Lavery v. Social Security Administration
Filing
25
OPINION AND ORDER by Magistrate Judge Frank H McCarthy Affirming the Commissioner's decision (tjc, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
NANCY LORENE LAVERY,
Plaintiff,
vs.
Case No. 14-CV-175-FHM
CAROLYN W. COLVIN,
Acting Commissioner, Social Security
Administration,
Defendant.
OPINION AND ORDER
Plaintiff, Nancy Lorene Lavery, 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
than a preponderance, and is such relevant evidence as a reasonable mind might accept
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Plaintiff's January 18, 2011, application for disability benefits was denied initially and on
reconsideration. A hearing before Administrative Law Judge ("ALJ") Gene M. Kelly was held September 18,
2012. By decision dated October 30, 2012, the ALJ entered the findings that are the subject of this appeal.
The Appeals Council denied Plaintiff’s request for review on February 20, 2014. 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.
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 51 years old on the alleged date of onset of disability and 54 on the
date of the ALJ’s denial decision She has a high school education and formerly worked
as general production assembler.
She claims to have been unable to work since
November 19, 2009 as a result of depression, anxiety, pain in the hips and shoulder,
thyroid , vision, and heart problems, headaches and fatigue.
The ALJ’s Decision
The ALJ determined that Plaintiff has the ability to perform light exertional work as
defined in 20 C.F.R. § 404.1567(b), except she is limited to climbing, bending, stooping,
squatting, kneeling, crouching, and crawling only occasionally. She can push/pull, operate
foot controls, reach over the head, and twist the torso no more than occasionally. She
should avoid fine vision and low light and should have a low noise environment. She
should have easy access to restrooms. She is limited to simple repetitive and routine work.
Although Plaintiff is unable to perform her past relevant work, based on the
testimony of a vocational expert, the ALJ determined that there are a significant number
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of jobs in the national economy that Plaintiff could perform with these limitations. 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 erred by not including RFC limitations arising from
headaches and fatigue, which the ALJ found were severe impairments at step two of the
evaluative sequence.
Analysis
Plaintiff asserts that the RFC assessment is not consistent with the medical
evidence and the ALJ does not adequately explain how the inconsistencies were resolved.
[Dkt. 23, p.6]. In particular, Plaintiff argues that the ALJ failed to discuss her complaints
of headache and fatigue.
Although the ALJ noted headaches were a severe impairment at step two, Plaintiff
has not pointed the court to any medical records documenting an ongoing problem with
headaches. It is Plaintiff’s duty on appeal to support arguments with references to the
record and to tie relevant facts to legal contentions. The court will not “sift through” the
record to find support for the claimant's arguments. SEC v. Thomas, 965 F.2d 825, 827
(10th Cir.1992), United States v. Rodriguiez-Aguirre, 108 F.3d 1228, 1237 n.8 (10th Cir.
1997)(appellants have the burden of tying the relevant facts to their legal contentions and
must provide specific reference to the record to carry the burden of proving error).
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The court’s review of the record finds no support for the finding of headaches as a
severe impairment. It appears, therefore, that the ALJ’s finding that headaches were a
severe impairment was made without having any corresponding record evidence of
headaches. While the ALJ’s finding is thus in error, being unsupported by substantial
evidence, the error is harmless as Plaintiff could not possibly have been prejudiced by a
finding more favorable to her than is supported by the record. See Keyes-Zachary v.
Astrue, 695 F.3d 1156, 1162-63 (10th Cir. 2012). (finding no prejudice where ALJ failed
to assign weight to an opinion that did not help Plaintiff).
Plaintiff also complains that the ALJ erred by failing to include limitations related to
her diagnosis of chronic fatigue syndrome, or by failing to explain why no such limitations
were included in the RFC. In support of her argument that limitations related to fatigue
should have been included, Plaintiff points to her testimony that she missed a lot of work
from fatigue, and to various medical record notations of the chronic fatigue diagnosis. [Dkt.
23, pp. 8-9]. Plaintiff’s testimony about missing work relates to the period of time when she
was still working, which was before the amended date of alleged onset February 1, 2011.
Likewise, many of the medical records cited by Plaintiff predate the alleged onset date.
The medical records cited by Plaintiff that do fall within the period under review, February
1, 2011 through October 30, 2012, do not document complaints of fatigue. The record of
Plaintiff’s doctor visit on April 3, 2012, contains a diagnosis of chronic fatigue syndrome,
but does not document any complaints of fatigue.
[R. 466-67].
A comprehensive
preventative medicine exam was performed on April 12, 2012, by Plaintiff’s treating
physician, Michele Coulter, D.O. There Dr. Coulter noted fatigue has been present for ten
years, but recorded Plaintiff was negative for decreased activity, generalized weakness,
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or lethargy. [R. 475]. Plaintiff was also negative for anxiety, depression, mood swings, and
headache. [R. 475]. The ALJ referred to these records in summarizing the medical
records. [R. 25].
The remainder of the record covering the relevant time period fails to support
ongoing complaints of fatigue. In November 2011, lab results showed a thyroid problem
and Plaintiff was started on medication. Dr. Coulter noted Plaintiff was negative for fatigue.
[R. 402]. On January 25, 2012, Plaintiff was evaluated by endocrinologist Dr. Thomas for
hyperthyroidism/Graves disease. [R. 506-510]. Dr. Thomas noted Plaintiff was positive
for complaints of fatigue. [R. 507]. On February 28, 2012, Plaintiff was reevaluated by Dr.
Thomas and no notation of fatigue was made. [R. 511-513]. On August 28, 2012, Plaintiff
saw Dr. Coulter expressing concern about memory loss, but as the ALJ noted, she passed
the Alzheimer’s test administered by Dr. Coulter. [R. 25, 495]. There were no complaints
of fatigue recorded at that visit. [R. 494-496]. On September 5, 2012, Dr. Thomas noted
a complaint of fatigue, but also recorded that Plaintiff was not taking her medications. [R.
514].
On September 9, 2012 Dr. Coulter recorded Plaintiff’s hyperthyroidism was
uncontrolled, fatigue was noted, as was the fact that she had stopped taking her
medications one to two months ago. [R. 500-502]. These records were also noted in the
ALJ’s decision. [R. 24-26].
The court finds that there is no basis for remanding the case for further discussion
of fatigue. The ALJ accurately summarized the record, noted the absence of any treating
physician opinions indicating Plaintiff had limitations greater than those in the RFC finding,
and noted Plaintiff’s description of her daily activities and the third party function report
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from Plaintiff’s mother are inconsistent with claims of disability. Further, the record does
not contain continued complaints of fatigue during the relevant time frame.
The court finds that the ALJ’s RFC finding is supported by substantial evidence and
that the ALJ accurately summarized the record and adequately discussed his RFC finding.
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 4th day of May, 2015.
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