Clemons v. Social Security Administration

Filing 25

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
LINDA K. CLEMONS,
PLAINTIFF,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
DEFENDANT.

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CASE NO. 13-CV-195-FHM

OPINION AND ORDER
Plaintiff, Linda K. Clemons, 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

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Plaintiff, Linda K. Clemons’s applications for Disability Insurance and Supplemental Security
Income benefits were denied initially and upon reconsideration. A hearing before an Administrative Law
Judge (ALJ) Charles Headrick, was held March 18, 2010. By decision dated July 14, 2011, the ALJ
entered the findings which are the subject of this appeal. The Appeals Council denied Plaintiff’s request
for review on February 1, 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.

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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).
For the reasons discussed below, the Court AFFIRMS the decision of the
Commissioner.
Background
Plaintiff was 45 years old on the alleged date of onset of disability and 47 years old
on the date of the denial decision. She completed high school and one year of college and
formerly worked as a licensed practical nurse (LPN). Plaintiff claims to have been unable
to work since July 30, 2009 due to coronary artery disease, bipolar disorder, post-traumatic
stress disorder (PTSD), asthma, diverticulitis, whiplash, and kidney stones and infections.
[R. 160].

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The ALJ’s Decision
The ALJ determined that the Plaintiff’s severe impairments include a history of
diverticulitis or diverticulosis, status/post cardiac stents, abdominal pain, asthma,
depression, and history of drug abuse and addiction. [R. 11]. The ALJ further determined
that Plaintiff has the residual functional capacity to perform light2 work except that she
should avoid concentrated exposures to extreme heat, cold, wetness, and humidity.
Plaintiff should be limited to simple, repetitive tasks, although she is able to occasionally
perform detailed work, and should avoid all contact with the general public. [R. 14].
Although Plaintiff was unable to perform her 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. 30].
Accordingly, the ALJ determined that 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).

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Pursuant to CFR § 404.1567, light work involves lifting no more than 20 pounds at a time with frequent lifting
or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category
when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and
pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have
the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also
do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long
periods of time.

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Plaintiff’s Allegations
Plaintiff asserts that the ALJ: 1) failed to perform a proper Step Four and Step Five
determination ; 2) failed to properly consider the medical source opinions; and 3) failed
to perform a proper credibility determination.
Analysis
Step Four and Step Five Determinations
Plaintiff argues that it was error for the ALJ to have the vocational expert review
Exhibits 24F and 25F to ascertain Plaintiff’s physical and mental limitations rather than to
orally instruct the expert as to each limitation in framing a hypothetical question. Plaintiff
contends that consequently there is no way to verify that the postural restrictions (regarding
stooping and crouching) or environmental limitations (restrictions on concentrated exposure
to extreme cold, heat, wetness, and humidity) were actually considered by the vocational
expert. [Dkt. 18, p. 2]. Plaintiff asserts that the ALJ’s failure to orally state the physical and
mental limitations to the vocational expert was prejudicial to Plaintiff because “[i]t is totally
unknown if the VE took these limitations into consideration, or whether the job base was
constricted due to their presence.” Id.
The ALJ had the following discussion with the vocational expert regarding the mental
and physical limitations of the hypothetical individual:
ALJ:

And have you studied the record of Linda Clemons and
heard her testimony regarding her work history?

VE:

Yes, sir.

ALJ:

Do you require any clarification or elaboration?

VE:

No, sir, thank you.
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*

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*

ALJ:

VE:

Judge, based on both those documents she would not
be able to return to past work. The physical RFC
basically limits her to light work activity and the mental
RFC indicates that basically simple and some complex
– I read that some complex would be maybe in the
semiskilled rather then (sic) a skilled area.

ALJ:

Would there be other unskilled work such an individual
could perform?

VE:

[R. 54-55].

Assume the claimant to be a – I think she was age, let’s
see, she would have been age 44 I believe at the
amended onset date, 44-year-old female with high
school education plus some college. The ability to read,
write and use numbers, assume further the individual in
general has the physical capacity to perform work
consistent with limitations of Exhibit 25F that she has
mental or functional limitations consistent with Exhibit
24F. Assuming all the foregoing could such an
individual return to any of her past work?

Judge, based on, on the two documents together I
would think there would be light, unskilled jobs and
sedentary jobs that would be available. . . .

From this exchange, it is clear that the vocational expert considered the

physical and mental limitations presented in Exhibits 25F and 24F. Additionally, Plaintiff’s
counsel also referred to Exhibit 24F during the cross-examination of the vocational expert:
ATTY:

In these other, in this other work that you’ve
listed how – the RFC that is Exhibit 24F it talks
about limited relating to coworkers and
supervisors on a limited basis. These jobs that,
that you’ve listed how does that, how does that
limitation play into this other work that you’ve
listed in the Judge’s first hypothetical?

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VE:

Well, I, the, I did note that indicated no general
public, the public but he didn’t say couldn’t relate
to coworkers or supervisors. And I would – it
says limited on those things I generally – I think
that would have to do with more than simple
activity.

ATTY:

Doesn’t have to do with the frequency of, of
dealing with those people?

VE:

Wait a minute, let me back up here. It says can
relate, can work normal workday and week, can
adapt to work setting, can relate on a limited
basis for coworkers and supervisor, could not
work with general public. So your question was
considered limiting, is that what you meant?

ATTY:

These jobs, the sorting, laundry press work, the
hand packaging, assembly and inspecting jobs,
I mean what kind of contact are those people
going to – are those employees going to have
with coworkers and supervisors?

VE:

Well you have contact with them. Most of the
jobs are of course unskilled so there really, I
wouldn’t see any real need and real depth in
supervision or – I guess we’d have to ask that
doctor what he means by limited but I base it on
just my knowledge of the work setting.

[R. 56-57].
Plaintiff’s argument that there is no independent verification that her mental or
physical limitations had been considered is contradicted by the vocational expert’s
indication that he was familiar with the record, and by the vocational expert’s reference to
the contents of the exhibits when responding to questions posed by both the ALJ and
Plaintiff’s counsel. Further, Plaintiff has not shown that the jobs identified by the vocational
expert are excluded by the limitations contained in Exhibits 24F and 25F. The court finds

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the ALJ's decision, based on the vocational expert's testimony, is supported by substantial
evidence.3
Plaintiff argues that the ALJ erred by not including in the RFC the “moderate”
limitations in the paragraph B criteria addressed in the psychiatric review technique (PRT).
When there is evidence of a mental impairment that allegedly prevents a claimant from
working, the ALJ must follow the procedure for evaluating mental impairments set forth in
the regulations and is required to document in the decision the application of the procedure,
known as the Psychiatric Review Technique (PRT).

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 procedure for
evaluating alleged mental impairments requires the ALJ to consider the effect of the mental
impairment on 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). These “paragraph B” limitations are not an RFC assessment, rather they rate
the severity of mental impairments at steps 2 and 3 of the evaluative sequence. Social
Security Ruling (SSR) 96-8p, 1996 WL 374184 at *4. That is, the “paragraph B” criteria
help the ALJ determine at step 2 whether the claimant has severe mental limitations and

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This court is generally critical of the ALJ’s presentation of exhibits to the vocational expert
from which the expert is expected to glean limitation for a hypothetical question. Such a procedure
invites confusion and needlessly introduces an opportunity for miscommunication and misunderstanding
not present when the ALJ verbally formulates the hypothetical question. However, in this case it is
apparent there was no confusion or misunderstanding. See Tietjen v. Colvin, 527 Fed.Appx. 705, 710
(10th Cir. 2013)(affirming Commissioner’s decision, although critical of hypothetical by exhibit).

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whether the mental limitations meet some of the criteria of the Listings of Impairments4 for
mental disorders at step 3.
The ALJ’s RFC finding appropriately included the work-related functional limitations
that result from the “paragraph B” findings. The ALJ specifically stated Plaintiff was limited
to simple, repetitive work and should avoid all contact with the public due to mood swings,
depression, and mental impairments. [R. 14]. These mental work-related limitations are
the same ones

found to exist by Dr. Carolyn Goodrich, Ph.D., the non-examining

psychologist who reviewed the records for the Disability Determination Service (DDS). Dr.
Goodrich completed a Mental Residual Functional Capacity Assessment, [R. 445-447],
where she concluded:
Clmt (sic) can work a normal day and week. She can adapt to
work setting. She can relate on limited basis with coworkers
and supervisors. She should not work with the public. She
can understand, remember and carry out simple and some
complex tasks.
[R. 447]. The ALJ gave Dr. Goodrich’s opinion great weight and incorporated her opinion
expressed in Exhibit 24F into the hypothetical question and RFC assessment. The court
finds Plaintiff’s argument that the ALJ failed to include Plaintiff’s mental limitations into the
RFC assessment is without merit. In finding Plaintiff limited to performing simple, repetitive
tasks with no interaction with the general public, the ALJ appropriately accounted for
work-related limitations supported by substantial evidence. [R. 14].

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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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Plaintiff complains that the ALJ did not show the paragraph B findings to the
vocational expert, which Plaintiff claims is error. However, since the paragraph B criteria
are not expressed in terms of work-related limitations, it is not appropriate to include them
in hypothetical questioning of a vocational expert. Rather, it is the work-related limitations
that flow from the paragraph B findings that form the basis of the hypothetical question to
the vocational expert.

The work-related limitations expressed in Exhibit 24F were

presented to the vocational expert. See Chrismon v. Colvin, 531 Fed.Appx. 893, 897-898
(10th Cir. 2013)(explaining PRT findings are not RFC findings, and discussing interplay
between PRT and mental RFC).
Consideration of Medical Source Information
Plaintiff argues that the ALJ failed to weigh all opinions contained in the record and
failed to describe how he weighed the medical source opinions. The record does not
contain any opinions of Plaintiff’s treating physicians. The only opinions concerning
Plaintiff’s ability to work are those of the State Disability Determination Service experts who
review of the medical record, rendered opinions about her ability to work. [R. 445-447, 449456, 457-472]. The regulations instruct that State agency medical or psychological
consultants are “highly qualified physicians and psychologists who are also experts in
Social Security disability evaluation” whose findings must be considered as opinion
evidence. 20 C.F.R. § 404.1527(f)(2)(I); 20 C.F.R. § 416.927(f)(2)(I). The ALJ accorded
their opinions “great weight,” [R. 21], and incorporated these opinions into the RFC finding.
The court finds no error in the ALJ’s treatment of the opinions of the State Disability
Determination Service experts.

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Plaintiff argues that the ALJ erred in his treatment of the lay third-party function
report of Larry Pruitt. [R. 174-181]. The ALJ indicated that the report of Mr. Pruitt was
discounted because it was prepared by Plaintiff. The court finds no error in the ALJ’s
treatment of this report. [R. 22-21].
Credibility Determination
Plaintiff argues that the ALJ failed to perform a proper credibility determination.
“Credibility determinations are peculiarly the province of the finder of fact, and we will not
upset such determinations when supported by substantial evidence.” Hackett v. Barnhart,
395 F.3d 1168, 1173 (10th Cir.2005) (internal quotation marks omitted). But “findings as
to credibility should be closely and affirmatively linked to substantial evidence and not just
a conclusion in the guise of findings. Id. (brackets and internal quotation marks omitted).
The ALJ cited numerous grounds, tied to the evidence, for the credibility finding,
including: Plaintiff’s inconsistent statements about her activities; receipt of only routine
medical treatment; failure to follow up on referrals to medical specialists; and failure of the
medical record to support allegations. [R. 19-21]. 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.
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

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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 23rd day of May, 2014.

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