Zickefoose-McCoy v. Social Security Administration

Filing 28

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

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
DEBRA A. ZICKEFOOSE-McCOY,
PLAINTIFF,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
DEFENDANT.

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CASE NO. 13-CV-85-FHM

OPINION AND ORDER
Plaintiff, Debra A. Zickefoose-McCoy, 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.
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
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 Debra A. Zickefoose-McCoy’s applications for Title II and Title XVI benefits
filed March 15, 2006 were denied initially and upon reconsideration. Plaintiff subsequently
amended her disability onset date to October 31, 2007. Plaintiff alleged she was unable
to work due to arthritis in her elbows and shoulders, back pain, and mental problems. [R.
77]. Plaintiff was 50 years old on the alleged date of onset of disability and 55 years old
on the date of the ALJ’s denial decision. She has a 12th grade education and previously
worked as a warehouse worker and receptionist.
A hearing before Administrative Law Judge (ALJ) Lantz McClain was held March 29,
2009. The ALJ denied benefits, the Appeals Council denied Plaintiff’s request for review,
and Plaintiff appealed to the District Court which reversed and remanded the ALJ’s decision
for further proceedings to address the mental demands of Plaintiff’s past relevant work in
Step Four.
On remand a hearing before ALJ McClain was held. At Plaintiff’s request, a
supplemental hearing was held on May 4, 2012. On June 29, 2012, the ALJ entered the
denial decision now on appeal. [R. 265-280]. The Appeals Council found no reason to
assume jurisdiction. The ALJ’s decision after remand is a final decision for purposes of
further appeal. 20 C.F.R. §§ 404.984, 416.1484.
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The ALJ’s Decision
The ALJ found that Plaintiff has severe impairments relating to degenerative disc
disease, borderline intellectual functioning, mild depression, and anxiety. [R. 267]. The
ALJ also found that Plaintiff’s history of Graves’ Disease was non-severe and her
schizophrenia was medically non-determinable. [R. 268]. The ALJ determined that Plaintiff
has the residual functional capacity to perform medium1 work with the limitation of stooping
occasionally, performing simple and repetitive tasks, and is limited to no more than
incidental contact with the public. [R. 270].
The ALJ determined that Plaintiff had no past relevant work.

Based on the

testimony of the vocational expert, the ALJ found that there are a significant number of jobs
in the national economy that Plaintiff could perform with these limitations. [R. 280].
Therefore, the ALJ found that the Plaintiff was not disabled. 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 that the ALJ: 1) failed to properly consider medical source opinions;
2) failed to perform proper step four and step five determinations; 3) failed to perform a
proper credibility determination; 4) incorrectly determined that Plaintiff does not meet or
equal a listing; and 5) failed to protect Plaintiff’s due process rights.

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Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of
objects weighing up to 25 pounds. If someone can do medium work, we determine that he or she can also
do sedentary and light work. C.F.R. § 404.1567(c).

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Analysis
Medical Source Opinions
Plaintiff argues that the opinions of her treating psychiatrist, Dr. Hazem Sokkar,
M.D., mental consultative examiner Dr. Atwood, and the state agency medical consultant
were improperly considered by the ALJ. [Dkt. 17, p. 2-6]. Plaintiff also contends that the
ALJ erred in finding her diagnosis of schizophrenia medically non-determinable.
The ALJ is required to give controlling weight to the opinion of a treating physician
as long as the opinion is supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with other substantial evidence in the record.
Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir.2004); see also Social Security Ruling
(SSR) 96-2p, 1996 WL 374188, at *2. However, if either of these requirements is not met,
the opinion is not entitled to controlling weight.
Plaintiff’s treating psychiatrist, Dr. Sokkar completed a Mental Residual Functional
Capacity Assessment on April 19, 2012, [R. 695-96], in which he reported Plaintiff had
multiple severe work-related limitations and a number of moderate limitations. [R. 695-96].
Dr. Sokkar also completed a Mental Status form. [R. 697-698]. There Dr. Sokkar states:
1) She has difficulty comprehending and carrying out complex
instructions on an independent basis. She also has difficulty
remembering simple instructions.
2) She has difficulty responding appropriately to work
pressure, supervision and coworkers.
[R. 698]. The ALJ stated he gave Dr. Sokkar’s opinion little weight because it was internally
inconsistent and because the opinion was not entirely consistent with his treatment notes.
[R. 278]. The treatment notes were set out in detail in the decision. [R. 274, 277, 278].
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The ALJ stated the opinion of Dr. Sokkar is “internally inconsistent”. [R. 278]. The
ALJ explained that although Dr. Sokkar found the claimant to be “markedly limited . . . in
the ability to understand and remember very short and simple directions.” [R. 278], he also
found Plaintiff’s memory was good in all three phases (immediate, recent, and remote).
The ALJ noted that Dr. Sokkar found Plaintiff’s ability to think, reason, and respond was
good, her insight and judgment were good, as was her concentration, but she was limited
in carrying out even simple instructions. [R. 278, 695, 697]. In discussing Dr. Sokkar’s
records, the ALJ noted that Dr. Sokkar’s findings were not inconsistent with the RFC
findings. [R. 274. 276]. The RFC limited Plaintiff to the performance of simple and
repetitive tasks with no more than incidental contact with the public. [R. 270]. The ALJ
thus included the RFC limitations that were supported by the records, including Dr.
Sokkar’s records. Further, in outlining Dr. Sokkar’s treatment notes, the ALJ acknowledged
the length of the treatment relationship, frequency of evaluation, that Dr. Sokkar provided
psychiatric evaluation, medication management, and psychotherapy, and that the opinion
is not supported by Dr. Sokkar’s notes. The court finds therefore, that the ALJ conducted
the analysis required by 20 C.F.R. §§ 404.1527, 416.927 for assessing the amount of
weight to be accorded a medical source opinion. The court finds that the ALJ gave
sufficient reasons for rejecting Dr. Sokkar’s opinions and finds that the ALJ’s reasons are
supported by substantial evidence.
At step two, the ALJ found that Plaintiff’s schizophrenia was medically nondeterminable. Plaintiff argues that this finding was in error and that the ALJ further erred
in failing to follow the recommendations of consultative examiner, Dr. John T. Atwood to
“rule out schizoaffective disorder” and therefore failed to develop the record. In reporting
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the results of a mental consultative examination, Dr. Atwood stated that a schizoaffective
disorder should be ruled out. [R. 166]. Following that report, psychological testing was
performed in which Dr. Cooper found no signs of psychosis. [R. 169]. Plaintiff was
diagnosed with schizophrenia by Dr. Sokkar, [R. 679], but treatment notes thereafter record
that Plaintiff denied hallucinations and paranoia, [R. 657-680], and hallucinations and
paranoia were only sporadically reported after the diagnosis. The court finds that the
record was fully developed concerning Plaintiff’s alleged schizophrenia.
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). In this case,
regardless of whether the ALJ considered Plaintiff’s alleged schizophrenia to be a medically
determinable impairment, the ALJ appropriately considered the functional limitations
imposed by her mental condition, irrespective of any particular diagnosis.
Plaintiff argues that the decision should be

reversed because the ALJ

“inconsistently considered schizophrenia as a severe impairment at step 3 of the sequential
evaluation process.” [Dkt. 17, p. 3]. It is not entirely clear what Plaintiff means here, but
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it appears that Plaintiff is complaining that the ALJ somehow committed error by
considering the Listing of Impairments (Listings)2 for schizophrenia. (Listing 12.03,
Schizophrenic, Paranoid and Other Psychotic Disorders). The undersigned fails to see how
Plaintiff could possibly claim harm resulted from the ALJ’s consideration of that Listing. No
principle of administrative law or common sense requires that a case be remanded in quest
for a perfect opinion, unless there is reason to believe that the remand might lead to a
different result. See Moua v. Colvin—Fed. Appx. — (10th Cir. 2013), 2013 WL 3951709,
*3 (quoting Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989)).
The court finds no merit to Plaintiff’s assertion that the ALJ ignored unfavorable
vocational expert testimony.

The testimony Plaintiff suggests was ignored was the

vocational expert’s statement that “if an individual has difficulty tolerating even normal work
stress, depending upon their response to it, again, keeping the job may be problematic.”
[Dkt. 17, p. 6; R. 314]. That statement cannot reasonably be read as an affirmative
statement about Plaintiff. It was clearly a speculative comment as evidenced by the
qualifiers contained therein: of, depending, and may.
The court finds no error in the ALJ’s use of the following stock boilerplate language:

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The Listings describe, for each of the major body systems, medical findings which are considered
severe enough that they represent impairments which presumptively prevent a person from performing any
gainful activity. 20 C.F.R. Pt. 404, Subpt. P, App. 1.

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The residual functional capacity conclusions reached by the
physicians employed by the State Disability Determination
Services also supported a finding of ‘not disabled.’ Although
those physicians were non-examining, and therefore their
opinions do not as a general matter deserve as much weight as
those examining or treating physicians, those opinions do
deserve some weight, particularly in a case like this in which
there exist a number of other reasons to reach similar
conclusions (as explained throughout the decision)(Exhibits 5F,
6F, 8F, 9F, 11F, 12F, 19F, 20F, 21F, 23F and 25F).
[R. 278-79]. These opinions are not contrary to the ALJ’s decision as the reviewing
physicians all found Plaintiff was able to work. In view of the fact that the opinions are not
contrary to the ALJ’s decision and do not support Plaintiff’s claim for disability, the ALJ’s
failure to discuss those opinions is harmless. The undersigned is confident that no
reasonable administrative factfinder discussing these opinions in detail could have resolved
the disability decision in any other way. See Allen v. Barnhart, 357 F.3d 1140, 1145 (10th
Cir. 2004)(reversal not required where certain technical errors are minor enough not to
undermine confidence in the determination of the case).
Steps Four and Five Determination
The regulations require the ALJ to rate the degree of limitation in four mental
functional categories (daily living, social functioning, concentration/persistence/pace, and
decompensation), which correspond to the criteria in paragraph B of most of the mental
impairments found in § 12.00 of the Listings. The degree of limitation in the four categories
determines whether a claimant has a severe mental impairment and whether such
impairment meets or equals the listings. 20 C.F.R. §§ 404.1520a(d)(1), (2), 416.920a(d)(1),
(2). After the ALJ determines that the claimant's mental impairment is severe but does not
meet or equal a listing, the ALJ “will then assess [the claimant's] residual functional

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capacity.” 20 C.F.R. §§ 404.1520a(d)(3), 416.920a(d)(3). Social Security Ruling (SSR)
96-8p explains that even though the ALJ must determine a claimant's limitations in these
categories, these ratings are not an RFC assessment.
Plaintiff asserts that the moderate limitations in social functioning and concentration,
persistence, or pace should have been included in the hypothetical questioning. The court
finds no error in the ALJ’s hypothetical questioning to the vocational expert. Questions to
a vocational expert are properly expressed in terms of the ability to perform work-related
functions. The ALJ’s hypothetical question included the work-related impairments borne out
by the record and which flow from the limitations in social functioning and concentration,
persistence, and pace such as the limitation to simple and repetitive tasks and no more than
incidental contact with the public. [R. 311].
The ALJ discussed Plaintiff's limitations in social functioning and concentration,
persistence, and pace, as part of his step three determination of whether Plaintiff met a
Listing. [R. 270]. After concluding that Plaintiff did not meet a Listing, the ALJ properly
continued his analysis and determined how Plaintiff's mental difficulties impacted her RFC.
[R. 270]. The ALJ complied with the proper legal standard in posing hypothetical questions
to the vocational expert.
There is no merit to Plaintiff’s argument that the ALJ erred by not finding that her two
suicide attempts were episodes of decompensation under 20 C.F.R., Part 404, Subpart P,
Appendix 1, § 12.00(C).

The regulations define the term “repeated episodes of

decompensation” as “three episodes within 1 year, or an average of once every 4 months,
each lasting for at least 2 weeks.” Id. Plaintiff’s two suicide attempts do not meet the
definition of episodes of decompensation. However, even if Plaintiff’s suicide attempts were
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considered to be episodes of decompensation, it is not appropriate to include such episodes
in the RFC and hypothetical questioning because they are not vocational limitations. Further,
any failure to cast the suicide attempts as episodes of decompensation did not affect the
analysis of the Listings because Plaintiff does not otherwise meet the requirement of having
marked limitations in two categories of functioning.
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 poor
work history, her alleged symptoms were contradicted by the medical evidence, and she did
not consistently report her symptoms to her treating psychiatrist. [R. 272-273]. The ALJ
thus properly linked his credibility finding to the record. Therefore, the court finds no reason
to deviate from the general rule to accord deference to the ALJ’s credibility determination.

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Listing § 12.05C
Plaintiff claims she met Listing 12.05C for mild mental retardation and argues the ALJ
erred in finding that she did not meet that Listing. Listing 12.05 is found at 20 C.F.R. Pt.
404, Subpt. P, App. 1., and as relevant to this case requires:
C. A valid verbal, performance, or full scale IQ of 60 through
70 and a physical or other mental impairment imposing an
additional and significant work-related limitation of function;
OR
D. A valid verbal, performance, or full scale IQ of 60 through
70, resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration,
persistence, or pace; or
4. Repeated episodes of decompensation, each of
extended duration.
In order to satisfy Listing 12.05C, Plaintiff must first satisfy the “capsule definition” which
requires Plaintiff to show “significantly subaverage general intellectual functioning with
deficits in adaptive functioning initially manifested during the developmental period; i. e., the
evidence demonstrates or supports onset of the impairment before age 22.” 20 C.F.R. pt.
404, Subpt. P, App. 1, Listing 12.05. Nothing in the record demonstrates Plaintiff exhibited
signs of subaverage intellectual functioning before age 22.

On the contrary, Plaintiff

testified that she graduated from high school and did not take any special education classes.
[R. 229]. In addition, Plaintiff is independent in her activities of daily living and she provides
care for her mother. [R. 232].
In addition to the capsule definition of mental retardation, Plaintiff must also satisfy
two additional prongs in order to meet the requirements of Listing 12.05C: “a valid verbal,

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performance, or full scale IQ of 60 through 70 and a physical or other mental impairment
imposing an additional and significant work-related limitation of function[.]” 20 C.F.R. pt.
404, Subpt. P, App. 1.

A WAIS-III dated September 21, 2006, was performed by Dr.

William Cooper, Ph.D. who reported Plaintiff had a verbal IQ of 64, a performance IQ of 62
and a full scale IQ of 60. However, Dr. Cooper expressed doubts as to whether the testing
results were valid. He stated:
However, the present scores do not appear to be a good
estimate of her current abilities. Her performance was
quite inconsistent within subtests, as she would often fail
very easy items, while passing much more difficult items.
While it was not clear that she was intentionally malingering, her
oppositionality may have influenced the test results to some
degree. More importantly, it is likely that the combination of her
anxiety, depression, and other emotional factors interfered with
her present performance.
[R. 169]. (Emphasis added). Based on Dr. Coopers’ findings, the ALJ determined that
Plaintiff did not have a valid verbal, performance, or full scale IQ of 60 through 70. [R. 270].
The court finds that the ALJ’s determination that Plaintiff has not met the requirements of
section 12.05C is supported by substantial evidence.
Due Process Violation Claim
Plaintiff argues that the decision should be reversed because the ALJ did not protect
her due process rights.

Plaintiff bases this claim on her inability to cross-examine

consultative examiner Dr. Gordon.
Dr. Gordon evaluated Plaintiff twice. [R. 575-78; 681-83]. Plaintiff objected to Dr.
Gordon’s reports. [R. 295-96; 322-23; 489]. Plaintiff asserts that she had a right to crossexamine Dr. Gordon and that the ALJ promised to produce Dr. Gordon but Dr. Gordon was

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not produced and the ALJ did not explain why the doctor was not produced. [Dkt. 47, p. 12;
Dkt. 26, p. 5]. According to Plaintiff, these actions constitute a denial of due process.
Initially, the court notes that the ALJ did not promise to produce Dr. Gordon. The
ALJ’s letter at page 487 of the Administrative Record informs Plaintiff of the right to request
a hearing and to request an opportunity to question Dr. Gordon. The letter further states:
“I will grant a request to question a witness if I determine that questioning the witness is
needed to inquire fully into the issues.”: [R. 487]. The ALJ noted Plaintiff’s objections to Dr.
Gordon’s opinions in the decision, [R. 276, 277], and found that Dr. Gordon’s findings were
consistent with other evidence of record. However, the ALJ gave no weight to Dr. Gordon’s
mental RFC form which expressed the opinion Plaintiff had no mental work-related
limitations. [R. 277].
Social security hearings are subject to procedural due process considerations.” Yount
v. Barnhart, 416 F.3d 1233, 1235 (10th Cir.2005). A due process claim will not succeed,
however, if the claimant fails to show prejudice. See Energy W. Mining Co. v. Oliver, 555
F.3d 1211, 1219 (10th Cir.2009). Thus, when “a party complains about the course of
administrative proceedings, that party must demonstrate that the adjudication was infected
by some prejudicial, fundamentally unfair element.” Id. (internal quotation marks omitted);
see Glass v. Shalala, 43 F.3d 1392, 1396–97 (10th Cir.1994) (requiring a showing of
prejudice for a due-process claim involving social-security proceedings).
The court finds that the ALJ’s failure to agree to Plaintiff’s request to present Dr.
Gordon for a hearing does not demonstrate a prejudicial fundamentally unfair element. The
case Plaintiff cites to support her right of cross examination pertains to a state criminal trial,
not an administrative hearing such as is involved in the instant case.
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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 March, 2014.

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