Taylor v. Social Security Administration

Filing 25

OPINION AND ORDER by Magistrate Judge Frank H McCarthy Affirming the Commissioner's decision (tjc, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
CYNTHIA ANN TAYLOR,
Plaintiff,
vs.

Case No. 12-CV-412-FHM

CAROLYN W. COLVIN,
Acting Commissioner, Social Security
Administration,
Defendant.
OPINION AND ORDER
Plaintiff, Cynthia Ann Taylor, 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 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.,
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 July 16, 2009, application for disability benefits was denied initially and on reconsideration.
A hearing before Adm inistrative Law Judge ("ALJ") Charles Headrick was held March 16, 2011. By decision
dated April 22, 2011, the ALJ entered the findings that are the subject of this appeal. The Appeals Council
denied Plaintiff’s request for review on May 22, 2012. 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 52 years old on the date of alleged onset of disability and 54 on the
date of the ALJ’s denial decision. She has a high school education and formerly worked
as a dump truck driver. She claims to have been unable to work since February 27, 2009
as a result of pain and dysfunction resulting from degenerative joint disease of the lumbar
spin, depression, and substance abuse disorder.
The ALJ’s Decision
The ALJ determined that Plaintiff has the residual functional capacity (RFC) to
perform light work as defined in 20 C.F.R. § 404.1576(b), except she has a “marked ability”
to understand, remember, and carry out detailed instructions and a “marked ability” to
interact appropriately with the general public.2 [R. 20]. Although Plaintiff is unable to
perform her past relevant work as a dump truck driver, based on the testimony of a
vocational expert, the ALJ determined that there are a significant number of jobs in the

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The term “m arked ability” is an obvious typographical error and should read “m arked inability” or
“m arked lim itation in the ability to . . .”. The court’s rationale for this conclusion is discussed later in this
opinion and order.

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national economy that Plaintiff could perform with these limitations. The case was thus
decided at step five of 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 the ALJ failed to find that she meets or equals Listing §1.04A; the
ALJ failed to propound a proper hypothetical question to the vocational expert and arrived
at an incorrect residual functional capacity determination; the ALJ failed to properly
consider the medical source opinion evidence; and the ALJ’s credibility determination is
faulty.
Analysis
Listing § 1.04 A
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 the requirements for Listing 1.04 A, disorders of the
spine, 20 C.F.R. Pt. 404, Subpt. P, App. 1, §1.04A.; that the ALJ’s failure to analyze that

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listing section is reversible error; and since she meets listing §1.04A, the case should be
remanded for payment of benefits.
Listing §1.04A requires:
Disorders of the spine (e.g. herniated nucleus pulposus, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc
disease, facet arthritis, vertebral fracture), resulting in
compromise of a nerve root (including the cauda equina) or the
spinal cord. With:
A. Evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion of the
spine, motor loss (atrophy with associated muscle weakness
or muscle weakness) accompanied by sensory or reflex loss
and , if there is involvement of the lower back, positive straightleg raising test (siting and supine);
Id. In her brief Plaintiff sets out a number of medical findings that she says demonstrate
that she meets all of the criteria of Listing §1.04A. The court finds that Plaintiff’s citation
to sporadic medical findings does not demonstrate that she meets the listing criteria so as
to be presumptively disabled.
The October 2009 objective findings of Patrice Wagner, DO that Plaintiff moved all
extremities well, was neurologically intact, had full muscle strength, and normal range of
motion in her back, [R. 300, 302-03] demonstrate that Plaintiff did not meet the criteria for
Listing §1.04A. A March 2011 report by neurological surgeon, Daniel J. Boedeker, M.D.,
also demonstrates that Plaintiff does not meet the listing criteria. Dr. Boedeker described
Plaintiff’s complaint of pain as being in “no particular dermatomal distribution.” [R. 522].
On examination Dr. Boedeker found Plaintiff’s cranial nerves to be grossly intact, she
appeared to have normal strength in her lower extremities, normal sensation, an absent
knee reflex on the right, but a 2+ knee reflex on the left and at both ankles, and she was
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able to toe and heel walk without deficit. [R. 532]. These findings do not support Plaintiff’s
claim that she meets Listing 1.04A.3
The ALJ is required 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). The ALJ failed to do this with regard to Listing 1.04A. However, the Tenth Circuit
has rejected a construction of Clifton that would lead to unwarranted remands which would
needlessly prolong the administrative proceedings. Fischer-Ross v. Barnhart, 431 F.3d
729, 930 (10th Cir. 2005). Therefore it is not necessary to reverse a case for a step three
analysis where the ALJ provides a full discussion of the medical record in terms that
provide a basis for rejection of the Listing and where the remainder of the ALJ’s analysis
demonstrates that the claimant is not disabled. Such is the situation in this case. The ALJ
accurately summarized the medical record and fully discussed his rationale for finding
Plaintiff is not disabled through the entire five step sequential evaluation. Accordingly, the
court will not remand the case for a discussion of Listing 1.04A.
Hypothetical Questioning of the Vocational Expert
Plaintiff argues that the ALJ failed to propound a proper hypothetical question to the
vocational expert because, rather than verbally setting out the limitations included in the
hypothetical question, the ALJ asked the vocational expert to assume the limitations set
out in two exhibits. [R. 51]. This practice is a minefield for misunderstanding between the
ALJ and the vocational expert and has the potential for creating unnecessary uncertainty
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The court rejects the Com m issioner’s assertion that Plaintiff was required to dem onstrate an
inability to am bulate effectively to m eet Listing §1.04A. The Com m issioner’s reliance on the requirem ents of
§1.00(2)(a) is m isplaced. That section defines the term “functional loss” as it is used in the m usculoskeletal
listings. Section 1.04A does not em ploy the term “functional loss’ but instead specifically defines the
lim itations that will m eet the criteria for that listing.

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for the court on review. The exhibits the ALJ referred to span ten pages that could contain
information about limitations pertinent to Plaintiff’s residual functional capacity . [Dkt. 306312, 324-327]. When the ALJ verbally specifies the limitations included in the hypothetical
question, the reviewing court knows with certainty what limitations the vocational expert
considered. Uncertainty does not, however, exist in this case where the limitations
expressed in the exhibits are straightforward and there are no points of confusion between
the exhibits and the ALJ’s decisional RFC. The court finds no error in referring the
vocational expert to exhibits to express the limitations to be included in the hypothetical
question.
Plaintiff argues that the case should be reversed because the ALJ’s decisional RFC
contains no mental limitations and what Plaintiff calls the non-limitations of “marked ability
to understand, remember, and carry out detailed instructions and marked ability to interact
appropriately with the general public.” [R. 20].
The ALJ’s hypothetical to the vocational expert is based in part, on limitations
contained in Exhibit 9F, [R. 324-326] which addresses mental limitations. That exhibit
states Plaintiff is markedly limited in the ability to understand, remember, and carry out
detailed instructions, and markedly limited in the ability to interact appropriately with the
general public. [R. 324-325]. The functional capacity assessment of Exhibit 9F states
Plaintiff has the following capacity:
Claimant can perform simple tasks with routine supervision.
Claimant can relate to supervisors and peers on a superficial
work basis.
Claimant cannot relate to the general public.
Claimant can adapt to a work situation.

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[R. 326]. In the ALJ’s summary of the medical evidence, the ALJ referred to the foregoing
and noted the ability to perform simple tasks with routine supervision and that Plaintiff
cannot relate to the general public. The ALJ stated the opinion expressed in Exhibit 9F
was in line with the medical record and was given considerable weight. [R. 24]. In light of
those statements, the court finds that the ALJ’s use of the term “marked ability” in the RFC
is a typographical error and, contrary to Plaintiff’s assertion, the ALJ’s RFC does contain
mental limitations of performing only simple tasks and the inability to relate to the general
public.
Plaintiff asserts that the case should be reversed because we cannot tell from the
record whether the vocational expert considered Plaintiff’s age as being almost 55. [Dkt.
19, p. 5]. According to Plaintiff, she was close to her 55th birthday and under the grids,4
considering her education and experience, at that age she would be considered disabled.
The application of the grids is a function performed by the ALJ not a vocational expert. As
a result, the court finds no error in the ALJ’s failure to pose the hypothetical question in
terms that would require the vocational expert to apply the grids.
To the extent that the Plaintiff has asserted that she falls into a borderline situation
that required the ALJ to discuss which grid category to apply, the court finds no merit to
that contention. The grids have three age categories: under age 50; age 50 to 54; and age
55 or older. To avoid arbitrary results when a claimant’s age is approaching an older age
category in cases where the difference in age would make a difference in the outcome, the
regulations provide as follows:

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The Medical Vocational Guidelines (grids) are tables which m ay direct a finding of disabled or not
disabled based on the Plaintiff’s age, residual functional capacity, education, and work experience.

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We will not apply the age categories mechanically in a
borderline situation. If you are within a few days to a few
months of reaching an older age category, and using the older
age category would result in a determination or decision that
you are disabled, we will consider whether to use the older age
category after evaluating the overall impact of all the factors of
your case.
20 C.F.R. §§ 404.1563(b), 416.963(b). On the date of the ALJ’s decision, Plaintiff was 54
years old and seven months away from turning 55 years old.5 Plaintiff was closer to 54
years old than to 55. The court finds that Plaintiff did not fall into a borderline situation in
that she was not within a few days or months of the next age category.
Consideration of Opinion Evidence
Plaintiff argues that the ALJ failed to properly consider the medical source evidence
because he gave great weight and considerable weight to the DDS reviewing experts, but
did not include Exhibit 10F in the hypothetical question to the vocational expert. Exhibit
10F is the psychiatric review technique (PRT) form completed by the DDS reviewing
psychologist. [R. 328-340]. The PRT form does not contain any information about the
ability to perform work-related tasks. The court finds no error was committed in the ALJ’s
failure to bring the PRT form to the vocational expert’s attention.
Plaintiff objects to the ALJ’s use of boilerplate phrases in the ALJ’s explanation of
the weight he gave the opinions of the DDS reviewing experts. The court finds that the
ALJ’s language is not objectionable. The ALJ explained that he accorded weight to the
opinions of the DDS experts because their opinions were in line with the medical record

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The parties disagree about the num ber of m onth between the ALJ’s decision and Plaintiff’s birthday.
[Dkt. 20, p. 7; Dkt. 23, p. 4]. The ALJ’s decision was rendered in April and Plaintiff’s birthday is in Novem ber,
that is a seven m onth tim e period.

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and because the record does not contain any opinions from any physician indicating that
Plaintiff’s limitations are greater than the findings contained in the decision. [R. 22, 24].
The court does not view a 1975 report from an orthopedist as evidence contrary to
the ALJ’s statement that no physician has found Plaintiff to be more limited than the RFC.
[R. 552]. Plaintiff states that the ALJ has miscast the record by failing to mention that
report. [Dkt. 19, p. 9]. The court finds no error in the ALJ’s failure to include the limitations
contained in that report, made 36 years earlier, which are not noted by any of Plaintiff’s
contemporary medical care providers.
Credibility
“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’s reasons for discounting Plaintiff’s credibility are tied to the evidence: inconsistency
between Plaintiff’s allegations of limitations and the medical record, Plaintiff’s insistence
on a diagnosis of bi-polar to assist in obtaining disability, and lack of any opinions from
treating physicians concerning the limitations Plaintiff claims. [R. 24]. Since the ALJ
properly linked his credibility finding to the record, the undersigned finds no reason to
deviate from the general rule to accord deference to the ALJ’s credibility determination.
Plaintiff offers arguments against the factors cited by the ALJ in support of his
credibility finding.

The court views those arguments as an invitation to engage in

impermissible reweighing of the evidence. As the Tenth Circuit has instructed, the court
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must decline that invitation. See Rabon v. Astrue, 464 Fed. Appx. 732, 735-36 (10th Cir.
2012)(citing Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005)).
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 27th day of August, 2013.

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