Fisher v. Social Security Administration
Filing
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OPINION AND ORDER by Magistrate Judge Frank H McCarthy reversing and, remanding case (terminates case) (tjc, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
BILLY DON JAMES FISHER,
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PLAINTIFF,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
DEFENDANT.
CASE NO. 15-CV-226-FHM
OPINION AND ORDER
Plaintiff, Billy Don James Fisher 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
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Plaintiff Billy Don James Fisher’s application was denied initially and upon reconsideration.
A hearing before an Administrative Law Judge (ALJ) Jeffrey S. Wolfe was held on April 22, 2013, and
a supplemental hearing was held on September 18, 2013. By decision dated November 29, 2013, the
ALJ entered the findings which are the subject of this appeal. The Appeals Council denied Plaintiff’s
request for review on February 27, 2015. 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.
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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 44 years old on the alleged date of onset of disability and 46 years old
on the date of the denial decision. He has a general education development (GED)
certificate and his past relevant work includes steel worker, fiberglass fabricator, and
swimming pool service. Plaintiff claims to have been unable to work since January 1, 2012
due to problems with his hearing, shoulders, back, neck, hands, depression, and anxiety.
[R. 291].
The ALJ’s Decision
The ALJ determined that the Plaintiff has severe impairments relating to status post
bilateral shoulder surgery, status post carpal tunnel syndrome, headaches, cervical bulging,
low back, depression, and anxiety. [R. 13]. The ALJ found that the Plaintiff has the residual
functional capacity (RFC) to perform light work. Plaintiff can occasionally climb ladders,
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ropes, and scaffolds. Reaching, handling, and fingering are limited to frequent with no
limitation on feeling. Plaintiff has moderate limitations in understanding, remembering, and
carrying out detailed instructions; the ability to maintain attention and concentration for
extended periods; and ability to complete a normal work-day and work week without
interruptions from psychologically based symptoms; and to perform at a consistent pace
without an unreasonable number and length of rest periods. Plaintiff is able to understand,
remember, and carry out simple instructions but may have problems with detailed
instructions because of his depression. Plaintiff has the ability to maintain attention to
perform simple repetitive tasks for two hour blocks of time, yet he may have difficulties with
longer durations due to his mental condition. Plaintiff’s ability to sustain effort and persist
at a normal pace over the course of a forty hour work week is mild to moderately impaired.
His ability to relate to others, including supervisors and co-workers, is not impaired. Plaintiff
is limited to simple tasks, working in two hour time blocks with the usual breaks in a
competitive work day. He can adequately relate to co-workers and supervisors and can
complete a 40 hour work week. [R. 15].
Although Plaintiff is unable to perform his past relevant work, based on the testimony
of the vocational expert, the ALJ found that there are a significant number of jobs in the
national economy that Plaintiff could perform with these limitations.
[R. 26-27].
Accordingly, the ALJ determined that 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).
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Plaintiff’s Allegations
Plaintiff argues that the ALJ: 1) failed to recognize chronic obstructive pulmonary
disease (COPD) as a severe impairment at step two; 2) the RFC determination failed to
include all of Plaintiff’s limitations; 3) failed to perform a proper credibility determination; and
4) failed to properly consider Plaintiff’s impairments in conjunction with the testimony of the
vocational expert.
Analysis
Step Two Determination
Plaintiff argues that the ALJ erred because the ALJ did not refer to or discuss
Plaintiff’s diagnosis of COPD in the decision. Plaintiff asserts that COPD qualifies as a
“severe” impairment at step two. [Dkt. 13, p. 3-4].
Plaintiff was diagnosed with COPD with bronchitis on December 30, 2012 and was
prescribed medications. [R. 859-872]. Plaintiff subsequently sought treatment for this
impairment in March 2013, August 2013, and December 2013. [R. 943-946; 1020-25;
1039-44]. Plaintiff testified that he had problems walking long distances, walking up a hill,
and playing with his grandchildren. [R. 103]. The ALJ noted Plaintiff testified that he
suffered from shortness of breath and could walk one block before needing to stop and rest
for 5 to 10 minutes. [R. 16]. However, the ALJ did not provide any analysis of Plaintiff’s
complaints related to COPD.
For purposes of step two, severe impairments are ones which significantly limit the
ability to do basic work activities. 20 C.F.R. 404.1520(c). At step two of the evaluative
sequence, the ALJ must determine whether Plaintiff suffers from severe impairments.
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Once an ALJ finds that a claimant has at least one severe impairment, a failure to
designate others as “severe” at step two does not constitute reversible error because,
under the regulations, the agency at later steps “consider[s] the combined effect of all of
[the claimant’s] impairments without regard to whether any such impairment, if considered
separately, would be of sufficient severity.” 20 C.F.R. §§ 404.1521, 416.921; see also 20
C.F.R. §§ 404.1525(e), 416.945(e); Mariaz v. Sec’y of Health & Human Servs., 857 F.2d
240, 244 (6th Cir. 1987), Brescia v. Astrue, 287 Fed. Appx. 616, 629 (10th Cir. 2008). An
error at step two of the sequential evaluation concerning one impairment is harmless when
the ALJ finds another impairment is severe and proceeds to the remaining steps of the
evaluation.
Assuming that Plaintiff met the burden of showing that COPD is a severe
impairment, aside from Plaintiff’s testimony which the ALJ found was not credible, Plaintiff
has not identified any functional limitations in the record related to his COPD that would
support further limitations than the RFC for light work. As a result, the court finds no basis
for reversing the ALJ’s decision for his treatment of Plaintiff’s COPD.
Residual Functional Capacity
Plaintiff argues that the ALJ erred by failing to include environmental restrictions for
his respiratory condition in the RFC. The ALJ also failed to consider Plaintiff’s chronic
nerve damage, numbness, loss of feeling in both hands due to bilateral carpal tunnel
syndrome, his neck MRI findings, or the subsequent option for surgery. Plaintiff contends
that the ALJ relied upon the physical RFC completed by the non-examining agency
physician which acknowledged left shoulder surgery but failed to address the two surgeries
to his right shoulder. [Dkt. 13, p. 4-5].
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Plaintiff underwent left shoulder surgery for rotator cuff repair in February 2009
which was performed by Jeffrey R. Morris, D.O. [R. 406-407]. Subsequently, Dr. Morris
performed two surgeries on Plaintiff’s right shoulder for rotator cuff repair and impingement
syndrome in May 2009 and November 2009. [R. 402-405]. A cervical MRI in September
2008 revealed Plaintiff had foraminal narrowing at C5-6 and multiple other levels along the
cervical spine. [R. 400 - 401]. Two subsequent cervical MRIs performed in September
2010, [R. 500-501], and November 2012, [R. 857-858], did not reveal any significant
changes. On November 11, 2010, David R. Hicks, M.D., noted that despite physical
therapy, Plaintiff complained of continued axial cervical spine pain. Dr. Hicks found
tenderness to palpation on the right neck and shoulder area. Dr. Hicks opined that Plaintiff
had reached the point of maximum medical improvement and released him from his care
with permanent restrictions for occasional overhead and above shoulder activity. [R. 466468]. In January 2013, Dr. Hicks addressed Plaintiff’s complaints of headaches, numbness
and tingling in his bilateral arms down into his thoracic spine, cervical pain, and bilateral
arm weakness. Dr. Hicks found Plaintiff had a decreased ability to perceive pinprick over
his right index finger. [R. 880-882]. An electromyogram (EMG) performed in October 2013
revealed mild slowing in the right and left median nerve. [R. 1046-1047].
A Physical Residual Functional Capacity Assessment (PRFC) was prepared by a
Disability Determination Services (DDS) consultant on June 5, 2012. The assessment
refers to Plaintiff’s treatment for left rotator cuff syndrome and left carpal tunnel surgery, but
does not mention the cervical MRIs or Plaintiff’s two right shoulder surgeries. [R. 795-802].
The ALJ’s RFC determination mirrors the DDS assessment. The RFC includes frequent
reaching, handling and fingering, and no limitation on feeling. The permanent reaching
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restrictions by treating orthopedic surgeon, Dr. Hicks, were not included in the RFC or
otherwise discussed or acknowledged by the DDS doctor or by the ALJ. In addition the
court notes there is no mention of the decreased sensation to pinprick recorded by Dr.
Hicks which seems to be directly contrary to the ALJ’s finding of no limitation in feeling. [R.
15]. Nor did the ALJ mention the EMG testing interpreted by Dr. Hicks as being consistent
with chronic median nerve damage in carpal tunnel bilaterally. [R. 1037]. The court finds
that the ALJ’S RFC determination is not supported by substantial evidence because these
significant findings were not addressed by the ALJ.
Credibility Determination
Plaintiff argues that the ALJ’s decision should be reversed because he failed to
properly evaluate his credibility. “Credibility determinations are peculiarly the province of
the finder of fact, and [the court] will not upset such determinations when supported by
substantial evidence. However, findings as to credibility should be closely and affirmatively
linked to substantial evidence and not just a conclusion in the guise of findings.” Hackett
v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005)(citation, brackets, and internal quotation
marks omitted).
In determining that Plaintiff’s testimony was not credible, the ALJ articulated his
reasons for his credibility finding including Plaintiff’s ongoing activities with antique cars
including belonging to a car club and attending car shows; traveling out of town, going to
church and Bible study; and caring for his 8 year old granddaughter who resides with him.
[R. 20]. The court finds that the ALJ properly linked his credibility finding to the record and
that the credibility finding is supported by substantial evidence. Therefore, the court finds
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no reason to deviate from the general rule to accord deference to the ALJ’s credibility
determination.
Testimony of Vocational Expert
Plaintiff argues that the ALJ failed to properly consider his impairments in
conjunction with the testimony of the vocational examiner. Plaintiff contends that the mild
to moderate impairment in his ability to sustain effort and persist at a normal pace over the
course of a forty-hour work week found by the ALJ in the RFC assessment would preclude
competitive work addressed by the vocational expert. [Dkt. 13, p. 8-9].
Plaintiff’s argument is based upon the vocational expert’s testimony that anything
over and above the normal amount of breaks would preclude competitive employment
without special accommodation. [R. 73]. However, the ALJ’s RFC determination found
Plaintiff was capable of working with “ususal breaks” in a competitive work day. [R. 15].
The vocational expert also testified that given the hypothetical physical and mental
limitations, “there would be some unskilled jobs at the light exertional level that would be
available.” [R. 130]. Likewise, the medical expert, Dr. Bedwell, testified that a moderate
limitation does not preclude Plaintiff from completing a 40 hour work week or from doing
simple, repetitive type tasks. [R. 60-61]. Despite Plaintiff’s moderate limitation in this area,
he is still able to function satisfactorily.
The court finds that Plaintiff’s assertions that the testifying medical expert and the
RFC limitations suggested an inability to work are not supported by the record. The court
finds no error in the ALJ’s failure to repeat findings of moderate limitations in the RFC. The
ALJ appropriately incorporated these findings by stating how Plaintiff was limited in the
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ability to perform work-related activities. See Smith v. Colvin, ___ F3d. ___ (10th Cir.
2016); 2016 WL 2620519 at *4.
CONCLUSION
The court finds that the ALJ’s decision must be reversed and the case remanded
because the ALJ failed to address the permanent restrictions found by Dr. Hicks and other
evidence discussed herein that would seem to have an impact on the RFC finding. On
remand, new vocational testimony will be necessary in light of the reevaluation of the RFC
determination. The ALJ’s decision is therefore REVERSED and the case REMANDED for
further proceedings in accordance with this Opinion and Order.
SO ORDERED this 12th day of August, 2016.
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