Carrier v. Social Security Administration

Filing 27

OPINION AND ORDER by Magistrate Judge Paul J Cleary (crp, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA

DUSTI LYNNE CARRIER,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Case No. 15-CV-189-PJC

OPINION AND ORDER
Plaintiff, Dusti Lynne Carrier (“Carrier”), seeks judicial review of the decision of the
Commissioner of the Social Security Administration (“Commissioner” and “SSA”) denying
Carrier’s application for supplemental security income benefits under Title XVI of the Social
Security Act, 42 U.S.C. § 1382c(a)(3). For the reasons discussed below, the Commissioner’s
decision is AFFIRMED.
Procedural History
Carrier filed her application for supplemental security income benefits with a protective
filing date of May 8, 2012. [R. 16, R.136]. She originally alleged onset of disability as of
October 13, 2004. [R. 16, R. 124]. The application was denied initially and on reconsideration.
[R.50-72]. An administrative hearing was held before Administrative Law Judge Richard J.
Kallsnick on September 26, 2013. [R. 27-49]. At the hearing, Carrier amended her alleged onset
date to June 5, 2012. [R. 47]. By decision dated November 12, 2013, the ALJ determined
Carrier was not disabled. [R. 16-21]. The Appeals Council denied Carrier’s request for review
on February 18, 2015. [R. 1-7]. Thus, the decision of the ALJ represents the Commissioner’s

final decision for purposes of this appeal. 20 C.F.R. § 416.1481. Carrier timely sought review by
this court.
Claimant’s Background
Carrier was born on January 29, 1991, and was 22 years old at the time of the ALJ’s
decision. [R. 31, R. 124]. She has an eleventh grade education, and does not have a GED. [R.
31]. Carrier has never worked. Id.
At a hearing on September 26, 2013, Carrier testified that injuries from a motor vehicle
accident in October 2004 prevent her from being able to work. [R.32]. In the accident, she broke
her right humerus, tore the meniscus of her right knee, crushed her pelvis and broke her sacrum.
[R. 32-33]. She testified that, due to pain in her right arm, she can lift no more than ten pounds
for two hours a day and it hurts to use the fingers on that hand. [R. 34-35]. She cannot type on a
keyboard with her right hand because her hand and arm start hurting. [R. 35]. She has pain in
her lower back ninety percent of the time; the only time it is not bad is when she is lying down.
[R. 36]. When her back hurts, she has to lie down for an hour or two more than once a day. [R.
41]. She also would be unable to keep up any pace if she worked. [R. 40-41]. She can sit for
thirty-five to forty-five minutes before she has to stand up. [R. 36]. If she doesn’t adjust her
posture while she’s sitting, it hurts and her whole backside area gets completely numb. [R. 37].
She can only walk fifteen to twenty minutes before her right knee starts hurting; after that, she
has to lie down and prop her leg up on the couch or bed. Id. Walking also hurts her back, and
she has to lie down frequently with a pillow under her leg. [R. 37-38]. Due to her back pain, she
would be unable to work eight hours per day, five days a week, and some days should would not
even be able to make it to the jobsite. [R. 38]. In the past, she has been on Norco 75s, 10s and
oxycodone, and she used to go to a pain management doctor. [R. 38-39]. Currently she takes

2

Tramadol, which “barely takes an edge off of it, if it even does that.” [R. 39]. She takes Zoloft
for depression; for the most part, it helps. [R. 39-40]. She also has ADHD, which makes it hard
for her to sit still, and she can’t concentrate on one thing for more than 20 minutes. [R. 40].
Before her accident, claimant used to ride horses, but because of her back injury, she is
unable to do so anymore. Id. She has no social life. Id. She has three children, ages three, two
and nine months. [R. 41]. She normally stays on the couch; the older two children listen pretty
good and her mom and sister come over and help her take care of the children until her husband
gets home. Id. She can hold her youngest child on her lap but cannot pick her up when she is
standing up, because of her right arm and back. [R. 43]. When she doesn’t have help with the
children, she turns on cartoons and lets them do what they want until someone else gets there.
[R. 42].
Claimant and her husband, Jacob Dwayne Carrier, both completed adult function reports.
[R. 145-154 (Ex. 3E); R. 155-164 (Ex. 4E)]. Claimant reported that she has no problems with
personal care. [R. 146]. She sometimes has problems sleeping because of pain and discomfort.
[R. 156]. She takes care of her children and maintains the house on a daily basis. Id. She
routinely feeds, clothes and bathes the children, fixes meals, cleans the house and does laundry.
[R. 156-157]. She drives and goes shopping for food, hygiene items and necessities. [R. 158].
She watches her children play, watches television and plays video games every day, and talks to
people on the phone; she does not go places on a regular basis but goes to doctors’ appointments
as needed. [R. 159]. She cannot go out hunting or fishing, or engage in social activities with
friends and family because she is in too much pain. [R. 160]. Due to pain, she has problems
with lifting, squatting, bending, standing, walking, sitting, kneeling, stair climbing and
completing tasks. [R. 160]. She can walk about seven to ten minutes before needing to stop and

3

rest. Id. She cannot pay attention for very long and has trouble following written and/or spoken
instructions. Id. She doesn’t handle stress or changes in routine well. [R. 161]. She is very
emotional, terrified of surrounding vehicles and fearful of breaking bones again. Id. She has a
knee brace, which she wears as needed. Id.
Carrier’s husband generally concurred with claimant’s report concerning her activities,
capabilities and limitations. He stated she can walk for about 200 feet before needing to stop and
rest, and can resume walking after ten to twenty minutes. [R. 150]. He stated that she follows
written instructions well but spoken instructions have to be explained very carefully and slow.
Id.
Claimant currently takes Zoloft for depression and Tramadol, Tylenol, Aleve and
ibuprofen for pain. [R. 276 (Ex. 17E)].
Carrier was seen by consultative psychologist, Minor W. Gordon, Ph.D., on December 3,
2012. [R. 280-282 (Ex. 1F)]. Dr. Gordon reported that claimant alleged problems with her back
and right arm secondary to residuals from the 2004 auto accident as her rationale for applying for
disability benefits. [R. 281]. She did not allege any type of psychological disturbance that
would preclude her from gainful employment. [R. 281]. She has never been treated by any type
of mental health professional. Id. Dr. Gordon assigned no diagnoses on AXIS I, AXIS II or
AXIS IV, and gave her a GAF score of 80. Id. Based on casual conversation, he estimated her
level of intelligence as average to low average. Id. He commented that “[h]er direction appears
to be governed by her roles as a mother and homemaker.” Id.
Jerry Patton, D.O., performed a consultative physical examination of claimant on
December 18, 2012. [R. 283-287 (Ex. 2F)]. She was seven months pregnant at the time. [R.
284]. She reported injuries to her lower back, pelvis, knee and upper right arm as a result of the

4

2004 vehicle accident. [R. 283]. She has had two surgeries on her right knee, five surgeries on
her left arm and four surgeries on her pelvis. Id. She also complained of chronic headaches. Id.
The doctor concluded she had normal range of motion of the lumbar, thoracic and cervical spine;
deep tendon reflexes are +1 and equal; she was able to walk on her toes and heels without
difficulty; she seemed to walk in a safe and stable manner and did not use an assistive device;
however, she stated that she can only walk approximately thirty to fifty feet. [R. 284]. She did
not appear to be in pain while in the doctor’s office, was able to get on and off the examination
table without difficulty; had a grip strength of 5/5 with her hands; could oppose fingers to
thumbs without difficulty; had good pedal pulses with no peripheral edema; and muscle masses
were considered equal. Id. The doctor’s impression was that Carrier has some lingering pain in
her pelvis and low back; she stated her right knee is painful, but it appeared to be normal on
inspection; she appeared to be using her arm, hand and shoulder in a normal fashion; she
admitted to headaches; and she was seven months pregnant. Id.
Social Security Law and Standard of Review
To qualify for SSI under Title XVI of the Act, an individual must be financially eligible,
file an application, and be under a “disability” as defined in the Act. 42 U.S.C. § 1382. SSI
payments cannot be made prior to the month following the month the claimant files an
application. See 20 C.F.R. § 416.335.
For purposes of SSI, a claimant is disabled under the Act only if her “physical or mental
impairment or impairments are of such severity that [she] is not only unable to do [her] previous
work but cannot, considering [her] age, education, and work experience, engage in any other
kind of substantial gainful work which exists in the national economy.” 42 U.S.C. §
1832c(1)(3)(B). Social Security regulations implement a five-step sequential process to evaluate

5

a disability claim. 20 C.F.R. § 404.1520.1 See also Wall v. Astrue, 561 F.3d 1048, 1052 (10th
Cir. 2009) (detailing steps). “If a determination can be made at any of the steps that a claimant is
or is not disabled, evaluation under a subsequent step is not necessary.” Lax, 489 F.3d 1080,
1084 (10th Cir. 2007) (citation and quotation omitted).
At steps one through four of the five-step sequential evaluation process, the burden of
proof lies with the plaintiff. See 20 C.F.R. §§ 404.1512(a), 416.912(a); Grogan v. Barnhart, 399
F.3d 1257, 1261 (10th Cir. 2005) (citing Williams v. Bowen, 844 F.2d 748, 770-52 (10th Cir.
1988)).
Judicial review of the Commissioner’s determination is limited in scope to two inquiries:
first, whether the decision was supported by substantial evidence; and, second, whether the
correct legal standards were applied. Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004).
“Substantial evidence is such evidence as a reasonable mind might accept as adequate to
support a conclusion. It requires more than a scintilla, but less than a preponderance.” Wall, 561
F.3d at 1052 (quotation and citation omitted). Although the court will not reweigh the evidence,

1

Step One requires the claimant to establish that she is not engaged in substantial gainful
activity, as defined by 20 C.F.R. § 404.1510. Step Two requires that the claimant establish that
she has a medically severe impairment or combination of impairments that significantly limit her
ability to do basic work activities. See 20 C.F.R. § 404.1520(c). If the claimant is engaged in
substantial gainful activity (Step One) or if the claimant’s impairment is not medically severe
(Step Two), disability benefits are denied. At Step Three, the claimant’s impairment is
compared with certain impairments listed in 20 C.F.R. Pt. 404, Subpt. P, App.1 (“Listings”). A
claimant suffering from a listed impairment or impairments “medically equivalent” to a listed
impairment is determined to be disabled without further inquiry. If not, the evaluation proceeds
to Step Four, where the claimant must establish that she does not retain the residual functional
capacity (“RFC”) to perform his past relevant work. If the claimant’s Step Four burden is met,
the burden shifts to the Commissioner to establish at Step Five that work exists in significant
numbers in the national economy which the claimant, taking into account her age, education,
work experience, and RFC, can perform. See Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir.
2007). Disability benefits are denied if the Commissioner shows that the impairment which
precluded the performance of past relevant work does not preclude alternative work. 20 C.F.R. §
404.1520.
6

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.
Decision of the Administrative Law Judge
At Step One, the ALJ found that Carrier had not engaged in any substantial gainful
activity since May 8, 2012, the application date. [R. 18]. He found at Step Two that Carrier had
medically determinable impairments of remote history (2004) of pelvic trauma and status post
fracture of the right humerus. Id. However, he found the claimant did not have an impairment or
combination of impairments that had significantly limited (or was expected to significantly limit)
her ability to perform basic work-related activities for twelve consecutive months; therefore, the
claimant did not have a severe impairment or combination of impairments. Id. Accordingly, his
inquiry stopped at that point, and the ALJ found that Carrier was not disabled at any time from
May 8, 2012, through the date of his decision. [R. 21].
Review
On appeal, Carrier asserts that the ALJ erred at Step Two of the sequential evaluation
process and in his credibility analysis.
Analysis
Step Two Determination
Social Security Ruling (“SSR”) 96-3p sets forth the process for conducting a step two
determination: (1) the claimant must have a medically determinable impairment; (2) this
impairment must reasonably be expected to produce the alleged symptoms; and (3) once the
claimant establishes the requisite connection between the medically determinable impairment(s)
and alleged symptom(s), the Commissioner is to then consider the “intensity, persistence, or

7

functionally limiting effects of the symptom(s)” to determine whether the limitation is severe;
that is, whether it has more than a minimal effect on the claimant’s ability to do basic work
activities. SSR 96-3p, 1996 WL 374181.
The step two severity determination is based on medical factors alone and “does not
include consideration of such vocational factors as age, education, and work experience.”
Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988). While the Step Two burden has been
characterized as “de minimis,” the mere presence of a condition is not sufficient to make a step
two showing. Williamson v. Barnhart, 350 F.3d 1097, 1100 (10th Cir. 2003). In determining
whether a severe impairment exists, the Commissioner considers the “effect” of the impairment.
20 C.F.R. §§ 404.1520(a), 416.920(a); Williamson, 350 F.3d at 1099-1100. Thus, when Congress
categorized the severity requirement in the regulations, it noted that a claimed “physical or
mental impairment must be of a nature and degree of severity sufficient to justify its
consideration as the cause of failure to obtain any substantial gainful work.” S.Rep. No. 1987,
83d Cong., 2d Sess., reprinted in 1954 U.S. Code Cong. & Ad. News 3710, 3730 (emphasis
added); Williamson, 350 F.3d at 1100.
The ALJ concluded that Carrier’s impairments were not singly or in combination severe.
In reaching this conclusion, the ALJ addressed whether the impairments had significantly limited
claimant’s ability to perform basic work-related activities for 12 consecutive months. 20 C.F.R. §
416.921 et seq.2

2

“Basic work activities” include walking, standing, sitting, lifting, pushing, pulling, reaching,
carrying or handling; seeing, hearing, and speaking; understanding, carrying out, and remembering
simple instructions; use of judgment, responding appropriately to supervision, coworkers, and
usual work situations; and dealing with changes in a routine work setting. SSR 85-28 (PPS-122)
1985. “[T]hese basic work factors are inherent in making a determination that an individual does
not have a severe medical impairment.” Id.
8

In reliance on Dr. Gordon’s psychological evaluation, the ALJ found Carrier had no
psychological disturbance that would preclude her from gainful employment. [R. 20]. With
respect to physical limitations, the ALJ acknowledged and discussed her significant injuries in the
2004 car accident, but noted that by March 20, 2007, Todd Swenning, M.D., of Tulsa Orthopedic
Trauma Specialists wrote that the right humerus was “pretty well healed,” her right elbow was
stable to varus and valgus stress, and x-rays of the humerus showed a healed fracture with no
evidence of hardware loosening. [R. 20, R. 398 (Ex. 8F)]. Additionally, he cited records
indicating that the pelvis fixator was removed April 24, 2006. [R. 20, R. 355 (Ex. 7F)].
The ALJ also cited treatment notes from Michele Bucholtz, D.O., who examined Carrier
on July 3, 2012, reported claimant had normal motor function, gait and stance, and noted that she
engaged in moderate exercise and described herself as being sexually active. [R. 20, R. 329 (Ex.
5F)].
Additionally, the ALJ cited and relied on the report of the consultative physician, Dr.
Patton, who stated that Carrier told him she had surgery on her pelvis four times and complained
of ongoing pain, but was able to walk on her toes and heels without difficulty, did not appear to be
in pain and was able to get on and off the exam table without difficulty. [R. 20, R. 283-284 (Ex.
2F)]. The ALJ noted Dr. Patton’s findings that her grip strength was 5/5; her muscle masses were
equal; her ranges of motion in her lumbar, thoracic and cervical spine were normal; her right knee,
which she also claimed was painful, was normal upon inspection; and she appeared to be using her
arm, hand and shoulder in a normal fashion. [R. 20, R. 284]. Finally, the ALJ stated that no
medical records support the claimant’s allegations of great pain and physical limitations. [R. 20].
Plaintiff also complains that the Commissioner failed to consider medical evidence
submitted after the ALJ’s November 12, 2013 decision. Specifically, on January 3, 2014,

9

counsel submitted a medical source statement signed by Dr. Beeson and dated December 13,
2013. [R. 818-820 (Ex. 21F)]. In that statement, Dr. Beeson opined that because of her injuries
from the motor vehicle accident, Carrier is unable to perform any work-related exertional
activities; has limitations on climbing and balancing and on reaching, handling, fingering and
feeling with her right hand and arm; and must avoid all exposure to extreme cold, heat, wetness,
noise, vibration and hazards (machinery, dangerous equipment, heights, etc.). [R. 819-20 (Ex.
21F)]. The Appeals Council declined to consider the medical source statement because it was
generated after the ALJ’s November 12, 2013, decision. [R. 2].
Pursuant to 20 C.F.R. §§ 404.970(b) and 416.1470(b), “the Appeals Council must
consider evidence submitted with a request for review if the additional evidence is (a) new, (b)
material, and (c) relate[d] to the period on or before the date of the ALJ’s decision.” Chambers v.
Barnhart, 389 F.3d 1139, 1142 (10th Cir. 2004) (citations omitted). Because the medical source
statement was completed after the ALJ’s November 12, 2013 decision, it is chronologically
irrelevant and, therefore, was properly excluded.3
Claimant has failed to carry her burden of proof that her impairments, either singly or in
combination, are severe, and substantial evidence supports the ALJ’s step two determination.
Credibility Determination
Claimant also challenges the ALJ’s credibility determination. “[O]nce the requisite
relationship between the medically determinable impairment(s) and the alleged symptom(s) is
established, the intensity, persistence, and limiting effects of the symptom(s) must be considered
3

The court notes that on December 17, 2013, counsel for plaintiff submitted treatment notes
from an October 14, 2013, visit by claimant to Clint W. Beeson, M.D. [R. 821-822 (Ex. 22F)].
In that visit, Carrier sought treatment of lesions on her right leg where some warts had previously
been frozen. [R. 822]. This evidence is new and relates to the period on or before the date of the
ALJ’s decision, but does not appear to be material, nor does claimant contend, on appeal, that it
should have been considered.
10

along with the objective medical and other evidence in determining whether the impairment or
combination of impairments is severe.” SSR 96-3) (S.S.A.), 1996 WL 374181. The ALJ found
that the claimant’s medically determinable impairments could reasonably be expected to produce
the alleged symptoms; however, the claimant’s statements concerning the intensity, persistence
and limiting effects of these symptoms were not entirely credible. [R. 20].
“[C]redibility determinations are peculiarly the province of the finder of fact, and [the
court] will not upset such determinations, when supported by substantial evidence.” Wilson v.
Astrue, 602 F.3d 1136, 1144 (10th Cir. 2010) (internal quotation marks and citation omitted).
Those findings “should be closely and affirmatively linked to substantial evidence and not just a
conclusion in the guise of findings.” Id. (internal quotation marks and citation omitted).
“[C]ommon sense, not technical perfection, is [the] guide” of a reviewing court. Keyes-Zachary v.
Astrue, 695 F.3d 1156, 1167 (10th Cir. 2012).
The ALJ, in assessing claimant’s allegations of pain, was required to consider both the
objective medical evidence and other evidence, including information about the claimant’s prior
work record, her own statements about symptoms, evidence submitted by her treating or
nontreating source and observations by agency employees and other persons. 20 C.F.R. §
404.1529(c)(3). In making his credibility determination, the ALJ relied, inter alia, on the
following evidence:
 No medical records supported Carrier’s allegations of great pain and physical
limitations;
 During the consultative examination by Dr. Gordon, claimant denied having any
mental problems that would preclude her being employed;

11

 Claimant did not graduate from high school, sit for a GED, investigate vocational
training or attempt to work;
 She takes care of her three children and told Dr. Gordon she cooks, cleans and goes
grocery shopping; further, Dr. Gordon opined her direction appeared to be
governed by her roles as a mother and homemaker.
 Although claimant’s husband reported that his wife was limited in her standing,
sitting, lifting and bending, he did not indicate she has any problem preparing food
daily, bathing their young children, performing daily cleaning, cooking and
laundry, or driving to stores to shop or to attend doctor appointments.
 Treating physician Dr. Bucholtz noted that the claimant had normal movement in
all her extremities and that her motor function, gait and stance were normal.
This evidence provides substantial support for the ALJ’s credibility determination.
Accordingly, the court will not disturb the ALJ’s decision.
Conclusion
For the reasons set forth above, the Commissioner’s decision is hereby AFFIRMED.
Entered this 29th day of August, 2016.

12