also SSR 96-7p, 1996 WL 374186, at *4 (1996) (stating that credibility
determinations cannot be based on “intangible or intuitive” reasons, but “must be grounded in
the evidence and articulated in the determination or decision”). This process, however, “does not
require a formalistic factor-by-factor recitation of the evidence.” Qualls v. Apfel, 206 F.3d 1368,
1372 (10th Cir. 2000). 20 C.F.R. §§ 404.1529(c), 416.929(c) provides a framework in which to
consider a claimant’s subjective complaints.3
The ALJ cited specific reasons for discounting the persistence of some of the alleged
persistence symptoms. First, plaintiff continues to smoke 1-2 packs of cigarettes a day [R. 15]
and has for the last 15-20 years. [R. 208, 211]. Second, plaintiff discontinued the medication
prescribed to treat his hypertension. [R. 15]. Third, plaintiff has weakness in his left hand, yet
he is right hand dominant. [R. 13]. Fourth, the ALJ noted absence of current medical treatment

3

The factors to consider in assessing a claimant’s credibility are: (1) daily activities; (2) the
location, duration, frequency, and intensity of pain or other symptoms; (3) precipitating and
aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication the
individual takes or has taken; (5) treatment for pain relief aside from medication; (6) any other
measures the claimant uses or has used to relieve pain or other symptoms; (7) any other factors
concerning functional limitations. Soc. Sec. Rul. 96–7p at 3, 1996 WL 374186 (1996).
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for his post status pulmonary histoplasmosis. [R. 16]. Finally, the ALJ cited inconsistencies
between plaintiff’s testimony and the evidence of record, the medical findings of the physicians,
and the medical testimony with regard to alleged limitations. [R. 16]. For these reasons, the
ALJ did not find the alleged limitations persuasive. Based on the foregoing, the Court finds the
ALJ linked his credibility findings to specific and substantial evidence.
Plaintiff argues the Court must apply Frey because the ALJ did not demonstrate plaintiff
would have been able to work had he been compliant with his medications. Frey v. Bowen, 816
F.2d 508, (10th Cir. 1987). However, plaintiff misplaces reliance on Frey. Frey addressed the
denial of disability benefits based on a failure to take medications. Frey, 816 F.2d at 517. Here,
that is not the scenario. The ALJ used non-compliance with prescriptions in weighing plaintiff’s
credibility regarding the persistence and limiting effects of the alleged symptoms, not as a basis
of denial of disability benefits. The ALJ noted that when plaintiff was compliant with the
prescribed treatment, he was “doing well” and had “no shortness of breath with exertion.” [R.
14]. It is only when the ALJ is denying disability based on a failure to take prescribed
medications that he must complete a four-part test. Qualls, 206 F.3d at 1372. The ALJ did not
err in this regard.
Conclusion
Based on the foregoing, the Commissioner is supported by substantial evidence and the
correct legal standards were applied. The decision is AFFIRMED.
Dated this 29th day of March, 2012.

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