Walker vs. Social Security Administration

Filing 24

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

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
ALEX H. WALKER,
PLAINTIFF,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
DEFENDANT.

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CASE NO. 12-CV-506-FHM

OPINION AND ORDER
Plaintiff, Alex H. Walker, 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 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. See Briggs ex rel. Briggs v.
Massanari, 248 F.3d 1235, 1237 (10th Cir. 2001); Winfrey v. Chater, 92 F.3d 1017 (10th
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Plaintiff Alex H. Walker’s application was denied initially and upon reconsideration. A hearing
before Administrative Law Judge (ALJ) John Volz was held July 29, 2010. By decision dated August
19, 2010, the ALJ entered the findings which are the subject of this appeal. The Appeals Council
granted Plaintiff’s request for review on April 19, 2012. The Appeals Council rendered its decision on
July 13, 2012, finding that Plaintiff had not been under a disability, as defined in the Social Security Act,
at any time from May 27, 2009, through the August 19, 2010 decision date. 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.

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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).
Background
Plaintiff was 39 years old on the alleged date of onset of disability, 40 years old on
the date of the ALJ’s denial decision, and 42 years old on the date of the Appeals Council’s
decision. He has a high school education and he previously worked as an automobile
mechanic. Plaintiff claims to have been unable to work since June 25, 20092, due to
crushed right ankle, pulmonary embolism, and rheumatoid arthritis in back. [R. 148].
The ALJ’s Decision
The ALJ determined that the Plaintiff has severe impairments relating to status post
pulmonary embolism, status post right ankle fracture repair, rheumatoid arthritis, and
obesity. [R. 21]. The ALJ found that the Plaintiff has the residual functional capacity (RFC)

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Plaintiff amended his alleged onset date to June 25, 2009, which is the date he filed his
application. [R. 138]. The ALJ’s Decision, the Brief in Support of Defendant’s Administrative Decision,
and the Hearing Transcript incorrectly identify Plaintiff’s application date as May 27, 2009 and June 24,
2009. [R. 53, Dkt. 20, p. 1].

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to perform less than the full range of sedentary exertional work3 as defined in 20 CFR
416.967(a).

The ALJ found that Plaintiff could perform simple tasks with routine

supervision, and have normal contact with the public. [R. 27]. The ALJ determined at step
five that there are a significant number of jobs in the national economy that Plaintiff could
perform. [R. 28]. Accordingly, the ALJ found Plaintiff was not disabled. 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). The Appeals Council granted Plaintiff’s request for review of the ALJ’s
decision and issued a decision finding Plaintiff was not under a disability as defined in the
Social Security Act at any time from May 27, 2009 through August 19, 2010. [R. 4-7].
Plaintiff’s Allegations
Plaintiff asserts that the ALJ: 1) failed to properly evaluate the medical source
opinions and other source opinion evidence; 2) failed to perform a proper step five
determination; and 3) failed to perform a proper credibility determination.
Analysis
Evaluation of Medical and Other Source Opinion Evidence
Plaintiff argues that the ALJ failed to properly evaluate the medical source opinion
evidence, specifically, the opinions of Dr. Lawrence Lieberman, M.D., and physical
therapist Todd Alpers, DPT, OCS, CHT. On June 1, 2010, Plaintiff underwent a functional

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Pursuant to CFR § 404.1567 sedentary work involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is
defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying
out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary
criteria are met.

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capacity evaluation (FCE) which was performed by Mr. Alpers. Mr. Alpers found that
Plaintiff demonstrated the ability to return to a sedentary occupation within the guidelines
of the functional capabilities for an eight hour day. The capabilities profile indicated that
Plaintiff could not push or pull, climb ladders, kneel or squat, could seldom bend or climb
stairs. Plaintiff could occasionally stand, grip, reach, or perform fine or gross manipulation.
Mr. Alpers further opined that if the guidelines cannot be accommodated then Plaintiff did
not demonstrate the ability to return to gainful employment. [R. 491-505]. The ALJ found:
A DPT is not an “acceptable source” of medical evidence as
outlined in 20 CFR 1513 (sic), but is rather an “other source”.
Although the information he provides may be helpful in learning
more about the claimant’s condition, I am not required to give
significant weight to the opinion. Further, the Administrative
Law Judge notes the claimant was seen by Mr. Alpers one
time, solely for the purpose of this evaluation.
R. 25]. Plaintiff contends that Dr. Lieberman, Plaintiff’s treating physician, adopted Mr.
Alpers’ report thereby making the opinion his own. [Dkt. 17, p. 2; Dkt. 23, p. 1]. Plaintiff
argues that the ALJ failed to analyze Dr. Lieberman’s opinion using the appropriate factors
as required by Goatcher v. U.S. Dep’t of Health & Human Servs., 52 F.3d 288, 290 (10th
Cir. 1995) and 20 CFR § 416.927(d).

The ALJ’s decision is not the last word on the

subject of the weight afforded these opinions because, pursuant to Plaintiff’s request, the
Appeals Council granted review of the ALJ’s decision. The Appeals Council issued a
decision wherein it adopted the ALJ’s decisional findings and conclusions. The Appeals
Council also provided additional rationale concerning the opinions of Dr. Lieberman and Mr.
Alpers:

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On June 1, 2010, Mr. Alpers opined that the claimant could
perform sedentary work, but was restricted to occasionally
performing fine and gross manipulation (Exhibit 13F, Page 18).
The Council finds that the assessed manipulative limitations
are inconsistent with the longitudinal record. Specifically, the
record shows that the claimant had 5/5 grip strength and full
range of motion in his hands (Exhibit 6F, Page 5).
The decision also found that Dr. Lieberman opined that the
claimant was limited to sedentary work (Decision, Page 8);
however, Dr. Lieberman never rendered such an opinion
(Exhibit 14R, Page 1). Rather, Dr. Lieberman merely
referenced Mr. Alpers’ opinion and concluded that the claimant
was not able to return to his previous employment. The
Council agrees with this conclusion.
[R. 5]. The Appeals Council thus determined that Dr. Lieberman did not “adopt” the opinion
of Mr. Alpers that Plaintiff was limited to sedentary work, but agreed that Plaintiff was not
able to perform his past relevant work.
The court finds that while there may be room for disagreement over the meaning of
Dr. Lieberman’s opinion, the Appeals Council’s interpretation is not unreasonable. The
court may not displace the agency’s choice between two fairly conflicting views, even
though the court might have justifiably taken a different view had the matter been before
it de novo. The court reviews only the sufficiency of the evidence to support the decision,
not the weight of the evidence. Oldham v. Astrue, 509 F.3d 1254, 1257-58 (10th Cir.
2007).
Dr. Lieberman’s opinion that Plaintiff could not return to his past relevant work does
not conflict with the ALJ’s decision and does not warrant further discussion or analysis by
the Commissioner. The opinion of Mr. Alpers, that Plaintiff could perform sedentary work
is also in accord with the Commissioner’s decision. To the extent that Mr. Alpers found
Plaintiff had further manipulative limitations, the Appeals Council adequately explained the
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basis for rejecting that limitation was that those limitations were not consistent with the
longitudinal record, especially Plaintiff’s grip strength and the range of motion in his hands.
[R. 5]. That, together with the ALJ’s observation that the opinion was rendered by a
physical therapist who examined Plaintiff one time, is a sufficient explanation for not
crediting Mr. Alpers’ opinion.
The court finds no merit to Plaintiff’s assertion that the ALJ stated he gave the
opinions of the State Disability Determination Services (DDS) physicians great weight,
when in fact, he did not adopt their opinions. The DDS physicians found Plaintiff could
perform light work, [R. 349, 377], whereas the ALJ found Plaintiff could only perform
sedentary work. The ALJ’s adoption of the DDS opinions would not benefit Plaintiff’s quest
to obtain disability. See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1163 n.2 (10th Cir.
2012)(analysis of opinions inconsistent with ALJ’s decision not necessary where
disregarded opinion is not favorable to claimant). The court finds that the evaluation of
medical source opinions by the Commissioner is appropriate and supported by substantial
evidence.
Step Five Determination
Plaintiff contends that the hypothetical questions posed by the ALJ to the vocational
expert did not include the manipulative limitations found by physical therapist Todd Alpers,
and adopted by Dr. Lawrence Lieberman. Plaintiff contends that he is unable to perform
the two jobs testified to by the vocational expert – semiconductor assembler and clerical
mailer – as they require frequent reaching, handling, and fingering. [Dkt. 17, p. 6]. There
is no merit to this argument. Rejection of Mr. Alpers’ manipulative limitations is supported
by substantial evidence. In posing a hypothetical question, the ALJ need only set forth
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those physical and mental impairments which are accepted as true by the ALJ. See Kepler
v. Chater, 68 F.3d 387, 392 (10th Cir. 1995) (Talley v. Sullivan, 908 F.2d 585, 588 (10th
Cir. 1990) (ALJ is not bound by the vocational expert's response to a hypothetical question
which includes impairments that are not accepted as true by the ALJ).
Credibility Determination
“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, including:
Plaintiff’s inconsistent statements about his activities; his weak work history before the
alleged onset of disability; and lack of functional restrictions by treating physicians. [R. 2627]. 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 also argues that the ALJ erred in his 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 not sufficient to support an ALJ’s credibility determination. 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). Moreover, the Tenth Circuit “precedent ‘does not require a
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formalistic factor-by-factor recitation of the evidence so long as the ALJ sets forth the
specific evidence he relies on in evaluating the claimant’s credibility.’” Poppa v. Astrue, 569
F.3d 1167, 1171 (10th Cir. 2009) (quoting Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir.
2000)) (ellipsis and brackets omitted).
The court is satisfied that the ALJ's credibility findings are closely and affirmatively
linked to substantial evidence. Therefore, the court finds no reason to deviate from the
general rule to accord deference to the ALJ’s credibility determination.
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 20th day of September, 2013.

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