Duncan v. Social Security Administration

Filing 26

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
ELIZABETH DUNCAN,
PLAINTIFF,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
DEFENDANT.

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CASE NO. 13-CV-189-FHM

OPINION AND ORDER
Plaintiff, Elizabeth Duncan, 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
Cir. 1996); Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027, 1028 (10th

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Plaintiff, Elizabeth Duncan’s application for Disability Insurance benefits was denied initially
and upon reconsideration. A hearing before an Administrative Law Judge (ALJ) John W. Belcher, was
held October 25, 2011. By decision dated November 25, 2011, the ALJ entered the findings which are
the subject of this appeal. The Appeals Council denied Plaintiff’s request for review on January 28,
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.

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 44 years old on the alleged date of onset of disability and 46 years old
on the date of the denial decision. She graduated from high school and has an Associates
Degree in child development/social work and formerly worked as a master teacher at a
daycare facility. Plaintiff claims to have been unable to work since October 18, 2009 due
to diabetic neuropathy and post carpal tunnel surgeries. [R. 207]. Plaintiff also alleges
problems with her cervical spine, both arms, and both hands.
The ALJ’s Decision
The ALJ determined that the Plaintiff’s severe impairments include diabetes mellitus
with diabetic neuropathy, mild carpal tunnel syndrome bilaterally, degenerative disc disease
and osteoarthritis of the cervical spine, hypertension, hyperlipidemia, and major depressive
disorder. [R. 15]. The ALJ further determined that Plaintiff has the residual functional

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capacity (RFC) to perform sedentary exertional work.2 The ALJ further found Plaintiff’s
functional limitations included occasional climbing of stairs, balance, bend or stoop, kneel,
crouch and crawl.

Plaintiff cannot climb ladders, ropes, and scaffolding, but can

occasionally reach above the shoulders bilaterally, perform fine fingering, handling, and
feeling with the right hand. She can frequently perform fingering, handling, and feeling.
Plaintiff cannot have prolonged overhead gazing. She can do simple and some complex
detailed work, have superficial contact with co-workers, supervisors, and the public. [R. 16].
The ALJ determined that Plaintiff did not have past relevant work. 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. [R. 31-32].
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 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) deprived Plaintiff of her Constitutionally protected
right to due process by failing to make a full and fair inquiry; 2) failed to properly evaluate,
consider, and weigh the medical evidence; 3) failed to find Plaintiff met or equaled a Listing;
4) failed to perform proper Step Four and Step Five determinations; and 5) failed to perform
a proper credibility determination.

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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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Analysis
Deprivation of Due Process Rights
Prior to the administrative hearing, the ALJ ordered physical and psychological
consultative examinations which were performed January 4, 2010 and February 9, 2010
respectively. The ALJ determined additional testing was necessary. [R. 86]. On May 3,
2011 a nerve conduction study (EMG/NCS) was performed by Dr. Sri Reddy, M.D., which
revealed right mild median nerve entrapment at the wrist (carpal tunnel syndrom); no
diffuse peripheral neuropathy. An EMG of C5, C6, C7, C8-T1 muscles did not reveal
radiculopathy. The study indicated bilateral lower extremity sensory peripheral neuropathy.
An EMG of L4, L5, and S1 muscles did not reveal radiculopathy. [R. 594-598].

A

subsequent EMG study performed on July 22, 2011 supported a diagnosis of bilateral
carpal tunnel syndrome.3

There were no findings to suggest a more generalized

neuropathic process or cervical radiculopathy. [R. 622]. A cervical MRI performed on
September 7, 2011 revealed multilevel degenerative changes with a syrinx4 at C4-C5 and
C5-C6.
On October 25, 2011 Plaintiff requested a consultative examination and medical
source statement to evaluate the EMG findings of right upper extremity median nerve
entrapment and bilateral lower extremity sensory peripheral neuropathy. [R. 260]. The ALJ
did not grant Plaintiff’s request. Plaintiff argues that the failure to order the requested

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Plaintiff’s right arm appeared to be affected slightly greater than the left. The study was unable
to determine whether the findings were residual deficits from Plaintiff’s previous carpal tunnel surgery
or whether there was a deterioration.
4

According to Merck, http://www.merck.com/mmpe/sec16/ch224/ch224j.html?qt-syrinx&alt=sh, a
syrinx is a rare fluid-filled neurological cavity. A syrinx results when cerebrospinal fluid collects in a small area
of the spinal cord and forms a pseudocyst.

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consultative examination deprived her of due process and without interpretation of the EMG
study the ALJ does not have substantial evidence to support his decisional RFC.
The court finds Plaintiff has failed to assert a colorable Constitutional claim.
Plaintiff’s underlying argument that the ALJ failed to fully and fairly develop the record will
be addressed by the court.
In every case, an ALJ has the responsibility to ensure that an adequate record is
developed during the disability hearing consistent with the issues raised. This responsibility
may require the ALJ to order a consultative examination. See Hawkins v. Chater, 113 F.3d
1162, 1166 (10th Cir.1997). The Commissioner is given broad latitude, however, in making
a decision to order such an examination. Diaz v. Sec'y of Health & Human Servs., 898 F.2d
774, 778 (10th Cir.1990). “[T]he ALJ should order a consultative exam when evidence in
the record establishes the reasonable possibility of the existence of a disability and the
result of the consultative exam could reasonably be expected to be of material assistance
in resolving the issue of disability.” Hawkins v. Chater, 113 F.3d 1162, 1169 (10th Cir.
1997).
In this case, there are sufficient medical records to enable the ALJ to make a
decision. The court finds that the ALJ did not err in failing to order a consultative
examination. The record demonstrated that Plaintiff had degenerative changes in her
cervical spine and evidence of bilateral carpal tunnel syndrome. The ALJ’s RFC took into
account these physical limitations by including the following RFC limitations: “[c]an
occasionally reach above the shoulders bilaterally; occasionally perform fine fingering,
handling and feeling with the right hand, and frequently perform fingering, handling and
feeling, and no prolonged overhead gazing.” [R. 16].
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Consideration of Medical Source Information
Plaintiff argues that the ALJ failed to properly evaluate the opinion of Dr. Kenneth
Trinidad, D.O., [Dkt. 19, p. 3-7], as it was only accorded some weight. [R. 24]. Dr. Trinidad
concluded that Plaintiff was temporarily totally disabled and unable to perform any
work-related activity because of a change of condition for the worse in her cervical spine.
[R. 606-609]. Dr. Trinidad, however, only examined Plaintiff on two occasions in connection
with her workers’ compensation claim – not her disability claims. The ALJ explained:
The claimant’s worker’s compensation physician, Dr. Trinidad,
reports the claimant needs vocational rehabilitation to a job not
requiring repetitive use of the hand (Exhibits 14F and 20F).
[S]uch statements, made in the context of a state workers’
compensation claim, are not dispositive of a claim made under
Social Security. In a workers’ compensation evaluation, the
issue is a claimant’s capacity to perform work existing with a
particular employer. By contrast, under Social Security, the
issue is the claimant’s residual functional capacity to perform
work that exits in the much broader, national economy. While
a workers’ compensation finding of temporary total disability
may have some value in assessing the residual functional
capacity of a Social Security claimant, it cannot be given
controlling weight. Accordingly, the undersigned gives only
some weight to the claimant being on temporary disability
pursuant to state law.
[R. 23-24]. The court finds that the ALJ’s decision adequately explained the weight
accorded to Dr. Trinidad's opinion.
Plaintiff argues that because the ALJ’s decision was silent as to the weight given
to her treating orthopedic surgeon, Dr. Carl J. DePaula, M.D., the ALJ failed to properly
evaluate his opinion. [Dkt. 19, p. 5].

Dr. DePaula treated Plaintiff for carpal tunnel

syndrome which affected both wrists. Surgery was performed on October 21, 2009 and
November 13, 2009. On May 4, 2010, Dr. DePaula was of the opinion that Plaintiff was

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disabled, that she should participate in vocational rehabilitation, and she should receive a
handicapped parking placard. [R. 527, 590]. The ALJ’s decision thoroughly discussed Dr.
DePaula’s treatment. [R. 18]. Further, though he did not specifically address the actual
weight accorded to Dr. DePaula’s opinion, the ALJ was not silent. The ALJ noted:
Social Security Ruling 96-5p states, in pertinent part, that some
issues are not medical issues, but are administrative findings.
Examples of such issues are what an individual’s residual
functional capacity is or whether they are disabled. Treating
source opinions on issues reserved to the Commissioner are
never entitled to controlling weight or special significance (see
also 20 CFR 404.1527(e)[.].
[R. 24]. The ALJ’s RFC accounted for the physical work-related limitations Dr. DePaula
found to exist. Plaintiff was limited to sedentary work, only occasional reaching above her
shoulders, no prolonged overhead gazing, and only occasional fine fingering with her right
hand. [R. 16].

The determination whether or not Plaintiff is disabled is an issue solely

reserved to the Commissioner. Other such opinions include whether an impairment meets
or equals a listing, Plaintiff’s RFC, whether a Plaintiff can do past relevant work, how age,
education, and work experience apply. Social Security Ruling (SSR) 96-5p, (Medical
Source Opinions on Issues Reserved to the Commissioner), 1996 WL 374183, at *2. See
also 20 C.F.R. § 404.1527(e)). The court finds no error in the ALJ’s evaluation of Dr.
DePaula’s opinion.
Listing 1.04A
Plaintiff argues that the ALJ erred in failing to find she meets Listing 1.04A. The
Listings of Impairments (Listings) describe, for each of the major body systems, impairments
which are considered severe enough to prevent a person from performing any gainful
activity. 20 C.F.R. Pt. 404, Subpt. P, App.1. At step three of the sequential analysis, the ALJ
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is required to discuss the evidence in the context of the relevant listing and the reasons for
determining that Plaintiff does not meet a listing. Clifton v. Chater, 79 F.3d 1007, 1009 (10th
Cir. 1996). It is Plaintiff’s burden to show that her impairment is equivalent to a listing.
Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988). Further, all of the specified medical
criteria must be matched to meet a listing. An impairment that manifests only some of the
criteria, no matter how severely, does not qualify. Sullivan v. Zebley, 493 U.S. 521, 531, 110
S.Ct. 885, 891, 107 L.Ed.2d 967 (1988).
Listing 1.04 states:
Disorders of the spine (e.g., herniated nucleus pulposus, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc
disease, facet arthritis, vertebral fracture), resulting in
compromise of a nerve root (including the cauda equina) or the
spinal cord. With:
A.
Evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion of the
spine, motor loss (atrophy with associated muscle weakness or
muscle weakness) accompanied by sensory or reflex loss and,
if there is involvement of the lower back, positive straight-leg
raising test (sitting and supine)[.]
In this case, there is medical evidence that Plaintiff has degenerative disc disease,
[R. 695-696], however, there is no evidence of "nerve root compression.” Moreover, while
Dr. Trinidad found Plaintiff’s neck symptoms progressively worse with increased radicular
symptoms, [R. 606-609], two EMG studies revealed no bilateral peripheral neuropathy of
her upper limbs and no cervical radiculopathy. [R. 594-598, 622]. Further, consultative
examiner Dr. Al-Shathir, M.D., and treating physician Dr. Martin L. Martucci, M.D., found
Plaintiff’s strength of lower limbs, elbows, shoulders, and wrists normal, muscle tone normal
and intact, no muscle atrophy or deformity, ability to walk without assistive devices, gait

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within normal limits, ability to reach, bend and sit up, no new signs of gross motor or sensory
deficits. [R. 384-395; 600-601].
Plaintiff cannot meet Listing 1.04A because the medical evidence demonstrates she
does not meet all the criteria. The ALJ provided a specific rationale for finding Plaintiff’s
impairments did not meet Listing 1.04A and substantial evidence supports the ALJ's
determination.
Steps Four and Five Determination
Plaintiff argues that the ALJ failed to include all limitations that were established by
the record in the hypothetical question posed to the vocational expert – specifically Plaintiff
argues that the ALJ failed to include no overhead gazing, and only moderate or superficial
contact with coworkers, supervisors, and the public. [Dkt. 19, p. 8-9]. In posing the
hypothetical question to the vocational expert, the ALJ layered limitations supported by the
record upon previous hypothetical questions. The ALJ stated:
All right. I want you to assume a forty six year old
individual who has a high school education and
also double Associates Degrees, as described
earlier in the summary of the testimony. This
hypothetical person would be able to lift twenty
pounds occasionally, ten pounds frequently, with
pushing and pulling consisting with the lifting and
carrying limitations, would stand and walk for six
hours out of an eight hour day, provided that they
were limited to simple tasks and moderately
complex work requiring only superficial contact
with co-workers and supervisors and the public.
*

*

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*

Now, I want you to take those same physical
restrictions and add to them the following
restrictions to the hands or arms. Occasional
overhead reaching with the right arm. No, make
that bilateral. I’m sorry. Occasional bilateral
overhead reaching. Occasional use of the right
hand for handling, feeling and manipulation and
frequent left hand limitation for handling, feeling,
and manipulation. And no prolonged overhead
gazing.
*

*

*

In the third hypothetical, I’m going to use the
same restrictions for the upper extremities, but
the exertional limitations are going to change
somewhat to ten pounds occasionally, lifting and
carrying ten pounds occasionally, less than ten
pounds frequently, two out of eight for standing
and walking. Six out of eight for sitting. The
individual would be able to do occasional climbing
of stairs and ramps, occasionally balance, bend,
stoop, kneel, crouch, crawl. No ladders, ropes or
scaffolding. And as I said, the remaining upper
extremity restrictions would remain the same.
[R. 60-63]. The ALJ’s hypothetical thus included no prolonged overhead gazing and only
superficial contact with co-workers, supervisors, and the public. The court finds no error
in the ALJ’s hypothetical questioning of the vocational expert.
Plaintiff contends that the jobs identified by the vocational expert are not available to
her because her RFC limits her to moderate or superficial contact with the coworkers,
supervisors, and the general public. She argues that the jobs identified by the vocational
expert are defined in the DOT as requiring significant work with people.
The jobs the vocational expert identified are: call-out operator (DOT code 237.367014); surveillance system monitor (DOT code 379.367-010); and election clerk (DOT code
205.367-030 DOT). The DOT lists each of these jobs as having a people rating of 6. The
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“people rating” expresses the degree of interaction with other people that the job requires.
As explained at Appendix B to the DOT, “there are nine possible function assignments for
the “People” category, and the numbering denotes, from highest (0) to lowest (8), the job's
involvement with people. Dictionary of Occupational Titles, App. B—Explanation of Data,
People, & Things, 1991 WL 688701. A “people rating” of 6 thus indicates a job has little
involvement with people.
Further, the job descriptions for the three positions also indicate that contact with
people is rather limited. The DOT description for call-out operator states:
Compiles credit information, such as status of credit accounts,
personal references, and bank accounts to fulfill subscribers'
requests, using telephone. Copies information onto form to
update information for credit record on file, or for computer
input. Telephones subscriber to relay requested information or
submits data obtained for typewritten report to subscriber.
The description for surveillance-system monitor states:
Monitors premises of public transportation terminals to detect
crimes or disturbances, using closed circuit television monitors,
and notifies authorities by telephone of need for corrective
action: Observes television screens that transmit in sequence
views of transportation facility sites. Pushes hold button to
maintain surveillance of location where incident is developing,
and telephones police or other designated agency to notify
authorities of location of disruptive activity. Adjusts monitor
controls when required to improve reception, and notifies repair
service of equipment malfunctions.
The description for election clerk states:
Compiles and verifies voter lists from official registration
records. Requests identification of voters at polling place.
Obtains signature and records names of voters to prevent
voting of unauthorized persons. Distributes ballots to voters
and answers questions concerning voting procedure. Counts
valid ballots and prepares official reports of election results.

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The court finds there is no conflict between the DOT descriptions of the designated
jobs and RFC restriction of superficial interaction with co-workers, supervisors, and the
general public.
Credibility Determination
Plaintiff argues that the ALJ failed to perform a proper credibility determination. In
support of this argument, Plaintiff asserts the ALJ mischaracterized her daily activities and
made non-specific references to evidence to support the 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. Kepler v. Chater, 68 F.3d 387, 391 (10th Cir.1995). The
ALJ must "explain why the specific evidence relevant to each factor led him to conclude
claimant's subjective complaints were not credible." Id.
In determining that Plaintiff’s testimony was not credible, the ALJ found that the
Plaintiff’s “statements about her impairments and their impact on her ability to perform
activities of daily living and basic functions are not entirely credible in light of discrepancies
between the claimant’s alleged symptoms, and objective documentation in the file.” [R. 22].
The ALJ accurately outlined the prominent points of Plaintiff’s testimony and cited numerous
grounds tied to the evidence for the credibility finding. The ALJ noted Plaintiff’s medical care
had been routine and conservative in nature and included medication management for the
degenerative disc disease of her cervical spine. The ALJ noted Plaintiff’s description of her
symptoms and limitations throughout the record have been inconsistent and unpersuasive.
The ALJ found that the record does not demonstrate clinical signs and medical findings and
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abnormalities to establish pain of such severity as to preclude all types of work. The court
finds that the ALJ 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.
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 16th day of May, 2014.

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