Ash v. Commissioner of Social Security Administration

Filing 23

ORDER ADOPTING REPORT AND RECOMMENDATION 22 of Magistrate Judge Gary Purcell...the court affirms the Acting Commissioner's decision. Signed by Honorable Joe Heaton on 12/06/2017. (Attachments: # 1 Attachment Report and Recommendation)(lam)

Case 5:17-cv-00127-HE Document 22 Filed 10/30/17 Page 1 of 11

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

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No. CIV-17-127-HE

REPORT AND RECOMMENDATION
Plaintiff seeks judicial review pursuant to 42 U.S.C. § 405(g) of the final
decision of Defendant Commissioner denying her application for disability
insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 416(i), 423.
Defendant has answered the Complaint and filed the administrative record
(hereinafter AR___), and the parties have briefed the issues. The matter has been
referred to the undersigned Magistrate Judge for initial proceedings consistent with
28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended that the
Commissioner’s decision be affirmed.
I. Administrative History and Final Agency Decision
Plaintiff applied for Title II disability insurance benefits on October 15, 2013.
In her application, Plaintiff alleged that she became disabled on December 10, 2001,
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due to Perthes disease1 in her right hip and slipped capital femoral epiphysis2
(“SCFE”) in her left hip.
Plaintiff’s work history reveals that she worked full-time after the date on
which she allegedly became disabled. (AR 176). Plaintiff herself admitted that she
did not stop working until July 31, 2013, and that she stopped working for “other
reasons,” specifically, “[t]hey didn’t have any more work for me.” (AR 225). The
agency determined that Plaintiff’s earnings did not entitle her to disability insurance
benefits after March 31, 2003. Therefore, Plaintiff was required to demonstrate that
she was disabled on or before that date. Wilson v. Astrue, 602 F.3d 1136, 1139 (10th
Cir. 2010); Potter v. Secretary of Health & Human Servs., 905 F.2d 1346, 1349 (10th
Cir. 1990)(per curiam); accord, Adams v. Chater, 93 F.2d 712, 714 (10th Cir. 1996);
Henrie v. United States Dep’t of Health & Human Servs., 13 F.3d 359, 360 (10th
Cir. 1993).

Legg-Calve-Perthes disease is a “childhood condition that affects the hip” and “occurs when
blood supply is temporarily interrupted to the ball part (femoral head) of the hip joint. Without
sufficient blood flow, the bone begins to die – so it breaks more easily and heals poorly.”
https://www.mayoclinic.org/diseases-conditions/legg-calve-perthesdisease/basics/definition/CON-20035572y Treatment options for the condition include joint
realignment and joint replacement.
2
“Slipped capital femoral epiphysis (SCFE) is a hip condition that occurs in teens and pre-teens
who are still growing. For reasons that are not well understood, the ball of the head of the femur
(thighbone) slips off the neck of the bone in a backwards direction. . . . Treatment for SCFE
involves surgery to stop the head of the femur from slipping any further.”
http://orthoinfo.aaos.org/topic.cfm?topic=A00052. With stable or mild SCFE, surgical treatment
involves in situ fixation with insertion of a metal screw across the growth plate to maintain the
position of the femoral head and prevent any further slippage. Id. “Over time, the growth plate
will close, or fuse. Once the growth plate is closed, no further slippage can occur.” Id.
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Plaintiff’s sparse medical record reflects that she was diagnosed with LeggPerthes disease in her right hip in May 1991. (AR 335). Plaintiff was treated by Dr.
Gruel in 1994 and in 2001. Dr. Gruel’s surgical note in October 1994 indicates
Plaintiff, who was then 14 years old, had a 4 year history of right hip Perthes disease
and she was experiencing pain and decreased range of motion in her left hip. (AR
322). The diagnostic impression based on x-rays of Plaintiff’s left hip was chronic
SCFE, stable. (AR 323).
In October 1994, Dr. Gruel performed a surgical osteotomy on Plaintiff’s left
hip with spica casting of the hip. (AR 311). Two months later, Dr. Gruel performed
a second surgical procedure on Plaintiff to remove a compression hip screw and
implant a cannulated screw in her left hip “to ensure closure.” (AR 297). In October
2000 and September 2001, x-rays of Plaintiff’s hips were interpreted as showing no
evidence of fracture, dislocation, or soft tissue abnormality. (AR 286, 287).
There are no further records of medical treatment of Plaintiff until August
2011 when she sought treatment from Dr. Blair, an orthopedic surgeon. Dr. Blair
noted that Plaintiff, who was then 30 years old, complained of bilateral hip pain
increasing over the previous six months. (AR 337). X-rays of Plaintiff’s hips were
interpreted as showing “significant degenerative changes with a pistol grip coxa vara
deformity bilaterally with significant narrowing and osteophytes and generalized
thickening of the bone bilaterally and the left also show[ed the] presence of a screw.”
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(AR 338). Dr. Blair recommended hip joint replacement, noting that “given her
weight at age 30, it is going to be problematic,” and advised Plaintiff concerning
other treatment options, including physical therapy, hip injections, and pain
medication management. (AR 338).
Two years later, in 2013, Plaintiff again sought treatment for right hip pain.
Dr. White, an orthopedic specialist, noted that Plaintiff complained her left hip “is
not significantly painful but the right hip is very painful and limits her activities.”
(AR 267). She was taking non-narcotic, over-the-counter pain medication and
occasionally using a crutch when her symptoms were severe. Dr. White noted he
discussed surgical and non-surgical treatment options with her, and that she decided
to undergo right hip steroid injections, to undertake pain management with a
nonsteroidal anti-inflammatory medication, and to obtain a referral to a nutritionist
for weight loss. (AR 268). There are no further notes of medical treatment of
Plaintiff.
Plaintiff appeared with counsel and testified at an administrative hearing
conducted on June 2, 2015, before Administrative Law Judge Parrish (“ALJ”). (AR
21-55). A vocational expert (“VE”) also testified at the hearing.
The ALJ issued a decision in which the ALJ found that Plaintiff
(1) “last met the insured status requirements of the Social Security Act on
March 31, 2003,”
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(2) “did not engage in substantial gainful activity during the period from her
alleged onset date of December 11, 2001 through her date last insured of March 31,
2003,”
(3) had a severe impairment due to history of Perthes disease through her date
last insured, and
(4) did not have an impairment or combination of impairments that met or
medically equaled the severity of one of the listed impairment in the regulations at
20 C.F.R. part 404, subpt. P, App. 1 through the date she was last insured.
The ALJ further found that (5) through the date she was last insured Plaintiff
had the residual functional capacity (“RFC”) to perform light work as defined in 20
C.F.R. § 404.1567(b) except she should never climb ladders, ropes, or scaffolds and
never climb ramps or stairs, and she is limited to occasional stooping, crouching,
and kneeling.
Finally, the ALJ found that (6) through the date she was last insured Plaintiff
was capable of performing all of her past relevant work, including her jobs as a
database entry clerk, dispatcher, and companion, and (7) she was not under a
disability, as defined by the Social Security Act, at any time from December 11,
2001, the alleged onset date, through March 31, 2003, the date last insured.
The Appeals Council denied Plaintiff’s request for review of the ALJ’s
decision, and therefore the ALJ’s decision is the final decision of the Commissioner.
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See 20 C.F.R. § 404.981; Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009).
II. Issues Raised
Plaintiff raises one issue in her brief. She alleges “Flawed RFC Due to an
Improper Medical Analysis.” Plaintiff’s Opening Brief (Doc. # 17), at 2.
III. General Legal Standards Guiding Judicial Review
The Court must determine whether the Commissioner’s decision is 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); Doyal v. Barnhart,
331 F.3d 758, 760 (10th Cir. 2003). “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). The “determination of whether the ALJ’s ruling is supported
by substantial evidence must be based upon the record taken as a whole.
Consequently, [the Court must] remain mindful that evidence is not substantial if it
is overwhelmed by other evidence in the record.” Wall, 561 F.3d at 1052 (citations,
internal quotation marks, and brackets omitted).
The Social Security Act authorizes payment of benefits to an individual with
disabilities. 42 U.S.C. § 401 et seq. A disability is 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
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can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C.
§ 423(d)(1)(A); accord, 42 U.S.C. § 1382c(a)(3)(A); see 20 C.F.R. § 416.909
(duration requirement). Both the “impairment” and the “inability” must be expected
to last not less than twelve months. Barnhart v. Walton, 535 U.S. 212 (2002).
The agency follows a five-step sequential evaluation procedure in resolving
the claims of disability applicants. See 20 C.F.R. § 404.1520(a)(4), (b)-(g). In this
case, the ALJ denied Plaintiff’s application at the fourth step.
At step four, the claimant bears the burden of proving her inability to perform
the duties of her past relevant work. See Andrade v. Secretary of Health & Human
Servs., 985 F.2d 1045, 1051 (10th Cir. 1993). At this step, the ALJ must “make
findings regarding 1) the individual’s [RFC], 2) the physical and mental demands of
prior jobs or occupations, and 3) the ability of the individual to return to the past
occupation, given his or her [RFC].” Henrie v. United States Dep’t of Health &
Human Servs., 13 F.3d 359, 361 (10th Cir. 1993). As defined by the regulations,
RFC represents what the claimant can still do despite his or her limitations. 20 C.F.R.
§ 404.1545(a). RFC categories include sedentary, light, medium, heavy, and very
heavy, based on the exertional demands of the various jobs available in the national
economy. See 20 C.F.R. § 404.1567.
IV. No Error in RFC Finding
In this case, the ALJ found that Plaintiff had a severe impairment due to
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Perthes disease and that she had the RFC to perform a limited range of light work.
At Plaintiff’s administrative hearing, the VE described the exertional and skill
requirements of Plaintiff’s previous jobs as a database entry clerk, dispatcher, and
companion. The VE testified that the first two of these jobs were generally
performed at the sedentary level and that the third job, as a companion, was generally
performed at the light level. (AR 50). The VE testified at the administrative hearing
that an individual with Plaintiff’s vocational characteristics (age, education, and
work experience) and RFC for work could perform the requirements of Plaintiff’s
previous jobs. (AR 51-52).
In finding that Plaintiff was not disabled within the meaning of the Social
Security Act, the ALJ properly relied on the VE’s testimony. The ALJ also reviewed
the scant medical evidence in the record and reasoned that the opinions of state
agency consultative physicians, who reviewed the medical evidence and determined
that Plaintiff was not disabled, were entitled to “some weight” as the opinions were
“consistent with the medical evidence of record.” (AR 15).
Other than citing some extra-record evidence regarding Perthes disease
gleaned from a website, Plaintiff does not offer any substantive argument to support
her assertion that the ALJ’s RFC finding lacks sufficient evidence in the record. She
does not point to any medical evidence in the record that was not considered by the
ALJ and was probative of the crucial issue of Plaintiff’s disability on or before
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March 31, 2003. Plaintiff’s counsel’s subjective assessments of Plaintiff’s medical
condition and symptoms, which are sprinkled throughout her brief, are simply
irrelevant.3
Plaintiff also complains that the RFC did not include limitations for “crutches
and wheelchair.” Plaintiff’s Opening Brief (Doc. # 17), at 12. Plaintiff does not
provide any references to the record or any evidentiary support for the implied
assertion that Plaintiff medically required “crutches and [a] wheelchair” for a
significant period of time on or before the date she was last insured for benefits.
Plaintiff advised Dr. White in 2013 that she occasionally used a crutch when her
right hip pain was severe, and she testified at the administrative hearing that she
sometimes used a crutch or a wheelchair at the time of the hearing. She did not relate
any use of assistive devices to the period preceding the date in 2003 on which she
was last insured for benefits. The ALJ did not err in failing to include additional
limitations in the RFC finding for the use of assistive devices such as a crutch or a
wheelchair.
Further, the ALJ did not disregard Plaintiff’s severe impairment, as Plaintiff
suggests, in determining her RFC for work through the date she was last insured for
benefits. Rather, the ALJ’s decision reflects that the ALJ carefully reviewed the

For instance, Plaintiff states that “the highlighted underlined portions from the website apply
to” Plaintiff, and “[p]eople with bad hips do not like to stand most all day due to the pain.”
Plaintiff’s Opening Brief, at 7, 12.

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medical record and properly reasoned that “for the period under consideration from
the alleged onset date of December 11, 2001 through the date last insured of March
31, 2003, the claimant has no supporting medical evidence to sustain her allegations
of a disabling condition.” (AR 15). The ALJ further reasoned, appropriately, that
imaging studies of Plaintiff’s hips had shown stability of her condition with no
worsening during the relevant period of time, and she did not persistently seek
medical treatment for hip pain or related symptoms.
Although Plaintiff testified that she was having the same problems with hip
pain in 2003 as she was having at the time of the hearing, the record indicates that
Plaintiff worked after the date on which she alleged she became disabled, and no
physician imposed limitations upon her suggesting she was unable to work for any
twelve-month period during the relevant time period.
In the ALJ’s decision, the ALJ imposed limitations in the RFC finding that
are supported by the record, including climbing and postural limitations. There is
substantial evidence in the record to support the RFC determination, and the
Commissioner’s final decision should be affirmed.
RECOMMENDATION
In view of the foregoing findings, it is recommended that judgment enter
AFFIRMING the decision of the Commissioner to deny Plaintiff’s application for
benefits. The parties are advised of their respective right to file an objection to this
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Report and Recommendation with the Clerk of this Court on or before
November 20th , 2017, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72.
The failure to timely object to this Report and Recommendation would waive
appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656
(10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996)(“Issues
raised for the first time in objections to the magistrate judge’s recommendation are
deemed waived.”).
This Report and Recommendation disposes of all issues referred to the
undersigned Magistrate Judge in the captioned matter, and any pending motion not
specifically addressed herein is denied.
ENTERED this

30th

day of

11

October

, 2017.