Hanks v. Commissioner of Social Security Administration
Filing
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OPINION AND ORDER. The decision of the Commissioner is affirmed. Signed by Magistrate Judge Charles B Goodwin on 08/16/2018. (jb)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
SHAYLA RENEA HANKS,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
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Case No. CIV-17-547-CG
OPINION AND ORDER
Plaintiff Shayla Renea Hanks 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 applications for disability insurance benefits
(“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401-434, and for
supplemental security income (“SSI”) under Title XVI of the Social Security Act, id. §§
1381-1383f. The parties have consented to the jurisdiction of a United States Magistrate
Judge. Upon review of the administrative record (Doc. No. 12, 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 protectively filed her DIB application on September 6, 2013, and filed her
SSI application on September 20, 2013. R. 20. In both applications, Plaintiff alleged a
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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disability onset date of June 1, 2009. R. 20, 194, 196. Following denial of her applications
initially and on reconsideration, a hearing was held before an Administrative Law Judge
(“ALJ”) on September 21, 2015. R. 41-88, 141-45, 146-49, 152-54, 155-57. In addition
to Plaintiff, a vocational expert (“VE”) testified at the hearing. R. 78-85. The ALJ issued
an unfavorable decision on December 29, 2015. R. 17-32.
The Commissioner 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, 416.920. At step one, the ALJ found that Plaintiff had not engaged
in substantial gainful activity since June 1, 2009, the alleged disability-onset date. R. 23. At
step two, the ALJ determined that Plaintiff had the severe medically determinable
impairments of rheumatoid arthritis, Sjögren’s syndrome, right-knee ACL tear, right-shoulder
labial tear, endometriosis with history of pelvic pain and bladder weakness, and obesity. R.
23-24. 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 (the
“Listings”). R. 24-25.
The ALJ next assessed Plaintiff’s residual functional capacity (“RFC”) based on all
her medically determinable impairments. R. 25-30. The ALJ found that Plaintiff had the
RFC to
perform light work as defined in 20 CFR [§§] 404.1567(b) and 416.967(b)
except she can stand and/or walk for a total of 4 of 8 hours in an 8-hour
workday and sit for a total of 6 hours in an 8-hour workday. She can stand
and/or walk up to 30 minutes at a time and sit up to 30 minutes at a time with
all changes in position occurring at the workstation without taking a break.
She never can climb ladders, ropes, and scaffolds but occasionally can climb
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stairs, kneel, crouch and crawl. She is limited to frequent reaching overhead
with the dominant right upper extremity.
R. 25. At step four, the ALJ considered the hearing testimony of the VE and found that
Plaintiff was not capable of performing her past relevant work. R. 30-31.
At step five, the ALJ considered whether there are jobs existing in significant
numbers in the national economy that Plaintiff—in view of her age, education, work
experience, and RFC—could perform. R. 31-32. Relying upon the VE’s testimony, the
ALJ found that Plaintiff could perform light, unskilled occupations such as office helper
and parking-lot attendant. R. 31-32. The ALJ therefore determined that Plaintiff had not
been disabled within the meaning of the Social Security Act during the relevant time
period. R. 32.
Plaintiff’s request for review by the SSA Appeals Council was denied on March 8,
2017, and the unfavorable determination of the ALJ stands as the Commissioner’s final
decision. R. 1-6; 20 C.F.R. §§ 404.981, 416.1481.
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
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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).
ANALYSIS
In this action, Plaintiff argues that the ALJ erred by: (1) failing to consider and apply
Social Security Ruling 15-1p, (2) improperly assessing Plaintiff’s credibility, and (3)
relying on a hypothetical question to the VE that failed to include all of Plaintiff’s
limitations. See Pl.’s Br. (Doc. No. 17) at 2-20; SSR 15-1p, 2015 WL 1292257 (Mar. 18,
2015).
A. The ALJ’s Evaluation of Social Security Ruling 15-1p
Plaintiff argues that the ALJ’s failure to “follow, much less even consider” Social
Security Ruling 15-1p constitutes reversible error. Pl.’s Br. at 3. Social Security Ruling
15-1p, which became effective on March 18, 2015, “clarifies [SSA] policy on how we
develop evidence to establish that a person has a medically determinable impairment
(MDI)” of interstitial cystitis (“IC”), which the agency defines as a “complex genitourinary
disorder involving recurring pain or discomfort in the bladder and pelvic region.” SSR 15-
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1p, 2015 WL 1292257, at *1, *2. The Ruling also clarifies how the SSA “evaluate[s] this
impairment in disability claims.” Id. at *1.
Plaintiff was diagnosed with interstitial cystitis in January 2011. R. 336. Plaintiff’s
physician, Darren Goff, MD, described Plaintiff as having chronic pain and dyspareunia,
with a history of endometriosis and vesicovaginal fistula. R. 336-37. Dr. Goff noted that
Plaintiff developed secondary pelvic pain after a Foley catheter was accidentally pulled
from her bladder, an event that caused “significant damage” to Plaintiff’s body. R. 337.
Plaintiff subsequently developed chronic pelvic-floor pain and endometriosis, and a test
administered by Dr. Goff revealed the existence of IC. R. 336, 338. In addition to pain,
Plaintiff reported symptoms of urinary urgency. R. 320, 330. Both Dr. Goff and personnel
to whom Plaintiff was referred by Dr. Goff continued to specifically note and provide
treatment for Plaintiff’s IC and related conditions (including chronic pelvic pain and
pelvic-floor weakness) through August 2012. R. 310, 314, 318, 320, 328-29, 333 (Exhibit
1F).
Plaintiff contends that the ALJ’s failure to explicitly mention Social Security Ruling
15-1p in the body of the hearing decision constitutes reversible error for several reasons.
First, Plaintiff argues that because the medical record is “full of facts” regarding IC, the
ALJ was required to mention Social Security Ruling 15-1p. Pl.’s Br. at 4. Plaintiff is
correct that the ALJ did not explicitly discuss Social Security Ruling 15-1p in the hearing
decision. Plaintiff cites no regulations or case law requiring an ALJ to explicitly mention
an applicable Ruling by name for a decision to be legally sufficient, however, and
Defendant cites persuasive authority to the contrary. See Def.’s Br. (Doc. 18) at 4 (citing
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McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 834 (6th Cir. 2006) (rejecting “the
proposition that an ALJ must refer with specificity to Social Security Rulings when making
disability determinations”); Pugh v. Bowen, 870 F.2d 1271, 1274 (7th Cir. 1989) (“[I]f the
ALJ nevertheless conducted the requisite analysis, his failure to refer to SSR 83-20 by
name should not be fatal.”)).
More significantly, Plaintiff argues that the ALJ’s analysis does not comply, in its
substance, with the dictates of Social Security Ruling 15-1p. The Court disagrees. As
outlined below, at each step in the five-step sequential evaluation affected by Social
Security Ruling 15-1p, the ALJ’s analysis was consistent in all material respects with the
assessment contemplated by that Ruling. See SSR 15-1p, 2015 WL 1292257, at *1-8.
Relevant to step two, Plaintiff asserts that the ALJ erred in failing to identify IC as
a severe impairment despite the diagnosis from Plaintiff’s physician appearing in the
record. See Pl.’s Br. at 6-7. Social Security Ruling 15-1p makes it clear that IC co-occurs
with a number of conditions with similar symptoms, including several—such as Sjögren’s
syndrome and endometriosis—that are included among Plaintiff’s severe impairments. See
R. 23; SSR 15-1p, 2015 WL 1292257, at *3. The Ruling also makes clear that physicians
use various terms to describe IC, because they consider the term “to be synonymous” with
terms such as “bladder pain syndrome” and “painful bladder syndrome.” SSR 15-1p, 2015
WL 1292257, at *2. In this case, the ALJ reasonably identified Plaintiff’s IC as a severe
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impairment by classifying it as “endometriosis with history of pelvic pain and bladder
weakness.” R. 23.2
Relevant to step three, Plaintiff argues that the ALJ did not properly consider
whether Plaintiff’s IC met or equaled any Listings. See Pl.’s Br. at 7-8. Social Security
Ruling 15-1p provides, however, that IC is not a listed impairment and that SSA will not
find that a person with “IC alone has an impairment that meets a listing.” SSR 15-1p, 2015
WL 1292257, at *8. The Ruling further provides that in evaluating IC, the ALJ “will
compare the specific findings in each case to any pertinent listing to determine whether
medical equivalence may exist.” Id. At step three of the sequential evaluation process, the
ALJ did follow this procedure by considering Plaintiff’s physical impairments under
Listings 1.02, 6.00, 14.09, and 14.10.3 R. 25.4
Even assuming the ALJ was not including Plaintiff’s IC within the findings of severe
impairments, the ALJ nonetheless proceeded to evaluate the symptoms and limiting effects
associated with this condition. R. 27, 28. “[T]the failure to find a particular impairment
severe at step two is not reversible error when the ALJ finds that at least one other
impairment is severe.” Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016); see also
Ray v. Colvin, 657 F. App’x 733, 734 (10th Cir. 2016) (noting that any error in failing “to
find an impairment medically determinable” “would be obviated if the ALJ considered the
non-medically determinable impairment in assessing the RFC”).
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Social Security Ruling 15-1p does not prescribe which Listings an ALJ should consider
when evaluating IC, but Listing 6.00, which deals with genitourinary disorders, appears to
be the Listing most directly relevant. See, e.g., Thomas v. Colvin, No. 14-cv-01641-PAB,
2016 WL 1604711, at *3 (D. Colo. Apr. 22, 2016).
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Plaintiff relatedly contends that her mental impairments of depression and anxiety
“warranted consideration” as a “psychological manifestation” of Plaintiff’s IC, and
therefore the ALJ at step three should have explicitly considered whether these
impairments—although found by the ALJ to be nonsevere, R. 23-24—met or equaled one
of the Listings for mental disorders. Pl.’s Br. at 7-8. But see 20 C.F.R. §§ 404.1520a(d)(2),
416.920a(d)(2) (2015) (“If your mental impairment(s) is severe, we will then determine if
it meets or is equivalent in severity to a listed mental disorder.”). Social Security Ruling
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Relevant to the RFC determination, the pertinent authority is clear that such
assessments hinge on the functional limitations stemming from a claimant’s impairments,
rather than on the way a claimant’s impairments are classified. See SSR 15-1p, 2015 WL
1292257, at *8 (“The RFC assessment must be based on all the relevant evidence in the
record.”); Rabon v. Astrue, 464 F. App’x 732, 734 (10th Cir. 2012) (“A claimant must
show more than the mere presence of a condition or ailment.” (internal quotation marks
omitted)); 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1) (“Your [RFC] is the most you can
still do despite your limitations.”); SSR 96-8p, 1996 WL 374184, at *2 (July 2, 1996) (“[I]n
assessing RFC, the adjudicator must consider only limitations and restrictions attributable
to medically determinable impairments.” (emphasis added)); cf. Chapo v. Astrue, 682 F.3d
1285, 1288 (10th Cir. 2012) (“The ALJ, not a physician, is charged with determining a
claimant’s RFC from the medical record.” (alteration and internal quotation marks
15-1p provides that when “a person with IC has psychological manifestations related to
IC,” the ALJ “must consider whether the person’s impairment meets or equals the severity
of any impairment in the mental disorders listings.” SSR 15-1p, 2015 WL 1292257, at *8.
Any error by the ALJ in failing to explicitly consider one of the mental-disorder Listings
at step three is harmless, however, as the ALJ’s step-two and RFC findings make clear that
no such Listing would have been found to be met or equaled. At step two of the sequential
evaluation, the ALJ expressly cited Listing 12.00, evaluated Plaintiff’s impairments of
anxiety and depression using the “Paragraph B” criteria, and determined that such
impairments, “considered singly and in combination, do not cause more than minimal
limitation in the claimant’s ability to perform basic mental work activities and are therefore
non-severe.” R. 23-24. In determining Plaintiff’s RFC, the ALJ discussed (and gave
discounted weight to) the opinion of a consulting psychologist and ultimately assessed no
functional limitations related to Plaintiff’s nonsevere mental impairments. R. 25, 30.
These findings—which are not challenged by Plaintiff—“conclusively preclude” a
determination that the psychological manifestations of Plaintiff’s IC met or equaled any of
the Listings for mental disorders. Fischer-Ross v. Barnhart, 431 F.3d 729, 734 (10th Cir.
2005) (finding harmless error where “confirmed or unchallenged findings made elsewhere
in the ALJ’s decision confirm the step three determination”).
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omitted)). In evaluating Plaintiff’s relevant impairments, the ALJ discussed Plaintiff’s
hearing testimony, in which Plaintiff testified as to “continued abdominal pain with lifting,
as well as some bladder weakness and urgency symptoms.” R. 27; see R. 75, 76. The ALJ
discussed Plaintiff’s bladder surgeries and noted that Plaintiff had “occasional” urinaryincontinence accidents and that Neurontin was effective in relieving her abdominal pain.
R. 27; see R. 76-78. The ALJ further cited a recent pelvic CT scan showing “no evidence
of acute injury” and an earlier ultrasound revealing “no evidence of solid masses or cysts
present, and with the reviewer further indicating that a prior cystic lesion was not evident
and had likely resolved.” R. 28; see R. 791-92, 845. The ALJ concluded that any
symptoms stemming from Plaintiff’s conditions in this regard were sufficiently
accommodated by the RFC. R. 28. This thorough RFC assessment was materially
consistent with the assessment contemplated by Social Security Ruling 15-1p. See SSR
15-1p, 2015 WL 1292257, at *8 (noting that “chronic pelvic pain” and “urinary frequency”
are among the IC-related symptoms that are to be considered in the RFC determination).
Plaintiff next argues that the ALJ made findings that “contradicted the mandates”
of Social Security Ruling 15-1p. Pl.’s Br. at 4-5. As one example, Plaintiff cites a
provision in the Ruling stressing that “nonmedical sources,” such as family members,
employers, and interviewers, can assist the agency in evaluating the severity of an
individual’s IC and assessing the “credibility of the person's allegations about symptoms
and their effects.” See SSR 15-1p, 2015 WL 1292257, at *6. Plaintiff references a thirdparty function report completed by Plaintiff’s husband, to which the ALJ assigned “partial
weight,” and argues that the ALJ’s reference to the inherent bias of Plaintiff’s husband
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stemming from the spousal relationship is “in direct contradiction” to the stated policy of
the Ruling, which “encourages such statements from spouses and close family members to
obtain a more accurate longitudinal picture of the effects of IC.” Pl.’s Br. at 5; see R. 30,
234-41. Plaintiff’s argument is without merit. While the Ruling indicates that information
from nonmedical sources may be useful in evaluating the severity of a claimant’s IC and
the credibility of the claimant’s allegations, it does not mandate what weight such evidence
should be given or require that such third-party statements be accepted even if the
assertions contained in them are inconsistent with the evidence. See SSR 15-1p, 2015 WL
1292257, at *6. Here, the ALJ considered the statement from Plaintiff’s husband in
evaluating Plaintiff’s impairments and gave sufficient reasons for not fully accepting that
statement. R. 30 (ALJ finding the third-party statement was “inconsisten[t] with the
objective medical evidence”).
As to step five, Plaintiff argues that the ALJ erred by “failing to establish an
accurate” RFC, which resulted in an “insufficient hypothetical” posed to the VE. Pl.’s Br.
at 8. Specifically, Plaintiff argues that there is “sufficient evidence” that Plaintiff requires
“excessive” restroom breaks such as would prevent her from working the jobs identified
by the ALJ. Id. at 9. But Plaintiff has not cited to anything in the medical evidence to
support this assertion. The Court is unable to address contentions for which a claimant
fails to develop the factual and legal bases for her arguments. See Threet v. Barnhart, 353
F.3d 1185, 1190 (10th Cir. 2003) (declining to speculate on claimant’s behalf when
argument on an issue is “insufficiently developed”); see also Chrismon v. Colvin, 531 F.
App’x 893, 896 (10th Cir. 2013) (noting that on judicial review “it is not [the court’s] role
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to shore up [a claimant’s] argument”). Plaintiff does point to a hearing exchange in which
the VE stated that an individual taking excessive restroom breaks would not be able to
maintain competitive employment. See R. 84-85. But Tenth Circuit case law is clear that
an ALJ is not required to accept the VE’s answer to hypothetical questioning “that included
limitations claimed by plaintiff but not accepted by the ALJ as supported by the record.”
Bean v. Chater, 77 F.3d 1210, 1214 (10th Cir. 1995).
B. The ALJ’s Credibility Assessment
Plaintiff argues that the ALJ’s credibility assessment was “flawed, unfounded, not
supported by the substantial evidence, and was an error which supports a remand for a new
and fair hearing.” Pl.’s Br. at 10. In support of this argument, Plaintiff disputes the ALJ’s
perception of her activities of daily living, subjective allegations, and her mental
impairments. See id. at 11-17. Defendant offers a different interpretation of the record,
which supports the ALJ’s evaluation of the medical evidence. See Def.’s Br. at 10-15.
The ALJ addressed the evidence and Plaintiff’s testimony in detail and found that
Plaintiff’s “statements concerning the intensity, persistence and limiting effects” of her
symptoms were “not entirely credible.” R. 27. The Court finds that the ALJ’s credibility
assessment was “closely and affirmatively linked to substantial evidence” in the record, as
required by applicable authority. Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995)
(internal quotation marks omitted); SSR 96-7p, 1996 WL 374186, at *4-8 (July 2, 1996)
(noting that an ALJ may consider the consistency of a claimant’s statements, the medical
evidence, the claimant’s treatment history, and the ALJ’s own observations in evaluating
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the credibility of the claimant’s allegations);5 see, e.g., R. 27 (noting that evidence largely
showed that Plaintiff’s joint-related pain would not be as limiting as alleged), 28 (noting a
lack of recent complaints of joint pain or related symptoms and Plaintiff’s recent travel and
activities), 30 (“[T]he claimant has participated in no formal mental health treatment and
has mentioned few symptoms consistently to her providers.”). Plaintiff challenges, for
instance, the ALJ’s use of Plaintiff’s attendance at her son’s sporting events as a reason to
discount Plaintiff’s statements regarding the severity of her symptoms. See Pl.’s Br. at 1112. Yet, the ALJ also linked his credibility assessment to several other examples of
Plaintiff’s activities that support his determination. See R. 29 (noting evidence that
Plaintiff camped, traveled out of state, worked on her yard, prepared meals, and drove a
car).
Accepting Plaintiff’s interpretation of the record would amount to reweighing the
evidence and improperly substituting the Court’s judgment for that of the Commissioner.
“Credibility determinations are peculiarly the province of the finder of fact, and we will
not upset such determinations when supported by substantial evidence.” Kepler, 68 F.3d
at 391 (internal quotation marks omitted); see also Bowman, 511 F.3d at 1272; Lax v.
Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (“The possibility of drawing two inconsistent
conclusions from the evidence does not prevent an administrative agency’s findings from
being supported by substantial evidence. We may not displace the agency’s choice
between two fairly conflicting views, even though the court would justifiably have made a
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Social Security Ruling 96-7p has now been superseded by Social Security Ruling 16-3p.
See SSR 16-3p, 2017 WL 5180304, at *13 & n.27 (Oct. 25, 2017).
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different choice had the matter been before it de novo.” (alteration, citation, and internal
quotation marks omitted)).
C. The RFC Limitations
Finally, Plaintiff argues that the ALJ erred by relying on a hypothetical question to
the VE that did not include all of Plaintiff’s claimed limitations. See Pl.’s Br. at 18.
Plaintiff’s argument is closely related to the arguments discussed in Sections A and B
above, as Plaintiff contends that the ALJ’s failure to properly address Plaintiff’s IC and the
ALJ’s “faulty” credibility analysis led to the ALJ posing an incomplete RFC hypothetical
to the VE. Id. For the reasons discussed above, the ALJ’s treatment of Plaintiff’s IC and
her evaluation of Plaintiff’s symptoms are supported by substantial evidence, and the ALJ
was under no obligation to include limitations in the RFC that are not supported by the
record. See Smith v. Colvin, 821 F.3d 1264, 1270 (10th Cir. 2016) (“The administrative
law judge had to ask only about the effect of those limitations ultimately assessed; the judge
did not need to ask about the effect of limitations that he didn’t believe applied.”).
CONCLUSION
The decision of the Commissioner is affirmed. A separate judgment shall be
entered.
ENTERED this 16th day of August, 2018.
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