Smith v. Social Security Administration
Filing
18
OPINION AND ORDER by Magistrate Judge Gerald B Cohn affirming Commissioner's decision (Re: 2 Social Security Complaint ) (sdc, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
PAMELA RENEE SMITH,
Case No. 4:16-cv-00431-GBC
Plaintiff,
(MAGISTRATE JUDGE COHN)
vs.
NANCY A. BERRYHILL, 1
OPINION AND ORDER
Acting Commissioner of the Social Security PLAINTIFF’S APPEAL
Administration,
TO
DENY
Defendant.
OPINION AND ORDER TO DENY PLAINTIFF’S APPEAL
This matter is before the undersigned United States Magistrate Judge for decision. Pamela
Renee Smith (“Plaintiff”) seeks judicial review of the Commissioner of the Social Security
Administration’s decision finding of not disabled. As set forth below, the Court DENIES
Plaintiff’s appeal and AFFIRMS the Commissioner’s decision in this case.
I.
Procedural Background
On January 8, 2013, Plaintiff filed an application for Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act, 42 U.S.C. §§ 401-433, 1382-1383 (“Act”), with a last
insured date of December 31, 2014, 2 and a disability onset date of May 5, 2012. (Tr. 29). On
October 29, 2014, the Administrative Law Judge (“ALJ”) found Plaintiff was not disabled within
the meaning of the Act. (Tr. 26-44). Plaintiff sought review of the unfavorable decision, which the
1
Effective January 23, 2017, Nancy A. Berryhill replaced Carolyn W. Colvin as Acting
Commissioner of the Social Security Administration (“SSA”) and is substituted as defendant in
this action pursuant to Federal Rule of Civil Procedure 25(d).
2
Disability insurance benefits (“DIB”) are paid to an individual if that individual is disabled by
last date that a claimant meets the requirements of being insured. See 42 U.S.C. § 423(a)(1)(A),
(c)(1).
Appeals Council denied on April 29, 2016, thereby affirming the decision of the ALJ as the “final
decision” of the Commissioner of the Social Security Administration. (Tr. 1-7).
On July 1, 2016, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g)
to appeal a decision of Defendant denying social security benefits. (Doc. 1). On March 17, 2017,
Defendant filed an administrative transcript of proceedings. (Doc. 10). On August 21, 2017,
Plaintiff filed a brief in support of the appeal. (Doc. 14 (“Pl. Br.”)). On October 19, 2017,
Defendant filed a brief in response. (Doc. 16 (“Def. Br.”)). On November 6, 2017, Plaintiff filed a
reply. (Doc. 17 (Reply)).
II.
Issues On Appeal
On appeal, Plaintiff alleges three errors: (1) the Residual Functional Capacity (“RFC”) finding is
erroneous; (2) the credibility findings are not supported by substantial evidence; and (3) the ALJ
failed to develop vocational testimony based on substantial evidence. (Pl. Br. at 4).
III.
Facts in the Record
A.
Background
Plaintiff was born in December 1960 and thus is classified by the regulations as an
individual closely approaching advanced age through the date of the ALJ decision. (Tr. 35); 20
C.F.R. §§ 404.1563(d), 416.963(d). Plaintiff alleged disability due to: (1) status post-surgery of
bilateral shoulders, one wrist, and one knee; (2) bilateral shoulder pain which includes difficulty
to lift or hold things; (3) numbness in left wrist; (4) left knee painful to stand long; (5) lower back
pain, and; (6) arthritis in neck, chest, shoulders, and arms. Pl. Br. at 1-2. Plaintiff completed the
twelfth grade. (Tr. 207). The vocational expert testified that Plaintiff’s past relevant work consisted
of working as a customer service manager, which was classified as medium work and with an SVP
level of 7. (Tr. 86-87).
B.
Medical Opinions
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1. Orthopedic Surgeon: Eugene Feild, M.D.
Dr. Field treated Plaintiff from March 2009 to October 2010 (Tr. 301-326). Dr. Feild
operated on the Plaintiff’s right shoulder on December 4, 2009, (Tr. 283-300) and on her left
shoulder on March 5, 2010 (Tr. 275-282). On May 6, 2010, Dr. Feild stated that Plaintiff presented
with a full range of motion and stated that:
Even though she has had both shoulders operated it is unlikely that she will qualify
for any significant disability from a Social Security standpoint. She is anxious to
return to her activities and return to work. I therefore have released her with
restrictions primarily for avoidance of overhead work but she may return to full
under shoulder activity and lifting without weight restrictions. [Plaintiff] is, in my
opinion, maximally medically improved.
(Tr. 305). In an attached report Dr. Feild released Plaintiff to modified work as of May 6, 2010,
with a permanent restriction of above chest and overhead reaching. (Tr. 306). Dr. Feild opined that
continuing treatment or vocational rehabilitation was unnecessary. (Tr. 306).
2. Workers’ Compensation Evaluations: William Gillock, M.D.
In March 2011, Dr. Gillock examined Plaintiff and noted that the motor function of the
shoulders was normal, no crepitance was noted on range of motion (ROM) testing, left hand had
normal motor function. (Tr. 437-38). In the March 2011 evaluation, Dr. Gillock assigned a fifteen
percent permanent partial impairment rating to the left arm, which converted to a nine permanent
partial impairment to the left shoulder. (Tr. 438).
In an April 2011 examination, Dr. Gillock observed normal sitting posture, standing
posture, gait, no assistive devices, no tenderness upon palpation, normal sensor examination of the
lower extremities, Straight Leg Raise (“SLR”) produced back pain at thirty degrees of elevation
bilaterally, and motor function of the shoulders were normal. (Tr. 445-48). Dr. Gillock concluded
that Plaintiff reached maximum medical improvement and had no permanent partial impairment
to her neck, shoulders, left arm, hands or low back from her alleged injuries. (Tr. 449).
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In July 2012, Dr. Gillock reviewed diagnostic testing and upon examination observed that
motor function in Plaintiff’s shoulders were normal, there was no crepitance upon range of motion
testing of the shoulders (Tr. 455). Dr. Gillock noted that the range of motion in the right shoulder
was less than the left shoulder. (Tr. 455). Plaintiff’s right arm flexion was 120 degrees, while left
was 150 degrees, right abduction was 120 degrees while left was 140 degrees, right internal and
external rotation was 60 degrees and the left was 90 degrees. (Tr. 455). Dr. Gillock concluded
Plaintiff had a nineteen percent permanent partial impairment to her right arm, nine percent due to
loss of motion and ten percent due to resection arthroplasty of the distal clavicle. (Tr. 456).
In October 2012, Dr. Gillock again reviewed Plaintiff’s medical history and report of
symptoms. (Tr. 458-460) Dr. Gillock noted that Plaintiff had a period of temporary total disability
from April 13, 2012, to June 7, 2012. (Tr. 461). Upon examination, Dr. Gillock observed that
Plaintiff had a normal gait, no ambulatory aids were used, no instability was present in the anterior
and posterior drawer testing, sensory and motor testing of the leg was normal, and, flexion was
110 degrees in left knee and 130 degrees in the right knee. (Tr. 461-62). Dr. Gillock opined
Plaintiff had a seven percent permanent partial impairment to her left knee, released her without
restrictions, and said she did not require vocational rehabilitation. (Tr. 462). Dr. Gillock added, “I
find no evidence of injury or impairment to any other body part.” (Tr. 462).
In April 2013, Dr. Gillock examined Plaintiff and observed that her gait was normal and
she did not use any ambulatory aids. (Tr. 384). Regarding range of motion testing, Dr. Gillock
noted (1) bilateral shoulder adduction at fifty degrees and internal and external rotation at thirty
degrees; (2) bilateral elbows with zero degrees extension, 150 degrees flexion, eighty degrees
pronation, and eighty degrees supination, and; (3) bilateral wrists with sixty degrees extension and
flexion, twenty degrees radial deviation, and thirty degrees ulnar deviation. (Tr. 385). Dr. Gillock
concluded that Plaintiff was not permanently and totally disabled. (Tr. 386).
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3. Workers’ Compensation Evaluation: Gary Lee, M.D.
On January 30, 2013, Dr. Lee summarized the history of eight injuries between August
1992 and November 2008. (Tr. 465-66). Upon examination, Dr. Lee noted: (1) tenderness with
diminished range of motion in the thoracic spine; (2) tenderness with diminished range of motion
in the lumbar spine with lumbar flexion of twenty degrees, sacral flexion of thirty degrees, sacral
extension of five degrees, lumbar extension of five degrees, right and left lateral flexion of ten
degrees; (3) pain and tenderness with crepitus in both shoulders, with forward flexion and
abduction of 140 degrees, external and internal rotation of 60 degrees, backward flexion of 30
degrees and adduction of 10 degrees bilaterally; (4) diminished flexion and extension in the left
wrist; (5) deformity and crepitus with pain on weight-bearing with the left knee, swelling in the
left knee, and Plaintiff demonstrating a “painful limping gait”; (6) normal strength to toe and heel
walking, normal muscle tone; (7) gross motor testing showed 5/5 strength to the musculature of
the upper and lower extremities, and; (8) Romberg testing was normal. (Tr. 467-68). Dr. Lee
concluded that “[t]he combined effect of [Plaintiff’s] disabilities and her occupational related
medical conditions render[ed] her permanently totally disabled.” (Tr. 468).
4. Workers’ Compensation Evaluations: Anne S. May, M.D.
In October 2010, Dr. May sent a letter to Plaintiff’s attorney regarding worker’s
compensation benefits. (Tr. 412-14). Dr. May said Plaintiff was “100% temporarily totally
disabled as a result of her lumbar spine injury, due to the fact that she cannot stand or walk for
very long comfortably.” (Tr. 414). She also said she could not bend, squat, or sit for very long.
(Tr. 414). In November 2010 Dr. May sent another letter to Plaintiff’s attorney (Tr. 417-20),
wherein she opined that Plaintiff “w[ould] not be able to return to her previous duties which
required substantial bilateral upper extremity strength and dexterity,” but “should be referred for
consideration for vocational rehabilitation to find more suitable employment.” (Tr. 420). In
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December 2010, Dr. May said Plaintiff continued to be 100% temporarily disabled as a result of
her lumbar spine injury.” (Tr. 422).
In September 2011, Dr. May said Plaintiff continued to experience significant pain in her
neck and chronic spasms in her back with radiation of pain into her arms. (Tr. 426). She said
Plaintiff continued to experience pain in her low back, which markedly impaired her ability to
perform activities of daily living, and ongoing symptoms of pain involving a nerve root in her low
back on the left side. (Tr. 426). Dr. May said all of this impaired Plaintiff’s ability to perform her
employment at the same level as before her injury. (Tr. 426). She said Plaintiff had a “permanent
partial impairment of 37.4% to the whole person for her lumbar spine injury” and a “permanent
partial impairment of 16% to the whole person for her cervical spine injury.” (Tr. 427). Dr. May
opined that Plaintiff had a ten percent permanent partial impairment to each arm. (Tr. 427).
In February 2012, Dr. May noted Plaintiff continued to experience weakness, pain, and
diminished range of motion in her shoulder, which impaired her ability to perform her activities
of daily living and employment at the same level as before her injury. (Tr. 431). Dr. May opined
Plaintiff sustained a thirty-seven percent permanent partial impairment to the whole person for her
right shoulder injury. (Tr. 431). In Feb 2013, Dr. May opined the dysfunction of Plaintiff’s knee
prevented her from performing activities of daily living without significant pain and instability.
(Tr. 372). According to Dr. May, because of her left knee and low back injuries, Plaintiff was “not
able to perform her usual work duties and is 100% temporarily totally disabled.” (Tr. 373).
5. Agency Reviewing Opinion: J. R. Vorhies, M.D.
In the April 2013 opinion, Dr. Vorhies reviewed the records, which at the time did not
include any opinion evidence and opined that Plaintiff could: (1) occasionally lift and/or carry
(including upward pulling) twenty pounds; (2) frequently lift and/or carry ten pounds; (3) stand
and/or walk for a total of six hours in an eight-hour workday, and; (4) sit for a total of six hours in
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an eight-hour workday. (Tr. 98-104). Dr. Vorhies also opined that Plaintiff was limited in her right
arm in the ability to push and/or pull (including operation of hand and/or foot controls). (Tr. 104).
In support of his opinion Dr. Vorhies listed Plaintiff’s medical history including: (1) history of
falling in November 2008; (2) Arthroscopic surgery in the left knee in April 2012; (3) alleged back
pain with an MRI revealing multilevel bulging discs; (4) a February 2013 knee MRI revealing,
osteoarthritis, chondromalacia, and meniscus injury; (5) a February 2013 workers’ compensation
examination observing that Plaintiff ambulates without asymmetry, left knee was tender with
demonstrated crepitance and alleged weakness, lumbar muscle tenderness with limited range of
motion (ROM), straight leg raise (SLR) produces pain; (6) Plaintiff’s history of bilateral shoulder
surgery (several on the right shoulder), and; (7) January 2009 MRI evidence of right partial rotator
tear/tendonopathy. (Tr. 103). Dr. Vorhies further noted that Plaintiff’s history of back pain and
surgeries support a finding of postural limitations (Tr. 103), and opined that Plaintiff was limited
in left and right overhead reaching to occasional overhead reaching due to bilateral rotator cuff
surgeries. (Tr. 103-04). Dr. Vorhies summarized records from Crestwood Clinic, an October 2012
Workers’ Compensation adjudication that Plaintiff sustained a permanent partial impairment of
17% to the left leg for left knee injury and noted that Plaintiff had not had further evaluation or
treatment for left knee injury. (Tr. 104).
Dr. Vorhies also noted Plaintiff’s initial treatment for lumbar spine injury at Concerta, her
physical therapy and radiographic imaging in 2009, Dr. Field evaluated Plaintiff noting a mild
bulging of L4-5 disc which was unchanged from previous MRI of October 2007, an EMG nerve
conduction was obtained and revealed old damage, particularly of the LS nerve root and surgical
intervention was not recommended at that time. (Tr. 104). Dr. Vorhies noted that in September
2011 Plaintiff was evaluated by Anne May M.D., who opined that Plaintiff sustained a permanent
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partial impairment of 37.4% to the whole person for her lumbar spine injury. (Tr. 104
(summarizing Tr. 427)). Dr. Vorhies continued:
Physical exam revealed that [Plaintiff] ambulates without asymetry and was able to
get onto the exam without assistance. Examination of [Plaintiff’s] left knee reveals
that there were well-healed surgical punctuate scars scattered about the knee. There
was tenderness to palpation over the medial and lateral aspects. There was also
audible crepitance and weakness noted with flexion and extension of the left knee
when tested against resistance. There was muscle atrophy noted of [Plaintiff’s] left
gastrocnemius muscle when compared to the right side. Deep tendon reflexes are
2+ and equal in the lower extremities and there are no sensory abnormalities noted
in the lower extremities.
Examination of [Plaintiff’s] lumbar spine reveals there was moderate spasm of the
paraspinous musculature which was tender to palpation diffusely. [Plaintiff’s]
tenderness is more significant over her left proximal gluteal region, sacroiliac joint
and left greater trochanter. Straight leg raise was positive on the left as well for
pulling sensation into the left gluteal region. Range of motion of the lumbar spine
was limited inflexion and lateral bending motions and was very uncomfortable for
[Plaintiff] to perform.
[A February 2013] MRI on lumbar spine . . . at Advanced Imaging revealed that
the mid to lower lumbar spine facet arthrosis and [broad] based disc bulges at L3L4 and L4-5 with neuroforaminal narrowing, particularly on [Plaintiff’s] left at both
side levels.
MRI of the left knee was obtained on the same date and revealed osteoarthritis,
particularly of the medial femororotibial compartments with tricompartmental
chondromalacia, complex degenerative-like tearing versus postoperative changes
involving the medial [meniscus]. It was noted that when compared to [the January
2011] examination . . . there was no significant interval change.
Dr. Anne May stated that the in her own opinion as a result of [Plaintiff’] left knee
injury and her lumbar spine injury [Plaintiff] is not able to perform her usual work
duties and was 100% temporarily disabled.
...
[Regarding activities of daily living (ADLS), Plaintiff] stated that she is able to take
care of her personal hygiene and grooming. She is able to fix coffee, frozen meals,
and sandwiches. [Plaintiff] is able to make her bed and do laundry, she can shop
for household items and groceries, drive, pay bills, count change, handle a savings
account, and use a checkbook/money orders. She is [able] to follow spoken and
written instructions.
(Tr. 104-05).
Page 8 of 19
6. Agency Reviewing Opinion: San-San Yu, M.D.
In August 2013 Dr. San-San Yu reviewed the medical record and rendered an opinion
regarding the extent of Plaintiff’s limitations. (Tr. 109-121). Dr. San-San Yu gave Dr. Gillock’s
April 2013 opinion great weight, explaining that the opinion was substantiated by the medical and
non-medical evidence in the record. (Tr. 116). Dr. San-San Yu opined that Plaintiff: (1) could
occasionally lift and/or carry twenty pounds; (2) could frequently lift and/or carry ten pounds; (3)
could stand and/or walk a total of six hours in an eight-hour workday; (4) could sit six hours in an
eight-hour workday, and; (5) was limited in her ability to push and/or pull with the upper right
extremity. (Tr. 116-17). In support of the opinion Dr. San-San Yu listed the same evidence as that
noted in Dr. Vorhies’ April 2013 opinion. Compare (Tr. 117) with (Tr. 103). Dr. San-San Yu
further noted that Plaintiff’s history of back pain and knee surgeries support a finding of postural
limitations (Tr. 117), and opined that Plaintiff was limited in left and right overhead reaching to
occasional overhead reaching due to bilateral rotator cuff surgeries. (Tr. 117-18).
Dr. San-San Yu summary of Plaintiff’s medical records are substantively similar to the
summary provided in Dr. Vorhies’ April 2013 opinion. Compare (Tr. 118) with (Tr. 104). Dr. SanSan Yu added that Dr. Gillock’s April 2013 evaluation noted that Plaintiff had a normal gait
without the use of any ambulatory aides. (Tr. 118). Dr. San-San Yu noted the primary care
provider’s June 2013 record of Plaintiff’s report of episodic swelling, stiffness, and pain in hands,
wrists, shoulders, lower back and knees, that ibuprofen helped alleviate the symptoms, and that
movement, standing or walking did not exacerbate symptoms. (Tr. 118).
7. Consultative Examination Report: Beau C. Jennings, D.O.
On June 12, 2014, Dr. Jennings examined Plaintiff noting that there were “[m]ild
limitations in ROM of both shoulders, hips neck” and “[m]oderately limited ROM of lumbar
spine.” (Tr. 498). X-rays of the spine, shoulders, and right hip were taken and it was noted that
Page 9 of 19
there were no previous images for comparison. (Tr. 498-502). Upon review of the cervical spine
x-ray, Dr. Shawn Grant, M.D. found degenerative changes in the mid-cervical spine. (Tr. 498-99).
Upon review of the hip x-ray, Dr. Michael Cross, M.D. found minimal degenerative changes of
the right hip and SI joints, mild osteoarthritic changes, mild lumbar facet arthropathy. (Tr. 500).
Upon review of the lumbar spine. Dr. Cross found an enlarged right L5 transverse process with
mild osteoarthritic change (which might be the source of right-sided sacral pain) and mild lower
lumbar facet arthropathy, without evidence of significant discogenic disease. (Tr. 501). Upon
reviewing x-rays of the shoulders, Dr. Cross found likely postsurgical changes of both AC joints
and minimal calcific tendinosis of the left rotator cuff. (Tr. 502).
Dr. Jennings found that Plaintiff was limited to: (1) carrying and/or lifting continuously up
to ten pounds and occasionally eleven to twenty pounds; (2) sitting four hours, standing two hours
and walking two hours at one time; (3) sitting eight hours, standing four hours, and walking three
hours in an eight-hour work day; (4) climbing stairs and stooping occasionally, and (5) never
kneeling, crouching, or crawling. (Tr. 508-513). Regarding ADLs Dr. Jennings opined that
Plaintiff could: (1) perform activities like shopping; (2) travel without a companion for assistance;
(3) ambulate without the aid of assistive devices; (4) walk a block at a maintainable pace on uneven
surfaces; (5) use standard public transportation; (6) climb a few steps at a reasonable pace with the
use of a single hand rail; (7) prepare simple meals and feed herself; (8) care for personal hygiene,
and; (9) sort, handle, and use papers/files. (Tr. 513)
IV.
Legal Standards and Review of ALJ Decision
To receive disability or supplemental security benefits under the Act, a claimant bears the
burden to demonstrate an “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42
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U.S.C. § 423(d)(1)(A); accord 42 U.S.C. § 1382c(a)(3)(A). The Act further provides that an
individual:
shall be determined to be under a disability only if his physical or mental
impairment or impairments are of such severity that he is not only unable to do his
previous work but cannot, considering his age, education, and work experience,
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.
42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). Plaintiff must demonstrate the physical or mental
impairment “by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. §§
423(d)(3), 1382c(a)(3)(D).
Social Security regulations implement a five-step sequential process to evaluate a disability
claim. 20 C.F.R. §§ 404.1520, 416.920; Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)
(setting forth the five steps in detail). “If a determination can be made at any of the steps that a
plaintiff is or is not disabled, evaluation under a subsequent step is not necessary.” Williams, 844
F.2d at 750. The claimant bears the burden of proof at steps one through four. See Wells v. Colvin,
727 F.3d 1061, 1064 at n.1. (10th Cir. 2013). If the claimant satisfies this burden, then the
Commissioner must show at step five that jobs exist in the national economy that a person with
the claimant’s abilities, age, education, and work experience can perform. Id.
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 e.g., 42 U.S.C. § 405(g) (“court shall review only the question of
conformity with such regulations and the validity of such regulations”); Grogan v. Barnhart, 399
F.3d 1257, 1261 (10th Cir. 2005). Substantial evidence “does not mean a large or considerable
amount of evidence, but rather ‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (quoting
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Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). 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 [Administrative Law Judge’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).
A.
Residual Functional Capacity (RFC) and Opinion Weight
Plaintiff argues that substantial evidence does not support the ALJ’s conclusion that
Plaintiff is capable of working an eight-hour work day by failing to account for Plaintiff’s severe
pain. (Pl. Br. at 5). Plaintiff argues that the ALJ should have adopted the RFC provided by Dr.
Jennings (Tr. 508-513) who, in June 2014, opined that Plaintiff could stand no more than four
hours in an eight-hour workday as opposed to the RFC adopted by the ALJ who concluded that
Plaintiff could stand and/or walk six hours in an eight-hour work day. (Pl. Br. at 5-6). Plaintiff
argues that the “ALJ conveniently used an RFC that included light work because to find that the
Plaintiffs RFC was sedentary would mean that the Plaintiff was disabled either by virtue of the
Grid Regulations or my using the Grid Regulations as a framework.” (Pl. Br. at 6). Plaintiff also
acknowledges that the “ALJ’s RFC is based on an RFC that was provided by two physicians with
the State of Oklahoma Disability Determination Division . . . .” (Pl. Br. at 6) (citing the April 2013
opinion of John Vorhies Jr., M.D. at Tr. 98-107 and the August 2013 opinion of San-San Yu,
M.D.) (Tr. 109-121). Plaintiff argues “[t]here is no evidence in the record of the [agency]
physicians’ credentials.” Pl. Br. at 7. Plaintiff argues that “the ALJ in effect ignored the RFC
findings of Dr. Jennings” and that Dr. Jennings’ June 2014 opinion should have outweighed those
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of the non-examining agency opinions Pl. Br. at 7-8. Plaintiff also argues that it is confusing for
the ALJ to adopt parts of Dr. Jennings’ findings, particularly that the ALJ finds greater foot
limitations and also finding less limitations regarding the ability to stand and or walk than those
opined by Dr. Jennings. Pl. Brief at 9.
The Court does not see the contradiction that Plaintiff argues regarding the RFC of standing
and/or walking six hours in an eight-hour work day when Dr. Jennings found that Plaintiff was
able to stand four hours and walk three hours in an eight-hour work day. (Tr. 509). In other words,
Dr. Jennings found that Plaintiff could stand and/or walk seven hours in an eight-hour workday
and the RFC is more generous to Plaintiff than the limitations opined by Dr. Jennings. Dr.
Jennings’ examination noted “[m]ild limitations in ROM of both shoulders, hips, neck” and
“[m]oderately limited ROM of lumbar spine.” (Tr. 498). Dr. Jennings indicated that Plaintiff did
not need a device to assist with ambulation. (Tr. 509). Although Plaintiff argues that greater weight
should be afforded to Dr. Jennings since he examined Plaintiff, nothing in the record suggests that
Dr. Jennings reviewed any treatment records and the sole source of medical history was from
Plaintiff’s reports. (Tr. 494-528). Dr. Jennings does not explain or cite to medical findings in
support of his opinion. (Tr. 508-13).
Moreover, Plaintiff fails to address Dr. Gillock’s examining opinions from March 2011,
April 2011, July 2012, October 2012, and April 2013. (Tr. 384-86, 437-38, 445-49, 455-462). The
ALJ reasonably allocated weight to the agency doctors’ opinions wherein they thoroughly
reviewed the record and Dr. San-San Yu gave weight to the examining opinions of Dr. Gillock.
See 20 C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i) (effective from August 24, 2012 to March
26, 2017) (non-examining consultants are “highly qualified . . . medical specialists who are also
experts in Social Security disability evaluation”). Plaintiff does not direct the Court to evidence
demonstrating significant deterioration of symptoms following the opinions of Drs. Vorhies and
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San-San Yu; as such a showing would lend support to the possibility of an ALJ reaching a different
conclusion. See, e.g., Decker v. Chater, 86 F.3d 953, 954-55 (10th Cir. 1996) (discussing the
relevance of significant deterioration following evidence demonstrating Plaintiff’s ability to
work); Boswell v. Astrue, 450 F. App’x 776, 778 (10th Cir. 2011) (affirming decision where ALJ
correctly observed there was no objective evidence Plaintiff’s condition “significantly worsened”);
Tarpley v. Colvin, 601 F. App’x 641, 644 (10th Cir. 2015) (rejecting claimant’s argument the ALJ
gave too much weight to the state agency physician’s opinion, who did not review later treating
physician opinions, concluding “nothing in the later medical records . . . [demonstrates] a material
change in [the plaintiff’s] condition would render [the state agency physician’s] opinion stale.”).
In this case, as the ALJ thoroughly reviewed the record and properly characterized Plaintiff’s
symptoms and functional limitations, substantial evidence supports the ALJ’s conclusions.
With regard to Plaintiff’s argument that the ALJ determined an RFC of light work with
limitations to wrongly avoid sedentary so that Plaintiff would be disabled in the grids, the Court is
persuaded by the Tenth Circuit in Anders v. Berryhill, 688 F. App’x 514, 520–22 (10th Cir. 2017).
In Anders, the Tenth Circuit reasoned:
We first disagree that the exertional component of the ALJ’s RFC finding is
equivalent to sedentary work. Certainly, the lifting limitation is in line with that of
sedentary work, which “involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and small tools,”
20 C.F.R. § 404.1567(a). And the ALJ did state Anders could sit for as much as six
hours, which is consistent with sedentary work. See SSR 83-10, 1983 WL 31251,
at *5 (1983) (explaining that in sedentary work, “sitting should generally total
approximately 6 hours of an 8-hour workday”). But the ALJ also found Anders
could stand and walk for 6 hours of an 8-hour workday . . . . See id. at *6 (explaining
that “the full range of light work requires standing or walking, off and on, for a total
of approximately 6 hours of an 8-hour workday. Sitting may occur intermittently
during the remaining time”); cf. SSR 83-12, 1983 WL 31253, at *4 (1983) (stating
that although most light work involves prolonged standing, an ALJ should consult
a VE “[i]n cases of unusual limitation of ability to sit or stand”). Thus the ALJ’s
RFC was for light work, albeit not the full range of light work.
Because Anders’s RFC was for a limited range of light work, it fell between
grid rules for light and sedentary work directing opposite conclusions: Anders
would be disabled under the applicable sedentary-work rule, 201.10, but not under
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the applicable light-work rule, 202.11. In that circumstance, the ALJ was required
to determine the degree to which Anders’s specific limitations eroded the
occupational base for light work. See id. at *2. In easy cases, an ALJ might be able
to make that call. See id. But “[w]here the extent of the erosion of the occupational
base is not clear, the adjudicator will need to consult a vocational resource.” Id.
Anders, 688 F. App’x at 520–22 (emphasis removed from original). In this instance, the ALJ
presented the VE with a hypothetical of sedentary and light work with limitations that included,
inter alia, lifting and/or carry twenty pounds; sitting six hours in an eight-hour workday with
normal breaks; standing and/or walking six hours in an eight-hour workday; slight fine motor
limitations; postural limitations; no reaching overhead and occasional reaching over shoulder
level; simple, repetitive and routine work, with a slight limitation in contact with the public; and
contact with the public to be brief and cursory. (Tr. 87-91). The VE identified cashier positions
with a reduced availability of jobs by fifty percent. (Tr. 91). The VE also identified checker and
sampler positions and grinding polishing positions within the light work category, specific
vocational preparation (SVP) level two. 3 (Tr. 91-92). The VE testified that a hypothetical of an
individual with Plaintiff’s age, education, and work history with an RFC of light work and
enumerated limitations still allowed for a sufficient number of jobs in the national economy. (See
Tr. 91-92). The Court finds that the RFC for light work with limitations was not the equivalent of
a sedentary RFC. Moreover, the ALJ properly developed the vocational testimony, and thus,
substantial evidence supports the RFC findings. See Anders, 688 F. App’x at 520–22. The ALJ’s
RFC and allocation of weight to the medical opinions is supported by substantial evidence. “Our
review of the record indicates that the ALJ’s question adequately included the limitations that she
found were supported by the medical record. That record, along with the VE’s testimony on
existing jobs, provided substantial evidence to support the ALJ’s step-five determination.”
3
An SVP of one or two corresponds to unskilled work. Social Security Ruling (SSR) 00-4p, 2000
WL 1898704, at *3. “Unskilled work is work which needs little or no judgment to do simple duties
that can be learned on the job in a short period of time.” 20 C.F.R. § 404.1568(a).
Page 15 of 19
Talamantes v. Astrue, 370 F. App’x 955, 959 (10th Cir. 2010). See also Vigil v. Colvin, 805 F.3d
1199, 1204 (10th Cir. 2015); Richards v. Colvin, 640 F. App’x 786, 790 (10th Cir. 2016).
B.
Credibility
Plaintiff argues that although pursuant to SSR 96-7p the ALJ “must” consider all seven
enumerated factors in determining credibility of Plaintiff, the ALJ merely made a “conclusory”
credibility finding. Pl. Br. at 10-11. However, Plaintiff failed to enumerate what specific material
evidence the ALJ failed to address that would necessitate changing the outcome of the decision.
Plaintiff argues that since the hearing was held on April 8, 2014, and the function reports were
prepared in February 2013 and July 2013, the ALJ erred in relying on such reports since “Plaintiff’s
problems with her pain are progressive and it is reasonable to believe that her activities of daily
living could change for the worse from February 2013 to April 2014.” Pl. Br. at 12. Plaintiff fails
to direct the court of any evidence of deterioration between February 2013 and April 2014 and Dr.
Jennings’ June 2014 examination and opinion does not demonstrate a significant deterioration of
symptoms regarding Plaintiff’s range of motion of joints, mobility, and ADLs. (Tr. 498-513).
Where a medically determinable physical or mental impairment that could reasonably be
expected to produce the individual’s pain or other symptoms, however, the severity of which is
not substantiated by objective medical evidence, the ALJ must make a credibility finding on the
claimant’s subjective statements. SSR 96-7p (effective from July 1996 to March 2016 and
superseded by SSR 16-3p). The credibility finding must be based on a consideration of the entire
case record, considering several factors in totality. SSR 96-7p; 20 C.F.R. §§ 404.1529, 416.929
(version effective from June 2011 to March 2017). 4 This, however, “‘does not require a formalistic
factor-by-factor recitation of the evidence . . . [s]o long as the ALJ sets forth the specific evidence
4
Plaintiff argues that the “. . . ALJ erred in that he failed to consider the Plaintiff’s strong work
record in his credibility findings.” Pl. Br. at 13. However, Plaintiff does not cite any law that would
support a finding of reversible error.
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he relies on’” in evaluating a claimant’s subjective complaints. Poppa v. Astrue, 569 F.3d 1167,
1171 (10th Cir. 2009) (quoting Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000)). To evaluate
the “intensity and persistence” of Plaintiff’s alleged impairment, sections 404.1529(c), 416.929(c)
enumerate the factors that the ALJ is to consider in totality. There is a distinction between what an
adjudicator must “consider” and what the adjudicator must “discuss” in the disability
determination. See SSR 96-8p; see also SSR 06-03p (explaining that to “consider” means to
provide explanation sufficient for a “subsequent reviewer to follow the adjudicator’s reasoning”);
See also Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996) (explaining although “an ALJ
is not required to discuss every piece of evidence,” he must discuss “the evidence supporting his
decision . . . uncontroverted evidence he chooses not to rely upon, [and] significantly probative
evidence he rejects”). Under the heading “Evidence Considered,” Ruling 96-8p enumerates several
types of evidence to “consider,” while under the heading “Narrative Discussion Requirements,”
there are narrower requirements of what an ALJ should “discuss.” See SSR 96-8p. While an ALJ
must “consider” all of the evidence, the ALJ needs only to discuss sufficient evidence to support
each conclusion, resolve any inconsistencies in the evidence as a whole and, set forth a logical
explanation of the effects of the symptoms, on the individual’s ability to work. See SSR 96-8p.
The ALJ is not required to recite everything in the evidence; rather, the ALJ must discuss the
relevant evidence that demonstrates Plaintiff’s ability to work and “significantly” probative
evidence to the contrary. See SSR 96-8p. This Court will not disturb an ALJ’s credibility findings
if they are supported by substantial evidence because “[c]redibility determinations are peculiarly
the province of the finder of fact.” Cowan v. Astrue, 552 F.3d 1182, 1190 (10th Cir. 2008) (citing
Diaz v. Secretary of Health & Human Svcs., 898 F.2d 774, 777 (10th Cir. 1990)).
Plaintiff does not address the totality of the evidence including repeated examinations
wherein physicians observed that Plaintiff had a normal gait, nearly full range of motion, and
Page 17 of 19
walked without the need for ambulatory devices and expert medical opinions which support the
ALJ’s conclusion. The ALJ extensively reviewed and accurately summarized the totality of the
relevant evidence through the date of the decision. (Tr. 34-38). As explained above, the ALJ
reasonably relied on Dr. Gillock’s examining opinions from March 2011, April 2011, July 2012,
October 2012, and April 2013 (Tr. 384-86, 437-38, 445-49, 455-462), Dr. Vorhies’ April 2013
opinion (Tr. 98-104), Dr. San-San Yu’s August 2013 opinion (Tr. 109-121), and Dr. Jennings’
June 2014 opinion (Tr. 498-513). Drs. Vorhies and San-San Yu, reviewed the evidence up to April
2013 and August 2013, respectively, and opined the severity of Plaintiff’s impairments were still
compatible with the ability to perform light work with additional limitations. (Tr. 98-104, 109121). Moreover, Dr. Jennings’ June 2014 opinion does not substantively contradict the opinions
of Drs. Vorhies and San-San Yu.
Plaintiff fails to meet her burden in demonstrating reversible error. See Vititoe v. Colvin,
549 F. App’x 723, 729-30 (10th Cir. 2013) (citing Shinseki v. Sanders, 556 U.S. 396, 409-10
(2009) (“[T]he burden of showing that an error is harmful normally falls upon the party attacking
the agency’s determination.”). Based on the foregoing, substantial evidence supports the ALJ’s
credibility determination. See SSR 96-7p; 20 C.F.R. §§ 404.1529, 416.929.
C. Hypothetical to Vocational Expert
Plaintiff also argues the ALJ erred in relying on the VE’s testimony because it was based
on a hypothetical question that did not include all of the limitations in Dr. Jennings’ opinion, which
Plaintiff characterizes as a “sedentary” RFC assessment. (Pl.’s Br. at 14). As discussed above, the
RFC’s light work provision is not contradicted by Dr. Jennings’ opinion and is supported by
substantial evidence. In this instance, the Vocational Expert (“VE”) hypothetical mirrors the RFC
and because the Court finds the RFC is supported by substantial evidence, there it would be
redundant to address the accuracy of the hypothetical which mirrors the RFC. See Orso v. Colvin,
Page 18 of 19
658 F. App'x 418, 420–21 (10th Cir. 2016) (finding unpersuasive argument that hypothetical
questions to the VE were improper where the hypothetical questions were appropriately based on
the RFC assessment, which was deemed supported by substantial evidence); Rutherford v.
Barnhart, 399 F.3d 546, 554, n. 8 (3d Cir. 2005) (“objections to the adequacy of hypothetical
questions posed to a vocational expert often boil down to attacks on the RFC assessment itself”).
CONCLUSION
For the reasons set forth above, the Court DENIES Plaintiff’s appeal and AFFIRMS the
Commissioner’s decision in this case.
SO ORDERED on March 29, 2018.
G rl B C h
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