Wilson v. Social Security Administration

Filing 22

OPINION AND ORDER by Magistrate Judge Frank H McCarthy affirming decision of the Commissioner (kjp, Dpty Clk)

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

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CASE NO. 13-CV-113-FHM

OPINION AND ORDER
Plaintiff, Debera J. Wilson, 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

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Plaintiff's January 22, 2010, applications for disability benefits were denied initially and on
reconsideration. A hearing before Administrative Law Judge ("ALJ") Edmund C. Werre was held August 11,
2011. By decision dated September 23, 2011, the ALJ entered the findings that are the subject of this appeal.
The Appeals Council denied Plaintiff’s request for review on January 17, 2013. 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.

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 52 years old on the alleged date of onset of disability2 and 53 on the
date of the ALJ’s denial decision. She has a 9th grade education and formerly worked as
a plastics assembler, dishwasher, dietary aide, housekeeper, laundry worker, and delivery
driver. Though these jobs are generally performed at medium exertion, Plaintiff reported
she actually performed these occupations at light exertion. Plaintiff claims to have been
unable to work since July 1, 2010, as a result of arthritis and ulcerative colitis. [R. 63].
The ALJ’s Decision
The ALJ determined that Plaintiff has the residual functional capacity (RFC) to
perform light exertional work such as no more than occasional lifting up to 20 pounds, no
more than the frequent lifting or carrying of 10 pounds, and no exposure to temperature or
humidity extremes. [R. 20].

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Plaintiff filed for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI)
benefits on January 22, 2010, alleging an onset date of May 31, 2008. Plaintiff amended her alleged disability
onset date to July 1, 2010. [R. 362].

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The ALJ determined at step four that Plaintiff was not disabled because she retained
the residual functional capacity to perform all of her past relevant work as a delivery driver,
laundry worker in a nursing home, housekeeper in a nursing home, dishwasher, and a
plastic assembler as actually and generally performed. [R. 24]. At step five, the ALJ found
that there are a significant number of jobs in the national economy that Plaintiff could
perform with these limitations. [R. 31-32]. The case was thus decided at step four with an
alternative step five finding 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 the ALJ erred because: 1) the decision contains two Residual
Functional Capacities (RFC) findings;

2) he failed to perform a proper credibility

determination; and 3) he failed to consider the opinion of Plaintiff’s treating Physician’s
Assistant (PA) Alan Brokenicky. [Dkt 16, p. 2].
Analysis
Residual Functional Capacity Determination
The ALJ found that Plaintiff is capable of performing light exertional work with no
exposure to temperature or humidity extremes. [R. 20]. This finding is repeated in the
ALJ’s decision. [R. 23]. The ALJ’s consideration of the medical-vocational guidelines
(Grids) is related to light work, [R. 25], the ALJ’s hypothetical questioning of the vocational
expert at the hearing posed the limitation of light work, [R. 380-82], and the ALJ’s finding
of alternative jobs available in the economy was limited to light and sedentary work, [R. 25].

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However, elsewhere in the ALJ’s decision he recites that Plaintiff “has the residual
functional capacity to perform medium and light exerrtional (sic) work which is not
performed in an atmosphere of temperature extremes[.]” [R. 24]. The ALJ also notes that
the vocational expert identified Plaintiff’s work as a delivery driver as being “medium
exertional work.” Id.
Plaintiff argues that remand is required because the ALJ’s decision contains two
different RFC findings. The Commissioner acknowledges that the decision contains two
different RFC findings, but argues that the paragraph which states Plaintiff “has the
capacity to perform medium and light exerrtional (sic) work” is a typographical error. The
court finds that although the decision makes reference to both medium and light RFC
findings, when the decision is viewed as a whole, the intention of the ALJ to find Plaintiff
capable of performing light work is clear. The finding that Plaintiff is not disabled is based
on the vocational expert’s responses to the hypothetical question which was based on the
ability to perform “light” exertional work. The presence of a typographical or scrivener’s
error in the ALJ’s decision does not require remand.
Further, there is no merit to Plaintiff’s contention that the ALJ’s finding that she could
perform her past relevant work as a delivery driver, which is generally performed at medium
exertional work, requires remand. [Dkt. 16, p. 2]. The ALJ made an alternative step five
finding that there was other work Plaintiff could perform, and all of the jobs identified at this
step were at the light and sedentary exertional levels. [R. 25].
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
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WL 3951709, *3 (quoting Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989). Plaintiff
has not demonstrated that the outcome of this case would be different if it were remanded
for the purpose of eliminating the references to medium work.
Credibility Analysis
Plaintiff argues that the ALJ failed to perform a proper credibility determination.
Because credibility findings are peculiarly within the province of the ALJ, the court will not
disturb such findings if they are supported by substantial evidence. See Kepler v. Chater,
68 F.3d 387, 391 (10th Cir.1995). The ALJ identified numerous reasons for rejecting
Plaintiff's testimony regarding her limitations, including medical records repeatedly showing
her Crohn’s disease “clinically stable,” she was free of abdominal pain, and she considered
the severity of the symptoms to be minimal. [R. 274, 302, 313]. Further, the record reflects
Plaintiff has full range of motion of spine, no sensory deficits, normal tactile manipulation
of objects, and ambulation with stable gait. [R. 268-69].
Plaintiff’s argument also addresses the ALJ’s 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.
However, the Tenth Circuit had 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 in another appeal argued by Plaintiff’s counsel), 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 ALJ properly linked his credibility finding to the record. The court
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finds that the factors the ALJ relied on are supported by substantial evidence and provide
sufficient support for the ALJ’s credibility determination.
Medical Source Opinion
Plaintiff argues that the ALJ erred when he ignored the opinion of physician
assistant, Alan Brokenicky. Mr. Brokenicky, on behalf of Plaintiff, completed an application
for a handicapped parking placard. Mr. Brokenicky checked the box on the application that
stated the applicant “[c]annot walk 200 feet without stopping to rest.” [R. 329]. According
to Plaintiff, the handicapped parking application constitutes an opinion that the ALJ was
required to consider and evaluate in accordance with Social Security Ruling 06-03p, 2006
WL 2329939.
The court finds that the checking of a box on the application, standing alone, does
not qualify as a medical opinion that the ALJ was required to discuss. The decision
demonstrates that the ALJ considered Mr. Brokenicky’s records as the ALJ noted that the
handicapped placard was provided by a physician’s assistant, and the ALJ cited to the
application form in the record. [R. 21, 318, 329]. In addition, the hearing transcript reflects
that the ALJ asked Plaintiff about the parking placard. [R. 366-67]. The court observes
that, to the extent the handicapped parking application can be considered a medical
opinion, Mr. Brokenicky’s records do not contain examination notes or findings to support
the opinion such that it is even conceivable that a remand for the purpose of further
consideration of Mr. Brokenicky’s “opinion” would produce a different result. In considering
the support in Mr. Brokenicky’s notes for his “opinion” that Plaintiff cannot walk 200 yards,
the court is not making an improper post hoc justification for the ALJ’s decision. Rather, the
court is exercising common sense in conducting its review of the record and the ALJ’s
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decision. See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012)(stating court
is required to exercise common sense and not insist on technical perfection). To be clear,
the court does not consider the handicapped parking application to be opinion evidence
that the ALJ was necessarily required to discuss in detail, especially when the content of
Mr. Brokenicky’s records are taken into account.
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 31st day of January, 2014.

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