McAfee v. Social Security Administration
Filing
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OPINION AND ORDER by Magistrate Judge T Lane Wilson (crp, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
WILLIAM HENRY MCAFEE,
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Plaintiff,
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vs.
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CAROLYN W. COLVIN,
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Acting Commissioner of Social Security, )
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Defendant.
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Case No. 14-cv-747-TLW
OPINION AND ORDER
Plaintiff William Henry McAfee seeks judicial review of the decision of the
Commissioner of the Social Security Administration denying his 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. 16). Any appeal of this decision will be directly to the Tenth Circuit Court of Appeals.
STANDARD OF REVIEW
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).
ISSUES
On appeal, plaintiff challenges the ALJ’s analysis of the treating cardiologist’s opinion.
(Dkt. 20). Although the ALJ gave the opinion great weight, plaintiff contends that the ALJ did
not adopt two limitations in the opinion and did not explain his reasons for not including those
limitations in the residual functional capacity findings. Id.
BACKGROUND
Plaintiff, then a 51-year old male, protectively filed for benefits under Title II and Title
XVI on October 13, 2010. (R. 131-41, 142-47). Plaintiff alleged a disability onset date of June
12, 2011. (R. 131, 144). Plaintiff claimed that she was unable to work due to “heart problems,” a
defibrillator, “memory loss,” and “limited mobility of left arm.” (R. 173). Plaintiff’s claims for
benefits were denied initially on January 4, 2012, and on reconsideration on February 29, 2012.
(R. 57-60, 65-73, 77-82). Plaintiff then requested a hearing before an ALJ, and the ALJ held the
hearing on June 11, 2013. (R. 34-56). On July 11, 2013, the ALJ issued a decision denying
benefits. (R. 12-31). The Appeals Council denied plaintiff’s request for review, and plaintiff
appealed. (R. 1-6; dkt. 2).
The ALJ’s Decision
The ALJ found that, for purposes of the Title II application, plaintiff was insured through
December 31, 2015. (R. 17). Plaintiff had not engaged in any substantial gainful activity since
his alleged disability onset date of June 12, 2011. Id. The ALJ found that plaintiff has severe
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impairments of “coronary artery disease status post myocardial infarction and stenting
placement, and obstructive sleep apnea.” (Dkt. 17). After reviewing the medical evidence and
plaintiff’s testimony, the ALJ concluded that plaintiff retained the residual functional capacity to
perform the following physical activities: “no more than the occasional lifting up to 20 pounds,
no more than the frequent lifting or carrying up to 10 pounds; standing/walking 4 hours out of an
8-hour workday; and sitting 6 hours out of an 8-hour workday. (R. 19). Plaintiff was unable to
perform his past relevant work because it qualified as medium work. (R. 24). However, relying
on the testimony of a vocational expert, the ALJ determined that plaintiff could perform other
work, such as a “parking lot attendant” (light work), “cashier II”/”booth cashier” job (light
work), and “touch-up screener” (sedentary work). (R. 25). Accordingly, the ALJ found that
plaintiff was not disabled. (R. 26).
Relevant Medical Evidence
On November 19, 2012, plaintiff’s treating cardiologist completed a medical source
statement checklist, in which he opined that plaintiff could occasionally lift or carry fifty pounds,
frequently lift or carry twenty-five pounds, stand and/or walk less than four hours per eight-hour
workday, and sit six hours in per eight-hour workday. (R. 359). The cardiologist also opined
plaintiff “[m]ust periodically alternate sitting and standing to relieve pain or discomfort.” Id. The
opinion imposes no other limitations. (R. 359-60).
ANALYSIS
Plaintiff argues that his treating cardiologist limited him to standing/walking no more
than four hours a day and required that he have a sit/stand option. (Dkt. 20; R. 359-60). Plaintiff
argues that the ALJ gave “great weight” to the cardiologist’s opinion but failed to adopt these
two limitations and failed to explain his reasons for not including them in the residual functional
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capacity findings. (Dkt. 20). Plaintiff contends that this error is reversible because, due to
plaintiff’s age and limited education, a residual functional capacity for sedentary work would
result in a finding of disability. Id.
The Commissioner argues that the ALJ’s discussion of the other evidence in the record,
particularly the treatment notes showing that plaintiff’s condition improved drastically after
placement of the stent and plaintiff’s own reports about his activity levels, supports the ALJ’s
decision not to include a four-hour limitation on plaintiff’s ability to stand and walk. (Dkt. 22).
The Commissioner also argues that the ALJ was not required to adopt all of the restrictions in the
treating cardiologist’s opinion. Id. The Commissioner further argues that the ALJ’s step five
findings are supported by substantial evidence because “[t]he ALJ clearly found significantly
more than the full range of sedentary work, with greater than sedentary lifting and standing
abilities, as well as the full sedentary sitting requirement.” Id. at n.10.
The analysis of a treating physician’s opinion is sequential. First, the ALJ must determine
whether the opinion qualifies for “controlling weight,” by determining whether it is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and whether it is
consistent with the other substantial evidence in the administrative record. Watkins v. Barnhart,
350 F.3d 1297, 1300 (10th Cir. 2003). If the answer is “no” to the first part of the inquiry, then
the analysis is complete. If the ALJ finds that the opinion is well-supported, he must then
confirm that the opinion is consistent with other substantial evidence in the record. Id. “[I]f the
opinion is deficient in either of these respects, then it is not entitled to controlling weight.” Id.
However, even if the ALJ finds the treating physician’s opinion is not well-supported by
medically acceptable clinical and laboratory diagnostic techniques or is inconsistent with the
other substantial evidence in the record, treating physician opinions are still entitled to deference
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and must be evaluated in reference to the factors enumerated in 20 C.F.R. § 404.1527. 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, 350 F.3d at 1301 (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 the opinion.
Id. (citing 20 C.F.R. § 404.1527(d)(2), now (c)(2)). The reasons must be of sufficient specificity
to make clear to any subsequent reviewers the weight the adjudicator gave to the treating
physician’s opinion and the reasons for that weight. See Anderson v. Astrue, 319 F. App’x 712,
717 (10th Cir. 2009) (unpublished).1
If the ALJ decides to reject part of an opinion, he must also explain his reasons for doing
so. See Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007). “An ALJ is not entitled to pick
and choose through an uncontradicted medical opinion, taking only the parts that are favorable to
a finding of nondisability.” Id. (citing Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir.
2004) and Hamlin v. Barnhart, 365 F.3d 1208, 1219 (10th Cir. 2004). This analysis applies to
opinions that the ALJ gives great weight. See generally Dutton v. Colvin, ___ F. App’x ___,
2015 WL 9273131 (10th Cir. December 21, 2015) (unpublished). Accordingly, the ALJ was
required to give good reasons for his failure to adopt all of the restrictions in the treating
cardiologist’s opinion.
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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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Stand/Walk Restriction
Both parties mis-read the ALJ’s decision. The ALJ did adopt the four-hour limitation on
standing and walking. (R. 19). This limitation represents a reduction in the ability required for
the full range of light work, which is defined as the ability to stand or walk for six hours in an
eight-hour day. See 20 C.F.R. §§ 404.1567, 416.967; SSR 83-10. Although the ALJ references
light work elsewhere in the decision, his residual functional capacity findings make clear that he
found plaintiff could perform less than the full range of light work. (R. 19, 24).
However, plaintiff’s argument that a limitation to standing for four hours qualifies as
sedentary work is not persuasive. The Tenth Circuit has upheld a finding that a claimant could
perform light work with a four-hour limit on standing and walking when the ALJ’s findings were
supported by substantial evidence in the form of a vocational expert’s testimony. See Newburn v.
Barnhart, 62 F. App’x 300, 302, 304 (10th Cir. 2003) (unpublished). See also SSR 83-10 (noting
that a few jobs involving “some pushing and pulling of arm-hand or leg-foot controls” qualify as
light work even though they meet the stand/walk requirements of sedentary work).
Sit/Stand Option
In his discussion of the medical evidence, the ALJ mentions that the treating
cardiologist’s opinion included a periodic sit/stand option. (R. 22). However, in his analysis of
that opinion, the ALJ did not discuss the sit/stand limitation. (R. 24). The ALJ stated that he gave
the cardiologist’s opinion
great weight as it is substantiated by the objective medical evidence, and
portrays a more accurate assessment of the claimant’s limitations. Dr. [Alan]
Kaneshige was of the opinion the claimant could lift and/or carry 50 pounds
occasionally and 25 pounds frequently; stand and/or walk for 4 hours out of an
8-hour workday, and sit for 6 hours out of an 8-hour workday.
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Id. The Court interprets the ALJ’s analysis to include adoption of only those findings specifically
listed; therefore, the ALJ did not adopt the sit/stand option. This limited analysis is the only
discussion of the weight given to the cardiologist’s opinion and does not include the ALJ’s
reasons for deciding not to give controlling weight to the opinion or for rejecting the sit/stand
option.
The ALJ’s failure to explain his reasoning, however, is harmless error because the ALJ’s
step five findings accommodate all of the limitations in the cardiologist’s opinion.
Step Five Findings
At the hearing, the ALJ posed a hypothetical to the vocational expert in which plaintiff
could “perform work at the medium level defined as no more than occasional lifting up to 50
pounds, no more than frequent lifting or carrying up to 25 pounds. Standing/walking four hours
out of an eight-hour workday. Sitting six hours out of an eight-hour workday.” (R. 53). The
vocational expert testified that she could not identify any medium jobs with those limitations due
to the standing requirement, but, based on her experience, she could identify several light jobs.
(R. 53, 55). The vocational expert stated that plaintiff could perform light work as a “parking lot
attendant” or “cashier II.” (R. 54). Within the “cashier II” category, the vocational expert
identified the job of “booth cashier,” which would accommodate the standing and walking
limitation because “[b]ooth cashiers allow a person to sit or stand.” Id. The vocational expert
testified that there are 2,000 booth cashier jobs in Oklahoma and 170,000 nationwide. (R. 53-54).
At step five, the ALJ must prove that plaintiff can:
Engage in any other kind of substantial gainful work which exists in the
national economy, regardless of whether such work exists in the immediate
area in which he lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work. For purposes of the
preceding sentence (with respect to any individual), “work which exists in the
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national economy” means work which exists in significant numbers either in
the region where such individual lives or in several regions of the country.
42 U.S.C. § 423(d)(2)(A) (emphasis added). The booth cashier job satisfies all of the limitations
set forth in the cardiologist’s opinion, including the sit/stand option. Therefore, the ALJ’s failure
to include the sit/stand option in the residual functional capacity findings or state his reasons for
rejecting that limitation is harmless error because the ALJ identified other work existing in
significant numbers nationally that plaintiff can perform, even with the inclusion of the sit/stand
option. See Stokes v. Astrue, 274 F. App’x 675, 684 (10th Cir. 2008) (unpublished) (finding
harmless error at step five even though two of the four jobs cited by the ALJ conflicted with the
residual functional capacity findings because the remaining jobs existed in significant numbers
[11,000 regionally and 152,000 nationally] satisfied the ALJ’s burden).
CONCLUSION
For the foregoing reasons, the ALJ’s decision finding plaintiff not disabled is hereby
AFFIRMED.
SO ORDERED this 11th day of March, 2016.
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