Younger v. Commissioner of Social Security
Filing
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MEMORANDUM OPINION AND ORDER -- The court affirms the Commissioner's decision. Signed by Magistrate Judge Suzanne Mitchell on 04/29/2016. (sm)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
FLOYD YOUNGER, JR.,
Plaintiff,
vs.
CAROLYN W. COLVIN, acting
Commissioner Social Security
Administration,
Defendant.
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Case No. CIV-15-752-SM
MEMORANDUM OPINION AND ORDER
Floyd Younger Jr. (Plaintiff) brings this action for judicial review of the
Defendant Acting Commissioner of Social Security’s (Commissioner) final
decision that he was not “disabled” under the terms of the Social Security
Act.
See 42 U.S.C. §§ 405(g), 423(d)(1)(A).
United States District Judge
Timothy D. DeGiusti referred the matter to the undersigned Magistrate
Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (b)(3) and Fed.
R. Civ. P. 72(b).
Doc. 5.
The parties then consented to having the
undersigned conduct all further proceedings, including the entry of a final
judgment. Doc. 13. Following a careful review of the parties’ briefs, the
administrative record (AR), and the relevant authority, the undersigned
affirms the Commissioner’s decision.
I.
Administrative proceedings.
Plaintiff applied for supplemental security income payments, alleging
his impairments became disabling in July 2005, a date he later amended to
April 2012. AR 157, 34. The Social Security Administration (SSA) initially
and on reconsideration denied Plaintiff’s claim.
Id. at 79-82, 94-96.
At
Plaintiff’s request, an Administrative Law Judge (ALJ) conducted a hearing.
Id. at 97-99, 28-78. The ALJ found Plaintiff “has not been under a disability”
since the date he filed his application and denied him benefits. Id. at 23. The
SSA Appeals Council declined Plaintiff’s request for review; Plaintiff now
seeks review of the Commissioner’s final decision. Id. at 1-6; Doc. 1.
II.
Disability determination.
The Social Security Act defines “disability” as the “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 U.S.C. § 423(d)(1)(A). The Commissioner applies a fivestep inquiry to determine whether a claimant is disabled. See 20 C.F.R. §
416.920; see also Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988)
(describing the five steps). Under this sequential procedure, Plaintiff bears
the initial burden of proving he has one or more severe impairments. See 20
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C.F.R. § 416.920; Turner v. Heckler, 754 F.2d 326, 328 (10th Cir. 1985). If he
succeeds, the ALJ conducts a residual functional capacity (RFC) assessment
at step four to determine what Plaintiff can still do despite his impairments.
See 20 C.F.R. § 416.920(a)(4)(iv); Andrade v. Sec’y of Health & Human Servs.,
985 F.2d 1045, 1048 (10th Cir. 1993). Then, if Plaintiff shows he can no
longer engage in prior work activity, the burden of proof shifts to the
Commissioner to show Plaintiff retains the capacity to perform a different
type of work and that such a job exists in the national economy. See Turner,
754 F.2d at 328; Channel v. Heckler, 747 F.2d 577, 579 (10th Cir. 1984).
III.
The ALJ’s findings.
Following the familiar five-step inquiry, the ALJ found Plaintiff had
not engaged in substantial gainful activity since April 2012, the application
date. AR 17. The ALJ then determined Plaintiff “has the following severe
impairments: coronary artery disease status post quadruple bypass surgery,
hypertension, degenerative disc disease of the lumbar spine, headaches, and
left arm pain.” Id. After concluding these impairments alone or combined do
not meet or medically equal a listed impairment, the ALJ assessed Plaintiff’s
RFC. The ALJ concluded:
[Plaintiff] can lift and carry 10 pounds frequently and 20 pounds
occasionally. He can stand and walk 6 hours in an 8-hour
workday and sit for 6 hours in an 8-hour workday with normal
breaks. He can only occasionally climb, bend, stoop, squat, kneel,
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crouch, crawl, and push/pull with the left upper extremity. He
has a slight limitation in finger, feel and grip, especially for the
left arm but using if for both. He should avoid temperature
extremes and avoid sun exposure.
He is afflicted with symptomatology from a variety of sources
that produces mild to moderate chronic pain, which is of
sufficient severity to be noticeable to him at all times, but
nonetheless he should be able to remain attentive and responsive
in a work setting and can carry out work assignments
satisfactorily.
He takes medication for the relief of the
symptomatology, medications do not preclude him from
functioning at the sedentary and light level as restricted and he
would remain reasonably alert to perform required functions in
the work setting. He will find it necessary to alter position from
time to time to relieve the symptomatology.
Id. at 17-18.
After he determined Plaintiff could not perform his past
relevant work, the ALJ found Plaintiff could perform the following
occupations:
fast food worker, garment sorter, basket filler, order clerk,
surveillance system monitor, and polisher, each of which exists in significant
numbers in the national economy. Id. at 22-23. The ALJ concluded Plaintiff
was not disabled. Id. at 23.
IV.
Discussion.
A.
Standard for review.
The court reviews the Commissioner’s final “decision to determine
whether the factual findings are supported by substantial evidence and
whether the correct legal standards were applied.” Mays v. Colvin, 739 F.3d
569, 571 (10th Cir. 2014) (citation omitted); see Wilson v. Astrue, 602 F.3d
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1136, 1140 (10th Cir. 2010). “Substantial evidence is such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion. It
requires more than a scintilla, but less than a preponderance.” Lax v. Astrue,
489 F.3d 1080, 1084 (10th Cir. 2007) (citations and internal quotation marks
omitted).
In reviewing the ALJ’s opinion, “common sense, not technical
perfection, is [the court’s] guide.” Keyes-Zachary v. Astrue, 695 F.3d 1156,
1167 (10th Cir. 2012).
B.
Claimed errors.
Plaintiff contends the ALJ failed to (1) properly evaluate the medical
source evidence; and (2) perform a proper credibility determination. Doc. 16,
at 2.
1.
Evaluation of the medical source evidence.
Plaintiff challenges the weight the ALJ afforded to various medical
sources and his evaluation of them.
a.
Treating physician.
First, Plaintiff contends the ALJ “refused to mention” Plaintiff’s
treating physician opinion, “much less weigh” it under the treating
physician’s rule. Doc. 16, at 4. Plaintiff refers to the treatment notes from a
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June 6, 2012 office visit following his April 2012 open-heart surgery. AR 41518. In his Reply Brief, Plaintiff withdrew this argument.1 Doc. 21, at 2.
b.
Consultative examination.
Next, Plaintiff assails the ALJ’s evaluation of Dr. S. Krishnamurthi’s
opinions.
The ALJ ordered Dr. Krishnamurthi’s examination plus an
electrocardiogram, echocardiogram, and x-rays of the lumbosacral spine after
the hearing. AR 75, 501-13.
The ALJ found:
On September 17, 2013, Subramaniam Krishnamurthi, M.D.,
completed a medical source statement based on his findings
during a consultative examination (18F). Dr. Krishnamurthi
opined the claimant could lift and carry 10 pounds frequently and
20 pounds occasionally. He could stand and walk 2 hours in an 8hour workday and sit for 6 hours in an 8-hour workday. The
undersigned affords some weight to Dr. Krishnamurthi in
regards to the claimant’s ability to lift, carry and sit. However,
the undersigned affords little weight to Dr. Krishnamurthi in
regards to the claimant’s ability to only stand and walk for 2
hours in an 8-hour workday. This is not supported by findings
upon Dr. Krishnamurthi’s examination, as it was noted the
claimant had full range of motion of hip joints and the
lumbosacral spine. Further, it was noted the claimant had 5/5
strength in the lower extremities and he walked with a normal
gait without use of an assistive device (18F). Given this evidence
in conjunction with lumbar X-ray findings that revealed only
It remains noteworthy the ALJ considered Dr. Muhammad’s notes
indicating Plaintiff was “doing well since discharge,” he should continue his
current medication, and “[r]ecommmend[ed] healthy lifestyle changes:
including exercise, diet, and weight loss.” Id. at 417. And the ALJ clearly
considered this follow-up exam. Id. at 19.
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mild spondylosis (15F), the undersigned finds the claimant can
stand and walk 6 hours in an 8-hour workday.
Id. at 21.
“The record supports the ALJ’s evaluation of this evidence.” Vigil v.
Colvin, 805 F.3d 1199, 1203 (10th Cir. 2015) (“[T]he ALJ considered all of
[the relevant medical source] evidence, as well as the record as a whole, and
gave good reasons for the weight he afforded [those] opinions.”). The ALJ
looked to the medical evidence of record. A spine X-ray showed “no acute
findings,”
and
only
“mild
spondylosis,”
which
Krishnamurthi’s walking and standing limitations.
contradicted
Dr.
AR 491.
The
undersigned agrees “[t]he ALJ did not substitute his judgment for that of Dr.
[Krishnamurthi] or ignore Dr. [Krishnamurthi’s] findings. Rather, the ALJ
considered all of Dr. [Krishnamurthi’s] medical evidence, as well as the
record as a whole, and gave good reasons for the weight he afforded Dr.
[Krishnamurthi’s] opinions.” Vigil, 805 F.3d at 1201.
c.
State agency medical consultants.
The ALJ further noted that the state agency medical consultants found
Plaintiff could perform light work, giving this opinion “some weight” and
noting “their opinion is consistent with treatment records, X-rays and
findings upon consultative examinations . . . .” AR 21. The ALJ rejected the
opinion in part because the ALJ determined Plaintiff’s subjective complaints
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required some further limitations. Id. So, the RFC assessment included a
variety of additional limitations. Id. at 17-18. Substantial evidence supports
the ALJ’s assessment of the medical source evidence.
2.
Next,
Credibility determination.
Plaintiff
challenges
the
ALJ’s
credibility
determination.
“Credibility determinations are peculiarly the province of the finder of fact,
and [the court] will not upset such determinations when supported by
substantial evidence in the record, provided the determinations are closely
and affirmatively linked to [that] evidence.” Adams ex rel. D.J.W. v. Astrue,
659 F.3d 1297, 1302 (10th Cir. 2011) (internal quotation marks and citation
omitted). An ALJ must consider (1) whether the objective medical evidence
establishes a pain-producing impairment; (2) if so, whether there is at least a
“loose nexus” between the impairment and the claimant’s subjective
complaints of pain; and (3) if so, whether, considering all of the evidence, both
objective and subjective, the claimant’s pain is in fact disabling.
Keyes-
Zachary v. Astrue, 695 F.3d 1156, 1166-67 (10th Cir. 2012) (citing Luna v.
Bowen, 834 F.2d 161, 163-64 (10th Cir. 1987)). “A claimant’s subjective
allegation of pain is not sufficient in itself to establish disability.” Thompson
v. Sullivan, 987 F.2d 1482, 1488 (10th Cir. 1993). An ALJ’s assessment of a
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claimant’s credibility will “not be upset if supported by substantial evidence.”
White v. Massanari, 271 F.3d 1256, 1261 (10th Cir. 2001).
In assessing the credibility of pain testimony, various factors are
relevant, including:
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 medical
evidence.
Branum v. Barnhart, 385 F.3d 1268, 1273-74 (10th Cir. 2004) (quotation
omitted).
Here, the ALJ summarized Plaintiff’s testimony:
At the hearing, the claimant testified substantially as
follows: He stopped working because he was having problems
with his back. He can no longer work because of his heart, back
and legs. It is hard to breath[e] and he gets headaches in the
mornings before he takes his medications. He takes an aspirin
every morning which takes the headache away. When he
exhausts himself, he feels a sharp pains his left upper arm.
Sometimes his fingers will go numb and at times travels down
his back. He carries nitroglycerine but has not gotten his refill
yet. He has no trouble reaching with his arms but sometimes
cannot get a good grip with his left hand. He has trouble
breathing if he walks 20 to 30 minutes.
His chest starts
hurting and he has to stop and catch his breath. He has no
problems with dust, fumes or gases when trying to breathe. He
gets sharp pains in his lower back and had surgery on it about
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20 years ago. He used to wear a brace but lost it. No current
surgery has been recommended. He can bend and touch his
knees but it is hard to get back up from touching his toes. He
cannot squat and rise back up. He can walk up and down a
flight of stairs but not at a steady pace. He cannot pick up a 10
pound bag of sugar because of back pain. He can stand for 20
minutes and walk about one to two blocks.
He has no
problems operating foot controls while driving. His back starts
hurting when it rains. Being out in the sun and heat drains
him. He has a history of quadruple bypass heart surgery and
was in the emergency room the last week or two for chest
pain. The last time he used marijuana was a week ago. He
vacuums every once in a while and does laundry. It takes him
all day to cut the grass with a push mower. He spends about 60
percent of the day off from his feet.
AR 18-19.
The ALJ encapsulated his credibility findings, concluding “the
claimant’s statements concerning the intensity, persistence and limiting
effects of his impairments are not credible to the extent they are inconsistent
with the above evidence of record.” Id. at 20. The ALJ discounted Plaintiff’s
description of the severity and disabling effect of his symptoms based on the
lack of medical evidence to support his reported symptoms and discrepancies
between his statements, function reports, and the medical evidence. Id. at
18, 19.
Contrary to Plaintiff’s assertions otherwise, the ALJ cited specific
medical evidence and explained why it supported his credibility findings. For
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example, regarding his chest pains and left arm pains, when discharged from
the hospital following quadruple bypass surgery, he had an “ejection fraction
of 50 to 55 percent and only mild left ventricular hypertrophy.” Id. at 19. His
reported May 7, 2012 pain was “different” from his preoperative angina pain.
Id. His June 6, 2012 follow-up appointment showed improvement and no
symptoms of recurrent angina or congestive heart failure. Id.; id. at 415-17.
In addition, Plaintiff “denied any recurrence of severe exertional chest pain or
other types of chest pain since discharge.”
Id. at 19, 472, 488.
This
contradicts Plaintiff’s testimony. In addition, Plaintiff denied any heat or
cold intolerance, again, contradicting his hearing testimony. Id. at 19, 416.
And, the ALJ discredited Plaintiff’s testimony regarding the severity of his
back pain because of similar inconsistencies in the medical record. Id. at 20,
416, 452, 502.
The ALJ similarly relied on medical evidence to contradict Plaintiff’s
claim of shortness of breath and headaches. Id. at 19, 442, 472, 490. He did
the same to counter some of Plaintiff’s self-described limitations on his daily
activities.
Id. at 19, 178-94, 210-17, 220-27.
The ALJ also considered
Plaintiff’s sporadic work history when evaluating his credibility. Id. at 20.
This is undoubtedly a relevant consideration. See Huston v. Bowen, 838 F.2d
1125, 1132 (10th Cir. 1988) (noting that “[t]he ALJ can weigh and evaluate
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numerous factors in determining the credibility of pain testimony,” including
“subjective measures of credibility that are peculiarly within the judgment of
the ALJ” as well as “the motivation of . . . the claimant”).
The ALJ also gave some credit to Plaintiff’s subjective complaints. As
noted, the State agency experts did not sufficiently account for these, and the
RFC assessment incorporated some of these complaints:
it included (1)
limitations to occasionally climbing, bending, stooping, squatting, kneeling,
crouching, crawling, and push/pull with the left upper extremity; (2) slight
limitation in finger, feel and grip, and (3) avoidance of temperature extremes
and sun exposure. AR 17.
The ALJ also noted medical management and medication compliance
could properly manage Plaintiff’s hypertension.
Id. at 19.
Contrary to
Plaintiff’s suggestion he could not afford his medication, the record reflects
Plaintiff received them. Id. at 438. The undersigned concludes “the ALJ
closely and affirmatively linked his credibility finding to substantial
evidence, and therefore . . . will not disturb it.” Shockley v. Colvin, 564 F.
App’x 935, 942 (10th Cir. 2014).
The undersigned agrees with the Commissioner that Plaintiff’s
remaining arguments, to the extent they constitute developed arguments,
present at best, harmless error. These include the ALJ’s misattribution of a
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function report to Plaintiff rather than that of Plaintiff’s friend. Doc. 16, at 9
(citing AR 19, 220-27). Such error is harmless.
Similarly, the ALJ’s non-acknowledgment of the agency clerk’s
observations regarding Plaintiff’s forgetfulness is at most, harmless error,
because Plaintiff points to no substantive evidence suggesting the ALJ should
include mental limitations in the RFC assessment. Id. (citing AR at 159, 181,
184, 210, 215, 416, 434); Alvev v. Colvin, 536 F. App’x 792, 795 (10th Cir.
2013) (holding any error was harmless “[b]ecause the evidence in this case
does not support assessing any functional limitations from mental
impairments”). Plaintiff relies on his adult function reports, which the ALJ
specifically considered in his credibility analysis.
AR 19.
And, the ALJ
considered the entire record in making the RFC assessment. Id. at 17; see
Wall v. Astrue, 561 F.3d 1048, 1070 (10th Cir. 2009) (When “the ALJ
indicates he has considered all the evidence our practice is to take the ALJ at
his word.” (brackets and internal quotation marks omitted)); Thompson v.
Colvin, No. CIV-14-1184-HE, 2015 WL 7313878, at *2 (W.D. Okla. Nov. 20,
2015) (unpublished order) (finding harmless error where the ALJ’s “fail[ed] to
expressly consider the notation in the record regarding the state agency
clerk’s telephone interview with plaintiff”).
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V.
Conclusion.
The court AFFIRMS the Commissioner’s decision.
ENTERED this 29th day of April, 2016.
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