Thompson v. Social Security Administration

Filing 21

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

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
TERESA D. THOMPSON,
PLAINTIFF,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,1
DEFENDANT.

)
)
)
)
)
)
)
)
)
)
)

CASE NO. 11-CV-730-FHM

OPINION AND ORDER
Plaintiff, Teresa D. Thompson, 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 decision is supported by substantial
evidence and whether the decision contains a sufficient basis to determine that the

1

Effective February 14, 2013, pursuant to Fed. R. Civ. P. 25(d)(1), Carolyn W. Colvin, Acting
Commissioner 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, Teresa D. Thompson’s applications for Disability Insurance and Supplemental
Security Income benefits were denied initially and upon reconsideration.
A hearing before an
Administrative Law Judge (ALJ) Gene M. Kelly,
was held February 9, 2010.
By decision dated June
21, 2010, the ALJ entered the findings which are the subject of this appeal.
The Appeals Council
denied Plaintiff’s request for review on September 20, 2011.
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.

1

Commissioner has applied the correct legal standards. 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 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., 993 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).
For the reasons discussed below, the Court affirms the decision of the
Commissioner.
Background
Plaintiff was 51 years old on the alleged date of onset of disability and 53 years old
on the date of the denial decision. She has a high school education and formerly worked
as a medical transcriptionist, as well as a dog breeder/kennel operator. Plaintiff claims to
have been unable to work since June 26, 2008, as a result of fibromyalgia, allergies,
depression, and anxiety [R. 132].
Plaintiff testified that her impairments are related to her back, shoulder, neck, hips,
thighs, headaches, fibromyalgia, allergies and concentration. She suffers allergic reactions

2

to perfumes, colognes, fabric softeners, air fresheners, and other scents, which have
caused anaphylaxis – her throat swells. [R. 37-38]. Plaintiff has never been hospitalized
because of the anaphylaxis reactions. [R. 38]. Plaintiff treats the anaphylaxis by use of an
inhaler and big doses of Benadryl. [R. 39].
Plaintiff further testified that the pain from the fibromyalgia limits how far she can
walk, how long she can sit, and that it effects her whole body. Plaintiff testified that she
has difficulty getting to sleep and staying asleep due to pain, [R. 49], though she is
prescribed pain relievers and muscle relaxers [R. 46].

She suffers from constant

headaches which, at times, inhibit her concentration. [R. 38-41]. Plaintiff also claims to
suffer from depression and anxiety and has bouts of crying spells sometimes daily which
last 20 to 30 minutes. [R. 51]. She is unable to make decisions, concentrate or stick to a
schedule. [R. 46]. She has not received any counseling for her depression and anxiety due
to lack of finances, though she is on medication which helps. [R. 45].
Plaintiff claims she is able to bend to touch her knees, but cannot squat and get
back up. She can occasionally go up and down a flight of stairs. She has problems with
her hands and fingers and on certain days cannot manage a keyboard. [R. 43]. She is
able to drive and does not have problems operating the foot pedals. [R. 44]. Plaintiff
testified that she is able to make her bed, do laundry, use the microwave and dust, but she
is unable to do dishes, sweep, mop, or vacuum. [R.47].
The ALJ’s Decision
The ALJ determined that the Plaintiff’s severe impairments include problems with
shortness of breath due to allergies, knees, back, shoulder, neck, headaches, hips, thighs,
depression, and anxiety. The ALJ further determined that Plaintiff has the residual
3

functional capacity to perform less than the full range of light exertional work, is able to lift
and/or carry 20 pounds, stand and/or walk 6 hours in an 8 hour workday at 30 minute
intervals, and sit 6 hours in an 8 hour workday at 1 hour intervals. Plaintiff is limited in her
ability to climb, is able to occasionally stoop, crouch, crawl, kneel, push and/or pull, reach
overhead, twist her torso, nod her head, is slightly limited in her ability to finger, feel, and
grip. Plaintiff should avoid cold and damp environments, dust, fumes, gases, and requires
low light/low noise environments, she is able to perform simple, repetitive, and routine
tasks and is slightly limited in reference to contact with the general public, co-workers, and
supervisors.
Although Plaintiff was unable to perform her past relevant work and her ability to
perform work at all exertional levels is limited, based on the testimony of the vocational
expert, the ALJ found that there are a significant number of jobs in the national economy
that Plaintiff could perform with these limitations. [R. 23]. Therefore, the ALJ found that the
Plaintiff was not disabled since July 25, 2008. The case was thus decided at step five of
the five-step evaluative sequence for determining 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: 1) failed to properly consider the evidence at step 3
of the sequential evaluation process; 2) failed to properly consider the medical source
information; 3) failed to perform a proper step 5 determination; and 4) failed to perform a
proper credibility determination.

4

Analysis
Consideration of Evidence at Step Three
At step three of the evaluative sequence, the ALJ is required to compare the
medical evidence to the Listings of Impairments (listings) contained in the regulations and
to discuss the evidence and the reasons for determining that Plaintiff is not disabled at step
three. Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). When there is evidence of
a mental impairment that allegedly prevents a claimant from working, at step three the ALJ
must follow the procedure for evaluating mental impairments set forth in the regulations
and is required to document the application of the procedure, known as the psychiatric
review technique (PRT), in the decision.

20 C.F.R. §§ 404.1520a(e), 416.920a(e),

Carpenter v. Astrue, 537 F.3d 1264, 1268 (10th Cir. 2008)(discussing application of the
psychiatric review technique by the ALJ), Cruse v. United States Dep’t of Health & Human
Servs., 49 F.3d 614, 617 (10th Cir. 1995)(same). Plaintiff argues the case should be
remanded because the ALJ failed to perform the required PRT analysis after finding
Plaintiff’s mental impairments were severe.
The Commissioner acknowledges that the ALJ failed to perform the PRT analysis
but argues that in light of the ALJ’s findings regarding Plaintiff’s mental RFC, the error is
harmless. Plaintiff contends that the error is not harmless. According to Plaintiff, since the
ALJ did not perform the proper evaluation, there is no evidence to support the conclusion
that Plaintiff’s activities of daily living are not extremely limited and thereby meet or equal
the Listing level of severity for a finding of disability. In Fischer-Ross v. Barnhart, 431 F.3d
729, 733 (10th Cir. 2005), the Court held that an ALJ’s findings at subsequent steps in the

5

sequential evaluation may provide a proper basis for upholding a conclusion that a
claimant does not meet or equal a listing. Such a situation exists in this case.
In this case, the ALJ ordered a consultative mental evaluation which was performed
by Dr. Minor Gordon, Ph.D. The consultative mental evaluation was thoroughly discussed
in the ALJ’s decision. [R. 20]. The ALJ included the mental limitations supported by the
evidence in his RFC and concluded at step five that Plaintiff was not disabled. [R. 16, 23].
The ALJ specifically addressed the Plaintiff’s activities of daily living and found that they
were not strong evidence in favor of finding Plaintiff disabled. [R. 21]. The point of
requiring the performance of the PRT analysis is to assess the severity of alleged mental
impairments. Although the ALJ did not perform the PRT, he specifically considered
Plaintiff’s mental impairments and assessed their severity. Further, the mental limitations
that were supported by the record were included in the RFC finding. The court finds that
the failure to perform the PRT is harmless. No reasonable administrative factfinder,
following the correct analysis, could have resolved the question of the severity of Plaintiff’s
mental impairments in any other way. See Fischer-Ross, 431 F.3d at 735 (discussing
harmless error analysis at step 3), Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004).
Consideration of Medical Source Information
Plaintiff argues the decision should be reversed because the ALJ failed to consider
and explain how he weighed the differing medical opinions.

Robin Endres, ARNP,

completed a form noting 14 of 18 trigger points were positive for fibromyalgia. [R. 248].
The ALJ stated he gave no weight to Ms. Andrews.3 Plaintiff argues that Ms. Endres’s

3

The ALJ refers to Ms. Andrews, but the record was signed by Ms. Endres.

herein to Ms. Endres.

6

The court refers

opinion should be considered as an “other source” and evaluated pursuant to Social
Security Ruling (SSR) 06-3p, 2006 WL 2329939. The Commissioner states that the ALJ
is under no requirement to explain the weight of other sources. In reply, Plaintiff asserted
that without discussion, one cannot believe the ALJ carefully considered the evidence.
The court finds no error in the ALJ’s rejection of Ms. Endres’s opinion. The ALJ
sufficiently discussed Ms. Endres’s opinion:
As for the opinion evidence, the record reveals that on
February 15, 2010, Robin Andrews [sic] ARNP, from Lifespan
completed a Fibromyalgia Syndrome Medical Assessment
Form. At that time, Ms. Andrews noted specific limitations,
diagnoses, and alleged symptoms reported by the claimant,
with all being significantly more limiting and restrictive than
corroborated by the evidence of the record. Specifically, she
noted 14 out of 18 positive for fibromyalgia testing, however,
as previously noted, Dr. Reddy found only 2 positive, out of 18,
upon examination. (Exhibit 18F).4
[R. 21-22].

This explanation is sufficient because the court can follow the ALJ’s

reasoning. See Lundgren v. Colvin, 2013WL936358 at *3 (10th Circuit)(quoting KeyesZachary v. Astrue, 695 F.3d 1156, 1164 (10th Cir. 2012).
Plaintiff further asserts that the ALJ erred by failing to weigh all reports as he did not
mention the opinions of the non-examining, non-treating reviewing experts of the State
agency. [Dkt. 18, p. 4]. Cynthia Kampschaefer, Psy.D., a non-examining psychiatrist,
completed a Psychiatric Review Technique on December 9, 2008, and found that the
Plaintiff suffered from “No Medically Determinable Impairment.” [R. 216]. On December

4

The ALJ incorrectly noted Dr. Reddy’s scoring of the fibromyalgia test on April 12, 2010, as
2 out of 18, when according to the record, Dr. Reddy’s score was 8 out 18. [R. 300].
Plaintiff’s score
was 2 out of 18 on November 22, 2008, in the physical consultative examination conducted by Dr.
Johnson Gourd, M.D. [R. 215].

7

16, 2008, Luther Woodcock, M.D., non-examining physician reviewed the Plaintiff’s
medical records and found that her medical condition was non-severe. [R. 231]. On March
24, 2009, Sally Varghese, M.D., reviewed all of the medical evidence in the file and
affirmed the assessment of December 9, 2008 as written. [R. 242]. On March 24, 2009,
Mary Lanette Rees, M.D., reviewed the Plaintiff’s medical records and opined physical is
non-severe. [R. 243]. As the record substantiates, these non-examining, non-treating
reviewing experts do not support Plaintiff’s claim for disability – on the contrary, they
support the ALJ’s findings of “not disabled.” The ALJ’s failure to assign a specific weight
to the non-examining, non-treating reviewing experts who were of the opinion that Plaintiff
is not disabled is not a basis to reverse the ALJ’s decision.
Step Five Determination
The Plaintiff asserts that the ALJ failed to perform a proper step five determination
based upon the hypothetical questions posed to the vocational expert and the responses
thereto which included both light and sedentary jobs. Plaintiff contends that she is
precluded from performing light exertional level work as well as sedentary jobs based upon
the findings of the second physical consultative examination performed by Dr. Sri Reddy,
M.D. [Dkt. #18, p. 5]. Plaintiff states “[O]ne must be able to stand and walk for up to six
hours of eight to do light work.” [Dkt. 18, p. 5]. Light work contains no such requirement.
Although light work may require a good deal of walking, a job may be in the light work
category when it “involves sitting most of the time with some pushing or pulling of arm or
leg controls.” 20 C.F.R. § 404.1567(b), 416.967(b).
The record reflects that Dr. Reddy found that plaintiff could sit for 8 hours without
interruption, as well as stand for 2 hours per day and walk for 2 hours per day.
8

Additionally, Dr. Reddy found Plaintiff could occasionally lift up to 20 pounds, could reach,
reach overhead, push and pull occasionally and perform activities of handling, fingering
and feeling frequently. Dr. Reddy also determined that plaintiff could occasionally balance,
stoop, kneel, crouch and crawl. Dr. Reddy indicated that the plaintiff’s physical impairments
did not prevent her from activities such as shopping, traveling, walking one block, using
public transportation, prepare simple meals, care for her personal hygiene, and sort,
handle, and use paper/files. [R. 290-295].
The ALJ found that Plaintiff has the residual functional capacity to perform less than
the full range of light exertional work as defined by 20 C.F.R. § 416.967(b) with limitations
in her ability to climb, stoop, crouch, crawl, kneel, push and/or pull, reach overhead, twist
her torso , and nod her head and is slightly limited in her ability to finger, feel and grip. The
ALJ also found that the Plaintiff should avoid cold and damp environments and dust,
fumes, and gases and requires low light/low noise environments, is able to perform simple,
repetitive and routine tasks and is slightly limited in reference to contact with the general
public, co-workers and supervisors. [R. 16]. The ALJ’s decisional RFC is generally
consistent with the findings of Dr. Reddy and flows from the entirety of medical evidence
in the record as well as from an assessment of Plaintiff’s impairments. The ALJ discussed
the Plaintiff’s activities of daily living in which she testified that she is able to dust, make the
bed, wash laundry, cook, watch television and read. The court finds that ample evidence
supports the ALJ’s RFC assessment.
Plaintiff assets that the hypothetical is inaccurate because it does not contain all of
the limitations found by the mental consultative examiner, Dr. Minor Gordon, Ph.D., which
were outlined in his psychological evaluation dated April 22, 2010. [R. 315-318]. The RFC
9

included limitations to simple, repetitive, and routine tasks and a slight limitation in
reference to contact with the general public, co-workers, and supervisors. Dr. Gordon
completed an "Assessment of Ability to Engage in Work Related Activities (Mental)," in
which he found no restrictions to the Plaintiff’s ability to understand and remember
simple/complex instructions. As to Plaintiff’s ability to carry out simple instructions and to
make judgments on simple work-related decisions, Dr. Gordon found only “mild”
restrictions. Dr. Gordon found Plaintiff’s ability to interact with supervisors, co-workers, and
the public a mild restriction with a moderate restriction pertaining to Plaintiff’s ability to
respond appropriately to usual work situations and to changes in routine work setting. Dr.
Gordon found no other capabilities were affected by the impairment. [R. 319-320]. The
ALJ’s RFC finding adhered to, not diverged from, the findings of Dr. Gordon. The court
finds no error in the ALJ’s treatment of Dr. Gordon’s findings.
Credibility Determination
Much of Plaintiff’s argument concerning the ALJ’s credibility determination
addresses the ALJ’s use of stock boilerplate language. The Tenth Circuit has made it clear
that in the absence of a more thorough analysis, the use of boilerplate language is
insufficient to support an ALJ’s credibility determination. However, the Tenth Circuit has
made it equally clear that when the ALJ provides specific reasons for his credibility
determination and links the credibility determination to the evidence, the presence of
boilerplate language will not require remand. Cf. Boehm v. Astrue, 2013 WL 541067 at *2
(10th Cir. 2013(rejecting the same argument advanced in this case in another appeal
argued by Plaintiff’s counsel), Polson v. Astrue, 2013 WL 238849 at *2 (10th Cir. 2013
(same), Strickland v. Astrue, 2013 WL 3935755 at *7 (10th Cir. 2012)(same).
10

The ALJ found that the claimant exaggerates some of her symptoms including
disabling pain, the severity of the claimant’s symptoms is disproportionate in comparison
to the usual expected severity of her condition., the alleged effect of the claimant’s
symptoms on activities of daily living and basic task performance is not consistent with the
total medical and non-medical evidence in the file. The ALJ noted that medications have
been relatively effective when taken as prescribed and that her reported symptoms and
limitations have been inconsistent throughout the record and her complaints are
inconsistent with her activities and the treatment records. [R. 21]. The court finds that the
ALJ supported his credibility findings and appropriately related them to the record.
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.

11