Adair v. Commissioner of Social Security

Filing 22

ORDER ADOPTING REPORT AND RECOMMENDATION for 17 Report and Recommendation, as more fully set out. Signed by Honorable David L. Russell on 3/13/18. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
SHERRY ADAIR,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security
Administration
Defendant.

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Case No. CIV-16-1119-R

ORDER
Before the Court is the Report and Recommendation of United States Magistrate
Judge Bernard M. Jones recommending affirmance of the Commissioner’s decision to deny
Plaintiff disability insurance benefits (“DIB”). Doc. 17. Plaintiff objected, arguing that the
Administrative Law Judge (“ALJ”) failed to consider certain evidence regarding her
obesity, use of a cane, and other ailments in finding Plaintiff not “disabled” under Title II
of the Social Security Act, 42 U.S.C. §§ 405(g), 423(d)(1)(A). Doc. 18. Defendant
responded that the ALJ’s findings were supported by substantial evidence in the record.
Doc. 21. Pursuant to 28 U.S.C. § 636(b)(1)(B), the Court reviews the Report and
Recommendation de novo in light of Plaintiff’s objections and ADOPTS the Report in its
entirety. The decision of the Social Security Administration (“SSA”) is AFFIRMED.
I. Background
The ALJ issued a decision on February 20, 2015, that Plaintiff has not been disabled
since she applied for DIB on May 28, 2013. Social Security Administration Record (“AR,”
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Doc. 10) 10. She followed the SSA’s five-step disability evaluation. 20 C.F.R.
§ 404.1520(a); see Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005). The ALJ
first found that Plaintiff has not engaged in “substantial gainful activity since . . . [her]
application date.” AR 12. The second and third steps entailed ALJ analysis of Plaintiff’s
SSA-defined “severe impairments,” which include “status post left knee replacement;
degenerative disc disease, plantar fasciitis, asthma, and depression.” AR 12–14. Plaintiff
also experiences non-severe obesity and hypertension. AR 12. Notably, the ALJ relied on
Plaintiff’s silence at the social security hearing regarding obesity and the absence of
evidence to substantiate that obesity poses “any specific or quantifiable impact on [her]
pulmonary, musculoskeletal, endocrine, or cardiac functioning.” Id.
Fourth, the ALJ found that Plaintiff possesses the residual function capacity
(“RFC”) to “perform a reduced range of sedentary work.” AR 14.
[S]he can lift and/or carry up to 10 pounds; stand and/or walk for 2 hours in
an 8-hour workday; and sit for about 6 hours in an 8-hour workday. She can
occasionally stoop; must avoid more than occasional exposure to respiratory
irritants; can understand and complete simple and some complex instructions
as in semi-skilled work; can relate to others on a superficial work basis; and
can adapt to a work situation.
Id. In reaching this conclusion, the ALJ considered Plaintiff’s obesity (AR 12), testimony
at the hearing (AR 25–62), remote history of knee replacement and degenerative disc
disease (AR 66–85), psychological evaluation by Dr. Scott (AR 310–14), consultative
examination by Dr. Christensen (AR 316–28), emergency room visits for foot pain (AR
329–41) and a respiratory infection (AR 342–49), visits to the Clinton Free Clinic (AR
297–308, 350–51), work record (AR 226), failure to seek free care for reported ailments
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during extensive periods (AR 14–18), and the State Agency’s psychological and physical
medical experts (AR 97–120).
Lastly, the ALJ found that although Plaintiff’s RFC prevents her from continuing
past relevant work as a “dietary aide, home health aid, and babysitter,” there are “jobs that
exist in significant numbers in the national economy” that Plaintiff can perform. AR 18–
20 (quoting 20 C.F.R. §§ 416.965, 416.969, 416.969(a)). Specifically, Plaintiff can perform
three jobs: thread separator, inspector, or cuff folder. AR 19. The ALJ therefore found
Plaintiff not disabled and the Commissioner adopted this finding following Plaintiff’s
unsuccessful appeal.
II. Standard of Review
The Court reviews the Commissioner’s decision to determine whether substantial
evidence in the record supports the ALJ’s factual findings and whether the ALJ applied the
correct legal standards. Andrade v. Sec’y of Health & Human Servs., 985 F.2d 1045, 1047
(10th Cir. 1993). Substantial evidence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion,” Fowler v. Bowen, 876 F.2d 1451, 1453
(10th Cir. 1989), and “requires more than a scintilla, but less than a preponderance.” Lax
v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). “Evidence is not substantial if it is
overwhelmed by other evidence in the record or constitutes mere conclusion.” Grogan v.
Barnhart, 399 F.3d 1257, 1261–62 (10th Cir. 2005) (quoting Musgrave v. Sullivan, 966
F.2d 1371, 1374 (10th Cir. 1992)). The court “meticulously examine[s] the record as a
whole, including anything that may undercut or detract from the ALJ’s findings in order to
determine if the substantiality test has been met.” Flaherty v. Astrue, 515 F.3d 1067, 1070
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(10th Cir. 2007) (quoting Grogan, 499 F.2d at 1262). While the Court “consider[s] whether
the ALJ followed the ‘specific rules of law that must be followed in weighing particular
types of evidence in disability cases,’ . . . [the Court] will not reweigh the evidence or
substitute [its] judgment for the Commissioner’s.” Hackett v. Barnhart, 395 F.3d 1168,
1172 (10th Cir. 2005) (quoting Reyes v. Bowen, 845 F.2d 242, 244 (10th Cir. 1988)).
III. Discussion
Plaintiff alleges that the ALJ committed several errors in finding Plaintiff not
disabled under the Social Security Act. The first concerns the treatment of obesity in the
ALJ’s Step 2 determination, and the rest concern Plaintiff’s RFC. The Court will address
each in turn and then Plaintiff’s remaining objections to Judge Jones’s Report and
Recommendation.
A. Obesity
Plaintiff argues that the ALJ erred at Step 2 by finding Plaintiff’s obesity not
“severe” and by considering the condition in a “boilerplate and completely conclusory
fashion.” Plaintiff’s Opening Brief, Doc. 12, at 3. First, the ALJ clearly considered obesity,
and the Court declines to reweigh the evidence. See Hackett, 395 F.3d at 1172. She found:
The claimant is obese at 63 inches tall and 272 pounds (Exhibit C-3 F). The
claimant does not allege disability due to obesity (Exhibit C-2E). She did not
mention obesity at the hearing. I have considered the potential impact of
obesity in causing or contributing to co-existing impairments as required by
Social Security Ruling 02-01p. However, there is no evidence of any specific
or quantifiable impact on pulmonary, musculoskeletal, endocrine, or cardiac
functioning. The claimant’s weight, including the impact on her ability to
ambulate as well as her other body systems, has been considered within the
limitations of the claimant’s residual functional capacity described below.

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AR 12. The record shows that “the ALJ did discuss possible ramifications of her obesity
when [s]he addressed the lack of marked arthritic pain, joint deformity, or musculoskeletal
impairment. [Plaintiff] does not discuss or cite to medical evidence about other areas which
were impacted by her obesity.” Howard v. Barnhart, 379 F.3d 945, 948 (10th Cir. 2004).
Second, regarding the particularity of the ALJ’s obesity findings, the Court takes
the ALJ at her word—that she considered Plaintiff’s obesity and its ramifications. See
Hackett, 395 F.3d at 1172. Granted, “[t]he ALJ could have provided a more particularized
discussion of the effects of [Plaintiff’s] obesity,” but her “decision provides an adequate
discussion of the effect of obesity.” Arles v. Astrue, 438 F. App’x 735, 740 (10th Cir. 2011).
Plaintiff does not point to conflicting evidence in the record that the ALJ ignored, and the
Court rejects Plaintiff’s obesity argument.
Third, “the failure to find a particular impairment severe at [Step 2] is not reversible
error when the ALJ finds that at least one other impairment is severe. Here, the ALJ found
[five] other impairments severe.” Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016).
This is because Plaintiff “need only establish, and an ALJ need only find, one severe
impairment” to proceed to Step 3 in the disability calculation. Id.
B. Plaintiff’s Residual Function Capacity
Plaintiff asserts a number of issues with the ALJ’s RFC calculation and conclusion
that Plaintiff possesses the RFC to “perform a reduced range of sedentary work.” AR 14.
The first issue concerns the ALJ’s alleged failure to consider Plaintiff’s obesity, which is
meritless for the reasons stated above. See AR 12 (“The claimant’s weight, including the

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impact on her ability to ambulate as well as her other body systems, has been considered
within the limitations of the claimant’s residual functional capacity described below.”).
Second, the ALJ allegedly failed to consider that “[a]n RFC for less than a full range
of sedentary work . . . is expected to be relatively rare.” Social Security Ruling (“SSR”)
96-9p, 1996 WL 374185, at *1 (July 2, 1996). Plaintiff is right that the ALJ did not
explicitly note the rarity of a limited-sedentary-RFC finding, but such “a finding . . . does
not necessarily equate with a decision of ‘disabled.’” Id. The ALJ substantiated Plaintiff’s
RFC with evidence in the record. She also gave the required “consideration . . . to whether
there is other work in the national economy that [Plaintiff] is able to do.” Id.; see AR 19–
20. Thus, Judge Jones correctly notes that the ALJ’s “reduced range of sedentary work”
finding is justified—the SSR “requires neither a special explanation of why rare
circumstances exist to justify the RFC nor a statement that the ruling was considered.” Doc.
17, at 4 (citing SSR 96-9p; Neihart v. Berryhill, Report and Recommendation, No. CIV16-394-RAW-KEW, 2017 WL 2560003, at *2–3 (E.D. Okla. May 10, 2017)).
Third, Plaintiff claims that the ALJ failed to fully consider the impact of Plaintiff’s
use of a cane—specifically her “wide based gait,” “lordotic back,” and “back pain”—on
her severe conditions and ability to carry objects. To the contrary, the ALJ considered
Plaintiff’s testimony concerning back and leg pain, left knee arthritis, ankle swelling, and
“that she uses a cane constantly because of balance problems and it was not prescribed by
a doctor.” AR 15. In weighing this testimony against the medical evidence in the record,
however, the ALJ found that her “statements concerning the intensity, persistence, and
limited effects of these symptoms are not entirely credible.” Id. At Plaintiff’s consultative
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evaluations, those “set up by the [Social Security] Administration,” she used a cane; by
contrast, the medical records from Plaintiff’s non-SSA medical visits do not refer to cane
use. AR 16–17.
In particular, at Dr. Christensen’s August 15, 2013, consultative examination,
Plaintiff showed:
reduced range of motion in the lumbar spine, but range of motion of all other
joints was normal. There was mild weakness in toe walking, heel walking
was normal, straight leg raising was negative, and there was no evidence of
knee crepitus or effusion. Grip strength was 5/5, there was no evidence of
muscular atrophy, and there was no focal sensory deficits appreciated. The
claimant had normal hand skills bilaterally and posture was lordotic. The
claimant ambulated with a safe and stable gait at a normal speed with a cane.
Without the cane the claimant was slightly slower with a wider based gait.
AR 16. An emergency visit the following summer for foot pain “showed normal gait, 5/5
strength in all extremities, sensation was intact, and the claimant was able to fully bear
weight without difficulty.” Id. Then when Plaintiff visited the emergency room again in
December of 2014, “there was no mention that she used a cane (Exhibits C-4F and C-5F).
There is also no mention of a cane when seen at the free clinic on November 13, 2014
(Exhibit C-6F).” AR 17. Based on this evidence, the ALJ found Plaintiff’s testimony not
credible and determined that she “can lift and/or carry up to 10 pounds.”1 AR 18. Given
the ALJ’s detailed consideration of this cane issue, the Court declines to reweigh the
evidence or reverse the ALJ’s credibility determination.

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The Court disregards an exhibit to Plaintiff’s brief before Judge Jones because review of the ALJ’s
decision is limited to the administrative record. See Young v. Astrue, 219 F. App’x 840, 842 (10th Cir. 2007)
(quoting Ginter v. Sec’y of Dep’t of Health, Educ., & Welfare, 621 F.2d 313, 313–14 (8th Cir. 1980) (per
curiam)) (The “district court’s role under § 405(g) ‘is limited to reviewing the administrative record to
determine whether there is substantial evidence to support the findings of the [Commissioner].’”).

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Fourth, the ALJ allegedly erred by finding that Plaintiff—despite her “severe”
asthma—can be around “occasional exposure to respiratory irritants.” AR 14. Again, the
ALJ clearly considered Plaintiff’s asthma and imposed an RFC limitation based on this
“severe impairment.” AR 18 (“I accord little weight to the opinions of the State Agency
physical medical experts because the evidence clearly shows that the claimant’s asthma is
a severe impairment and causes functional limitations.”). This finding is insufficient,
Plaintiff argues, because a severe impairment necessarily requires absolute protection from
irritants and “unscheduled breaks for breathing treatments during the work day.” Yet, none
of the evidence Plaintiff cites supports that need. See AR 38, 316–18, 324; see also AR 17
(“Pulmonary function studies showed restriction of lung volumes consistent with asthma
(Exhibit C-3F). This examination does not show any severe findings that would preclude
the claimant from performing sedentary work activity.”). Accordingly, the Court rejects
Plaintiff’s contention regarding her asthma.2 “Clearly, an ALJ doesn’t commit error by
omitting limitations not supported by the record.” Kirkpatrick v. Colvin, 663 F. App’x 646,
650 (10th Cir. 2016).
Fifth, Plaintiff argues that the ALJ failed to consider her learning disorder when
concluding that she is capable of “understand[ing] and complet[ing] simple and some
complex instructions as in semi-skilled work.” AR 14. The ALJ supported this finding with
evidence in the record. Following Plaintiff’s consultative psychological evaluation on
August 7, 2013—despite her “remote memory functioning [that] was somewhat impaired”

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The Court agrees with Judge Jones that alternatively, this is harmless error. None of Plaintiff’s potential occupations
at Step 5—thread separator, inspector, or cuff folder—require exposure to irritants. See AR 19; Doc. 17, at 6 n.4.

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and poor arithmetic abilities—Dr. Scott concluded that Plaintiff’s “ability to understand,
remember, and carry out simple and complex instructions in a work-related environment
would be rated as fair (Exhibit C-2F).” AR 16, 314.3 The ALJ:
accord[ed] great weight to the opinions of the State Agency psychological
medical consultants because they are deemed experts and highly
knowledgeable in the area of disability and because their opinions are well
supported by medically acceptable clinical and laboratory techniques and
largely consistent with the record as a whole as detailed above.
AR 18; see AR 13–15 (“The severity of the claimant’s mental impairments . . . . With
regard to concentration, persistence or pace, the claimant has moderate difficulties.
. . . [Plaintiff] stated that she was in special education in school and left school because she
could not do the work.”).
Plaintiff repeatedly accuses the ALJ of “playing doctor” for relying on the record.
Doc. 12, at 7; Doc. 18, at 2, 4. Meanwhile, Plaintiff distorts the record and speculates that
“complex and semi-skilled work is out of the question.” See Doc. 12, at 10; Doc. 17, at 7
& n.6. The Court declines to reweigh substantial medical evidence the ALJ relied on in her
RFC determination. Alternatively, for the reasons stated by Judges Jones in his Report, any
alleged error is harmless because the ALJ did not recommend semi-skilled occupations in
finding Plaintiff not disabled. See Doc. 17, at 8; AR 19.
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In asserting further ALJ error, Plaintiff mischaracterizes Dr. Scott’s findings—he did not find a “‘fair’
ability to work”—and argues that the ALJ failed to identify the weight she gives to his conclusion. See AR
16, 314; Doc. 12, at 11–13. The ALJ’s discussion of “great weight [given] to the opinions of the State
Agency psychological medical consultants” appears “sufficiently specific to make clear . . . the weight [the
ALJ] gave to [Dr. Scott’s] medical opinion and the reason for that weight.” Watkins v. Barnhart, 350 F.3d
1297, 1300 (10th Cir. 2003) (quoting SSR 96–2p, 1996 WL 374188, at *5). Nonetheless, even if the ALJ’s
explanation is insufficient, the omission is harmless error because Dr. Scott’s opinion is entirely consistent
with the ALJ’s RFC conclusion. See Mays v. Colvin, 739 F.3d 569, 578–79 (10th Cir. 2014) (“[A]n ALJ's
failure to weigh a medical opinion involves harmless error if there is no inconsistency between the opinion
and the ALJ’s assessment of residual functional capacity.”).

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C. Plaintiff’s Objections to the Report and Recommendation
Objecting to Judge Jones’s Report and Recommendation, Plaintiff improperly raises
new issues not presented in his opening brief and repeats various meritless arguments.
Plaintiff’s main objection concerns the ALJ’s credibility determinations throughout her
analysis. Effective March 28, 2016, the SSA replaced SSR 96-7p with SSR 16-3p,
“eliminating the use of the term ‘credibility’ from [its] sub-regulatory policy” and
“clarify[ing] that subjective symptom evaluation is not an examination of an individual’s
character.” SSR 16-3P, 2016 WL 1119029, at *1 (Mar. 16, 2016). Plaintiff argues that even
though her disability determination predated this SSR change, the new rule would apply
upon remand—assuming the Court finds reversible error—which undermines the ALJ’s
RFC analysis and warrants retroactive application to her case.
Plaintiff’s problems with this argument are threefold. First, “[i]ssues raised for the
first time in objections to the magistrate judge’s recommendation are deemed waived.”
Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996); see also City of Colorado Springs
v. Solis, 589 F.3d 1121, 1135 (10th Cir. 2009). Second, even if the Court could consider
Plaintiff’s argument, the SSA clarified SSR 16-3p’s application after a year of uncertainty
to settle that it does not apply retroactively. The SSA “expect[s] the court [to] review the
final decision using the rules that were in effect at the time [the ALJ] issued the decision.”
Notice of Social Security Ruling, 82 FR 49462-03 n.27 (Oct. 25, 2017); see also Hargress
v. Soc. Sec. Admin., Comm’r., No. 17-11683, 2018 WL 1061567, at *5 (citing Bowen v.
Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988)) (“[A]dministrative rules generally are
not applied retroactively.”). Third, even if SSR 16-3p applied retroactively, the change was
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a mere “clarify[ication]” of the ALJ’s role—one that appears consistent with the ALJ’s
analysis of Plaintiff’s RFC.
Plaintiff also waived his various objections regarding Step 3 error. She argues that
the ALJ failed to consider Plaintiff’s walking limitations and pain with regard to Listing
1.02, and that the ALJ erred by not finding her “disabled per se.” Doc. 18, at 6–8. Again,
Plaintiff failed to raise these arguments to the magistrate judge and the Court will not
consider them anew upon Plaintiff’s objection. See Marshall, 75 F.3d at 1426.
The rest of Plaintiff’s objections are without merit. Discussed above, Plaintiff’s
arguments regarding the ALJ’s consideration of her cane use, ambulation, and back pain
are belied by the medical evidence. See supra Part III(B), at 6–7. The same goes for the
ALJ’s failure to discuss Plaintiff’s wheelchair use. In addition to waiving that argument for
failure to raise it before Judge Jones, Plaintiff distorts the record. Her testimony at the
social security hearing does not show wheelchair use at the time of her alleged disability.
Instead, she “used to use a hover [or mobile] scooter . . . a bit more than a year” before the
hearing to rehab following a surgery.4 AR 45–46. In other words, Plaintiff’s wheelchair
use is consistent with the ALJ’s finding; accordingly, the ALJ’s failure to address it is not
reversible error. See Mays v. Colvin, 739 F.3d 569, 578–79 (10th Cir. 2014). Further, the
ALJ’s alleged failure to consider Plaintiff’s gripping ability is also directly refuted by
substantial evidence in the record. See AR 16–17.

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At the hearing, Plaintiff refers generally to “my surgery.” AR 46. The record demonstrates a knee surgery in 2001
and a heel surgery in 2009, both several years before she applied for DIB in 2013.

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IV. Conclusion
Thus, substantial evidence in the record supports the ALJ’s factual findings, and the
ALJ applied the correct legal standards. The Report and Recommendation of Judge Jones,
Doc. 17, is ADOPTED in its entirety. The decision of the Commissioner of the Social
Security Administration denying Plaintiff DIB is AFFIRMED.
IT IS SO ORDERED this 13th day of March, 2018.

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