Figures-Yarbrough v. Social Security Administration
Filing
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OPINION AND ORDER by Chief Judge Gregory K Frizzell ; accepting 15 Report and Recommendation (kjp, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
LORRAINE M. FIGURESYARBROUGH,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner, Social Security
Administration,1
Defendant.
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Case No. 16-CV-165-GKF-FHM
OPINION AND ORDER
Before the court is the Report and Recommendation [Doc. No. 15] of United States
Magistrate Judge Frank H. McCarthy on the judicial review of a decision of the Commissioner of
the Social Security Administration (“SSA”) denying Social Security disability benefits to
plaintiff Lorraine M. Figures-Yarbrough (“Plaintiff”), and the Objections thereto [Doc. No. 16].
The Magistrate Judge recommends the Commissioner’s decision be affirmed. For the reasons set
forth below, the court agrees, the objections are overruled, and the Report and Recommendation
is adopted.
I. Procedural Background
On April 4, 2011, Plaintiff applied for disability insurance benefits and supplemental
security income based upon disability beginning July 1, 2010. The SSA denied that application
both initially and on reconsideration. As a result, Plaintiff requested and received a hearing
before Administrative Law Judge David W. Engel on May 9, 2014. The ALJ issued a written
decision denying benefits on May 27, 2014. The SSA Appeals Council denied review of that
1
Pursuant to Fed. R. Civ. P. 25(d), Nancy A. Berryhill—the Acting Commissioner of the Social
Security Administration—is substituted as the defendant in this action.
decision. Consequently, the ALJ’s opinion represents the Commissioner’s final decision for
purposes of this appeal. 20 C.F.R. §§ 404.981, 416.1481.
II. Legal Standard
Pursuant to Fed. R. Civ. P. 72(b)(3), the court “must determine de novo any part of [a]
magistrate judge’s disposition . . . properly objected to. The district judge may accept, reject, or
modify the recommended dispositions; receive further evidence; or return the matter . . . with
instructions.” In the disability benefits context, de novo review is limited to determining
“whether [ ] 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 reasonably mind might accept as
adequate to support a conclusion.” Id. It is more than a scintilla, but less than a preponderance.
Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). On review, the court will “neither reweigh
the evidence nor substitute [its] judgment for that of the agency.” White v. Barnhart, 287 F.3d
903, 905 (10th Cir. 2001) (quotation marks and citation omitted).
III. Analysis
Plaintiff lodges a series of objections to the ALJ’s residual functional capacity (“RFC”)
determination. RFC represents “the most [a claimant] can still do despite [her] limitations.” 20
C.F.R. § 404.1545(a)(1). In making this assessment, “the ALJ must consider all of a claimant’s
impairments, whether or not they are ‘severe.’” Wall v. Astrue, 561 F.3d 1048, 1065 (10th Cir.
2009). Nevertheless, “there is no requirement . . . for a direct correspondence between an RFC
finding and a specific medical opinion on the functional capacity in question.” Chapo v. Astrue,
682 F.3d 1285, 1288 (10th Cir. 2012). RFC is an administrative determination, not a medical
one. See id.; Dixon v. Apfel, 189 F.3d 477 (Table), 1999 WL 651389, at *2 (10th Cir. Aug. 26,
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1999) (“RFC is an administrative determination made on the basis of all of the evidence in the
record, not only the medical evidence.”); 20 C.F.R. 404.1546(c) (vesting RFC determination in
ALJs).
“An ALJ’s RFC formulation must be supported by substantial evidence,” Cowan v.
Astrue, 552 F.3d 1182, 1190 (10th Cir. 2008), including a “narrative discussion” which “cit[es]
specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities,
observations)” Soc. Sec. R. 96-8p, 1996 WL 374184, at *7. Substantial evidence supports the
ALJ’s RFC determination here.
First, Plaintiff objects that the ALJ failed to consider Dr. Snider’s opinion, including a
temporary total disability (“TTD”) determination. As a threshold matter, “the concept of TTD is
distinguishable from the requirements to establish disability under federal law.” See White v.
Colvin, No.15-CV-27-CVE-FHM, 2016 WL 1175492, at *4 (N.D. Okla. Mar. 23, 2016). Indeed,
TTD determinations “constitute nonmedical opinion[s] on whether [a claimant] will be able to
return to work, which is an issue reserved to the Commissioner.” See Wraspir v. Colvin, No.
CIV-14-409-F, 2015 WL 5822048, at *10 (W.D. Okla. Oct. 5, 2015) (citing 20 C.F.R. §
404.1527(d)(1), (3)); see also Valdez-Powell, No. 13-cv-3145-PAB, 2015 WL 5719646, at *5
(D. Colo. Sept. 30, 2015). To that end, “[s]uch opinions . . . are never entitled to controlling
weight or given special significance.” See Duncan v. Colvin, 608 F. App’x 566, 573 (10th Cir.
2015).
And the medical information in Dr. Snider’s TTD opinion does not change the result. To
start, subsequent evaluation by Dr. Snider revealed most of Plaintiff’s symptoms to be in
remission. [Doc. No. 9-6, p. 275]. And that which remained—lumbar discomfort—was neither
described as disabling nor assigned permanent functional limitations. [Doc. No. 9-6, p. 275]. In
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fact, the potential for further medical complications was purely speculative. [Doc. No. 9-6, p.
276] (explaining Plaintiff “may possibly be subject to recurrent problems”); 42 U.S.C. §
423(d)(1)(A) (defining “disability” as an “inability to engage in any substantial gainful activity”
based on impairment “which can be expected to last for a continuous period of not less than 12
months”) (emphasis added). That comports with the remaining medical evidence of record and
accounts of Plaintiff’s daily activities. See Cleveland v. Callahan, 124 F.3d 216 (Table) (10th
Cir. 1997) (unpublished) (finding lack of substantial conflict between TTD determination and
medical evidence of record). Accordingly, the ALJ’s error—if any—was harmless.2
Second, Plaintiff objects that the ALJ improperly weighed the medical evidence of
record. With respect to physical limitations, Plaintiff claims the ALJ failed to assign specific
weight to the medical opinions of record. True, the record does not contain an express weighing.
But that does not warrant reversal. The ALJ notes that “[a]lleged treating sources report no
records on claimant” with respect to physical disability. [Doc. No. 9-5, p. 11]. In this way,
“[t]he lack of impairments in the medical evidence” supports the ALJ’s decision. See [id.].
More fundamentally, Plaintiff cannot establish prejudice. She identifies no medical opinion or
evidence that would warrant additional functional limitations. See Keyes-Zachary v. Astrue, 695
F.3d 1156, 1162–63 (10th Cir. 2012). To the contrary, the ALJ actually “tempere[ed] the
extremes [of certain opinions] for the claimant’s benefit,” which defeats any claim of prejudice.
See Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012). Accordingly, the ALJ’s decision
stands.
2
Plaintiff also claims the ALJ failed to address Dr. Snider’s “x-ray findings.” [Doc. No. 16, p.
1]. But the ALJ did address a July 31, 2012 MRI performed at Dr. Snider’s direction, which
encompasses the findings Plaintiff claims the ALJ ignored. See [Doc. No. 9-5, p. 10]; [Doc. No.
9-6, pp. 278, 281–82]. And in any case, Dr. Snider notes the x-ray findings were by-and-large
“unremarkable.” [Doc. No. 9-6, p. 278]. That does not constitute reversible error. See Yount v.
Colvin, No. 13-CV-498-GKF-TLW, 2015 WL 733908, at *4 (N.D. Okla. Feb. 20, 2015)
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With respect to mental limitations, Plaintiff argues that the ALJ did not assess the impact
of non-severe impairments. Not so. The ALJ discussed and credited the conclusion of state
agency psychologists that Plaintiff’s depression and anxiety were “non-severe” and “well[-]
controlled with medication.” [Doc. No. 9-5, p. 8]. Nevertheless, the ALJ still “imposed slight
limitation[s] in the RFC for the[se] non[-]severe conditions.” [Id.]. Plaintiff responds that the
ALJ failed to account for notations regarding mental health treatment in 2011 and 2012. But
those records note a prior diagnosis of depression, without any discussion of functional
limitations. [Doc. No. 9-6, pp. 251, 256, 265, 320]. Absent evidence of limitation, mere
“diagnoses by themselves are not significantly probative evidence the ALJ had to reject in order
to find [claimant] was not disabled.” See Fulton v. Colvin, 631 F. App’x 498, 501 (10th Cir.
2015). Therefore, “the ALJ did not need to discuss them.” See id.3
Plaintiff also suggests the ALJ inadequately performed the Psychiatric Review Technique
(“PRT”) in assessing her mental limitations. But there is a difference between limited
assessment and legally inadequate assessment. And Plaintiff offers no evidence or argument—
besides a one-sentence innuendo—that the ALJ’s opinion falls on the wrong side of the line. See
[Doc. No. 16, p. 2] (“The Magistrate Judge also admits the ALJ’s ‘discussion of the PRT criteria
was not extensive . . . .,’ but finds it ‘adequate and supported by substantial evidence.’”). The
ALJ discussed Plaintiff’s daily living, cognitive, and mental functioning, as well as the
conclusions of state agency psychologists. [Doc. No. 9-5, p. 8]. And in his RFC determination,
he limited claimant to “light and sedentary” work involving “simple [to] moderately detailed
tasks.” [Id. at 9]. In this way, Plaintiff provides—and the court discerns—no basis for reversal.
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In briefing below, Plaintiff also claimed the ALJ ignored a Psychiatric Review Technique
(“PRT”) report [Doc. No. 9-6, pp. 169–182]. Because it was unsigned and undated, the ALJ was
not required to discuss the report or afford it any weight. See Turner v. Colvin, No. CIV-14-391SPS, 2016 WL 866334, at *3 (E.D. Okla. Mar. 3, 2016).
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Third, Plaintiff objects that the ALJ failed to discuss certain records of sinus- and handrelated pain. Upon review, neither was specifically discussed by the ALJ. But that does not
warrant reversal. No evidence suggests—and Plaintiff fails to explain—“how these scattered . . .
symptoms imposed any physical limitations . . . whatsoever, a failing that is particularly
troubling in light of the contrary evidence.” See Timmons v. Astrue, 360 F. App’x 984, 987 (10th
Cir. 2010). To be sure, Plaintiff may experience sinus and hand discomfort. But discomfort
does not equate to disability. Plaintiff has offered no evidence calling the RFC determination
into question. See Melendez v. Astrue, 359 F. App’x 8, 11 (10th Cir. 2009). And the assessment
is supported by the medical evidence of record and accounts of Plaintiff’s daily activities—
including, shopping, cooking, exercising, performing household chores, and providing home care
for her father.4 [Doc. No. 9-5, pp. 10–11]; Timmons, 360 F. App’x at 987. The ALJ was not
required to believe her assertions to the contrary. See Moser v. Astrue, No. 09-2241-JWL, 2010
WL 3718541, at *7 (D. Kan. Sept. 14, 2010) (“[A]n ALJ need not accept [p]laintiff’s allegations
as true.”). Childers v. Colvin, 2013 WL 3756571, at *6 (D. Kan. July 15, 2013) (“[T]he ALJ
need not accept that testimony at face value in making the credibility determination.”); Walton v.
Shalala, 1993 WL 153938, at *9 (D. Kan. Apr. 30, 1993) (“Obviously, the ALJ need not accept
only those facts favorable to the [P]laintiff’s case.”).5
Contrary to Plaintiff’s suggestion, “mere[ ] technical omissions in the ALJ’s reasoning
do not dictate reversal.” See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012).
“[C]ommon sense, not technical perfection” guides the court on review. See id. And “[n]o
4
For similar reasons, the ALJ was not required to deem Plaintiff’s sinus- and hand-related
symptoms “severe.”
5
Plaintiff also contends that the ALJ improperly assessed her credibility in light of the medical
evidence. But because that evidence would not alter her RFC, and the ALJ expressly discussed
other evidence supporting his credibility determinations, reversal is not warranted.
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principle of administrative law or common sense requires a remand” unless it “might lead to a
different result. See Moua v. Colvin, 541 F. App’x 794, 798 (10th Cir. 2013) (quotation marks
and citation omitted). That is simply not the case where, as here, evidence does not support the
imposition of additional limitations in an RFC determination.
Fourth, Plaintiff objects to the ALJ’s credibility determination. “Credibility
determinations are peculiarly the province of the finder of fact[.]” Cowan v. Astrue, 552 F.3d
1182, 1190 (10th Cir. 2008). Indeed, the “[t]he ALJ enjoys an institutional advantage in making
the type of determination at issue here” because “[n]ot only does an ALJ see far more social
security cases than do [reviewing] judges, he or she is uniquely able to observe the demeanor and
gauge the physical abilities of the claimant in a direct and unmediated fashion.” Barnard v.
Colvin, No. 13-CV-404-GKF-FHM, 2014 WL 3778558, at *7 (N.D. Okla. July 31, 2014)
(quoting White v. Barnhart, 287 F.3d 903, 910 (10th Cir. 2001)). Here, the ALJ’s credibility
determinations were “closely linked to substantial evidence,” see Cowan, 552 F.3d at 1190.
Plaintiff complains that the ALJ ignored a third-party report submitted by her sister. That
does not constitute reversible error. “While the ALJ did not explicitly discuss the statements of
[claimant’s] sister . . . we do not believe this omission is grounds for a remand given the nature
of the[ ] evidence, which was largely cumulative[.]” See Brescia v. Astrue, 287 F. App’x 626,
630–31 (10th Cir. 2008). To that end, “the ALJ was not required to discuss the third-party
report”—“[w]hile such a report may have marginally improved [P]laintiff’s credibility, it would
not have had an effect on the outcome of the case[.]” See Carver v. Colvin, No.12-CV-614CVE-TLW, 2014 WL 1096375, at *8 (N.D. Okla. Mar. 19, 2014); see also Wells ex rel. C.D.W.
v. Colvin, 2015 WL 773901, at *2–3 (N.D. Okla. Feb. 24, 2015) (affirming ALJ report that failed
to discuss third-party report where cumulative and contradicted by medical evidence); Rainwater
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v. Colvin, No. 15-CV-491-GKF-FHM, 2016 WL 6561298, at *3 (N.D. Okla. Nov. 4, 2016)
(same)
***
In closing, the court offers a word about proper objections under Fed. R. Civ. P. 72(b).
Many of plaintiff’s objections to the Report and Recommendation are vague or underdeveloped.
Rule 72(b), however, requires parties make specific, developed objections that articulate and
identify prejudice—that is, harm which commands a different outcome on remand. And future
objections that fail to do so will not be considered by the court. See Keyes-Zachary, 695 F.3d at
1161 (“[Claimant] also presents a number of subissues and arguments, many of them poorly
developed. We will consider and discuss only those of her contentions that have been adequately
briefed for our review.”); Miller v. Astrue, 496 F. App’x 853, 855 (10th Cir. 2012) (“[Claimant]
interjects numerous conclusory sub-issues and passing objections, many of which are poorly
developed. We will consider and discuss only those . . . that have been adequately briefed[.]”);
McCaskill v. Colvin, No. 12-CV-95-PJC, 2013 WL 1961771, at *10 (N.D. Okla. May. 10, 2013)
(“For the most part, [claimant’s objections] are one-sentence arguments that are undeveloped and
perfunctory and that deprive the [c]ourt of the ability to meaningfully analyze them. They are
therefore waived.”); Fed. R. Civ. P. 72(b)(3) (“The district court must determine de novo any
part of the magistrate judge’s disposition that has been properly objected to.”) (emphasis added).
WHEREFORE, Plaintiff’s Objections to the Magistrate’s Report and Recommendation
[Doc. No. 16] are overruled, and the Report and Recommendation [Doc. No. 15] is adopted.
IT IS SO ORDERED this 11th day of April, 2017.
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