Herndon v. Social Security Administration

Filing 19

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
PHILLIP HERNDON,
PLAINTIFF,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
DEFENDANT.

)
)
)
)
)
)
)
)
)
)
)

CASE NO. 14-CV-743-FHM

OPINION AND ORDER
Plaintiff, PHILLIP HERNDON, 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

1

Plaintiff's application for benefits was denied initially and on reconsideration. A hearing before
Administrative Law Judge ("ALJ") Deborah L. Rose was held June 17, 2014. By decision dated August 8,
2014, the ALJ entered the findings that are the subject of this appeal. The Appeals Council denied Plaintiff’s
request for review on October 14, 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.

1

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).
Background
Plaintiff was 31 years old on the alleged date of onset of disability and 33 years old
on the date of the ALJ’s denial decision. [R. 23-30]. He has a high school education and
past work experience includes a gate guard and security officer. [R. 28]. Plaintiff claims to
have been unable to work for a closed period of disability from October 15, 2012 through
June 1, 2014 due to traumatic brain injury, blackouts, dizzy spells, depression, and anxiety.
[R. 215].
The ALJ’s Decision
The ALJ determined that Plaintiff has severe impairments relating to traumatic brain
injury, depression, post-traumatic stress disorder, anxiety, and history of blackout spells.
Further, the ALJ found that Plaintiff’s mild hearing loss in his right ear is “non-severe.” [R.
21]. The ALJ determined that Plaintiff has the residual functional capacity (RFC) to perform

2

work at all exertional levels but must avoid exposure to hazards. Plaintiff can perform
simple and some complex tasks such as those involved in semi-skilled work. He can have
superficial and incidental work-related interaction with co-workers and supervisors, but no
public interaction. [R. 23]. Although Plaintiff is unable to perform his past relevant work,
the ALJ determined, based upon the testimony of the vocational expert, that there are a
significant number of jobs in the national economy that Plaintiff could perform with these
limitations. [R. 29]. Accordingly, the ALJ found 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).
Plaintiff’s Allegations
Plaintiff asserts that the ALJ failed to: 1) address a closed period of disability; and
2) properly consider the medical source opinion of treating physician, Dr. Brian K.
Berryman, D.O.
Analysis
Plaintiff alleges he became disabled on October 15, 2012 through June 2014
because of syncope, blackouts, and vertigo. Plaintiff argues that the ALJ failed to consider
his disabilities during the closed period of time and based her decision on his present
physical abilities. Plaintiff also argues that the ALJ considered his future employment plans
which he argues were not relevant to the closed period of time. [Dkt. 13, p. 3].
The ALJ accurately outlined the medical evidence noting that Plaintiff did not receive
treatment until June 10, 2013. [R. 25]. Based on her review of the medical record, the ALJ

3

found that Plaintiff was not under a disability as defined by the Act from October 15, 2012,
through the date of her decision, August 8, 2014. [R. 23-24, 30]. Although Plaintiff asserts
the ALJ did not consider a closed period from October 15, 2012 to June 1, 2014, the
decision demonstrates the ALJ considered the evidence throughout that time frame. The
finding that Plaintiff was not disabled from October 15, 2012 to August 8, 2014
encompassed Plaintiff’s proposed closed period.
The ALJ listed Plaintiff’s testimony that he is going to be traveling to other countries
as a site manager among the several factors considered in arriving at the conclusion that
Plaintiff has a moderate restriction in activities of daily living, moderate difficulties in social
functioning and in regard to concentration, persistence, or pace. [R. 22]. The ALJ also
recounted the statement recorded in the mental health clinic medical record dated March
7, 2014, that he missed appointments due to being “very busy” and it would be difficult to
keep appointments because he is going to travel. [R. 26, 487]. The court finds no error in
the ALJ’s consideration of Plaintiff’s testimony and statement to his doctor as the travel
plans were merely listed as one of a number of factors related to the ALJ’s analysis of the
severity of Plaintiff’s allegations of mental impairment and Plaintiff’s credibility.
Treating Physician’s Opinion
Dr. Berryman is one of the physicians who treated Plaintiff for complaints of
blackouts and dizzy spells.

On September 10, 2013, Dr. Berryman wrote a letter

addressed, “To whom it may concern,” opining that, due to his medical condition, Plaintiff
is unable to work and he recommended no operation of motorized vehicles, no firearms,
no power tools, no lifting or exertional activities, or unattended activities until released by
a physician. [R. 247-48]. The ALJ stated she did not give great weight to Dr. Berryman's
4

opinion because it is inconsistent with the record evidence, and is not well supported by
medically acceptable clinical and laboratory techniques. [R. 28].
A treating physician's opinion is accorded controlling weight if it is well-supported by
medically acceptable clinical or laboratory diagnostic techniques and is not inconsistent
with other substantial evidence in the record. Knight ex rel. P.K. v. Colvin, 756 F.3d 1171,
1176 (10th Cir. 2014)(internal quotation marks omitted). However, if the opinion is deficient
in either of these respects, it is not given controlling weight. When an ALJ decides to
disregard a medical report by a claimant's physician, specific, legitimate reasons must be
set forth.
The ALJ noted that Dr. Berryman stated Plaintiff was under medical care for
recurrent loss of consciousness episodes. [R. 27, 247].

However, a review of Dr.

Berryman’s records showed Plaintiff had several “blackout” episodes following his July
2013 release from the hospital. The ALJ noted, however, that the blackout episodes were
not ongoing as Plaintiff testified that he has not had any blackouts since July 2013, and he
was driving in August 2013. The ALJ found that this information suggests Plaintiff’s
symptoms were not as severe as he reported to Dr. Berryman. The ALJ noted Plaintiff’s
normal EEG, MRI, Holter monitor, and tilt table test and also that evaluation by neurology
and cardiology found no clear etiology. Id. The court finds that the ALJ accurately
summarized the record and that she gave specific, legitimate reasons for disregarding Dr.
Berryman’s opinion.

5

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 26th day of February, 2016.

6