Johnson v. Social Security Administration

Filing 23

OPINION AND ORDER by Magistrate Judge T Lane Wilson (Re: 2 Social Security Complaint ) (crp, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
CASSANDRA FAYE JOHNSON,

)
)
Plaintiff,
)
)
vs.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

Case No. 13-cv-620-TLW

OPINION AND ORDER
Plaintiff Cassandra Faye Johnson seeks judicial review of the decision of the
Commissioner of the Social Security Administration denying her claims for disability insurance
benefits and supplemental security income benefits under Titles II and XVI of the Social
Security Act (“SSA”), 42 U.S.C. §§ 416(i), 423, and 1382c(a)(3). In accordance with 28 U.S.C.
§ 636(c)(1) & (3), the parties have consented to proceed before a United States Magistrate Judge.
(Dkt. 17). Any appeal of this decision will be directly to the Tenth Circuit Court of Appeals.
INTRODUCTION
In reviewing a decision of the Commissioner, the Court is limited to determining whether
the Commissioner has applied the correct legal standards and whether the decision is supported
by substantial evidence. See Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005).
Substantial evidence is more than a scintilla but less than a preponderance and is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion. See id. The
Court’s review is based on the record, and the Court will “meticulously examine the record as a
whole, including anything that may undercut or detract from the ALJ’s findings in order to
determine if the substantiality test has been met.” Id. The Court may neither re-weigh the

evidence nor substitute its judgment for that of the Commissioner. See Hackett v. Barnhart, 395
F.3d 1168, 1172 (10th Cir. 2005). Even if the Court might have reached a different conclusion, if
supported by substantial evidence, the Commissioner’s decision stands. See White v. Barnhart,
287 F.3d 903, 908 (10th Cir. 2002).
BACKGROUND
Plaintiff, then a 50-year old female, protectively filed for benefits under Titles II and XVI
on August 9, 2010. (R. 153-58). Plaintiff alleged a disability onset date of April 28, 2009. Id.
Plaintiff claimed that she was unable to work due to “diabetes, pain from bone spurs in both
knees, depression, [and] high blood pressure.” (R. 193). Plaintiff’s claims for benefits were
denied initially on January 3, 2011, and on reconsideration on June 29, 2011. (R. 84-85, 88-95;
86-87, 107-12). Plaintiff then requested a hearing before an administrative law judge (“ALJ”).
(R. 113-16). The ALJ held the hearing on May 17, 2012. (R. 37-67). The ALJ issued a decision
on June 8, 2012, denying benefits. (R. 21-32). The Appeals Council denied review, so the ALJ’s
June 8, 2012 decision is the final decision of the Commissioner. (R. 1-6). Plaintiff timely filed an
appeal. (Dkt. 2).
The ALJ’s Decision
The ALJ found that plaintiff had not performed any substantial gainful activity since her
alleged disability onset date of September 1, 2009. (R. 26). He then found that plaintiff had the
severe impairments of “diabetes, hypertension, degenerative joint disease, and obesity.” Id. The
ALJ found that plaintiff’s depression did not “cause more than minimal limitation in her ability
to perform basic mental work activities” and was therefore non-severe. (R. 26-27). After
analyzing the “paragraph B” criteria, the ALJ found that plaintiff experienced mild restriction in
activities of daily living, social functioning, and concentration, persistence, and pace; and no

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episodes of decompensation. (R. 27). Plaintiff’s impairments did not meet or medically equal a
listed impairment. (R. 28).
After reviewing plaintiff’s testimony, the medical evidence, and other evidence in the
record, the ALJ concluded that plaintiff could
occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds;
stand and/or walk for about 6 hours in an 8-hour workday; and sit for about 6
hours in an 8-hour workday, with normal breaks (Light work is defined in 20 CFR
404.1567(b) and 416.967(b)) except she cannot climb ladders, ropes, and
scaffolds; and only occasional climbing of ramps or stairs; balancing; stooping;
kneeling; crouching; and crawling.
Id. The ALJ then found that plaintiff’s residual functional capacity allowed her to return to her
past relevant work as a short order cook. (R. 30). Alternatively, at step five, the ALJ determined
that jobs existed in significant numbers which plaintiff could perform, such as ticket seller
(light), arcade attendant (light), and collator (light). (R. 31). Accordingly, the ALJ found that
plaintiff was not disabled. Id.
The Medical Evidence1
On October 14, 2010, plaintiff presented to Donald E. Cohen, M.D. for a consultative
medical examination. (R. 346-354). She complained of diabetes, hypertension, chest pain,
bilateral knee pain, and depression. (R. 346). Plaintiff told Dr. Cohen that she had been
prescribed glyburide for her diabetes, but had not been taking it because she could not afford it.
She complained of monthly substernal chest pain without radiation, and informed Dr. Cohen that
she was compliant with her hypertension medication. Id. She reported no functional limitations
due to hypertension. Id.
Plaintiff reported a 25 year history of bilateral knee pain after a fall on ice in the 1980s.
X-ray imaging revealed degenerative changes in her left knee. Plaintiff claimed she could stand
Plaintiff focuses her points of error on two consultative examinations; therefore, the Court will
focus its summary on those records.
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for four hours before her knees would start to hurt. Id. She reported that she did not take pain
medication for her knees because she could not afford it. (R. 346-47).
Dr. Cohen’s objective findings indicate a normal unassisted gait with no limp. He
reported that plaintiff was able to get on and off the examination table without help or difficulty.
(R. 347). In his assessment, Dr. Cohen opined that plaintiff’s diabetes needed further testing to
determine the extent of any damage, and that she should be evaluated with an ETT (exercise
tolerance test) to determine the origin of her chest pain and her exertional capacity. (R. 348-49).
Regarding plaintiff’s bilateral knee pain, Dr. Cohen opined that she had “crepitus” in both knees,
likely bilateral degenerative arthritis, and some restriction of flexion bilaterally. Dr. Cohen noted
that plaintiff indicated that she could stand for four hours, but to function in the workplace, she
“may have to stand for six to eight hours with appropriate breaks.” He noted that plaintiff had no
evidence of gait disturbance. (R. 349). Dr. Cohen also noted that plaintiff’s depression would not
interfere with her ability to maintain employment. Id.
Plaintiff presented to Dr. First on December 21, 2010 for a second consultative
examination. (R. 372-384). Plaintiff listed her complaints in order of severity: bilateral knee
pain, depression, diabetes mellitus, “upon specific questioning, chest pain,” and headache. (R.
372). Physical examination revealed a normal range of motion in plaintiff’s extremities, and
normal deep tendon reflexes in her extremities. (R. 374-75). She was able to move from reclining
to sitting, and sitting to standing easily; she could walk around the examination room, and down
a 70 foot hallway with no difficulty or assistive devices. (R. 375).
Dr. First performed an exercise tolerance test, wherein plaintiff walked on a treadmill set
to 1.7 miles per hour with a ten percent incline. Plaintiff had to stop this test after 40 seconds due
to “leg fatigue and shortness of breath.” (R. 375, 377). Her immediate blood pressure reading

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after this exercise was 180/110. This reading dropped to 130/80 after four minutes of resting. (R.
375). Dr. First’s impressions were “essential hypertension not controlled, diabetes mellitus type
II uncertain control, diabetic peripheral neuropathy by history, atherosclerotic peripheral vascular
disease, chest pain uncertain etiology, osteoarthritis, headache uncertain etiology, depression,
[and] morbid obesity.” Id. Dr. First interpreted the ETT results as “[n]o definite evidence of
myocardial ischemia for this amount of exercise. St changes of uncertain significance. Resting
hypertension with hypertensive response to exercise. Severely decreased exercise capacity
secondary to leg fatigue and shortness of breath.” (R. 377). Dr. First did not offer any further
functional limitations.
ANALYSIS
Plaintiff raises two issues on appeal. First, she argues that the ALJ erred in analyzing the
opinions of consultative examiners, Dr. Cohen and Dr. First, and second, that the ALJ’s RFC
determination is improper because it is not supported by substantial evidence. (Dkt. 18 at 3).
Medical Evidence Analysis
Plaintiff argues that the ALJ erred in his treatment of the opinions of consultative
examiners Dr. Cohen and Dr. First. Specifically, plaintiff contends that the ALJ inaccurately
summarized their opinions when he found that they support a finding that plaintiff can perform
light activity. Id. Additionally, plaintiff complains that the ALJ “picked particular aspects from
each report and ignored others,” to plaintiff’s detriment. Id. at 4-6.
Medical source opinions are reviewed in the following manner: “[T]he opinions of
physicians who have seen a claimant over a period of time for purposes of treatment are given
more weight over the views of consulting physicians or those who only review the medical
records and never examine the claimant.” Williams v. Bowen, 844 F.2d 748, 757 (10th Cir.

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1988). In this case, plaintiff had only sporadic treatment and none of the physicians from whom
she sought treatment rendered an opinion about her limitations. Accordingly, the first category is
not at issue. In addition, both Dr. Cohen and Dr. First examined plaintiff, so ordinarily their
opinions are to be given more weight than the agency physicians who merely reviewed plaintiff’s
medical records.
When the ALJ does not give controlling weight to a treating physician’s opinion, he is
required to weigh the other opinions in the record using the same factors used to weigh a treating
physician’s opinion. See 20 C.F.R. §§ 404.1527(c), 416.927(c). Those factors are as follows:
(1) the length of the treating relationship and the frequency of examination, (2)
the nature and extent of the treatment relationship, including the treatment
provided and the kind of examination or testing performed, (3) the degree to
which the physician’s opinion is supported by relevant evidence, (4) consistency
between the opinion and the record as a whole, (5) whether or not the physician is
a specialist in the area upon which an opinion is rendered; and (6) other factors
brought to the ALJ’s attention which tend to support or contradict the opinion.
Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003) (citing Drapeau v. Massanari, 255
F.3d 1211, 1213 (10th Cir. 2001)). The ALJ must give good reasons in his decision for the
weight he ultimately assigns an opinion. Id. (citing 20 C.F.R. § 404.1527(d)(2)).
In this case, the ALJ made mistakes in his discussion of the opinions of Drs. Cohen and
First. As argued by plaintiff, the ALJ did misstate some facts from each doctor’s report, and he
failed to weigh the opinions of these two doctors. However, as explained below, these errors are
harmless.
The ALJ stated that he afforded “significant weight” to the opinions of “[t]wo medical
experts from the State Agency,” Luther Woodcock, M.D., and Karl K. Boatman, M.D., who each
arrived at a light exertional RFC with no climbing of ladders, ropes, and scaffolds. (R. 30, 38592; 495-502). Both of these agency doctors thoroughly reviewed (without error) and agreed with

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the examination results of Drs. Cohen and First. (R. 30, 386-87, 496-97). Both also relied on
other evidence in the record. (R. 386-87; 496-97).
Under these circumstances, the ALJ’s errors are harmless because both agency doctors
whom the ALJ did rely on to form his RFC correctly summarized the reports of Dr. Cohen and
Dr. First, and the ALJ weighed the opinions of those two agency doctors. Further, plaintiff does
not argue that the agency doctors’ opinions are incorrect, and those opinions stand as substantial
evidence supporting the ALJ’s RFC determination. Remanding this case for the ALJ to correct a
portion of his summarization of the evidence (a portion on which he did not rely) or to weigh
specifically the opinions of the consultative examiners would not alter the outcome in plaintiff’s
favor. See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1163 (10th Cir. 2012) (discussing harmless
error). Finally, the ALJ also found that plaintiff’s function report was further evidence that she
could perform light exertional work. (R. 30). The Court finds that any error in the ALJ’s
treatment of the consultative examiners’ opinions is harmless.
RFC
Next, plaintiff argues that substantial evidence does not support the ALJ’s RFC
determination. (Dkt. 18 at 6-8). Plaintiff bases her argument on Dr. First’s exercise tolerance
testing results, discussed above, claiming that those results show that she is incapable of light
work. Id. She also complains that the ALJ failed to include her “stand and walking limitations in
his hypothetical to the vocational expert.” Id. at 7.
Plaintiff is attempting to reweigh the evidence, something which this Court cannot do.
See Newbold v. Colvin, 718 F.3d 1257, 1265 (10th Cir. 2013) (The court may not reweigh the
evidence). Initially, Dr. First did not place a specific stand/walk limitation on plaintiff after her
exercise test. It appears that plaintiff bases her claimed limitation on Dr. First’s recitation of

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plaintiff’s subjective description of her exercise capacity prior to testing. (Dkt. 18 at 7; R. 37475). Such subjective complaints by plaintiff are not part of Dr. First’s opinion.
In addition, the ALJ considered plaintiff’s daily activities and search for work in
conjunction with the opinions of Drs. Woodcock and Boatman (who correctly interpreted the
consultative examination results of Drs. Cohen and First) in formulating both his hypothetical
questions to the vocational expert and his ultimate RFC. The ALJ’s hypothetical to the
vocational expert was as follows:
Okay. Hypothetical. I have an individual who at the – who is currently 51 years of
age. … Eleventh grade education, but she’s actually just one unit short from
graduating, is that correct? … I’m going to give her a limited ability to read,
write, and use numbers. Physically, I want you to consider that this individual [ ]
could perform light and sedentary work activity; now in that regard, she could
occasionally lift up and – lift and carry up to 20 pounds; she could frequently lift
and/or carry up to 10 pounds; she could stand and/or walk with normal breaks for
up to six hours in an eight-hour workday and she could sit with normal breaks for
up to six hours in an eight-hour workday; she could use her hands for hand
controls/feet for foot controls; she could – as far as postural limitations, she would
be limited to occasionally climbing of ramp or stairs; she could not climb ladders
or ropes or scaffolding; she would be limited to occasional bending, stooping,
crouching, crawling, those types of activities; there would be no visual
limitations, excuse me, there would be no manipulative limitations, no visual or
communicative limitations, and no environmental limitations.
Now she at one time they looked at her situation involving effective disorder or
depression, but basically there’s no – there’s no work-related limitations in that
regard. She is afflicted with symptomatology from a variety of sources that would
include mild to moderate to occasional chronic pain. Pain would be of sufficient
severity as to be noticeable for her, but nonetheless, she could remain attentive
and responsive in a work setting and carry out work assignments satisfactorily.
She does take medication for relief of some of her symptomatology, the
appropriate use of medication would not preclude her from remaining reasonably
alert to perform required functions presented in a work setting.
(R. 62-64). Further, the ALJ stated:
Although the claimant alleges disability since April 2009, on July 23, 2009, the
claimant was very happy with her new job and looked forward to going to work.
(Exhibit 2F, page 6). The claimant testified that she was looking for work.

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…
[T]he claimant stated that she took care of her grandchildren a couple of hours a
day, had no problem with personal care, cooked daily, cleaned house, and did
laundry. She stated that she walked, used public transportation, shopped, read,
watched television, played games, went to church, and went to Bible study
(Exhibit 1E). On May 5, 2011, the claimant stated that she enjoyed doing office
work and caring for her grandchildren (Exhibit 14F, page 8). On December 15,
2011, the claimant was taking care of her two grandchildren (Exhibit 16F, page
5).
Two medical experts from the State Agency determined that the claimant could
perform light work activity with no climbing of ladders, ropes, and scaffolds
(Exhibits 9F and 13F).
(R. 28-30). The Court finds the ALJ’s RFC determination is supported by substantial evidence.
Furthermore, based on the hypothetical question ultimately adopted by the ALJ as
plaintiff’s RFC, the vocational expert determined that plaintiff could return to her past relevant
work as a short order cook. Alternatively, the vocational expert also named the jobs of ticket
seller, arcade attendant, and collator; all light exertional, unskilled jobs. The vocational expert
also indicated that there were sedentary jobs which plaintiff could perform, although the ALJ did
not ask him to specifically identify them. (R. 64-65). Plaintiff argues that she cannot perform
light work, but she is silent regarding sedentary work. Remanding this case for the ALJ to
include the sedentary jobs indicated by the vocational expert, even were plaintiff incapable of
performing light work, would not alter the outcome. See Keyes-Zachary, 695 F.3d at 1163
(discussing harmless error).
CONCLUSION
For these reasons, the ALJ’s decision finding plaintiff not disabled is AFFIRMED.
SO ORDERED this 12th day of February, 2015.

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