Grass v. Social Security Administration
OPINION AND ORDER by Magistrate Judge Christine D Little (Affirming the Commissioner's decision) (tjc, Dpty Clk)
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OKLAHOMA
Acting Commissioner of the
Social Security Administration,1
Case No. 19-CV-605-CDL
OPINION AND ORDER
Plaintiff seeks judicial review under 42 U.S.C. § 405(g) of a decision of the
Commissioner of the Social Security Administration (Commissioner) denying Social
Security disability benefits. For the reasons set forth below, the Commissioner’s decision
Standard of Review
The Social Security Act (Act) provides disability insurance benefits to qualifying
individuals who have a physical or mental disability. See 42 U.S.C. § 423. The Act defines
“disability” as 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
Pursuant to Federal Rule of Civil Procedure 25(d)(1), Kilolo Kijakazi is substituted
as the defendant in this action, effective upon her appointment as Acting Commissioner of
Social Security in July 2021. No further action need be taken to continue this suit by reason
of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
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death or which has lasted or can be expected to last for a continuous period of not less than
12 months.” See id. § 423(d)(1)(A).
Judicial review of a Commissioner’s disability determination “‘is limited to
determining whether the Commissioner applied the correct legal standards and whether the
agency’s factual findings are supported by substantial evidence.’” Noreja v. Soc. Sec.
Comm’r, 952 F.3d 1172, 1177 (10th Cir. 2020) (citing Knight ex rel. P.K. v. Colvin, 756
F.3d 1171, 1175 (10th Cir. 2014)). “Substantial evidence is more than a mere scintilla and
is such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Id. at 1178 (quoting Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir.
2005)); see also Biestek v. Berryhill, --- U.S. ---, 139 S.Ct. 1148, 1154 (2019). “Evidence
is not substantial if it is overwhelmed by other evidence in the record or constitutes mere
conclusion.” Noreja, 952 F.3d at 1178 (quoting Grogan, 399 F.3d at 1261-62).
So long as supported by substantial evidence, the agency’s factual findings are
“conclusive.” Biestek, 139 S. Ct. at 1152 (quoting 42 U.S.C. § 405(g)). Thus, the court may
not reweigh the evidence or substitute its judgment for that of the agency. Noreja, 952 F.3d
On November 18, 2016, Plaintiff applied for disability benefits under Title II and
Title XVI of the Act, alleging a disability onset date of August 5, 2014. (R. 20). Plaintiff
was 26 years old on the alleged disability onset date. Plaintiff alleged disability due to a
combination of physical and mental impairments including depression, anxiety, post-
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traumatic stress disorder (PTSD), insomnia, restless leg syndrome, carpal tunnel syndrome,
peripheral neuropathy, and migraine headaches. Id.
Plaintiff’s claim was denied initially on March 10, 2017 and denied on
reconsideration on May 9, 2017. Id. Plaintiff then requested a hearing before an
Administrative Law Judge (ALJ). (R. 20). The ALJ held a hearing on October 16, 2018, at
which Plaintiff was represented by counsel. (Id.; R. 40). A vocational expert (VE) also
testified at the hearing. The ALJ denied benefits in a decision dated November 5, 2018. (R.
17-37). On August 29, 2019, the Appeals Council denied Plaintiff’s request for review.
(R. 4). As a result, the ALJ’s decision became the final decision of the Commissioner. Id.
Plaintiff then timely appealed to the district court.
The ALJ’s Decision
The Commissioner uses a five-step, sequential process to determine whether a
claimant is disabled. See 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). At step
one, the ALJ determines whether the claimant is engaged in substantial gainful activity. At
step two, the ALJ determines whether the claimant has an impairment or a combination of
impairments that is severe. At step three, the ALJ determines whether the claimant’s severe
impairment or combination of impairments is equivalent to one that is listed in the
applicable regulation, which the Commissioner “acknowledges are so severe as to preclude
substantial gainful activity.” Williams, 844 F.2d at 751 (internal quotation and citation
omitted); see 20 C.F.R. § 404.1520(d); 20 C.F.R. Pt. 404, subpt. P, App’x 1 (Listings). At
step four, the claimant must show that her impairment or combination of impairments
prevents her from performing her previous work. The claimant bears the burden on steps
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one through four. Lax, 489 F.3d at 1084. If the claimant satisfies this burden, thus
establishing a prima facie case of disability, the burden of proof shifts to the Commissioner
to show at step five that the claimant retains the capacity to perform other work available
in the national economy, in light of the claimant’s age, education, and work experience. Id.
Here, the ALJ determined at step one that Plaintiff met the insured status
requirements of the Act through September 30, 2018. (R. 22). Additionally, the ALJ found
that Plaintiff had not engaged in substantial gainful activity since August 5, 2014, the
alleged onset date. Id.
At step two, the ALJ found that Plaintiff suffers from the severe impairments of
depression, anxiety disorder, and post-traumatic stress disorder (PTSD). (R. 22). The ALJ
also found the following non-severe impairments: insomnia, restless leg syndrome, carpal
tunnel syndrome, peripheral neuropathy, and migraine headaches. Id.
At step three, the ALJ determined that Plaintiff’s impairments do not meet or
medically equal a Listing. The ALJ discussed application of the “paragraph B” criteria—
four areas of mental functioning used to determine whether a claimant’s mental
impairments functionally equal a listing. (R. 14); see 20 C.F.R. § 404 Subpt. P App’x 1.
The ALJ found that Plaintiff has a moderate limitation in three of the four relevant
domains—understanding, remembering, and applying information; interacting with others;
and concentrating, persisting, or maintaining pace—and a mild limitation in the fourth
relevant domain, adapting or managing oneself. (R. 24-25). Because Plaintiff does not have
at least one extreme or two or more marked limitations, the ALJ found the paragraph B
criteria are not satisfied. (R. 25). The ALJ also considered the “paragraph C” criteria (for
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“serious and persistent mental disorders,” see Listing 12.00A(2)(c)) and determined that
they are not present.
At step four, the ALJ determined that Plaintiff has the residual functional capacity
(RFC) to perform a full range of work at all exertional levels, with additional mental RFC
limitations. Id. With respect to mental limitations, the ALJ found that Plaintiff is “able to
perform simple tasks. She is able to relate to peers and supervisors on a superficial work
basis. [Plaintiff] is able to adapt to a work situation, but she is unable to relate to the general
Citing testimony by the VE at the hearing, the ALJ found that, given the Plaintiff’s
RFC, Plaintiff is capable of performing her past relevant work as a labeler (Dictionary of
Occupational Titles (DOT) # 920.687-126, unskilled work, specific vocational preparation
(SVP) level 2) and chicken cleaner (DOT # 525.687-074, unskilled work, SVP level 2),
both as generally performed. (R. 30-31). Accordingly, the ALJ found Plaintiff not disabled
at step four.
The ALJ proceeded to make additional, alternative findings at step five supporting
the disability determination. (R. 31). Citing the VE’s testimony, the ALJ found that
Plaintiff is capable of making a successful adjustment to other work that exists in
significant numbers in the national economy. (R. 31-32). The VE testified that, with the
RFC identified at step four, an individual could perform the requirements of representative
bottling line attendant, unskilled work, SVP level 1, of which 65,000 such jobs
exist in the national economy, DOT # 930.687-042;
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conveyor bakery line worker, unskilled work, SVP level 2, of which 30,000 jobs
exist in the national economy, DOT # 524.687-022; and
agricultural produce sorter, unskilled work, SVP level 2, of which there are 45,000
jobs in the national economy, DOT # 529.687-186.
(R. 32). Accordingly, the ALJ found that alternative grounds at step five support her
determination that Plaintiff is not disabled. Id.
Plaintiff argues that (1) the RFC determination is not supported by substantial
evidence and (2) the ALJ’s consistency findings are not supported by substantial evidence.2
Plaintiff argues the ALJ erred in failing to include manipulative limitations in the
RFC. The ALJ concluded that Plaintiff’s carpal tunnel syndrome and peripheral neuropathy
Plaintiff also argues that the ALJ erred at step two by failing to classify her carpal
tunnel syndrome and peripheral neuropathy as severe impairments. At step two of the
evaluative sequence, the ALJ must determine whether Plaintiff suffers from severe
impairments. That is all that is required of the ALJ at step two. Oldham v. Astrue, 509
F.3d 1254, 1256 (10th Cir. 2007). 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); Smith v. Colvin, 821
F.3d 1264, 1266-67 (10th Cir. 2016), Maziarz v. Sec’y of Health & Human Servs., 837
F.2d 240, 244 (6th Cir. 1987), Brescia v. Astrue, 287 F. App’x 626, 629 (10th Cir. 2008).
Here, the ALJ found that Plaintiff has severe impairments at step two, as well as
non-severe physical impairments, including peripheral neuropathy and carpal tunnel
syndrome. The Court finds no error in the ALJ’s findings at step two. Plaintiff’s argument
is more properly directed at the ALJ’s findings concerning the ability to do any work,
considering all of her impairments. Those issues are addressed infra.
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are non-severe, and that as such, they do not limit her functioning. While the ALJ is not
required to discuss every piece of evidence in the record, the ALJ must discuss the
uncontroverted evidence she chooses not to rely upon, as well as significantly probative
evidence she rejects. Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996).
The ALJ’s decision addresses Plaintiff’s medical records, including x-rays of
Plaintiff’s right wrist and right hand in January 2018, and a follow-up examination in July
2018. (R. 23-24). In January 2018, Plaintiff had x-rays of her right hand after an injury, but
no fracture was found. See id. Orthopedist Fred Ruefer, M.D. expected Plaintiff’s right
thumb injury to resolve fairly rapidly and without difficulty. See id. On July 22, 2018,
Plaintiff’s grip strength was 4/5 bilaterally, with diffuse swelling of the right hand, as well
as pain over the right Thenar eminence, but no pain over the tendons of the hands and it
appeared that functioning of the hands was normal. (R. 23-24). The ALJ further explained
that there was no involuntary movement or intrinsic muscle atrophy of the hands, and
finger-to-nose and rapid alternating hand movements were normal.
Plaintiff contends that the ALJ improperly minimized or ignored evidence in the
record showing weakness and “potential [c]arpal [t]unnel [s]yndrome” in her right hand.
(Doc. 13 at 6). Plaintiff notes that an October 18, 2016 examination revealed positive
Phalen’s and Tinel’s signs (indicative of carpal tunnel syndrome), swelling of Plaintiff’s
right hand, subjective hand weakness, and generalized tingling in both hands. (R. 387). But
the ALJ’s decision addressed evidence from this examination and noted, further, that
Plaintiff reported that she had been performing handyman services for the elderly. (R. 23).
The ALJ also explained that after that date, Plaintiff did not receive any other treatment for
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her hand-related complaints until 2018, after Plaintiff had injured her right thumb. (R. 23).
Moreover, while Plaintiff was referred for carpal tunnel surgery consultation, the record
indicates that she never followed up on the referral (although Plaintiff alleges that she was
unaware of it). (R. 23).
Plaintiff reported experiencing numbness in her hands (particularly her right hand),
tingling, and pain. (R. 23-24). However, at step four, Plaintiff has the burden to prove that
any alleged hand impairment “significantly limit[ed]” her ability to perform “basic work
activity.” Hawkins v. Chater, 113 F.3d 1162, 1169 (10th Cir. 1997). The responsibility for
determining the weight of the evidence rests with the ALJ. Where substantial evidence
supports the ALJ’s decision, the fact that Plaintiff would weigh the evidence differently
does not constitute reversible error. See Oldham v. Astrue, 509 F.3d 1254, 1257-58 (10th
Cir. 2007) (on appeal, court reviews only sufficiency of evidence, not its weight); Lax, 489
F.3d at 1084 (court may not reweigh evidence and displace agency choice between two
fairly conflicting views).
Here, substantial evidence supports the ALJ’s finding that Plaintiff’s RFC did not
require manipulative limitations. The objective evidence does not demonstrate any
functional limitation beyond slightly reduced strength in Plaintiff’s hands, and the ALJ
reasonably concluded that Plaintiff’s carpal tunnel syndrome and peripheral neuropathy
would not significantly limit her ability to perform basic work activity. Consistent with this
finding, no physician, treating or otherwise, indicated that Plaintiff would experience any
manipulative limitations. Reviewing physician Karl Boatman, M.D. also concluded that
Plaintiff’s hand impairments are non-severe. (R. 102).
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Accordingly, the ALJ’s explanation is reasonable and supported by substantial
evidence. See Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000); see also Adams v.
Colvin, 553 F. App’x 811, 814-15 (10th Cir. 2014) (unpublished) (holding ALJ did not err
in failing to include restrictions related to shoulder injury where record did not indicate any
functional limitation); SSR 96-8p, 1996 WL 374184, at *3 (July 2, 1996) (“[W]hen there
is no allegation of a physical or mental limitation or restriction of a specific functional
capacity, and no information in the case record that there is such a limitation or restriction,
the adjudicator must consider the individual to have no limitation or restriction with respect
to that functional capacity.”). Nothing further was required, and the Court may not reweigh the evidence. See Cowan v. Astrue, 552 F.3d 1185 (10th Cir. 2008) (“[W]e will not
reweigh the evidence or substitute our judgment for the Commissioner’s.”) (quotation
Additionally, Plaintiff contends that the ALJ erred in denying Plaintiff’s request
(through his attorney) to admit recent electromyography (EMG) test results into the record.
(See R. 40-41). “We will find a failure to develop the record where (1) the claimant has in
some fashion raised the issue sought to be developed by demonstrating a reasonable
possibility that a severe impairment exists, and (2) the available records do not supply
enough information to make an informed decision about the vocational effect of the
asserted impairment.” Yahola v. Apfel, 139 F.3d 913, 1998 WL 67291, at *2 (10th Cir.
1998) (unpublished) (internal citations and quotation marks omitted); see also Hawkins,
113 F.3d at 1167.
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While it may have been preferable, in the interest of thoroughness, to admit the
EMG testing evidence into the record, the focus of a disability determination is on the
functional consequences of a condition, not the mere diagnosis. See Coleman v. Chater, 58
F.3d 577, 579 (10th Cir. 1995); Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988) (“The
mere diagnosis of arthritis, of course, says nothing about the severity of the condition.”);
e.g., Scull v Apfel, 221 F.3d 1352, 2000 WL 1028250, at *1 (10th Cir. 2000) (unpublished)
(disability determinations turn on the functional consequences, not the causes of a
claimant’s condition). Furthermore, “[t]he burden of showing that an error is harmful
normally falls upon the party attacking the agency’s determination.” Shinseki v. Sanders,
556 U.S. 396, 409 (2009).
Here, Plaintiff has not included, cited, or summarized any information from the
EMG results, nor has she shown that the available record was deficient with respect to the
functional impact of her hand-related impairments. The Court cannot reverse a
determination by the ALJ that is supported by substantial evidence—such as here—based
on mere speculation, and without any identifiable deficiency in the existing record. See
Hawkins, 113 F.3d at 1167. In her decision, the ALJ explained that the EMG results were
not needed, as the existing medical evidence demonstrates that Plaintiff’s hand functioning
is not significantly limited. (R. 23-24). This explanation is reasonable and satisfied the
ALJ’s duty to ensure the record was sufficient to make an informed decision. Accordingly,
the Court cannot find reversible error in the ALJ’s refusal to admit the EMG records.
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Plaintiff argues that the ALJ ignored evidence of depression, anxiety, PTSD, and
paranoia. Plaintiff testified that she rarely leaves her room, spends part of the day sleeping,
has panic attacks every other day, and “zones out” when someone talks to her. (Doc. 13 at
8). Based on this evidence, Plaintiff contends that a person with those impairments would
not fit into the RFC that the ALJ found or any substantial gainful activity on a full-time
In order to survive judicial review, an ALJ’s findings need only be legally sound
and supported by substantial evidence—a threshold that is “not high.” Biestek, 139 S. Ct.
at 1154. In assessing Plaintiff’s mental abilities, the ALJ relied on opinions from the state
agency psychologists, who are “highly qualified experts in Social Security disability
evaluation” and assessed the same mental RFC as the ALJ. (R. 82, 106). 20 C.F.R. §
404.1513a(b)(1). No treating provider opined that Plaintiff would experience any workrelated mental limitations. Additionally, Plaintiff asserted, as recently as May 17, 2018,
that as a result of her medications, her anxiety, depression, and sleep had all improved. (See
In light of this evidence, the ALJ reasonably assessed an RFC for work involving
simple tasks, no interaction with the public, and only superficial contact with peers and
supervisors. The ALJ’s findings as to Plaintiff’s mental RFC are supported by substantial
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Plaintiff asserts that the ALJ failed to follow the proper legal standards in
determining the consistency of Plaintiff’s statements regarding her pain and other
symptoms with the objective medical evidence in the record. In evaluating a claimant’s
statements regarding pain, the ALJ “must consider (1) whether [a c]laimant established a
pain-producing impairment by objective medical evidence; (2) if so, whether there is a
‘loose nexus’ between the proven impairment and the [c]laimant’s subjective allegations
of pain; and (3) if so, whether, considering all the evidence, both objective and subjective,
[the c]laimant’s pain is in fact disabling.” Thompson v. Sullivan, 987 F.2d 1482, 1488 (10th
Cir. 1993) (internal citation omitted).
When determining the credibility of pain testimony, the ALJ should
consider such factors as “the levels of medication and their
effectiveness, the extensiveness of the attempts (medical or
nonmedical) to obtain relief, the frequency of medical contacts, the
nature of daily activities, subjective measures of credibility that are
peculiarly within the judgment of the ALJ, the motivation of and
relationship between the claimant and other witnesses, and the
consistency or compatibility of nonmedical testimony with objective
Id. at 1489 (internal citations omitted).
The ALJ must explain “the link between the evidence and credibility
determination.” Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995). Under agency
regulations, the ALJ’s decision must give “specific reasons for the weight given to the
individual’s symptoms, be consistent with and supported by the evidence, and be clearly
articulated so the individual and any subsequent reviewer can assess how the [ALJ]
evaluated the individual’s symptoms.” SSR 16-3p. However, “[c]redibility determinations
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are peculiarly the province of the finder of fact”—that is, the ALJ, not the court. Wilson v.
Astrue, 602 F.3d 1136, 1144 (10th Cir. 2010) (citing Kepler, 68 F.3d at 391). “So long as
the ALJ sets forth the specific evidence he relies on in evaluating the claimant’s credibility,
the dictates of Kepler are satisfied.” Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000);
see also SSR 16-3p, 2016 WL 1237954.3
The ALJ found that Plaintiff’s “medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however, Plaintiff’s statements
concerning the intensity, persistence, and limiting effects of these symptoms were not
entirely consistent with the medical evidence and other evidence in the record for the
reasons explained in this decision” (R. 26). In explaining this determination, the ALJ
addressed multiple relevant factors. For example, Plaintiff has continued to take
psychotropic medications. (R. 28). Multiple examinations showed Plaintiff was stable, with
thoughts clear and organized, no delusions, normal speech, and fair judgment and insight.
(R. 27-28). Although Plaintiff was not always compliant with her medications, the record
indicates that when she was compliant with her treatment regimen, her anxiety and
depression improved. (R. 28).
The agency no longer uses the term “credibility” to describe the ALJ’s analysis of
subjective symptoms. See SSR 16-3p, 2017 WL 5180304 (the Commissioner “eliminat[ed]
the use of the term ‘credibility’ from [the] sub-regulatory policy, as [the] regulations do
not use this term,” and “subjective symptom evaluation is not an examination of an
individual’s character”). However, the standard of review of the ALJ’s consistency analysis
is the same as when the agency used the term “credibility.” See, e.g., Zhu v. Comm’r, SSA,
__ F. App’x __, 2021 WL 2794533, *5, n.7 (10th Cir. Jul. 6, 2021).
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Finally, the ALJ noted that Plaintiff interacts daily with other individuals and
reported no difficulty getting along with others. (R. 29). Plaintiff’s statements also indicate
that she has the concentration and memory enough to read every day. Id. The ALJ found
these statements inconsistent with the severity of symptoms alleged in other statements. Id.
Specifically, the ALJ concluded that the evidence was inconsistent with Plaintiff’s claims
that difficulty interacting with others prevents her from working. Additionally, the ALJ
included limitations in the RFC determination.
Thus, the ALJ explained the specific evidence she considered in her consistency
analysis and provided valid reasons for her determination that Plaintiff’s symptoms are not
as disabling as alleged. The ALJ fulfilled her duty under Kepler, and substantial evidence
supports the ALJ’s conclusion regarding Plaintiff’s symptoms. See Keyes-Zachary v.
Astrue, 695 F.3d at 1169 (10th Cir. 2012) (finding ALJ’s discussion adequate where he
“listed many of [the claimant’s] specific factual assertions, often following them by a
qualifying statement to indicate where he believed her testimony was contradicted or
limited by other evidence in the record”).
The undersigned finds the ALJ’s decision is supported by substantial evidence and
that the ALJ applied the correct legal standards. Accordingly, the decision of the
Commissioner finding Plaintiff not disabled is affirmed.
IT IS SO ORDERED this 7th day of September, 2021.
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