Bales v. Social Security Administration

Filing 23

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
PAMELA J. BALES,
Plaintiff,
vs.

Case No. 12-CV-601-FHM

CAROLYN W. COLVIN,
Acting Commissioner, Social Security
Administration,
Defendant.
OPINION AND ORDER
Plaintiff, Pamela J. Bales, seeks judicial review of a decision of the Commissioner
of the Social Security Administration denying Social Security disability benefits.

In

accordance with 28 U.S.C. § 636(c)(1) & (3), the parties have consented to proceed before
a United States Magistrate Judge.
Procedural History
Plaintiff's May 21, 2006, application was denied and proceeded through the
administrative procedures.

The denial was appealed to the district court, and was

remanded to the Commissioner for further consideration. [R. 714]. On remand a hearing
before Administrative Law Judge ("ALJ") Deborah L. Rose was held January 18, 2012. By
decision dated February 10, 2012, the ALJ entered the findings that are the subject of this
appeal. [R. 645-666]. The Appeals Council denied Plaintiff’s request for review on
September 6, 2012. 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.

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
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 46 years old on the alleged date of onset of disability and 52 at the time
of the ALJ’s denial decision. She formerly performed unskilled work as a make ready
porter, wiring/knotting machine operator, and x-ray machine/automatic developer. She
claims to have been unable to work since September 1, 2005 as a result of history of a
hernia after a hysterectomy, hypothyroidism, non-insulin dependent diabetes mellitus,
hypertension, obesity, bipolar disorder, and anxiety disorder.

2

The ALJ’s Decision
The ALJ determined that Plaintiff has the residual functional capacity (RFC) to
perform medium work as defined in 20 C.F.R. §§ 404.1567(c), 416.967(c), except she is
limited to performing only simple routine tasks. She can work in proximity to others, but
interaction with supervisors and co-workers must be superficial and incidental to the work
performed. Further, Plaintiff cannot have significant interaction with the public required for
the completion of job duties. [R. 650-51]. The ALJ determined that Plaintiff is capable of
performing her past relevant work with these limitations. [R. 657]. Further, based on the
testimony of a vocational expert, the ALJ determined that there are a significant number
of jobs in the national economy at the light and medium exertional level 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 to properly consider and weigh all medical
opinions and evidence; failed to consider the effects of Plaintiff’s combined mental and
physical impairments; failed to properly consider the effect of Plaintiff’s obesity on her
impairments; and failed to perform a proper credibility analysis.

3

Analysis
In her arguments Plaintiff asserts that the ALJ erred because a reasonable ALJ
viewing the evidence differently “could have” come to a different conclusion. [Dkt. 13, pp.
3, 5, 9]. That the evidence might support a conclusion different than the one reached by
the ALJ does not require remand. “[The court] may not displace the agency's choice
between two fairly conflicting views, even though the court would justifiably have made a
different choice had the matter been before it de novo.” Oldham v. Astrue, 509 F.3d 1254,
1257-58 (10th Cir. 2007)(internal quotation marks and brackets omitted). The fact that a
different conclusion “could have” been reached is not a basis for reversing the ALJ’s
decision.
To the extent that these arguments can be read as an attempt to assert that a
particular error is not harmless, the court notes that it has not relied on a harmless error
analysis in this case. Throughout, the court finds that the ALJ’s decision is supported by
substantial evidence and that the ALJ has applied appropriate standards in her decision.
Consideration of Medical Opinions
The record contains a Mental Impairment Questionnaire dated May 27, 2008 signed
by Plaintiff’s treating physician, Bryan Touchet, M.D. Dr. Touchet opined that on average
Plaintiff’s mental impairments would cause her to be absent from work more than three
times per month. [R. 634]. He also found Plaintiff had marked restrictions of daily activity,
extreme difficulties maintaining social functioning, and frequent deficiencies of
concentration, persistence, and pace. [R. 635]. Plaintiff argues that the ALJ improperly
found Dr. Touchet’s opinion unreliable because it was completed by a clinician and only

4

signed by the doctor. Plaintiff also argues that the ALJ mentioned isolated notations in the
record where Plaintiff’s symptoms improved and improperly relied on those as reasons for
giving Dr. Touchet’s opinion little weight.
The ALJ pointed to the mix of contradictory information that convinced her that the
opinion was unreliable: Global Assessment of Functioning (GAF) scores made when
Plaintiff was non-compliant with medications are not inconsistent with the finding that
Plaintiff can perform simple work without significant public interaction; Dr. Touchet’s
opinion that Plaintiff would miss work and was unable to work due to social isolation and
the inability to leave the house is contradicted by Plaintiff’s report on July 17, 2007 that she
is able to go by herself to do laundry and needs her mother only for transportation, [R.
594]; the form was completed by Plaintiff’s counselor and only signed by Dr. Touchet;
Plaintiff is not always compliant with medications; and the evidence demonstrates that her
symptoms improve on medication with adequate attention and concentration. [R. 657].
The court finds that the ALJ accurately outlined the evidence and gave a thorough
explanation of the reasons she accorded Dr. Touchet’s opinion limited weight. [R. 656-57].
Plaintiff argues that evidence exists to support Dr. Touchet’s opinion. While that
may be the case, it is not the court’s role to re-weigh the evidence. Bowman v. Astrue, 511
F.3d 1270, 1272 (10th Cir.2008) (the court does not substitute its judgment for that of the
agency). The court reviews the record to determine only whether the correct standards
were employed in making the decision and to determine whether the ALJ’s decision is
supported by substantial evidence. The court finds that the ALJ’s decision complied with
the applicable standards and the decision is supported by substantial evidence.

5

Plaintiff argues that the ALJ erred by failing to discuss the findings contained in Dr.
Sri Reddy’s consultative examination report dated July 13, 2006. [R. 263-368]. According
to Plaintiff, the findings of reflexes absent in her ankles, decreased sensation in her feet,
and pain with range of motion in the spine are inconsistent with the RFC finding for
medium work. The court finds no error in the ALJ’s failure to discuss these findings. Dr.
Reddy found that Plaintiff had a functional range of motion in every joint listed and that
Plaintiff ambulated with normal speed and good balance. [R. 363-64]. Even if some of Dr.
Reddy’s findings were interpreted to cast doubt on Plaintiff’s ability to do medium work, the
court notes that Plaintiff has made no argument that Dr. Reddy’s findings render her
incapable of performing the light work identified by the vocational expert which is contained
in the ALJ’s decision. However, the existence of light work is not the sole basis for the
court’s affirmance of the ALJ’s decision. The court finds that the ALJ applied appropriate
standards and the decision is supported by substantial evidence. The existence of light
work stands as an additional reason for affirming the denial decision.
Plaintiff argues that the ALJ gave “great weight” to the opinions of the Disability
Determination Service (DDS) medical consultants concerning her mental capacity, [R.
655], but the RFC does not reflect adequate consideration of the Psychiatric Review
Technique (PRT) forms completed by those reviewers. According to Plaintiff, the findings
on the PRT of moderate limitations in the activities of daily living, social function, and
concentration persistence or pace support the opinion of Dr. Touchet, which the ALJ found
was inconsistent with the record. There is no inconsistency between the ALJ’s decision
and the PRT forms completed by the DDS reviewers. As required by the Commissioner’s
regulations, the ALJ followed the procedure for evaluating mental impairments set forth in
6

the regulations and documented the application of the 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).
The ALJ considered the effect of Plaintiff’s mental impairments on the four broad areas of
functioning known as the “paragraph B” criteria: activities of daily living; social functioning;
concentration, persistence or pace; and episodes of decompensation of extended duration.
See 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.00 (C). The ALJ’s conclusion in
performing the PRT was identical to the DDS reviewers as the ALJ also found Plaintiff had
moderate impairments. [R. 649-50].
In addition to completing the PRT form, the DDS reviewers also performed Mental
Residual Functional Capacity Assessments. [R. 275-277; 383-385; 1079-1081]. As the
title of these forms suggests, the mental RFC assessments consider Plaintiff’s ability to
perform work-related mental activities in light of her impairments. The ALJ adopted the
most restrictive of the mental RFC assessments which contained the opinion that Plaintiff
is able to perform simple tasks with routine supervision, can relate to supervisors and
peers on a superficial work basis, cannot relate to the general public, and can adapt to a
work situation. [R. 1081]. The court finds no error in the ALJ’s treatment of the DDS
reviewers opinions.
Consideration of the Combined Effects of Plaintiff’s Mental and Physical Impairments1
1

Plaintiff argues that at step four of the evaluative sequence, the ALJ com m itted error concerning
her ability to return to her past relevant work. However, the ALJ m ade alternative step 5 findings that there
are other jobs in the econom y that Plaintiff could perform with her lim itations. If the step five analysis was
perform ed in accordance with applicable legal standards and is supported by substantial evidence, any step
four error cannot, by itself, constitute the basis for a rem and. As a result, the court will not address Plaintiff’s

7

Plaintiff asserts that the ALJ erred by failing to address complaints made to
physicians, diagnoses, and findings. Plaintiff argues that in so doing the ALJ failed to
consider all of her impairments throughout the sequential evaluation process and thus
violated the requirement to discuss the uncontroverted evidence she chooses not to rely
upon as well as significantly probative evidence she rejects as required by Clifton v.
Chater, 79 F.3d 1007, 1010 (10th Cir. 1996). The court finds that the ALJ adequately
discussed the medical evidence and did not err by failing to discuss every single complaint
and finding present in the record between the alleged onset of disability, September 1,
2005 and the date of the decision, February 10, 2012.
The ALJ noted that Plaintiff’s was diagnosed with carpal tunnel syndrome and left
shoulder impingement syndrome in 2003, but there was no treatment after that time. [R.
648]. Likewise, the ALJ noted Plaintiff’s complaints made in July and August of elbow pain
with numbness and tingling and observed there were no further complaints. Id. The ALJ
mentioned Plaintiff’s complaint of a hand tremor without muscle weakness and right
shoulder pain and noted Plaintiff had full range of motion and equal bilateral grip strength.
Based on the medical record and the dates of these complaints, the ALJ concluded that
those conditions were not at a “severe” level for a continuous twelve month period as
required for disability. Id.
With regard to Plaintiff’s back the ALJ noted the complaints, the x-ray results, and
the lack of impairment of function revealed by objective findings of normal gait, full motor
strength, and normal range of motion. Id. The ALJ also noted the absence of any

step four allegations.

8

functional limitations due to swelling of feet and numbness. Id. While the ALJ must
consider the combined effects of even non-severe impairments throughout the disability
analysis, the ALJ is not required to include functional limitations in the RFC for impairments
that cause no functional limitations. The focus of a disability determination is on the
functional consequences of a condition, not the mere diagnosis. See e.g. Coleman v.
Chater, 58 F.3d 577, 579 (10th Cir. 1995)(the mere presence of alcoholism is not
necessarily disabling, the impairment must render the claimant unable to engage in any
substantial gainful employment.), Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988)(the
mere diagnosis of arthritis says nothing about the severity of the condition), Madrid v.
Astrue, 243 Fed.Appx. 387, 392 (10th Cir. 2007)(diagnosis of a condition does not
establish disability, the question is whether an impairment significantly limits the ability to
work), Scull v Apfel, 221 F.3d 1352 (10th Cir. 2000)(unpublished), 2000 WL 1028250
*1 (disability determinations turn on the functional consequences, not the causes of a
claimant’s condition).
The court finds that the ALJ’s RFC findings are supported by substantial evidence.
Consideration of Obesity
Plaintiff argues that the ALJ failed to consider the effects of her obesity on her other
impairments. Plaintiff does not, however, forward any arguments as to what those effects
might be. 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.

9

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).
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).
Throughout the decision the ALJ cited numerous grounds, tied to the evidence, for the
credibility finding, including lack of support in the medical record for the degree of
impairment alleged, inconsistencies in her statements, and control of Plaintiff’s symptoms
during periods of compliance with her medications. [R. 652-655]. The ALJ thus properly
linked the 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 states that the ALJ noted instances of her noncompliance with medications
and “appears to rely greatly on the noncompliance in finding Claimant not disabled.” [Dkt.
13, p. 10]. Plaintiff argues that the ALJ failed to demonstrate that she would have been
able to work had she been complaint. She offers several reasons for her noncompliance
and asserts that the ALJ did not demonstrate that her failure to comply was not justified.
The court finds no error in the ALJ’s treatment of Plaintiff’s noncompliance with her
prescribed medications. The court reads the ALJ’s notations of Plaintiff’s noncompliance
as being made in the context of comparing Plaintiff’s condition when appropriately
medicated to her condition when she was not taking her medications.
10

The ALJ’s

observations that Plaintiff’s symptoms are controlled when she is compliant with prescribed
medications are supported by substantial evidence.
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 22nd day of October, 2013.

11