Henson v. Social Security Administration

Filing 25

OPINION AND ORDER by Judge John E Dowdell The Plaintiff's Objections (Doc. 24) are overruled. The Court accepts the Report and Recommendation (Doc. 23), and the Commissioner's decision is affirmed. ; accepting 23 Report and Recommendation (Re: 24 Objection to Report and Recommendation ) (JED1, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
ANGELA M. HENSON,
Plaintiff,
v.
NANCY A. BERRYHILL,1
Acting Commissioner of the Social
Security Administration,
Defendant.

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Case No. 16-CV-09-JED-FHM

OPINION AND ORDER
Before the Court is the Report & Recommendation (R&R) (Doc. 23) of United States
Magistrate Judge Frank H. McCarthy on review of a decision of the Commissioner of the Social
Security Administration (Commissioner) denying the plaintiff, Angela M. Henson, disability
benefits. Judge McCarthy recommends that the Court affirm the Commissioner’s decision finding
plaintiff not disabled. Ms. Henson filed timely Objections to the R&R, and she requests that the
Court reject the R&R and remand for further administrative proceedings. (Doc. 24). Reviewing
the Objections de novo, the Court has considered the Administrative Record (Doc. 11) (Record),
the parties’ briefs, the R&R, and the plaintiff’s Objections, and concludes that the Commissioner’s
determination should be affirmed and the R&R should be accepted.
I.

Background
In her August 2013 claims for disability benefits, plaintiff alleged a disability onset date of

May 17, 2012, which was one day after a prior determination that she was not disabled. She was
33 at the time on alleged onset, she had worked as a nurse’s aide, a car-hop at Sonic, and a machine

Nancy A. Berryhill is now the Acting Commissioner of the Social Security Administration.
Pursuant to Fed. R. Civ. P. 25(d), the Court Clerk is directed to substitute Nancy A. Berryhill as
the defendant in this matter in place of former Commissioner Carolyn W. Colvin.
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operator. She has a sixth grade education. She claims that she has been unable to work since May
17, 2012, due to lower back injury, depression, heart issues, “muscles cramp in middle back,”
transient ischemic attacks, and anxiety/panic attacks. (Record 94, 342). She had a mitral heart
valve replacement on March 1, 2012. She also claims that, as a result of one of her medications,
she must use the bathroom every 10-15 minutes for four to five hours after taking the medication.
At the hearing, she further asserted that she suffers from tailbone pain.
Following an October 15, 2014 hearing before the Administrative Law Judge (ALJ), the
ALJ rendered a decision dated December 16, 2014. (Record at 73-90). The ALJ determined that
plaintiff has a severe impairment of valvular heart disease. (Id. at 78). However, the ALJ found
that the plaintiff’s other alleged impairments (anxiety, back and tailbone pain, depression and
restroom problems due to side effects of medication) were non-severe because those conditions do
not, singularly or in combination, result in any significant limitation in the plaintiff’s ability to do
basic work activities. (Id. at 78-79). The ALJ concluded that the plaintiff has the residual
functional capacity (RFC) to perform light work, with the additional limitation that she requires
the option to alternate sitting and standing every 30 minutes. (Id. at 80). Based on the testimony
of a vocational expert, the ALJ determined that the plaintiff cannot perform her past work (id. at
84), but there are a significant number of jobs in the national economy that she could perform
considering her age, education, work experience, and RFC. (Id. at 85). Each of the jobs referenced
by the ALJ included jobs in the more restrictive sedentary exertional category, which included
trimmer, stuffer, and assembler. (Id.). As a result, the ALJ determined at step five of the evaluation
process that plaintiff is not disabled. (Id.).

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The Appeals Council denied the plaintiff’s request for review (id. at 1-4), and this appeal
followed. As noted, Judge McCarthy recommends in his R&R that this Court affirm the decision
of the Commissioner. Plaintiff’s timely Objections (Doc. 24) are now before the Court.
II.

Standard of Review
Pursuant to Fed. R. Civ. P. 72(b)(3), “[t]he district judge must determine de novo any part

of the magistrate judge’s disposition that has been properly objected to. The district judge may
accept, reject, or modify the recommended disposition; receive further evidence; or return the
matter to the magistrate judge with instructions.” The Court’s task of reviewing the
Commissioner’s decision involves determining “whether the factual findings are supported by
substantial evidence in the record and whether the correct legal standards were applied.” Doyal v.
Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). Substantial evidence is “such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.” Id. “It is ‘more than a
scintilla, but less than a preponderance.’” Newbold v. Colvin, 718 F.3d 1257, 1262 (10th Cir.
2013) (quoting Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)). The Court will “neither
reweigh the evidence nor substitute [its] judgment for that of the agency.” Martinez v. Barnhart,
444 F.3d 1201, 1204 (10th Cir. 2006) (quoting Casias v. Sec’y of Health & Human Servs., 933
F.2d 799, 800 (10th Cir. 1991)).
III.

Discussion of the Objections
A.

Objections to the ALJ’s RFC Determination

Plaintiff asserts that the ALJ failed to explain the finding that some impairments were nonsevere, omitted limitations supported by the record, failed to include the psychiatric review
technique (PRT) in the decision, and erred in assessing plaintiff’s credibility. The ALJ’s written
decision reflects otherwise. Throughout the decision, the ALJ explained that, while plaintiff

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reported her subjective complaints of pain, there was a lack of objective medical evidence to
support the existence of functional limitations upon plaintiff’s ability to work as a result of those
conditions which the ALJ found to be non-severe. (See Record 80-84).
There is substantial evidence supporting the ALJ’s RFC determination, and it is clear from
the decision that the ALJ considered all evidence bearing on the conditions found to be non-severe.
While medical records reflect that plaintiff complained of shortness of breath, occasional chest
pain, and occasional dizziness, those symptoms were not consistently reported or confirmed by
objective medical data or testing. (See, e.g., Record 417, 420, 423, 425, 443, 446, 449, 451, 460,
465-67, 476, 479, 482, 525-31, 533, 538, 543-46, 619, 662, 684, 687, 697, 715, 729-30, 737, 744,
748, 785, 787, 792-93). In considering the plaintiff’s reports of back pain, the ALJ noted records
reflecting the reports of pain and tenderness in the lumbar spine, but accurately recited from
medical records that the plaintiff was able to sit comfortably without acute distress, her gait and
station were normal, and her lower extremities were normal. (See, e.g., Record at 82-83). The
ALJ also considered other evidence of a herniated disk but noted the same records reflected that
there was no nerve root compression, no specific signs of weakness, or difficulty with standing.
(Id. at 83). The ALJ further noted that the physical examination by Dr. Hale in October, 2013 did
not support the plaintiff’s subjective complaints. (Id.).
With respect to her reports of breathing problems, plaintiff testified that the problem
“comes and goes” and that the condition was improving. (See id. at 162). There is evidence that
plaintiff reported breathing problems and shortness of breath at times (see, e.g., id. at 458), but
there is substantial record evidence supporting the ALJ’s determination that the problem was not
severe and did not require a work-related functional limitation, as such complaints were not
consistently raised.

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Plaintiff further argues that Judge McCarthy failed to “address her claim that the ALJ failed
to consider her ability to work on a ‘regular and continuous’ basis” pursuant to SSR 96-8p and
Byron v. Heckler, 742 F.2d 1232, 1235 (10th Cir. 1984). (Doc. 24 at 2).

However, the ALJ

specifically recognized the applicability of SSR 96-8p to the RFC determination, noting that the
RFC is an ability to do work activities on a “sustained basis despite limitations from impairments,”
and required consideration of all impairments, severe and non-severe. (Record 76-77). The ALJ
then explained her determinations with respect to the combination of impairments. (See id. at 7982).
Plaintiff also “objects to the Magistrate Judge’s failure to address her claim that the ALJ
was required to consider her fatigue and the fact that the time required to undergo her weekly
venipuncture would affect her ability to work full-time.” (Doc. 24 at 2). Contrary to plaintiff’s
claim, the ALJ noted plaintiff’s testimony that she lies down most of the time, lies on her side in
a recliner, is unable to do laundry, cleaning, or cooking, and has to have her blood level checked
every week, which causes her to urinate frequently. (Record 81). However, the ALJ also cited
other testimony of plaintiff and concluded that her testimony was only “partially credible” based
upon the ALJ’s finding “that the totality of the objective medical evidence of record does not
support such extreme physical limitations.” (Id.). There is substantial evidence supporting the
ALJ’s determination, particularly given that the plaintiff did not consistently report fatigue.
(Compare Record 491, 560, 586, 589, 714-15 with Record 458, 498, 521, 532).
Plaintiff’s cursory argument regarding res judicata is difficult to decipher. (Doc. 24 at 3).
In order to understand her arguments, the Court has examined the May 16, 2012 prior disability
denial (see Record 231-242), the December 16, 2014 ALJ decision that is the subject of this appeal,
and plaintiff’s res judicata arguments from other briefing (see Doc. 14 at 7). The previous decision

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on May 16, 2012 included an RFC limitation of less than the full range of light work, with lifting
limitations and an option of alternating sitting and standing every 30 minutes. (See Record 238).
Those prior limitations were noted by the ALJ in making the determination that is the subject of
the instant appeal. (Id. at 84). The ALJ gave great weight to the RFC assessment by Dr. Baldwin,
which limited plaintiff to light exertion with no additional limitations, and the RFC form completed
by Dr. Saif, which also limited plaintiff to light exertion work with no other limitations. (Id.). The
ALJ then noted the RFC limitations imposed by the prior May 16, 2012 ALJ decision and included
those more restrictive RFC limitations in plaintiff’s RFC as set forth in the December 16, 2014
decision. (Id.). The ALJ considered the prior RFC limitation to be res judicata. (Id.). Plaintiff
does not explain how inclusion of more restrictive limitations than were found in the RFC
assessments of Drs. Baldwin and Saif would result in error. (Id.). Contrary to the plaintiff’s claim,
the ALJ did evaluate her RFC for the period at issue in this appeal, from an alleged onset of
disability date of May 17, 2012, and determined that the evidence supported a light restriction.
The fact that the ALJ included additional limitations in the RFC in no way prejudiced the plaintiff
or impacted the determination that she is not disabled.
Plaintiff argues that the ALJ did not properly utilize the regulatory procedure for evaluating
mental impairments because the ALJ did not consider all mental limitations in assessing the RFC.
(See Doc. 24 at 3). Contrary to plaintiff’s argument, the ALJ properly evaluated the PRT criteria
at steps two and three of the decision, which included a discussion of the four broad functional
areas known as “paragraph B” criteria (see Record at 79-80), and also applied it in the RFC
assessment. The ALJ specifically applied SSR 96-8p and noted its application to the RFC
assessment, stating that “the following [RFC] assessment reflects the degree of limitation the
undersigned has found in the ‘paragraph B’ mental function analysis.” (Id. at 80). This is entirely

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consistent with SSR 96-8p and 20 C.F.R. § 404.1520a. Then, in step 4, the ALJ gave great weight
to the opinion of Dr. Caughell, in which the doctor indicated that the plaintiff’s mental condition
did not impose more than minimal limitation. (Id at 84). The ALJ also gave great weight to the
PRT completed by Dr. Dees on January 14, 2014. (Id.; see also id. at 209-210). The Court agrees
with Judge McCarthy’s conclusion that plaintiff’s PRT arguments are without merit. (See Doc. 23
at 4).
B.

Credibility

Again arguing in a cursory fashion, plaintiff asserts that the Magistrate Judge failed to
properly address the ALJ’s credibility determinations. However, Judge McCarthy did consider
the arguments regarding credibility and considered the ALJ’s explanation of the credibility
determinations. (Doc. 23 at 5). “Credibility determinations are peculiarly the province of the
finder of fact” and will not be upset where they are supported by and “closely and affirmatively
linked to” substantial evidence. Newbold v. Colvin, 718 F.3d 1257, 1267 (10th Cir. 2013) (citation
omitted). The ALJ must look beyond objective medical evidence in evaluating claims of disabling
pain, Luna v. Bowen, 834 F.2d 161, 165-66 (10th Cir. 1987), and must give reasons for his findings,
which must be closely linked to substantial evidence. Kepler v. Chater, 68 F.3d 387, 390 (10th
Cir. 1995). However, an ALJ need not provide a “formalistic factor-by-factor review of the
evidence,” and only has to “set forth the specific evidence he relies on in evaluating the claimant’s
credibility.” Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000). Common sense guides the
review of an ALJ’s credibility determination, and technical perfection is not required. KeyesZachary v. Astrue, 695 F.3d 1156, 1166-67 (10th Cir. 2012).
The ALJ found that plaintiff’s “statements concerning the intensity, persistence and
limiting effects of [plaintiff’s claimed] symptoms are not entirely credible for the reasons

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explained in this decision.” (Record 81). Immediately thereafter, the ALJ summarized the
plaintiff’s hearing testimony and noted that the testimony was only “partially credible” because
the “totality of the objective medical evidence of record does not support such extreme physical
limitations” as were claimed by plaintiff. (Id.). The ALJ then summarized the medical record
(id. at 82-83) and opinion evidence to which the ALJ gave great weight (id. at 84). Upon review
of the ALJ’s decision, the medical record, opinion evidence, and plaintiff’s testimony, the Court
agrees with Judge McCarthy that the ALJ’s credibility determinations were supported by and
linked to substantial evidence.
C.

Appeals Council’s Consideration of New Evidence

Although plaintiff objects to Judge McCarthy’s consideration of plaintiff’s arguments
regarding the additional evidence that plaintiff provided to the Appeals Council, the plaintiff has
provided little analysis and has identified no legal authority supporting her arguments. (See Doc.
24 at 4-5). Upon consideration of the additional evidence cited by plaintiff, the Court agrees with
Judge McCarthy’s thorough analysis of the issue at pp. 5-8 of the R&R. (Doc. 23 at 5-8).
Plaintiff’s Objections do not persuade the Court that the Appeals Council erred in its consideration
or rejection of various records.
IV.

Conclusion
Having found no reversible error in the ALJ’s decision, upon concluding that the ALJ

applied the correct legal standards and the decision is supported by substantial record evidence,
and agreeing with Judge McCarthy’s R&R, the Court overrules plaintiff’s Objections (Doc. 24).
Accordingly, the Court accepts the R&R (Doc. 23) and the recommendation that the
Commissioner’s decision finding plaintiff not disabled be affirmed.
Commissioner’s decision is affirmed.

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Accordingly, the

A separate Judgment will be entered forthwith.
DATED this 30th day of March, 2017.

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