Downen v. Commissioner of Social Security Administration

Filing 20

OPINION AND ORDER. The decision of the Commissioner is AFFIRMED. Signed by Honorable Charles Goodwin on 09/28/2018. (jb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
MARIETTA KAY DOWNEN,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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Case No. CIV-17-475-G

OPINION AND ORDER
Plaintiff Marietta Kay Downen 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 (“SSA”) denying Plaintiff’s application for disability insurance benefits
(“DIB”) under the Social Security Act, 42 U.S.C. §§ 401-434. Upon review of the
administrative record (Doc. No. 7, hereinafter “R. _”),1 and the arguments and authorities
submitted by the parties, the Court affirms the Commissioner’s decision.
PROCEDURAL HISTORY AND ADMINISTRATIVE DECISION
Plaintiff filed a DIB application on July 1, 2014, alleging a disability-onset date of
August 1, 2011. R. 16, 34, 145-48. Following a denial of her application initially and on
reconsideration, a hearing was held before an Administrative Law Judge (“ALJ”) on
February 2, 2016. R. 29-58, 85-89, 91-93. In addition to Plaintiff, a vocational expert

With the exception of the administrative record, references to the parties’ filings use the
page numbers assigned by the Court’s electronic filing system.
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(“VE”) testified at the hearing. R. 52-57. The ALJ issued an unfavorable decision on
February 24, 2016. R. 13-24.
The Commissioner of Social Security uses a five-step sequential evaluation process to
determine entitlement to disability benefits. See Wall v. Astrue, 561 F.3d 1048, 1052 (10th
Cir. 2009); 20 C.F.R. § 404.1520. At step one, the ALJ found that Plaintiff had not engaged
in substantial gainful activity since her alleged onset date. R. 18. At step two, the ALJ
determined that Plaintiff had the severe medically determinable impairments of
rheumatoid/inflammatory arthritis, other and unspecified arthropathies, and other disorders of
gastrointestinal system. R. 18-19. At step three, the ALJ found that Plaintiff’s condition did
not meet or equal any of the presumptively disabling impairments listed in 20 C.F.R. Part
404, Subpart P, Appendix 1. R. 19.
The ALJ next assessed Plaintiff’s residual functional capacity (“RFC”) based on all
her medically determinable impairments. R. 19-23. The ALJ found that Plaintiff had the
residual functional capacity to
perform the full range of sedentary work as defined in 20 CFR 404.1567(a)
except she should avoid concentrated exposure to extreme heat or cold; avoid
concentrated exposure to wetness or humidity; avoid concentrated exposure
to poorly ventilated areas; avoid concentrated exposure to environmental
irritants such as fumes, odors, dusts and gases; and she can occasionally
finger with the dominant right hand.
R. 19.
At step four, the ALJ, relying upon the VE’s testimony, found that Plaintiff was
capable of performing her past relevant work as a receptionist. R. 24, 53-55. Therefore,

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the ALJ determined that Plaintiff had not been disabled within the meaning of the Social
Security Act during the relevant period. R. 24.
Plaintiff’s request for review by the SSA Appeals Council was denied on February
21, 2017, and the unfavorable determination of the ALJ stands as the Commissioner’s final
decision. See R. 1-4; 20 C.F.R. § 404.981.
STANDARD OF REVIEW
Judicial review of the Commissioner’s final decision is limited to determining
whether factual findings are supported by substantial evidence in the record as a whole and
whether correct legal standards were applied. Poppa v. Astrue, 569 F.3d 1167, 1169 (10th
Cir. 2009). “Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Doyal v. Barnhart, 331 F.3d 758, 760 (10th
Cir. 2003) (internal quotation marks omitted). “A decision is not based on substantial
evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla
of evidence supporting it.” Branum v. Barnhart, 385 F.3d 1268, 1270 (10th Cir. 2004)
(internal quotation marks omitted). The court “meticulously examine[s] the record as a
whole,” including any evidence “that may undercut or detract from the ALJ’s findings,”
“to determine if the substantiality test has been met.” Wall, 561 F.3d at 1052 (internal
quotation marks omitted). While a reviewing court considers whether the Commissioner
followed applicable rules of law in weighing particular types of evidence in disability
cases, the court does not reweigh the evidence or substitute its own judgment for that of
the Commissioner. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008).

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ANALYSIS
In this action, Plaintiff argues that the ALJ erred by: (1) assigning “considerable
weight” to the opinions of state-agency physicians who did not have specialized knowledge
related to Plaintiff’s impairments, (2) improperly assessing Plaintiff’s credibility, and (3)
improperly evaluating Plaintiff’s past work at step four of the sequential evaluation. See
Pl.’s Br. (Doc. No. 13) at 1-10.
A. Evaluation of State-Agency Opinions
In this case, the primary opinion evidence in the record (as opposed to treatment
records) comes from two state-agency reviewing consultants, James Williams, MD, and
Elva Montoya, MD. Both physicians assessed Plaintiff as retaining the ability to perform
light work with no additional limitations. R. 65-66 (Ex. 2A), 76-77 (Ex. 4A). In explaining
the rationale behind his July 2014 opinion, Dr. Williams provided a brief review of
Plaintiff’s activities of daily living and the treatment record from 2009 to July 2014,
including Plaintiff’s surgical history and the results of physical examinations. R. 65-66.
In September 2014, Dr. Montoya affirmed Dr. Williams’ opinion and provided an identical
rationale for the assessment. R. 76-77.
In evaluating Plaintiff’s RFC, the ALJ discussed the state-agency opinions,
Plaintiff’s foot surgeries, treatment for rheumatoid arthritis, respiratory problems, and
obesity. The ALJ also evaluated Plaintiff’s hearing testimony and the statements Plaintiff
made in her function report. R. 20-23 (citing R. 202-10 (Ex. 6E)). At the conclusion of
the RFC determination, the ALJ stated that for the “reasons set forth above” the
assessments of the state-agency “examiners and consultants” were due “considerable
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weight.” R. 23. The ALJ ultimately assessed a more restrictive RFC, limiting Plaintiff to
sedentary rather than light work and including several additional environmental and
manipulative limitations. R. 19.
Plaintiff argues that the ALJ’s RFC is not supported by substantial evidence for
several reasons connected to the state-agency opinions. First, Plaintiff contends that the
opinions of Dr. Williams and Dr. Montoya cannot properly support the RFC because
neither physician personally examined her and that, rather than relying on the opinions of
Dr. Williams (an orthopedist) and Dr. Montoya (a pediatrician), the ALJ should have
obtained an opinion from a “rheumatologist and/or gastroenterologist” who would have
more expertise regarding Plaintiff’s impairments. Pl.’s Br. at 2; see also Pl.’s Reply (Doc.
No. 18) at 1-3. Plaintiff also argues that the ALJ “should have fulfilled his duty to develop
the record” by obtaining an opinion from an examining or treating physician. Pl.’s Br. at
3.
Plaintiff’s arguments are unavailing. Social Security regulations are clear that the
agency’s adjudicators will “generally give more weight to the medical opinion of a
specialist about medical issues related to his or her area of specialty than to the medical
opinion of a source who is not a specialist.” 20 C.F.R. § 404.1527(c)(5). Relatedly, “[t]he
opinion of an examining physician is generally entitled to less weight than that of a treating
physician, and the opinion of an agency physician who has never seen the claimant is
entitled to the least weight of all.” Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir.
2004). But the regulations provide that specialization is only one of various factors that
agency adjudicators must consider when evaluating a medical opinion. See 20 C.F.R. §
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404.1527(c)(1)-(6). In addition, findings from state-agency consultants must be treated as
“expert opinion evidence of nonexamining sources” at the ALJ level of administrative
review. SSR 96-6p, 1996 WL 374180, at *1 (July 2, 1996);2 see also id. at *2 (prescribing
that state-agency factual findings “become opinions” at the ALJ level of review). The fact
that a record does not contain a treating or examining opinion as to the claimant’s RFC
does not automatically trigger an obligation for the ALJ to obtain one. See 20 C.F.R. §
404.1519 (instructing that “[t]he decision to purchase a consultative examination will be
made on an individual case basis”); Howard v. Barnhart, 379 F.3d 945, 949 (10th Cir.
2004) (“[T]he ALJ, not a physician, is charged with determining a claimant’s RFC from
the medical record.”).
There was no indication from Plaintiff’s counsel at the hearing, or from the ALJ in
his written decision, that the lengthy record available in this case was inadequate for the
ALJ to address the relevant physical issues. See Wall, 561 F.3d at 1062-63; see also Maes
v. Astrue, 522 F.3d 1093, 1097 (10th Cir. 2008) (“Although the ALJ has the duty to develop
the record, such a duty does not permit a claimant, through counsel, to rest on the record .
. . and later fault the ALJ for not performing a more exhaustive investigation.”). And
finally, even if the ALJ had erred in his evaluation of the state-agency-physician opinions,
Plaintiff fails to show any prejudice in the ALJ’s assignment of “considerable weight” to
those opinions, given that the ALJ’s RFC assessment is actually more restrictive than that
set forth by those physicians. See Harris v. Astrue, 496 F. App’x 816, 819 n.1 (10th Cir.
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Effective March 27, 2017, Social Security Ruling 96-6p has been superseded by Social
Security Ruling 17-2p. See SSR 17-2p, 2017 WL 3928306, at *1 (Mar. 27, 2017).
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2012) (“The burden to show prejudicial error on appeal rests with [the claimant].” (citing
Shinseki v. Sanders, 556 U.S. 396, 409 (2009))); Chrismon v. Colvin, 531 F. App’x 893,
899 n.6 (10th Cir. 2013) (“Alleged ‘errors’ that favor the claimant are not grounds for
reversal.”); Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012) (“[I]f a medical opinion
adverse to the claimant has properly been given substantial weight, the ALJ does not
commit reversible error by electing to temper its extremes for the claimant’s benefit.”).
For all these reasons, Plaintiff has not shown that the ALJ’s assessment of these
medical opinions was improper or resulted in an RFC that is not supported by substantial
evidence.
B. Evaluation of Plaintiff’s Credibility
At the time of the ALJ’s decision, the relevant Social Security Ruling3 required an
ALJ to evaluate a claimant’s symptoms—e.g., “pain, fatigue, shortness of breath,
weakness, or nervousness”—according to a two-step process. SSR 96-7p, 1996 WL
374186, at *2 (July 2, 1996); accord 20 C.F.R. § 404.1529(b), (c) (2016). First, the ALJ
“must consider whether there is an underlying medically determinable physical or mental
impairment(s)” “that could reasonably be expected to produce the [claimant’s] pain or
other symptoms.” SSR 96-7p, 1996 WL 374186, at *2. Second, if such an impairment is
shown, the ALJ “must evaluate the intensity, persistence, and limiting effects” of the

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Social Security Ruling 96-7p has since been replaced by Social Security Ruling 16-3p,
which eliminates use of the term “credibility” and provides new guidance for evaluating
the intensity, persistence, and limiting effects of a claimant’s symptoms. See SSR 16-3p,
2017 WL 5180304, at *4 (eff. Oct. 25, 2017, to be applied to decisions made on or after
Mar. 28, 2016).
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claimant’s symptoms “to determine the extent to which the symptoms limit the [claimant’s]
ability to do basic work activities.” Id. In connection with this second step, “whenever the
[claimant’s] statements about the intensity, persistence, or functionally limiting effects of
pain or other symptoms are not substantiated by objective medical evidence, the [ALJ]
must make a finding on the credibility of the [claimant’s] statements based on a
consideration of the entire case record.” Id. (citing 20 C.F.R. § 404.1529(c)(4)).
The Court “normally defer[s] to the ALJ on matters involving the credibility of
witnesses.” Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994); accord Wilson v.
Astrue, 602 F.3d 1136, 1144 (10th Cir. 2010) (“[W]e will not upset such determinations
when supported by substantial evidence.” (internal quotation marks omitted)). “However,
findings as to credibility should be closely and affirmatively linked to substantial evidence
and not just a conclusion in the guise of findings.” Wilson, 602 F.3d at 1144 (alteration
and internal quotation marks omitted).
1. The ALJ’s Credibility Determination
As part of the RFC finding, the ALJ described the two-step process outlined above
and summarized the state-agency opinions, Plaintiff’s self-reported symptoms and hearing
testimony, and various physicians’ treatment records. R. 20-23. The ALJ then stated:
Based on the evidence outlined above, the undersigned finds that [Plaintiff’s]
prehearing reports and [her] hearing testimony of suffering totally disabling
impairments are not fully credible. . . . . After careful consideration of the
evidence, the undersigned finds that since August 1, 2011, [Plaintiff’s]
medically determinable impairments could reasonably be expected to cause
some [of] the alleged symptoms; however, [Plaintiff’s] statements
concerning the intensity, persistence and limiting effects of these symptoms
are not entirely credible to [the] extent they are inconsistent with [the RFC]
set forth above.
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R. 23.
2. The ALJ’s Rationale
Plaintiff objects that the ALJ failed to provide “good reasons” when conducting the
second step of the credibility analysis. See Pl.’s Br. at 3-8. First, Plaintiff challenges the
ALJ’s statement that Plaintiff’s “[p]hysical examinations have persistently been within
normal limits,” R. 23, because according to Plaintiff: (i) the symptoms of rheumatoid
arthritis “come and go”; and (ii) Plaintiff did have some abnormal physical-examination
findings. Pl.’s Br. at 3-5. The ALJ specifically considered, however, multiple items of
evidence reflecting Plaintiff’s physical problems and abnormal examinations. See R. 21,
22, 23; see also 20 C.F.R. § 404.1529(c)(3)(v) (prescribing that the ALJ will consider any
treatment received by claimant when evaluating the claimant’s symptoms); cf. id. §
404.1529(c)(4) (“We will consider . . . the extent to which there are any conflicts between
your statements and the rest of the evidence, including your history, the signs and
laboratory findings, and statements by your treating or nontreating source or other persons
about how your symptoms affect you.”). And neither a diagnosis of a medical condition
nor an inability to work without some pain establishes disability. Madrid v. Astrue, 243 F.
App’x 387, 392 (10th Cir. 2007); Brown v. Bowen, 801 F.2d 361, 362 (10th Cir. 1986).
Plaintiff next objects to the ALJ’s observation that with the exception of two 2011
foot surgeries, Plaintiff’s impairments “have not resulted in [the need for] any surgical
treatments, physical therapies, and other rehabilitative therapies.” R. 22; see Pl.’s Br. at 6.
Plaintiff essentially complains that the ALJ failed to recognize the risks associated with
surgery and placed too much stock in the lack of any additional surgeries, but she does not
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contest the factual accuracy of the ALJ’s statement. And, again, the treatment actually
prescribed for and received by Plaintiff was a proper factor for the ALJ to consider when
evaluating Plaintiff’s subjective complaints. See 20 C.F.R. § 404.1529(c)(3)(v).
Finally, Plaintiff asserts that the ALJ overstated her activities of daily living when
relying upon Plaintiff’s performance of those activities as a basis for discounting Plaintiff’s
credibility. See Pl.’s Br. at 6-8. It is true that a claimant’s activities of daily living do not,
by themselves, determine the claimant’s ability to work, as “sporadic performance of
household tasks or work does not establish that a person is capable of engaging in
substantial gainful activity.” Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th Cir. 1993)
(alteration and internal quotation marks omitted). The ALJ’s written decision specifically
discussed, however, some of the limitations and conditions Plaintiff herself placed upon
her ability to perform her daily activities.

See R. 20.

Further, Plaintiff’s own

characterization of her activities shows that they were far from “sporadic”: Plaintiff
reported that despite her pain from flare-ups and a need to take breaks, she was able to:
prepare meals four times a week, do dishes and laundry, clean her house, run errands, go
on walks, and attend social activities. R. 46-49, 203-10. A claimant’s ability to engage in
daily activities and a lack of prescribed limitations by physicians may support an adverse
credibility assessment. See 20 C.F.R. § 404.1529(c)(3)(i); Wilson, 602 F.3d at 1146; Rabon
v. Astrue, 464 F. App’x 732, 735 (10th Cir. 2012).
The decision clearly demonstrates that ALJ considered proper factors in assessing
Plaintiff’s credibility—e.g., the treatment received and the “location, duration, frequency,
and intensity of the individual’s pain or other symptoms.” SSR 96-7p, 1996 WL 374186,
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at *3. Viewed in context, the ALJ’s view toward the credibility of Plaintiff’s subjective
complaints is not purely conclusory and is sufficiently “linked to substantial evidence.”
Wilson, 602 F.3d at 1144 (internal quotation marks omitted).
C. Evaluation of Plaintiff’s Past Relevant Work
At step four, the ALJ found that Plaintiff’s RFC allowed her to perform her past
relevant work as a receptionist and stated:
Within the last 15 years, [Plaintiff] has engaged in substantial gainful
activities as a medical assistant and receptionist (Exs. 4D, 2E, 3E, 5E, and
14E). The [VE] testified that [Plaintiff’s] . . . past relevant work as a
receptionist falls within the definitions of semi-skilled work, sedentary
exertion. The vocational expert also testified that an individual possessing
the [RFC] listed above would be able to perform the demands and
requirements of [Plaintiff’s] past relevant work as a receptionist. Based [on]
the [VE’s] credible testimony, the undersigned is convinced that [Plaintiff]
can perform the demands and requirements of her past relevant work as a
receptionist.
R. 24; see also R. 53-57.
In her final challenge to the ALJ’s decision, Plaintiff argues that the ALJ erred in
assessing the demands of Plaintiff’s past relevant work and in determining that Plaintiff
was able to perform that work. See Pl.’s Br. at 8-10 (citing Winfrey v. Chater, 92 F.3d
1017 (10th Cir. 1996)).
In Winfrey, the Tenth Circuit stated that a proper step-four analysis includes three
phases, each accompanied by specific findings. See Winfrey, 92 F.3d at 1023. The court
explained:
In the first phase, the ALJ must evaluate a claimant’s physical and mental
[RFC], and in the second phase, he must determine the physical and mental
demands of the claimant’s past relevant work. In the final phase, the ALJ
determines whether the claimant has the ability to meet the job demands
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found in phase two despite the mental and/or physical limitations found in
phase one. At each of these phases, the ALJ must make specific findings.
Id. (citations omitted).
Plaintiff first complains that the ALJ failed at phase one to accurately relay
Plaintiff’s limitations to the VE, because the ALJ failed to include a requirement that
Plaintiff “elevate her feet during the workday” and failed to limit Plaintiff to occasional
reaching and handling due to problems with her elbows, shoulders, and wrists. Pl.’s Br. at
10. Plaintiff fails to cite any medical-record support for a feet-elevation requirement,
however, and Plaintiff’s testimony (which did address elevating her feet) was properly
found to lack credibility as discussed above. See id.; supra Part B; R. 20, 23, 43-44, 48,
51-52. In addition, while Plaintiff points to certain items in the record that arguably could
support greater restriction on Plaintiff’s reaching and handling capabilities, the ALJ’s
failure to impose such a restriction is supported by substantial evidence in the record that
was specifically cited in the written decision.

See R. 22 (noting that the treating

rheumatologist’s records show Plaintiff “to present some episodes of mild arthralgias,
synovitis, and effusion of her various joints” but do not reflect “significant compromise of
strength, flexibility, fine and gross motor functions, . . . and other physiological functions”;
noting that Plaintiff denied having chronic pain or significant difficulties with
physiological functions), 23 (noting Plaintiff’s report that she engages in driving, sewing,
crocheting, cross-stitching, and performing chores). The Court may not properly reweigh
the evidence that was before the ALJ. See Bowman, 511 F.3d at 1272.

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Plaintiff also implies that the VE’s reliance upon the job of “Reception Clerk” (also
listed as “Appointment Clerk”), which requires only occasional fingering, was in error
because Plaintiff’s previous work took place at a school and would be more accurately
classified as “Attendance Clerk,” which requires frequent fingering. See Pl.’s Br. at 9-10;
Dictionary of Occupational Titles (4th rev. ed. 1991) (“DOT”) 237.367-010 (Reception
Clerk), 1991 WL 672185; id. 219.362-014 (Attendance Clerk), 1991 WL 671954. But the
VE’s selection is materially consistent with Plaintiff’s own description of her job’s
requirements. Compare R. 198 (Plaintiff stating that as a receptionist, she answered phones,
completed attendance reports, assisted students and parents, and handled payments and
deposits), with DOT 237.367-010, 1991 WL 672185 (stating that a Reception Clerk
“[s]chedules appointments” “by mail, phone, or in person,” “[m]ay receive callers,” and
“[m]ay receive payments for services”).

Plaintiff has shown no error in the VE’s

determination.
Finally, Plaintiff argues that the ALJ failed to make a “specific” phase-two finding
regarding the physical and mental demands of Plaintiff’s past relevant work and that this
omission requires reversal. Pl.’s Br. at 8-9. It is true that the ALJ did not specifically list
each of the Reception Clerk job demands in the written decision. R. 24. But the ALJ did
specifically reference the VE’s testimony regarding the requirements of the occupation and
opining that a hypothetical claimant with Plaintiff’s RFC could perform that occupation as
it is generally performed. R. 24; see R. 53-55. Considering this reference, the ALJ’s
discussion is sufficiently specific to support the step-four findings. See Doyal, 331 F.3d at
761 (“An ALJ may rely on information supplied by the VE at step four.” (internal quotation
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marks omitted)); 20 C.F.R. § 404.1560(b)(2) (“A [VE] or specialist may offer relevant
evidence within his or her expertise or knowledge concerning the physical and mental
demands of a claimant’s past relevant work, either as the claimant actually performed it or
as generally performed in the national economy.”).
Plaintiff thus has not shown that the ALJ’s step-four determination is undermined
by a lack of substantial evidence or a failure to apply correct legal standards.
CONCLUSION
The decision of the Commissioner is AFFIRMED. A separate judgment shall be
entered.
IT IS SO ORDERED this 28th day of September, 2018.

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