Akers v. Social Security Administration
Filing
22
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
MICHAEL A. AKERS,
Plaintiff,
vs.
Case No. 12-CV-489-FHM
CAROLYN W. COLVIN,
Acting Commissioner, Social Security
Administration,1
Defendant.
OPINION AND ORDER
Plaintiff, Michael A. Akers, 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 October 14, 2009, application for disability benefits was denied initially and on
reconsideration. A hearing before Adm inistrative Law Judge ("ALJ") David W . Engel was held July 5, 2011.
By decision dated Septem ber 15, 2011, the ALJ entered the findings that are the subject of this appeal. The
Appeals Council denied Plaintiff’s request for review on July 20, 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.
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 30 years old on the alleged date of onset of disability and 32 on the
date of the ALJ’s denial decision. He has a high school education with some technical
training and formerly worked as warehouse worker, ice cream freezer assistant, and
landscape laborer. He claims to have been unable to work since February 1, 2009 as a
result of affective mood disorder.
The ALJ’s Decision
The ALJ determined that Plaintiff is able to perform a full range of medium, light and
sedentary work. He is unable to climb ropes, ladders, and scaffold, and is unable to work
in environments where he would be exposed to unprotected heights and dangerous
moving machinery parts. He is able to understand, remember, and carry out simple to
moderately detailed instructions in a work-related setting and is able to interact with coworkers and supervisors under routine supervision, but is unable to interact with the
2
general public more than occasionally, regardless of whether the interaction is over the
telephone or in person. [R. 20-21].
The ALJ found Plaintiff is capable of performing his past relevant work as a
warehouse laborer and as an ice cream freezer assistant. Alternatively, 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 four of the five-step evaluative sequence for determining whether
a claimant is disabled with an alternative step five finding. 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 at steps 4 and 5 of the sequential evaluation;
failed to properly evaluate the medical source opinions and other source opinion evidence;
and failed to perform a proper credibility determination.
Analysis
Steps 4 & 5
Plaintiff contends that the ALJ erred at step 4 because Plaintiff’s unsuccessful work
attempts do not qualify as past relevant work. The Commissioner concedes that the ALJ
erred at step 4. [Dkt. 18, pp. 3-4]. However, since the ALJ made alternative step 5
findings which the Commissioner argues are supported by substantial evidence, the
Commissioner asserts that the step 4 error is harmless. The court agrees that if the step
5 analysis was performed in accordance with applicable legal standards and is supported
3
by substantial evidence, any step 4 error cannot, by itself, constitute the basis for a
remand. As a result, the court will not address Plaintiff’s step 4 allegations.
In posing a hypothetical question to the vocational expert, among other limitations,
the ALJ asked the vocational expert to “assume medium or light or sedentary exertion
work.” [R. 60]. Plaintiff argues that the case must be remanded because this portion of
the hypothetical question was improper in that it did not contain the required function-byfunction assessment of the ability to sit, stand, and walk. [Dkt. 17, pp. 2-3]. There is no
merit to this contention. The terms medium, light, and sedentary work are terms of art
which are defined in the Social Security regulations, 20 C.F.R. §§ 404.1567, 416.967. By
virtue of her expertise, the vocational expert understood the ALJ’s use of these terms.
Moreover, Plaintiff did not allege any impairment in his ability to sit, stand, or walk. At the
hearing Plaintiff’s counsel, who is the same attorney who filed the briefs in this appeal on
Plaintiff’s behalf, stated:
[T]his is primarily a mental limitation type of case. The physical
sitting, standing, walking, there’s not really any contention
about his abilities to do that.
[R. 39]. Where, as here, the claimant has made no allegation of any impairment in the
ability to sit, stand, walk, or lift, it is not inappropriate for the ALJ to express the RFC in
terms of the ability to perform work at a particular exertional level as defined in the
regulations.
Plaintiff also asserts that the ALJ ignored the vocational expert’s testimony that
there were no jobs Plaintiff could perform if he required constant oversight and direction.
[Dkt. 17, p. 4; R. 61-62]. The court finds that the ALJ did not ignore that testimony.
4
Rather, the ALJ found that Plaintiff did not require constant supervision.3 In posing a
hypothetical question, the ALJ need only set forth those physical and mental
impairments which are accepted as true by the ALJ. See Talley v. Sullivan, 908 F.2d
585, 588 (10th Cir. 1990).
Consideration of Opinion Evidence
Plaintiff asserts that the ALJ erred by failing to discuss the uncontroverted evidence
he chose not to rely on.
However, Plaintiff has not identified what evidence was
uncontroverted or what specific evidence this assertion pertains to. It is Plaintiff’s duty on
appeal to support his arguments with references to the record and to tie relevant facts to
his 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).
Plaintiff argues that the ALJ erred by failing to mention a mental status form
completed by a physician4 at Grand Lake Mental Health Center where he received
treatment from September 2008 to May 2011. The court finds no error in the ALJ’s failure
to mention this form. The form is not contrary to the RFC finding. The written comments
on the form state that Plaintiff has poor ability to relate to others, that Plaintiff works part
time with his father, visits friends, and his condition is stable. [R. 313]. The form also
3
The ALJ’s rejection of the requirem ent of constant supervision is discussed in relation to the ALJ’s
treatm ent of the opinion evidence.
4
The signature is illegible and there is no indication as to who com pleted the form .
5
states he displays the ability to think, reason, and respond. He has friends, needs
continued therapy and medication compliance, has a guarded prognosis, can remember,
comprehend and carry out simple and complex instructions on an independent basis and
can respond to work pressure, co-workers, and supervisors. Id. Bi-polar is listed as the
diagnosis and the person who completed the form indicated Plaintiff cannot handle his own
funds. Id. The information that Plaintiff has a guarded prognosis and relates poorly with
others does not indicate an inability to perform work-related tasks in light of the fact that
the same form expresses that Plaintiff has the ability to carry out instructions on an
independent basis and can respond to work pressure and supervision. The court finds that
this form supports the ALJ’s RFC finding and therefore the ALJ’s failure to mention the
form is not error. See Howard v. Barnhart, 379 F.3d 945, 947 (10th Cir. 2004)(the need
for express discussion of evidence is weakened when the evidence does not conflict with
the ALJ’s conclusion).
Plaintiff asserts that the ALJ found the mental RFC assessment by Dr. Peteryne
Johnson-Miller conclusory but due “great weight.” [Dkt. 17, p. 6]. Since the ALJ stated he
gave Dr. Johnson-Miller’s opinion “very little weight,” [R. 26], it may be that Plaintiff was
attempting to assert that the opinion should have been accorded “great weight.” However,
Plaintiff’s argument about Dr. Johnson-Miller’s opinion seems to repeat that the ALJ gave
the opinion “great weight.” The fact is that the ALJ did not accord the opinion “great
weight.” In any case, the court makes the following observations about the ALJ’s treatment
of Dr. Johnson-Miller’s opinion.
The ALJ mentioned Dr. Johnson-Miller’s opinion, including the notation that Plaintiff
reported he could not respond appropriately to work pressure, supervision and co-workers.
6
[R. 24, 25]. The ALJ noted that the opinion was conclusory with little explanation of the
evidence relied on in forming the opinion. [R. 25]. The ALJ thus gave adequate reasons
for excluding Dr. Johnson-Miller’s opinions from the RFC. The ALJ also made comments
about the possibility that the doctor rendered an opinion in an effort to assist her patient
or because Plaintiff may have been insistent and demanding of supportive notes or reports.
[R. 25]. Plaintiff asserts that in making this comment the ALJ engaged in improper
speculation. [Dkt. 17, p. 6]. The court reads the ALJ’s comments in context with the
qualifier contained in Dr. Johnson-Miller’s opinion that some of the limitations were “per
client’s report.” [R. 448]. In light of Dr. Johnson-Miller’s qualification of her opinion, the
court finds that the ALJ’s comments do not provide a basis for reversal.
The record contains a Mental Status Form completed on November 4, 2009 by
Randy Caswell, a licensed professional counselor and psychological clinician III. [R. 258].
Mr. Caswell described Plaintiff as immature and stated he does not relate to others well,
cannot stay focused and does not handle stress well. Id. It was Mr. Caswell’s opinion that
Plaintiff can remember, comprehend and carry out instructions in an independent basis
with some simple tasks “but when pertaining to life issues, maintaining finances, keeping
a job, etc. – no he cannot.” Id. Further, Mr. Caswell states, Plaintiff has never kept a job,
cannot handle work pressure or responsibility, and would need constant direction and
oversight to be able to have a job. Id. The ALJ acknowledged this opinion, [R. 23], and
stated certain aspects of Mr. Caswell’s opinion are consistent with the RFC and therefore
the opinion was given some weight. [R. 25].
Plaintiff argues that the ALJ erred in his treatment of Mr. Caswell’s opinion because
the ALJ did not include all of Mr. Caswell’s statements in the summary of the evidence.
7
The court finds no error in the ALJ’s summary of Mr. Caswell’s opinion, the ALJ is not
required to quote the record verbatim. See e.g. Clifton v. Chater, 79 F.3d 1007, 1009-10
(10th Cir. 1996)(ALJ is not required to discuss every piece of medical evidence in detail).
Plaintiff also states that the ALJ failed to explain which of Mr. Caswell’s opinions he
granted weight, which he rejected, and how the opinion was weighed. Reading the
decision as a whole, it is obvious that the aspect of Mr. Caswell’s opinion that he accepted
was that Plaintiff can understand, remember, and carry out simple tasks as the RFC
contains the ability to carry out simple to moderately detailed instructions. [R. 21]. It is
also obvious that the ALJ rejected Mr. Caswell’s opinion that Plaintiff could not handle work
pressure or responsibility, and that he would need constant direction and supervision as
those restrictions were not included in the RFC.
The ALJ did not express the reasons why he rejected Mr. Caswell’s opinion that
Plaintiff would need constant supervision. Plaintiff correctly points out that Social Security
Ruling (SSR) 06-3p, 2006 WL 2329939 requires that opinions, even from those who are
not “acceptable medical sources,” be evaluated and weighed. According to SSR 06-3p,
information from those who are not “acceptable medical sources” cannot establish the
existence of a medically determinable impairment, but information from these “other
sources” may be based on special knowledge of the individual and may provide insight into
the severity of the impairment and how it affects the ability to function. Id. at *2.
Accordingly, SSR 06-3p instructs that information from “other sources” should be evaluated
on the basis of how long the source has known the claimant and how frequently the source
has seen the individual, the consistency with the other evidence, the degree to which the
source presents relevant evidence to support an opinion, how well the source explains the
8
opinion, whether the source has a particular expertise related to the individual’s
impairment, and any other factors that tend to support or refute the opinion. Id. at * 5.
Plaintiff has not pointed to anything in the record that indicates Mr. Caswell had a
relationship with Plaintiff that would provide him with particular insight into Plaintiff’s
abilities. Mr. Caswell’s name does not appear in the medical record, except on the
November 4, 2009 Mental Status Form. [R. 258]. The record reflects that from September
2008 to May 2011, Plaintiff’s therapy was provided by Grand Lake Mental Health Center,
[R. 336-355; 358-405], but there are no entries in those records by “Randy Caswell.” The
name “Randy Caswell” does not appear on the list of care providers for Grand Lake Mental
Health Center dated September 10, 2009. [R. 271]. Further, the name “Randy Caswell”
does not appear on the “treatment team” for Northcare Mental Health Center where
Plaintiff was treated from August 2007 to January 2008, [R. 235], nor does that name
appear elsewhere in those records, [R. 209-257; 410-445]. There is, in fact, no evidence
in the record to suggest that “Randy Caswell” is associated with any clinic or mental health
care provider that served Plaintiff.5 Plaintiff’s arguments regarding Mr. Caswell’s opinion
consist solely of the assertion that the ALJ failed to appropriately weigh the opinion in
accordance with the factors suggested in SSR 06-3p. Were the court to remand the case
for the ALJ to engage in the weighing process, there would be nothing for the ALJ to say
because the record is absent of any evidence that Mr. Caswell participated in Plaintiff’s
treatment. In view of the absence of such evidence, the court finds no error in the ALJ’s
5
The request letter from the Com m issioner which enclosed the blank Mental Status Form to be
com pleted was sent to Mr. Caswell at a private residential address in Jenks, Oklahom a. [R. 260]. An
Oklahom a DDD Medical Evidence Record Invoice was directed to the sam e address with “Randy Caswell”
as the “m edical records source.” The “rem ittance source” is listed as “Randy Caswell” with an address in
Sapulpa, Oklahom a which is the Creek County Health Departm ent. [R. 259].
9
treatment of Mr. Caswell’s opinion. The Tenth Circuit has counseled that the court should
exercise common sense and not insist on technical perfection. Keyes-Zachary v. Astrue,
695 F.3d 1156, 1166 (10th Cir. 2012).
The court is well aware of the limitations in the scope of its review and is also aware
that it may not supply post hoc justifications for lapses in the Commissioner’s decision.
However, under the unusual circumstances presented in this case where the record
contains absolutely no basis for crediting the opinion of someone who is not an “acceptable
medical source,” the court finds that remand is not necessary and it would be wasteful to
remand the case for the ALJ to point that out.
There is no merit to Plaintiff’s contention that the case should be reversed because
the ALJ did not expressly discuss or weigh the opinions of the state Disability
Determination Service reviewing experts, Joan Holloway, Ph.D., and Cynthia
Kampschaefer, Psy.D. Plaintiff asserts that “[t]he ALJ should explain why he disagrees
with his ‘highly qualified’ experts.” [Dkt. 17, p. 8]. Those experts did not express opinions
favorable to Plaintiff. In fact, they were of the opinion that Plaintiff did not have a severe
impairment. [R. 322, 356-57]. The ALJ’s alleged error in failing to express what weight he
gave these expert opinions did not prejudice Plaintiff because giving greater weight to
these opinions would not have helped Plaintiff. See Keyes-Zachary v. Astrue, 695 F.3d
1156, 1162-63 (10th Cir. 2012)(finding no prejudice where ALJ failed to assign weight to
an opinion that did not help Plaintiff).
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.
10
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, including:
Plaintiff’s continued non-compliance with his medications when his ability to concentrate
and impulsiveness improve on medications; Plaintiff’s poor work history even before the
date of alleged onset of disability; and the inconsistency between Plaintiff’s activities and
the alleged limiting effects of his mood disorder. [R. 24-25]. 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.
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
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 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. Accordingly, the decision of the Commissioner finding Plaintiff
not disabled is AFFIRMED
SO ORDERED this 21st day of August, 2013.
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?