Stone v. Commissioner of Social Security

Filing 24

MEMORANDUM OPINION AND ORDER -- The Court has reviewed the medical evidence of record, the transcript of the administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties. Based on this review, the Court AFFIRMS the Commissioner's decision. Signed by Magistrate Judge Shon T. Erwin on 10/19/17. (mc)

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

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Case No. CIV-16-1379-STE

MEMORANDUM OPINION AND ORDER
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the
final decision of the Commissioner of the Social Security Administration denying Plaintiff’s
application for disability insurance benefits under the Social Security Act. The
Commissioner has answered and filed a transcript the administrative record (hereinafter
TR. ____). The parties have consented to jurisdiction over this matter by a United States
Magistrate Judge pursuant to 28 U.S.C. § 636(c).
The parties have briefed their positions, and the matter is now at issue. Based on
the Court’s review of the record and the issues presented, the Court AFFIRMS the
Commissioner’s decision.
I.

PROCEDURAL BACKGROUND
Initially and on reconsideration, the Social Security Administration denied Plaintiff’s

application for disability insurance benefits. Following an administrative hearing, an
Administrative Law Judge (ALJ) issued an unfavorable decision. (TR. 11-22). The Appeals
Council denied Plaintiff’s request for review. (TR. 1-4). Thus, the decision of the ALJ
became the final decision of the Commissioner.

II.

THE ADMINISTRATIVE DECISION
The ALJ followed the five-step sequential evaluation process required by agency

regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R.
§ 404.1520. At step one, the ALJ determined that Plaintiff had not engaged in substantial
gainful activity since September 17, 2011, the alleged disability onset date. (TR. 13). At
step two, the ALJ determined Ms. Stone had the following severe impairments: obesity;
post-traumatic stress disorder (PTSD); generalized anxiety disorder; chronic sinusitis;
allergic rhinitis; asthma; and migraines. (TR. 13). At step three, the ALJ found that
Plaintiff’s impairments did not meet or medically equal any of the presumptively disabling
impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1 (TR. 14).
At step four, the ALJ found that Plaintiff was not capable of performing her past
relevant work. (TR. 20). The ALJ further concluded that Ms. Stone retained the residual
functional capacity (RFC) to:
[L]ift and carry 20 pounds occasionally and 10 pounds frequently. The
claimant can sit for about 6 hours during an eight-hour workday and can
stand and walk for about 6 hours during an eight-hour workday. The
claimant can occasionally climb, balance, stoop, kneel, crouch, and crawl.
The claimant is to avoid concentrated exposure to dusts, fumes, gases,
odors, and poor ventilation. The claimant can understand, remember, and
carry out simple, routine, and repetitive tasks. The claimant can respond
appropriately to supervisors, co-workers, and usual work situations, but
have no contact with the general public.
(TR. 16).
With this RFC, the ALJ made additional findings at step five. There, the ALJ
presented several limitations to a vocational expert (VE) to determine whether there were
other jobs in the national economy that Plaintiff could perform. (TR. 59-61). Given the
limitations, the VE identified three jobs from the Dictionary of Occupational Titles (DOT).
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(TR. 60-61). The ALJ adopted the testimony of the VE and concluded that Ms. Stone was
not disabled based on her ability to perform the identified jobs. (TR. 21-22).
III.

ISSUES PRESENTED
On appeal, Plaintiff alleges the ALJ erred in failing to: (1) include limitations in the

RFC which reflected severe impairments at step two and moderate restrictions at step
three, (2) properly evaluate a finding of disability from the Veteran’s Administration (VA),
and (3) properly evaluate opinions from three physicians.
IV.

STANDARD OF REVIEW
This Court reviews the Commissioner’s final “decision to determin[e] whether the

factual findings are supported by substantial evidence in the record and whether the
correct legal standards were applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir.
2010). “Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Id. (quotation omitted).
While the court considers whether the ALJ followed the applicable rules of law in
weighing particular types of evidence in disability cases, the court will “neither reweigh
the evidence nor substitute [its] judgment for that of the agency.” Vigil v. Colvin, 805
F.3d 1199, 1201 (10th Cir. 2015) (internal quotation marks omitted).
V.

NO ERROR IN THE RFC
Ms. Stone alleges that the RFC failed to include specific limitations which reflected

the ALJ’s findings at steps two and three. (ECF No. 22:2-13). The Court disagrees.
A.

ALJ’s Duty in Assessing the RFC—Physical & Mental Impairments

In assessing an individual’s mental impairment, the ALJ must employ a “special
technique” which involves rating the degree of functional limitation under four broad
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functional areas. 20 C.F.R. § 404.1520a(b)-(c). This assessment is documented on a
Psychiatric Review Technique (PRT) form and is used to rate the severity of the mental
impairment at steps two and three of the sequential evaluation process. See SSR 96-8p,
1996 WL 374184, at *6-7 (July 2, 1996).
Step four requires a more detailed assessment by itemizing various functions
contained in the broad categories summarized on the PRT. Id. In assessing the RFC for
both physical and mental impairments, the ALJ must consider the limitations and
restrictions imposed by a claimant’s severe impairments and express any limitations in
terms of specific, work-related activities he or she is able to perform. Id., at *6-7.
B.

No Reversible Error Regarding the RFC Assessment

At step four, the ALJ concluded that Ms. Stone had the RFC to:
[L]ift and carry 20 pounds occasionally and 10 pounds frequently. The
claimant can sit for about 6 hours during an eight-hour workday and can
stand and walk for about 6 hours during an eight-hour workday. The
claimant can occasionally climb, balance, stoop, kneel, crouch, and crawl.
The claimant is to avoid concentrated exposure to dusts, fumes, gases,
odors, and poor ventilation. The claimant can understand, remember, and
carry out simple, routine, and repetitive tasks. The claimant can respond
appropriately to supervisors, co-workers, and usual work situations, but
have no contact with the general public.
(TR. 16). Ms. Stone alleges that the RFC failed to account for: (1) limitations related to
her severe impairments of migraines, PTSD, anxiety, chronic sinusitis, allergic rhinitis,
and asthma and (2) findings that Plaintiff suffered from various “moderate” mental
limitations. (ECF No. 22:2-13).
1.

Severe Impairments

At step two, the ALJ concluded that Plaintiff suffered from severe PTSD,
generalized anxiety disorder, migraines, chronic sinusitis, allergic rhinitis, and asthma.
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(TR. 13). As a result, Plaintiff alleges that the ALJ erred by “failing to include or further
consider all of the severe impairments he found at step two in [the] [RFC.]” (ECF No.
22:2). The Court rejects Plaintiff’s argument.
Once a claimant’s impairments are deemed severe at step two, the ALJ has a duty
to discuss their impact throughout the remainder of the disability determination. 20 C.F.R.
§ 404.1545(a)(2). Indeed, in formulating the RFC, the ALJ must discuss the combined
effect of all the claimant’s medically determinable impairments, both severe and
nonsevere. See Wells v. Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013). However, the
presence of an impairment, albeit severe, does not necessarily equate to corresponding
limitations in the RFC. Cavalier v. Colvin, 2014 WL 7408430, at *2 (N.D. Okla. 2014). The
RFC need only include such limitations as the medical record substantially supports. See

Kirkpatrick v. Colvin, 663 F. App’x. 646, 650 (10th Cir. 2016) (“Clearly, an ALJ doesn’t
commit error by omitting limitations not supported by the record”); Arles v. Astrue, 438
F. App’x. 735, 740 (10th Cir. 2011) (rejecting plaintiff’s claim a limitation should have
been included in his RFC because “such a limitation has no support in the record”).
PTSD, Anxiety, and Migraines
Regarding her PTSD, anxiety, and migraines, Ms. Stone states: “[a] reasonable
person would expect some limitations for being off-task when migraines occur or when
an anxiety attack occurs or some allowance for loss of concentration due to migraine and
PTSD symptomology.” (ECF No. 22:3). But the Court is not concerned with the type of
limitations expected by a reasonable person with these conditions. The Court is concerned
with the specific type of work-related limitations that Ms. Stone suffers as a result of the
impairments.
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In an effort to specify particular limitations, Plaintiff references her hearing
testimony where she described various symptoms of migraines and anxiety, saying that
migraines affected her vision, which took her “off-task” and she suffered anxiety which
resulted in her not wanting to get out of bed 4-5 days a week. (ECF No. 22:3-4). For two
reasons, these arguments are not persuasive. First, being “off task” is too vague to
translate to a specific work-related functional limitation and Plaintiff cites to no medical
opinion which supports a finding that being “off-task” would prevent Ms. Stone from
engaging in substantial gainful activity.
Second, although Plaintiff testified that she did not want to get out of bed 4-5 days
per month due to anxiety, she also testified that she was taking medication for her anxiety
which was effective. (TR. 44-46). The ALJ considered Plaintiff’s testimony, cited medical
evidence noting that her anxiety had improved with medication, and made a credibility
determination. (TR. 16-17). Ms. Stone does not separately challenge the credibility
determination, nor point to any evidence wherein a medical professional has stated that
her anxiety would result in excessive absenteeism. As a result, the Court should conclude
that Plaintiff has not met her burden to establish error in the RFC. See Bowen v. Yuckert,
482 U.S. 137, 146 n. 5 (1987) (the claimant has the initial burden of establishing a
disability in the first four steps of this analysis).
Sinusitis, Rhinitis, and Asthma
As part of the RFC, the ALJ stated that Plaintiff must “avoid concentrated exposure
to dusts, fumes, gases, odors, and poor ventilation.” (TR. 16). According to Ms. Stone,
this limitation was insufficient to account for her severe impairments involving chronic

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sinusitis, allergic rhinitis, and asthma. (ECF No. 22:9). In support, Plaintiff argues three
points. None of them are persuasive.
First, Plaintiff states “[s]he needs no exposure and medical proves.” (ECF No.
22:9). The sole medical record Plaintiff cites in support states: (1) that Plaintiff’s nasal
symptoms are worse:


outside,



in the fall and spring,



around mowed grass, animals, molds and dust, and



during weather changes; and

(2) that her chest symptoms are worse:


with laughter,



when nasal symptoms are present,



around dust and cold air, and



with exercise and infections.

(TR. 1050). The only restriction mentioned in both the RFC and the medical record cited
by Plaintiff concerns dust. (TR. 16, 1050). The medical record states that Ms. Stone’s
nasal and chest symptoms are worse around dust. The RFC states that Ms. Stone should
avoid concentrated exposure to dusts. (TR. 16). Plaintiff apparently believes that the RFC
does not adequately account for the medical evidence related to her problems with dust.
But the Court concludes otherwise; as nowhere in the cited record does the medical
evidence suggest limitations that are more restrictive than those set forth in the RFC.
Plaintiff’s argument regarding “no exposure” is merely an issue of semantics.

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Second, Plaintiff attempts to persuade the Court that the RFC limitation is
insufficient by pointing out that she: (1) has undergone two surgeries for her rhinitis, (2)
at the time of surgery, had been taking 28 medications, and (3) takes twice monthly
allergy injections. (ECF No. 22:9-10). But Plaintiff does not identify any particular workrelated functions related to this evidence or otherwise argue how the evidence would
translate into a more restrictive RFC. Accordingly, the Court rejects Plaintiff’s argument.

See McAnally v. Astrue, 241 F. App’x. 515, 518 (10th Cir. 2007) (affirming in part because
“with regard to [her severe impairments], the claimant has shown no error by the ALJ
because she does not identify any functional limitations that should have been included
in the RFC assessment or discuss any evidence that would support the inclusion of any
limitations” (citation and internal brackets omitted)); Kirkpatrick v. Colvin, 663 F. App’x.
at 649 (rejecting Plaintiff’s argument regarding the alleged omission of certain limitations
in an RFC because “[plaintiff] doesn’t explain how these restrictions fail to account for his
[limitations] . . . [a]nd it isn’t our obligation to search the record and construct a party’s
arguments.”).
Third, Plaintiff presents the possibility that due to her allergies, she might have to
use an “Epipen,” the side effects of which could be “a bit traumatic.” (ECF No. 22:9-10).
But the argument that Plaintiff might have to use an Epipen on the job if she suffers an
allergic reaction is too speculative to conclude that the RFC should have accounted for
additional restrictions.
Step Two Challenge
Within her challenge to the RFC and as a seemingly related point of error, Ms.
Stone challenges the ALJ’s step two findings, citing Wells v. Colvin, 727 F.3d 1061 (10th
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Cir. 2003). (ECF 22:4-8). The Court concludes that Ms. Stone’s reliance on Wells is
misplaced.
In Wells, the ALJ had made a step-two finding that the plaintiff’s mental
impairments were not severe. Wells, 727 F.3d at 1068. The ALJ then stated: “[t]hese
findings do not result in further limitations in work-related functions in the [RFC] below.”

Id. at 1069 (brackets in original). The Tenth Circuit Court of Appeals stated that the ALJ’s
language “suggest[ed]” that he may have relied on his step-two findings to conclude that
the plaintiff had no limitations at step four based on mental impairments. Id. at 1069. If
so, the Court stated, such a conclusion would be considered “inadequate under the
regulations” because the RFC analysis at step four required “a more detailed assessment”
“describing how the evidence supports each conclusion, citing specific medical facts.” Id.
(emphasis in original).
Ms. Stone contends that the ALJ erred at step two by making findings more
egregious than the step-two findings condemned in Wells. Plaintiff states: “Worse yet, in
contrast to the step-two statement that Wells implied would be inadequate, at step two
in Ms. Stone’s case the ALJ made no statement whatsoever regarding all severe or nonsevere impairments in her RFC which is error.” (ECF No. 22:6). This statement suggests
that the Plaintiff believes Wells requires some sort of finding at step-two regarding the
impact of the impairments at step four. But such an assumption overstates the ALJ’s duty
at step two, and misses the import of the holding in Wells.
At step two, the ALJ’s duty is limited to making a determination of whether the
claimant suffers from a severe impairment or combination of impairments. See Bowen v.

Yuckert, 482 U.S. 137, 140-141 (1987); 20 C.F.R. §§ 404.1520(c), 416.920(c). The ALJ
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complied with this duty, finding that Ms. Stone suffered from severe PTSD, generalized
anxiety disorder, migraines, chronic sinusitis, allergic rhinitis, and asthma. See TR. 13.

Wells did not require the ALJ to make a step two finding beyond severity. Instead, the
Court in Wells found error “to the extent the ALJ relied on his finding of non-severity as
a substitute for [an] adequate RFC analysis[.]” Wells, 727 F.3d at 1071. Thus, the Court
rejects Plaintiff’s allegation of error to the extent that it is premised on improper findings
under Wells at step two.
2.

Moderate Findings

At step three, the ALJ concluded that Plaintiff suffered from “moderate” limitations
in the areas of daily activities; social functioning; and concentration, persistence or pace.
(TR. 15). With respect to these findings, Ms. Stone asks: “[W]hy are those symptoms
which led [the ALJ] to the conclusion that they caused moderate restrictions not included
in his step five conclusions?” (ECF No. 22:11). Apparently, Ms. Stone believes that the
step three findings were not adequately reflected in the RFC. In support, she states:


“Simple, routine, repetitive tasks do not matter when a person is off-task”
and



“[T]he ALJ notes that [Plaintiff] has difficulty getting along with others, but
concludes that she can still respond appropriately to supervisors, coworkers
and usual work situations. That is not congruent and is error.”

(ECF No. 22:11, 12). Neither statement is compelling.
Plaintiff’s first statement lacks evidentiary support. Ms. Stone presents no evidence
in support of her allegations that: (1) she gets “off-task,” (2) getting “off-task” would
affect her ability to work, and (3) the RFC for simple work was not sufficient. The lack of
authority or further argument precludes the Court from considering the argument. See
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Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (“We will consider and
discuss only those of [the claimant’s] contentions that have been adequately briefed for
our review.”).
Plaintiff’s second statement is an attempt to re-weigh the evidence concerning her
difficulty in getting along with others to reach a different conclusion in the RFC. But the
Court cannot re-weigh the evidence, as that duty is charged to the ALJ in the first
instance. See Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (the court will “neither
reweigh the evidence nor substitute [its] judgment for that of the agency.”) (internal
quotation marks omitted).
VI.

NO ERROR IN THE ALJ’S CONSIDERATION OF THE VA DISABILITY
RATING
In June 2012, Ms. Stone received a 100% disability rating from the VA. (TR. 272-

281). Plaintiff argues that the ALJ committed reversible error by not discussing the VA's
rating more fully. (ECF No. 22:13). In support, Ms. Stone argues that the ALJ “fail[ed] to
discuss the significance of the VA’s disability evaluation.” (ECF No. 22:13). The Court
rejects this argument.
“Although findings by other agencies are not binding on the [Commissioner], they
are entitled to weight and must be considered.” Baca v. Dep't of Health & Human Servs.,
5 F.3d 476, 480 (10th Cir. 1993) (further quotation omitted); see also 20 C.F.R. §
404.1512(b)(1)(v) (stating agency will consider “[d]ecisions by any governmental or
nongovernmental agency” concerning disability).
There is no dispute that the ALJ considered the VA records and acknowledged the
VA’s 100% disability rating. (TR. 16-18, 20). Ms. Stone argues that the ALJ should have
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further discussed the significance of the VA’s determination, but she “has not pointed to
any specific factual finding or evidence in the [VA’s] disability determination that should
have changed the [ALJ’s] decision.” Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir.
2005). Under identical circumstances, the Tenth Circuit Court of Appeals has rejected a
similar claim of error. See Breneiser v. Astrue, 231 F. App’x 840, 844-845 (10th Cir. 2007).
The Court finds Breneiser persuasive and rejects Plaintiff’s argument.
VII.

NO ERROR IN THE EVALUATION OF VARIOUS OPINIONS
In the opinion, the ALJ accorded “little weight” to the medical opinions of Drs. Julie

Wallace and Ishita Thakar, stating:


“The claimant’s impairments are not expected to cause the physical
limitations by Dr. Thakar” and



“Dr. Wallace’s limitations are inconsistent with the mental health treatment
notes of record.”

(TR. 20). Ms. Stone challenges the ALJ’s treatment of these opinions,1 arguing that the
ALJ’s reasoning “was flawed” when he discounted the physicians’ opinions because he
utilized his own medical opinion in rejecting the opinions from Dr. Thakar and failed to
identify the records that were inconsistent with Dr. Wallace’s opinion. (ECF No. 22:1417). The Court rejects Plaintiff’s arguments.
Regarding Dr. Thakar, the ALJ cited to the record and explained that he could not
fully credit the physician’s opinions due to multiple internal inconsistencies within his
treatment notes. (TR. 19). And regarding Dr. Wallace’s opinion, Plaintiff’s argues that the
ALJ’s reasoning fails because “the VA rating is not inconsistent [with Dr. Wallace’s

Plaintiff also takes issue with the ALJ’s treatment of the opinion of Dr. Bennett, but fails to
identify any specific opinion or develop her argument in any way. (ECF No. 22:15).
1

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opinion].” But another agency’s disability rating is not binding on the ALJ. 20 C.F.R. §
404.1504.
ORDER
The Court has reviewed the medical evidence of record, the transcript of the
administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties.
Based on this review, the Court AFFIRMS the Commissioner’s decision.
ENTERED on October 19, 2017.

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