Hall v. Social Security Administration

Filing 20

OPINION AND ORDER by Magistrate Judge T Lane Wilson , remanding case (terminates case) (crp, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
KAREN HALL,

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

Case No. 14-cv-690-TLW

OPINION AND ORDER
Plaintiff Karen Hall seeks judicial review of the decision of the Commissioner of the
Social Security Administration denying her claim for Disability Insurance Benefits under Title II
of the Social Security Act (“SSA”), 42 U.S.C. §§ 416(i) and 423. In accordance with 28 U.S.C. §
636(c)(1) & (3), and Fed. R. Civ. P. 73, the parties have consented to proceed before a United
States Magistrate Judge. (Dkt. 11). Any appeal of this decision will be directly to the Tenth
Circuit Court of Appeals.
On appeal, plaintiff alleges three errors by the ALJ: (1) the failure to properly consider
her obesity; (2) the failure to properly consider the medical source opinions; and (3) the failure to
properly consider plaintiff’s credibility. (Dkt. 14 at 5).1

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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. 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. 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).

Obesity2
Plaintiff argues that the ALJ failed to properly consider her obesity because he did not
discuss it “beyond finding that it was a severe impairment.” (Dkt. 15 at 5-6). Plaintiff states that
the ALJ failed to discuss “any cumulative effects the obesity might have had on plaintiff’s
arthritis” and ignored the impact of plaintiff’s obesity when evaluating her credibility and
functional capacity and in evaluating the medical opinions. Id. Plaintiff cites SSR 02-1p, which
states that the Commissioner will explain “. . . how we reached our conclusions on whether
obesity caused any physical or mental limitations.” Id.
Jimison ex rel. Sims v. Colvin, 513 F. App’x 789, 798 (10th Cir. 2013) (unpublished) is
instructive. In Jimison, the Tenth Circuit considered whether the ALJ erred in not addressing
plaintiff’s obesity in the RFC analysis. Id. at 793. The ALJ had identified obesity as a severe
impairment and then failed to consider obesity in formulating the RFC. Id. at 791. The Tenth
Circuit ruled that because the record did not indicate that claimant’s obesity caused functional
limitations, the ALJ did not have to consider it in the RFC analysis. Id. at 793. The court
reasoned that because obesity is an impairment (as opposed to a functional limitation or
restriction), when there is no evidence that the impairment creates a functional limitation, the
ALJ is not required to consider it in the RFC or in a hypothetical to the vocational expert. Id.
Plaintiff’s brief contains only two statements which could reasonably be interpreted as
developing an argument regarding her obesity. First, plaintiff argues that she “. . . is morbidly
obese and that makes it more difficult to move around and be on her feet. Tr. 239, 241.” (Dkt. 15
at 15). In support of this statement, plaintiff cites a Function Report – Adult, which she
completed. (R. 234-41). Because the only evidence for this argument is plaintiff’s subjective
statements, the argument turns on the ALJ’s finding that plaintiff is not entirely credible. If that
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Plaintiff does not argue that the ALJ’s factual findings with respect to her obesity are in error,
only that plaintiff’s obesity was not properly considered.
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finding is affirmed, then this argument necessarily fails. Because the Court affirms the ALJ’s
credibility finding, as discussed infra, the Court finds this argument unpersuasive.
Second, plaintiff notes that “Dr. Hastings felt that the arthritis in the feet, ankles, and toes
were adversely impacted by the plaintiff’s morbid obesity.” (Dkt. 15 at 4). On this second point,
plaintiff accurately cites to Dr. Hastings’ report regarding his March 26, 2013 examination of
plaintiff. Id. The initial question is whether Dr. Hastings’ report evidences the presence of a
functional limitation resulting from plaintiff’s obesity. Dr. Hastings states that plaintiff’s obesity
adversely impacts her “arthritis.” Arthritis, however, is an impairment, not a restriction or
functional limitation. In this respect it is like obesity. See supra (citing Jimison, 513 F. App’x at
793). The fact that one impairment adversely impacts another impairment does not establish the
presence of a restriction or functional limitation. However, plaintiff indirectly appeals the ALJ’s
consideration of her arthritis, which the ALJ found to be medically non-determinable, by
challenging the ALJ’s consideration of the medical source opinions. (R. 21). Assuming plaintiff
is correct, that there is evidence in the record which indicates functional limitations resulting
from her arthritis, the question is whether this evidence was properly discounted. If so, then there
is no evidence that plaintiff’s arthritis causes a functional limitation and her obesity, even if it
adversely impacts her arthritis, need not be considered in the RFC analysis. Thus, if the ALJ’s
consideration of the medical source opinions does not warrant remand, neither does his
consideration of plaintiff’s obesity.
Additionally, subject to the Court’s consideration of the medical source opinions, the
Commissioner’s position is supported by Keyes-Zachary v. Astrue, 695 F.3d 1156 (10th Cir.
2012), which ruled that if an error would not affect the outcome of a case, the error is harmless
and not grounds for remand. In Keyes-Zachary, the Tenth Circuit considered whether an ALJ’s
errors, such as failure to discuss an adverse side effect of a medication or failure to expressly

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weigh a medical opinion, were reversible. Id. The Tenth Circuit found that while the ALJ did err
in failing to specifically discuss relevant details, the ALJ’s general conclusion was supported by
the evidence. Id. The Tenth Circuit determined that if an error will not affect the outcome of a
case, then the error is harmless and not grounds for reversal. Id. at 1173. Here, the ALJ
specifically discussed plaintiff’s obesity a number of times in his decision. (R. 25-26). Thus, the
ALJ was clearly aware of plaintiff’s obesity. Id. The ALJ also relied on medical records that
noted plaintiff’s obesity. (R. 26) (citing Ex. 3F, R. 495-96). Id. Therefore, it is also clear that the
ALJ considered plaintiff’s obesity in his analysis, and while many medical reports mentioned
plaintiff’s obesity, there is no indication that her obesity results in a restriction or functional
limitation, except as it relates to her arthritis as explained above. Thus, the record supports the
ALJ’s conclusion so long as the ALJ did not commit error in his consideration of the medical
source opinions.
Medical Source Opinions
First, plaintiff notes that “the ALJ stated that the record d[oes] not contain any opinion
from a treating physician indicating that the plaintiff has limitations greater than those contained
in the ALJ’s RFC assessment.” (Dkt. 15 at 6). Plaintiff argues that the ALJ is incorrect because
the record contains a handicap parking application, completed by Dr. Tiemann, which indicates
that plaintiff cannot walk more than 200 feet.3 Plaintiff claims that the ALJ’s prior
acknowledgment that Dr. Tiemann completed a handicap parking application for her and
checked a box indicating that she cannot walk 200 feet due to severe osteoarthritis shows error in
the ALJ’s decision because the inability to walk 200 feet is inconsistent with the ALJ’s RFC
assessment. The Court finds this argument unpersuasive for the reasons set forth in the following
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The ALJ stated, “The record does not contain any opinions from treating or examining
physicians indicating that the claimant is disabled or that she even has limitations great than
those determined in this decision, other than the report of Dr. Hastings, which will be discussed
later in this decision.” (R. 29) (emphasis added).
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cases: Halsell v. Astrue, 357 F. App’x 717, 722 (7th Cir. 2009) (unpublished)4 (disability parking
placard was not relevant because of differing standards of disability); Bryant v. Astrue, 2010 WL
4628721 (D.Kan.) (treating physician’s comment on application for a permanent disabled
parking placard was not “so probative as to require discussion”); Livingston v. Astrue, 2010 WL
5851124 (failure to mention parking permit application was not reversible error in part because
such applications are “generally of little relevance to a formal disability analysis”); Parmley v.
Astrue, 2008 WL 3850250 (E.D.Ky.) (ALJ was correct to disregard a handicap parking form
completed by a treating physician because it did not indicate that the claimant was incapable of
working); Meador v. Barnhart, 2006 WL 1319627 (W.D.Va.) (same).
Second, plaintiff argues that Dr. Hastings’ opinion was not properly addressed. Dr.
Hastings’ report is thirty-six pages in length. (R. 673-708). He lists the medical records he
reviewed, provides a patient history, lists various clinical diagnoses and conditions, lists a
number of vocational restrictions and permanent vocational incapacities (summarizing his view
of the impact of obesity in general on joint issues), and reviews the medical records on which he
relied. (R. 679). The report is long and detailed but it is often times vague and generally fails to
explain the basis for most of the findings. The Court understands the ALJ’s concern. The
impression the report leaves is that Dr. Hastings was searching for a result, not objectively
considering the medical evidence. In this regard, the ALJ found,
[T]he evaluation of Dr. Hastings is not credible in that it appears he read Dr.
Jennings x-ray reports and significantly distorted them. Specifically, Dr.
Jennings reported level of osteoarthritis of the hands as being in the “joint” of
the 5th fingers and rather mild. However, Dr. Hastings described this as “joints”
suggesting many joints. Also, Dr. Hastings described ‘moderate to severe’
osteoarthritis, involving multiple joints, including shoulders, hands, fingers,
ankles, and toes and left hip. While x-rays indicate degenerative changes at
each, they are not necessarily ‘moderate to severe’ and likely better
characterized as mild to moderate, based upon the x-rays, with the possibility
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10th Cir. R. 32.1 provides that “[u]npublished opinions are not precedential, but may be cited
for their persuasive value.”
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of severe degenerative changes in the right shoulder. Therefore, the
Administrative Law Judge finds, following review of the report by Dr.
Hastings and review of the evidence of record in its entirety, that Dr. Hastings
characterization of the records/reports is exaggerated.
(R. 31).
The Commissioner argues that the ALJ’s conclusion is correct, that Dr. Hastings
exaggerated the findings of Dr. Jennings with respect to plaintiff’s osteoarthritis in her finger
joints. Dr. Jennings found erosive changes only in the right and left fifth digits of each hand. (R.
658). Dr. Hastings characterized these erosive changes as applying to “the finger joints.” The
ALJ interpreted this statement to mean that Dr. Hastings was referring to more than one joint;
whereas, Dr. Jennings was referring to one joint on both hands. The Court does not view this
difference to be material. One joint on each hand could be referred to as joints.
More importantly, the ALJ’s statement leaves the clear impression that he interpreted
plaintiff’s x-rays. (R. 31) (“While x-rays indicate degenerative changes at each, they are not
necessarily ‘moderate to severe’ and likely better characterized as mild to moderate, based upon
the x-rays, with the possibility of severe degenerative changes in the right shoulder.”). It is not
improper for the ALJ to compare two medical opinions and accept one while rejecting another,
so long as the ALJ provides an explanation, which may have been his intent here. But that is not
how the ALJ’s decision reads. It reads as though he is interpreting the x-rays and simply
disagrees with Dr. Hasting’s interpretation.
As the Court stated above, the Court is dubious of Dr. Hastings’ report, but the ALJ’s
reliance Dr. Hastings’ reference to “joints” is not a basis on which to reject his report. The only
other basis provided by the ALJ appears to rely on the ALJ’s own interpretation of plaintiff’s xrays. On remand, the ALJ should state with more detail the reason he rejected Dr. Hasting’s
report and, in particular, identify the medical evidence in the record that supports his decision. If,

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after doing so, the ALJ properly determines that Dr. Hasting’s report should be rejected, then
there would be no need to reevaluate the issue of plaintiff’s obesity.
Credibility
Plaintiff argues that the ALJ’s reasons for finding plaintiff not credible are not supported
by substantial evidence. This Court will not disturb an ALJ’s credibility findings if they are
supported by substantial evidence because “[c]redibility determinations are peculiarly the
province of the finder of fact.” Cowan v. Astrue, 552 F.3d 1182, 1190 (10th Cir. 2008) (citing
Diaz v. Secretary of Health & Human Svcs., 898 F.2d 774, 777 (10th Cir. 1990)). Credibility
findings “should be closely and affirmatively linked to substantial evidence and not just a
conclusion in the guise of findings.” Id. (citing Huston v. Bowen, 838 F.2d 1125, 1133 (10th Cir.
1988) (footnote omitted)). The ALJ may consider a number of factors in assessing a claimant’s
credibility, including “the levels of medication and their effectiveness, the extensiveness of the
attempts . . . to obtain relief, the frequency of medical contacts, the nature of daily activities,
subjective measures of credibility that are peculiarly within the judgment of the ALJ, . . . and the
consistency or compatibility of nonmedical testimony with objective medical evidence.” Kepler
v. Chater, 68 F.3d 387, 391 (10th Cir. 1995).
The Court has thoroughly reviewed the ALJ’s credibility finding and finds that the ALJ
closely and affirmatively linked them to substantial evidence in the record. The Court, thus, finds
no error in the ALJ’s credibility analysis.
CONCLUSION
For the foregoing reasons, the ALJ’s decision finding plaintiff not disabled is remanded
for further consideration consistent with this Opinion and Order.

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SO ORDERED this 31st day of March, 2016.

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