Owens v. Social Security Administration

Filing 23

OPINION AND ORDER by Magistrate Judge Frank H McCarthy (tjc, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
DANNY R. OWENS,
Plaintiff,
vs.

Case No. 13-CV-37-FHM

CAROLYN W. COLVIN,
Acting Commissioner, Social Security
Administration,
Defendant.
OPINION AND ORDER
Plaintiff, Danny R. Owens, 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 May 23, 2010, application for disability benefits was denied initially and on reconsideration.
A hearing before Adm inistrative Law Judge ("ALJ") Charles Headrick was held Novem ber 7, 2011. By
decision dated Decem ber 16, 2011, the ALJ entered the findings that are the subject of this appeal. The
Appeals Council denied Plaintiff’s request for review on Novem ber 19, 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 50 years old on the alleged date of onset of disability and 53 on the
date of the ALJ’s denial decision. He completed the tenth grade and formerly worked as
overnight stocker. He claims to have been unable to work since May 27, 2009 as a result
of breathing problems associated with obstructive lung disease.
The ALJ’s Decision
The ALJ determined that Plaintiff has the residual functional capacity to perform the
full range of light work as defined in 20 C.F.R. § 404.1567(b) and 416.967(b). The ALJ
found that Plaintiff is capable of returning to his past relevant work as an overnight stocker.
In addition, 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).

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Plaintiff’s Allegations
Plaintiff asserts that ALJ erred: by failing to discuss a 2003 residual functional
capacity (RFC) assessment; failing to propound a proper hypothetical to the vocational
expert; failing to properly evaluate the medical source opinions; and failing to perform a
proper credibility determination.2
Analysis
2003 RFC Assessment
The record contains an RFC assessment completed by a state agency disability
determination service expert who reviewed Plaintiff’s medical records in conjunction with
an earlier application for disability benefits. [R. 306-313]. Plaintiff argues that it was error
for the ALJ to have failed to discuss that RFC assessment which indicates that he is
restricted to the performance of work at the sedentary exertional level. Based on Plaintiff’s
age, and other vocational factors, under the Medical Vocational Guidelines (Grids),3 the
restriction to sedentary work would result in a finding that Plaintiff is disabled.
It is abundantly clear that the 2003 RFC assessment does not pertain to the time
period covered by the current application for benefits. For Plaintiff’s Title II (DIB) the

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Som e of Plaintiff’s argum ents pertain to the ALJ’s finding that Plaintiff could return to his 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 his 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 step four allegations.
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The Grids are m atrices of four factors– physical ability, age, education, and work experience. The
Grids set forth rules that identify whether jobs requiring specific com binations of those factors exist in
significant num bers in the national econom y. Daniels v. Apfel, 154 F.3d 1129, 1132 (10th Cir. 1998) (quoting
Heckler v. Campbell, 461 U.S. 458, 461-62, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983). W hen all factors coincide
with the criteria of a Grid Rule, then the ALJ can rely on the Rule to establish the existence of jobs. 20 C.F.R.
Pt. 404, Subpt. P. App. 2, 200(b).

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relevant time period is from Plaintiff’s alleged onset of disability date, May 27, 2009 to the
date last insured, December 31, 2009. For Plaintiff’s Title XVI claim, the time period is
from the date of Plaintiff’s application for benefits, May 27, 2010 to the date of the ALJ’s
decision, December 16, 2011.
Plaintiff cites Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004) and Wall v.
Astrue, 561 F.3d 1048, 1069 (10th Cir. 2009) as supporting the proposition that “[e]ven
evidence from previously adjudicated periods is relevant and must be considered.” [Dkt.
18, p. 2]. The court found nothing within the Wall case that addressed the discussion of
evidence from previously adjudicated periods.
In Hamlin, four years before the current decision the same ALJ made an RFC
finding that Mr. Hamlin could perform less than a wide range of light work and could not
return to his past relevant work. In the current decision using almost exactly the same
language and relying on nearly the same evidence as the earlier decision, the ALJ arrived
at a different RFC conclusion without providing any explanation for the different conclusion.
In addition, the ALJ failed to give credence or explain why he rejected the medical reports
and RFC assessments of Mr. Hamlin’s treating physicians, nor did the ALJ explain why a
five year old consultative examination report and agency RFC determination were given
weight over the treating physicians. Hamlin, 365 F.3d at 1224. The Court said the ALJ’s
decision was reversed, in short, because the ALJ’s RFC determination was not supported
by substantial evidence and was contrary to the overwhelming medical evidence. Id. That
is not the situation in the present case.

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In this case the ALJ did not discuss the agency RFC report dated six years before
the alleged onset of disability. The ALJ did, however, state he considered the entire record
and did discuss the current medical evidence which included a pulmonary function study,
[R. 43], an exercise myocardial perfusion study, [R. 44], post knee surgery evaluations, Id.,
and the reports of physicians who treated Plaintiff from 2009 to 2011 for a variety of
complaints. [R. 42-45]. Where, as here, the ALJ indicates he has considered all the
evidence, the court takes the ALJ at his word. Wall v. Astrue, 561 F.3d 1048, 1070(10th
Cir. 2009). In this case there is every reason to abide by that well-established principle.
In its entirety, the ALJ's discussion of the evidence and his reasons for his conclusions
demonstrate that he adequately considered Claimant's alleged impairments.
Moreover, Plaintiff has not presented anything to demonstrate that the 2003 RFC
assessment is relevant to the time frames under consideration in this case which are at
least six years after the 2003 assessment. Since the ALJ fully discussed and appropriately
evaluated the evidence generated during the time frame under consideration and since
Plaintiff has not established that the 2003 RFC assessment pertains to the time frame
under consideration, Plaintiff’s arguments concerning the ALJ’s failure to address the 2003
RFC and the applicability of the Grids based on the 2003 RFC have no merit. Based on
these considerations, the court has not addressed the 2003 RFC in connection with
Plaintiff’s other arguments.
Hypothetical Questioning
Plaintiff argues that the ALJ erred in failing to include depression in the hypothetical
questioning to the vocational expert. Plaintiff points out that he was treated for depression
but that limitations related to the depression were omitted from the hypothetical and the
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RFC. Plaintiff does not, however, indicate what work-related limitations are related to his
depression. 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). Furthermore, 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 has not demonstrated that the record contains any depression
related limitations that should have been included in the hypothetical question or the RFC.
Consideration of Medical Source Opinions
The record contains a Medical Source Statement of Ability to do Work-Related
Activities (Physical) form which was completed on September 29, 2011 by Kerri Ellis, a

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nurse practitioner. [R. 384-389]. On that form Ms. Ellis expressed her opinion that Plaintiff
had the ability to work at less than the sedentary exertional level and that he would be
absent from work three or more times per month. Plaintiff argues that the ALJ failed to
properly evaluate this opinion and that a proper evaluation would have resulted in a finding
of disability.
The ALJ noted that as a nurse practitioner Ms. Ellis is not considered an acceptable
medical source. The ALJ observed that Ms. Ellis’ assessment of the claimant’s limitations
is entirely “inconsistent with the evidence of record,” [R. 45], it appears she relied heavily
on the subjective symptoms reported, and the limitations described are not consistent with
her own treatment notes. Id.
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 those “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 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.

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Id. at * 5. The ALJ’s analysis discussed most of these factors. The court finds that the ALJ
properly evaluated Ms. Ellis’ opinion.
It is not accurate to say, as Plaintiff does, [Dkt. 18, p. 6], that the ALJ failed to
demonstrate the inconsistencies between Ms. Ellis’ opinion and the other evidence of
record. Throughout the ALJ’s decision, he pointed out the points where tests reflected
minimal findings: MRI of the brain; carotid Doppler studies; CT of the chest; pulmonary
function study; normal range of motion of all extremities; exercise myocardial perfusion
study; and normal range of motion of knee. [R. 41-43]. The court finds that the ALJ’s
discussion of the evidence is sufficient to enable the court to follow the ALJ’s reasoning.
See Wells v. Colvin, 727 F.3d 1061, 1074 (10th Cir. 2013), 2013 WL 4405723 (finding
ALJ’s explanation of the weight he assigned to physician assistant’s opinion was sufficient
to enable the court to follow the ALJ’s reasoning).
Credibility Analysis
Plaintiff asserts that the ALJ failed to perform a minimal discussion of credibility
factors, erroneously failed to find that his complaints were supported by findings, and
included boilerplate language in the decision.
“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).
Among other reasons for finding Plaintiff’s allegations not credible, the ALJ noted
Plaintiff’s description of his symptoms and limitations have been inconsistent and
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unpersuasive, there are no references in the record to support the significant limitations
Plaintiff alleges, and the physical findings and supporting clinical data do not closely
corroborate or correlate with Plaintiff’s subjective complaints. [R. 45]. Given the ALJ’s
through discussion of the medical evidence, the court finds that the ALJ cited sufficient
grounds tied to the evidence for the credibility finding.
Plaintiff argues that the ALJ’s decision should be reversed because the credibility
analysis contains 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), Polson v. Astrue, 2013 WL 238849 at *2 (10th
Cir. 2013) (same), Strickland v. Astrue, 2013 WL 3935755 at *7 (10th Cir. 2012) (same).
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
DATED this 3rd day of December, 2013.

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