Williams v. Social Security Administration

Filing 19

OPINION AND ORDER by Magistrate Judge Frank H McCarthy Commissioner's denial of benefits is affirmed (Re: 2 Social Security Complaint ) (jcm, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
KATIE WILLIAMS,
Plaintiff,
vs.

Case No. 11-CV-144-FHM

MICHAEL J. ASTRUE,
Commissioner, Social Security
Administration,
Defendant.
OPINION AND ORDER
Plaintiff, Katie Williams, seeks judicial review of a decision of the Commissioner of
the Social Security Administration denying Social Security disability benefits.1

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 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.,
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

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Plaintiff's April 10, 2008, application for disability benefits was denied initially and on
reconsideration. A hearing before Adm inistrative Law Judge ("ALJ") John Voltz was held August 6, 2009.
By decision dated August 13, 2009, the ALJ entered the findings that are the subject of this appeal. The
Appeals Council denied Plaintiff’s request for review on January 14, 2011. 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.

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 33 years old on the alleged date of onset of disability and 54 on the
date of the ALJ’s denial decision. She completed the 10th grade, and has no past relevant
work. She claims to have been unable to work since January 1, 1988 as a result of
coronary artery disease, chest pain, knee pain, shoulder pain, and hand problems. Since
Plaintiff’s application is for Supplemental Security Income, the dates relevant to her claim
are from the date of application for benefits, April 2008, to the date of the ALJ’s decision,
August 2009.
The ALJ’s Decision
The ALJ determined that Plaintiff retains the residual functional capacity (RFC) to
perform the full range of light work as defined in 20 C.F.R. § 416.967(b). [R. 12]. Based
on the testimony of a vocational expert, the ALJ determined that there are jobs in the
regional and national economy which Plaintiff can perform and therefore Plaintiff is not
disabled as defined in the Social Security Act. The case was thus decided at step five of

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the five-step 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 properly consider and evaluate the medical
source evidence; failed to consider all of Plaintiff’s impairments at step two and three of the
sequential evaluation; failed to include limitations for all of Plaintiff’s impairments in the
hypothetical questioning to the vocational expert; and failed to perform a proper credibility
evaluation.
Analysis
Consideration of the Medical Source Evidence
Plaintiff raises a number of issues under this heading. She contends that the ALJ:
failed to mention and weigh all of the medical records and ignored ECG reports;
mischaracterized evidence concerning some of Plaintiff’‘s impairments; and failed to note
the consultative examiner’s comment that Plaintiff’’s chest pain may have an anxiety
component.

She also argues that the evidence submitted to the Appeals Council

undermines the ALJ’s decision. The court finds no error in the ALJ’s analysis of the
medical record.
The ALJ discussed the physician’s conclusions from Plaintiff’s February 8, 2008
admission to Barstow Community Hospital for chest pain. The ALJ noted the physician’s
finding that Plaintiff had coronary artery disease and an acute coronary syndrome, but her
chest pain was secondary to drug abuse. [R. 13, 143]. Within the Barstow Community
Hospital records is a single sheet that identifies the dates, complaints, and services

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rendered to Plaintiff on her previous visits to that hospital emergency department. [R. 147].
The sheet shows Plaintiff presented to the emergency department six times since 2001:
August 2005 for chest pain/drug abuse; July 2004 for chest pain, left against medical
advice; May 2004 for pulmonary embolism; November 2003 for chest pain/abnormal liver
function test; September 2003 for an abscess, and June 2003 for pulmonary embolism.
Id. This sheet is what Plaintiff argues the ALJ erred in failing to mention.
The ALJ is required to discuss the evidence and explain why he found Plaintiff not
disabled. 42 U.S.C. § 405(b)(1); Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996).
Although the ALJ is not required to discuss every piece of evidence, the record must
demonstrate that the ALJ considered all the evidence. Id. at 1009-10. In addition to
discussing the evidence he relies on to support his decision, the ALJ must also discuss the
uncontroverted evidence he chooses not to rely upon as well as significant probative
evidence he rejects. Id. at 1010.
The relevant time frame for Plaintiff’s application for benefits begins in April 2008.
The emergency department visits recorded on the sheet predate the relevant time frame
by years. The ALJ discussed the conclusions of the physician who treated Plaintiff during
the February 2008 admission. [R. 13]. The treating physician had the information
concerning Plaintiff’s previous treatment at his disposal, concluded that Plaintiff’s chest
pain was secondary to her drug abuse, and released her from the hospital with no
restrictions. [R. 143, 182]. The court finds no error in the ALJ’s failure to mention the
sheet with the summary of Plaintiff’s past emergency department visits.

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Plaintiff also points out that the record contains several ECG tracings that bear
notations on them of an infarct of undetermined age. [R. 177-181]. The ALJ did not
mention those ECG tracings nor did he mention data showing a first degree AV blockage.
[R. 152]. Plaintiff argues that the ALJ’s failure to mention this information was a failure in
his duty to discuss the uncontroverted evidence he chose not to rely on or rejected. The
court finds that rather than mentioning these test results and endeavoring to interpret them,
the ALJ properly noted the treating physician’s conclusions which were derived from the
test results and his treatment of Plaintiff during her hospital stay. [R. 13].
The ALJ stated that it appears Plaintiff has gotten into the habit of calling her chest
pain “heart attacks” and there is no supportive documentation for Plaintiff’s allegations of
having five myocardial infarctions (hear attacks), knee swelling, shoulder spurs, hand
injuries,2 or other difficulties she spoke of at the hearing. [R. 13]. Plaintiff asserts that this
is a mischaracterization of the record. [Dkt. 13, p. 3]. Plaintiff also argues that the ALJ
failed to note the consultative examiner’s finding of decreased range of motion in the
lumbar spine, a mild strength loss in the left shoulder, and decreased range of motion in
the right elbow. Although the ALJ did not quote the consultative examiner’s report
verbatim, the ALJ noted the consultative examiner’s finding of some limitation in Plaintiff’s
left shoulder and minor limitation in her back extension and flexion. [R. 13]. The ALJ also
noted Plaintiff’s grip strength was 5/5 and that her left knee had full range of motion. Id.

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Plaintiff’s arm was in a cast at the hearing. [R. 26]. The record reflects that Plaintiff broke her wrist
shortly before the hearing. Plaintiff does not argue disability based on that break, which in any event would
not m eet the durational requirem ents for disability. 20 C.F.R. § 416.909.

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The ALJ did not mention the decrease in right elbow extension. [R. 184, 187]. However
as previously discussed, the ALJ is not required to mention every single medical record or
finding.
The matter to be determined in this case as in all Social Security disability cases is
whether and to what degree claimant’s limitations prevent the performance of work-related
activities. Plaintiff has not directed the court to any support for her contention that these
alleged problems prevent the performance of light work. On the other hand, the ALJ noted
that the RFC finding was supported by the Disability Determination Service’s (DDS)
assessment. [R. 14]. The court notes that in the narrative portion of the DDS assessment,
the reviewing physician specifically noted the finding of decreased range of motion of the
right elbow and also left wrist. Yet, the DDS physician expressed the opinion that these
problems, together with Plaintiff’s other impairments, did not prevent the performance of
light work. [R. 193-94]. Although the ALJ is not bound by the findings made by the DDS
reviewing physicians, the regulations instruct that they are “highly qualified physicians and
psychologists who are also experts in Social Security disability evaluation” whose findings
must be considered as opinion evidence. 20 C.F.R. § 404.1527(f)(2)(i); 20 C.F.R. §
416.927(f)(2)(i). The court finds that the ALJ’s failure to note the consultative examiner’s
finding of reduced range of motion in the elbow presents no basis for reversal of the
decsion.
Plaintiff argues that the ALJ erred in failing to mention the consultative examiner’s
comment that Plaintiff’s chest pain seems cardiac in nature but likely had some anxiety
component as well. The court finds no error in the ALJ’s failure to mention the consultative
examiner’s comment. The comment is just that, a comment. It falls short of even
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constituting a diagnosis, and it says nothing about Plaintiff’s ability to perform work-related
tasks.
Plaintiff submitted additional records to the Appeals Council, as permitted by the
relevant regulations. 20 C.F.R. § 404.970(b). The Tenth Circuit has ruled that such
"new evidence becomes part of the administrative record to be considered when
evaluating the Secretary's decision for substantial evidence." O'Dell v. Shalala, 44 F.3d
855, 859 (10th Cir. 1994). Accordingly, even though the court may not reweigh the
evidence or substitute its judgment for that of the Commissioner, O’Dell requires the court
to review the new evidence to determine whether, even considering this new evidence, the
ALJ’s decision is supported by substantial evidence. According to Plaintiff, based on the
records she submitted to the Appeals Council which contain Plaintiff’s complaint of being
“very stressed,” have a diagnosis of an anxiety disorder, and contain a Global Assessment
of Functioning (GAF) rating of 55, [R. 237], the Appeals Council should have remanded the
case for further consideration of her anxiety. The court finds that even considering the
evidence submitted to the Appeals Council, the ALJ’s decision is supported by substantial
evidence.
Plaintiff submitted mental health records from Family and Children’s Services to the
Appeals Council. These records show that Plaintiff was evaluated on October 27, 2008,
that she was a no show for subsequent appointments, and never actually received any
treatment. Considering these records, the court finds that the ALJ’s decision is supported
by substantial evidence.
The court notes that the materials submitted to the Appeals Council also contain the
records of Plaintiff’s hospital admission on August 17, 2009 where Plaintiff was admitted
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with chest and abdominal pain. Plaintiff underwent gall bladder surgery. Serial cardiac
enzymes and EKGs were performed with no abnormalities found. [R. 282]. A myocardial
perfusion test was performed, the report of which reflects no evidence of stress induced
ischemia by perfusion imagery, no prior myocardial infarction, and normal left ventricle
function. [R. 300]. These records support the ALJ’s conclusions about what the medical
record before him showed about Plaintiff’s complaints of chest pain.
Consideration of Plaintiff’s Impairments at Steps 2 and 3
Plaintiff claims that the ALJ: 1) did not properly consider the evidence with respect
to the relevant cardiac listing; and 2) did not address Plaintiff’s anxiety in relation to the
Psychiatric Review Technique.
The Listing of Impairments (listings) describe, for each of the major body systems,
impairments which are considered severe enough to prevent a person from performing any
gainful activity. It is Plaintiff’s burden to show that her impairment is equivalent to a listing.
Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988). Further, all of the specified
medical criteria must be matched to meet a listing. An impairment that manifests only
some of the criteria, no matter how severely, does not qualify. Sullivan v. Zebley, 493 U.S.
521, 531, 110 S.Ct. 885, 891, 107 L.Ed.2d 967 (1988).
Plaintiff argues that she meets Listing 4.03. However, Listing 4.03 was removed
from the Listings of Impairments effective April 13, 2006, two years before Plaintiff applied
for benefits. See 71 FR 2318, January 13, 2006, effective April 13, 2006 (deleting listing
4.03). Since the listing is no longer in effect, and was not in effect at the time of the ALJ’s
decision, the ALJ’s treatment of the listing cannot be the basis for reversal. To the extent
that Plaintiff’s brief can be read as contending some other cardiac listing should apply, that
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argument is rejected. The medical record does not contain the type of test results and
documentation necessary to demonstrate that Plaintiff meets a listing. See 20 C.F.R. Pt.
404, Subpt. P, App. 1, 4.00(B).
Plaintiff argues that the ALJ erred by not evaluating her anxiety in the psychiatric
review technique performed at step two and by not including limitations due to anxiety in
the residual functional capacity (RFC) finding. Plaintiff asserts that the medical records
submitted to the Appeals Council that were not before the ALJ confirm that anxiety should
have been addressed. The court has already noted that the mental health records
submitted to the Appeals Council are a one-time assessment and do not reflect anything
other than a bare diagnosis. Furthermore, aside from her own testimony, Plaintiff has not
directed the court to any information in the record that suggests she has any work-related
limitations due to anxiety. It is Plaintiff’s duty on appeal to support her arguments with
references to the record and to tie relevant facts to her legal contentions. The court will
not “sift through” the record to find support for the claimant's arguments. SEC v. Thomas,
965 F.2d 825, 827 (10th Cir.1992), United States v. Rodriguiez-Aguirre, 108 F.3d 1228,
1237 n.8 (10th Cir. 1997)(appellants have the burden of tying the relevant facts to their
legal contentions and must provide specific reference to the record to carry the burden of
proving error). The court finds that Plaintiff has not demonstrated that the ALJ erred in his
assessment of Plaintiff’s mental RFC.
Hypothetical Questioning of the Vocational Expert
Plaintiff claims that the hypothetical question posed to the vocational expert was
fatally flawed because the ALJ referred to the Plaintiff’s ability to sit for 6 hours, but did not

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address her ability to walk or stand. [R. 32]. According to Plaintiff, since sitting 6 hours a
day does not account for an entire 8-hour day, the hypothetical question demonstrates
Plaintiff is not able to engage in competitive employment.
The court finds that the ALJ mis-spoke at the hearing and meant to convey the
requirements for light work. A review of the hearing transcript reveals that the vocational
expert understood the ALJ as having stated an RFC for light work as the vocational expert
answered as if light work requirements were conveyed by the hypothetical question. The
court’s conclusion that the ALJ mis-spoke is supported by the ALJ’s finding in the decision
that Plaintiff is capable of a full range of light work which according to the regulations, 20
C.F.R. § 416.967(b), involves “a good deal of walking or standing.” In addition, in the
decision the ALJ stated that the RFC finding was supported by the Disability Determination
Service’s RFC assessment which also found Plaintiff capable of performing the walking
and standing requirements of light work. [R. 14]. In light of these indications, the court
finds that the ALJ’s failure to include the standing and walking requirements of light work
in the hypothetical question posed to the vocational expert does not require remand.
Plaintiff also asserts that the case should be reversed because the ALJ did not ask
the vocational expert if her testimony was consistent with the Dictionary of Occupational
Titles (DOT) as required by Haddock v. Apfel, 196 F.3d 1084, 1091 (10th Cir. 1999). The
vocational expert included DOT numbers for the jobs she identified as fitting the
hypothetical question. As a result, it is obvious that the vocational expert consulted the
DOT in formulating her answer to the hypothetical questioning. Plaintiff has not identified
any inconsistency between the vocational expert’s testimony and the DOT. Therefore the

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ALJ’s failure was harmless. . See Poppa v. Astrue, 569 F.3d 1167, 1173-74 (10th Cir.
2009)(failure to ask about conflicts between DOT and vocational expert testimony harmless
where there were no conflicts with the DOT).
Credibility Determination
Plaintiff argues that the ALJ failed to perform an appropriate credibility
determination. Contrary to Plaintiff’s contentions, the ALJ did not rely on boilerplate
language to explain the reasons for the credibility finding. The ALJ contrasted Plaintiff’s
complaints to the consultative examiner with the mostly unremarkable physical
examination. He found a lack of support in the record for Plaintiff’s reported history of five
“heart attacks,” and found a lack of supportive documentary evidence for the other
difficulties Plaintiff spoke of at the hearing.
“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 numerous grounds, tied to the evidence, for the credibility finding. Therefore the
undersigned finds no reason to deviate from the general rule to accord deference to the
ALJ’s credibility determination.

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Conclusion
The Court concludes that the record contains substantial evidence supporting the
ALJ’s denial of benefits in this case, and that the ALJ applied the correct standards in
evaluating the evidence. Therefore the Commissioner’s denial of benefits is AFFIRMED.
SO ORDERED this 4th day of June, 2012.

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