White v. Commissioner of Social Security Administration
Filing
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OPINION AND ORDER. The decision of the Commissioner is affirmed. Signed by Honorable Charles Goodwin on 02/25/2019. (jb)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
SARAH A. TAPIA
and NINA L. WHITE O/B/O
DONNA A. WHITE,
Plaintiffs,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
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Case No. CIV-17-1003-G
OPINION AND ORDER
Plaintiff Donna A. White1 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 supplemental
security income (“SSI”) under Title XVI of the Social Security Act, id. §§ 1381-1383f.
Upon review of the administrative record (Doc. No. 11, hereinafter “R. _”), the
supplemental administrative record (Doc. No. 24), and the arguments and authorities
submitted by the parties, the Court affirms the Commissioner’s decision.
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The claimant, Donna A. White, died during the pendency of this proceeding. On January
16, 2018, the Court granted the request of Donna White’s counsel to substitute her adult
daughters, Sarah A. Tapia and Nina L. White, as parties. See Order (Doc. No. 18). In this
opinion, references to “Plaintiff” refer only to the claimant. References to “Ms. White”
refer to Nina White.
PROCEDURAL HISTORY AND ADMINISTRATIVE DECISION
Plaintiff protectively filed her DIB and SSI applications on October 27, 2014. R.
10, 222-25, 226-30. In both applications, Plaintiff alleged a disability-onset date of July
24, 2014. R. 10, 222, 226. Following a denial of her applications initially and on
reconsideration, a hearing was held before an administrative law judge (“ALJ”) on April
29, 2016. R. 32-54, 165-69, 170-73, 177-79. In addition to Plaintiff, a vocational expert
(“VE”) testified at the hearing. R. 49-51. The ALJ issued an unfavorable decision on June
21, 2016. R. 7-20.
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, 416.920. At step one, the ALJ found that Plaintiff had
not engaged in substantial gainful activity since her alleged onset date. R. 12-13. At step
two, the ALJ determined that Plaintiff had the severe medically determinable impairments of
degenerative disc disease of the cervical spine, migraines, anxiety, and depression. R. 13. 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.
13-14. The ALJ next assessed Plaintiff’s residual functional capacity (“RFC”) based on all
her medically determinable impairments. R. 15-18. The ALJ found that Plaintiff had the
RFC to perform the full range of light work subject only to no more than occasional
interaction with the general public. R. 15.
At step four, the ALJ, relying upon the VE’s testimony, found that Plaintiff could
perform her past relevant work as a housekeeper. R. 18-19, 49-50. The ALJ then made an
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alternative step-five finding, considering whether there were jobs existing in significant
numbers in the national economy that Plaintiff—in view of her age, education, work
experience, and RFC—could perform. Relying upon VE testimony, the ALJ found that there
were three other light, unskilled jobs Plaintiff could perform. R. 19, 50-51. Therefore, the
ALJ determined that Plaintiff had not been disabled within the meaning of the Social Security
Act during the relevant period. R. 19-20.
Plaintiff’s request for review by the SSA Appeals Council was denied on August 15,
2017, and the unfavorable decision 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
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
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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).
ISSUES ON APPEAL
In this action, Plaintiff argues that the ALJ erred by failing to properly consider certain
third-party statements when assessing Plaintiff’s RFC. See Pl.’s Br. (Doc. No. 15) at 6-10.
ANALYSIS
Plaintiff argues that the ALJ failed to properly consider the third-party statements
and hearing testimony provided by Plaintiff’s daughter and boyfriend. See id. Plaintiff
cites Social Security Ruling 06-3p,2 which provides that when considering evidence from
nonmedical sources who are “other sources,” such as spouses, parents, friends, and
neighbors, it “would be appropriate” for adjudicators to “consider such factors as the nature
and extent of the relationship, whether the evidence is consistent with other evidence, and
any other factors that tend to support or refute the evidence.” SSR 06-3p, 2006 WL
2329939, at *6 (Aug. 9, 2006). Relatedly, an ALJ is required “to consider all relevant
evidence” in a claimant’s case record. Id. at *4, *6; accord 20 C.F.R. §§ 404.1520b(a),
416.920b(a).
Specifically, Plaintiff argues that the ALJ “completely ignored” a January 2015
third-party function report provided by Plaintiff’s boyfriend, Randy Gwin, as well as
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Social Security Ruling 06-03p has been rescinded for claims filed on or after March 27,
2017, but was in effect at the time of the ALJ’s decision. See Rescission of Social Security
Rulings 96-2p, 96-5p, and 06-3p, 82 Fed. Reg. 15263-01 (Mar. 27, 2017).
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hearing testimony provided by Mr. Gwin and Plaintiff’s daughter, Nina White. Pl.’s Br. at
8 (citing R. 43-44 (testimony of Ms. White), 45-47 (testimony of Mr. Gwin), 306-13 (Mr.
Gwin’s third-party function report (Ex. 6E))). Plaintiff primarily objects to the ALJ’s
treatment of the function report, arguing that Mr. Gwin’s statement provides information
about Plaintiff’s activities of daily living, medication side effects, and functional
limitations that “directly contradicted” the RFC assessed by the ALJ. Pl.’s Br. at 7-8.
Plaintiff contends that the ALJ’s decision to disregard Mr. Gwin’s third-party statement
and to fail to identify what weight he afforded either to this statement or to the hearing
testimony of Mr. Gwin and Ms. White was “completely inadequate and improper” and
requires that the Court remand this case for a proper credibility analysis. Id. at 9.
As a preliminary matter, Plaintiff’s claim that the ALJ “completely ignored” Mr.
Gwin’s third-party function report is not accurate. At step three of the sequential evaluation
process, the ALJ discussed the contents of Mr. Gwin’s report when evaluating Plaintiff’s
ability to function socially and ability to maintain concentration, persistence, and pace. See
R. 14. In evaluating Plaintiff’s social functioning, the ALJ indicated that he found the
statements of Plaintiff and Mr. Gwin to be consistent with the medical record and the
opinions of the state-agency psychological consultants. R. 14. When assessing Plaintiff’s
ability to maintain concentration, persistence, and pace, the ALJ found that the limitations
claimed by Plaintiff and Mr. Gwin were not supported by a review of the evidence
conducted by the same state-agency consultants. R. 14.
Plaintiff is correct that in evaluating the statements and testimony of Mr. Gwin and
Ms. White, the ALJ did not specify the precise weight given to them, for example by using
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terms such as “great weight,” “some weight,” or “little weight,” as is typical in disabilitybenefits decisions. But a failure to assign a specific weight to evidence does not necessarily
constitute reversible error, even when that evidence is an opinion rendered by an acceptable
medical source and not, as here, a statement provided by a nonmedical source. See KeyesZachary v. Astrue, 695 F.3d 1156, 1163 (10th Cir. 2012) (finding that the ALJ’s failure to
expressly assign a specific weight to a consultative examiner’s opinion was harmless where
the opinion was generally consistent with the ALJ’s RFC findings). The language of Social
Security Ruling 06-3p is clear that while evidence from nonmedical sources can provide
insight into the severity of a claimant’s impairment and how that impairment affects the
individual’s ability to function, an ALJ’s evaluation of such evidence depends on the facts
in each case and will ultimately be based upon consideration of “factors that tend to support
or refute the evidence,” rather than the weighing of factors prescribed by the regulations.
SSR 06-3p, 2006 WL 2329939, at *5; accord Nichols v. Astrue, 341 F. App’x 450, 453
(10th Cir. 2009) (noting that consideration of the factors presented in 20 C.F.R. §§
404.1527(c) and 416.927(c) is required only for evaluation of “medical opinions”). As
such, SSA regulations direct that statements from a claimant’s personal acquaintances are
subject to a different inquiry than are opinions provided by treating physicians, consultative
examiners, or other acceptable and nonacceptable medical sources. See SSR 06-3p, 2006
WL 2329939, at *2-6.
The dispositive question in this case is whether the ALJ erred in his consideration
of functional limitations claimed by the third-party statement and the cited hearing
testimony. Cf. Madrid v. Astrue, 243 F. App’x 387, 392 (10th Cir. 2007) (“[A] diagnosis
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of a condition does not establish disability. The question is whether a person’s impairment
significantly limits his ability to engage in substantial gainful activity.”). Plaintiff cites
several such claims contained in Mr. Gwin’s statement of January 2015. Plaintiff argues
that the limitations attested to by Mr. Gwin in his report reflect “much more severe
functional impairments” than those included in the RFC. See Pl.’s Br. at 8. Specifically,
Plaintiff cites Mr. Gwin’s statements concerning the side effects of Plaintiff’s medications,
her migraines, the numbness in her hands and burning in her shoulder, the difficulties
Plaintiff had performing her household chores, and Plaintiff’s difficulties following
instructions and paying attention. See id. at 7-8; R. 306-13. Plaintiff specifically argues
that while the ALJ considered testimony related to Plaintiff’s migraines, he did not consider
the “separate and distinct” contention in Mr. Gwin’s third-party statement that Plaintiff’s
migraine headaches would render her unable to work for two or three days due to the side
effects of Plaintiff’s migraine medication. Pl.’s Reply (Doc. No. 26) at 3.
Defendant contends that the statements contained in Mr. Gwin’s report were
“merely cumulative” of other testimony, such that “any potential error in failing to
separately address this report in more detail was harmless.” See Def.’s Br. (Doc. No. 25)
at 11 (citing Shinseki v. Sanders, 556 U.S. 396, 409 (2009); see, e.g., Best-Willie v. Colvin,
514 F. App’x 728, 736 (10th Cir. 2013) (finding that ALJ’s failure to discuss letter from
claimant’s husband was harmless error where the letter was cumulative of claimant’s
testimony, which the ALJ discussed and found not credible); Smith v. Colvin, No. CIV-13144-R, 2014 WL 50835, at *1 (W.D. Okla. Jan. 7, 2014) (finding no basis for remand
where ALJ failed to indicate he specifically considered claimant’s son’s and friend’s
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statements but that evidence was “largely cumulative” of claimant’s own testimony and
ALJ stated that he had considered the entire record). Defendant also contends that the ALJ
actually did address the limitations attested to by Mr. Gwin in his third-party statement,
and that testimony concerning many, if not all, these limitations was offered by Plaintiff,
Mr. Gwin, and Plaintiff’s daughter during the hearing. See Def.’s Br. at 12-14.
In the text of the hearing decision, the ALJ stated that he had considered the entire
record. R. 10, 12, 15; see Smith, 2014 WL 50835, at *1. The ALJ expressly considered
the hearing testimony of both Mr. Gwin and Plaintiff’s daughter concerning Plaintiff’s
functional limitations. R. 15-16. In evaluating their testimony, the ALJ stated that
The claimant’s daughter Nina [W]hite testified that she sees her mother daily
although she does not live with her. She stated that her mother has migraine
headaches and is forced to rest in a quiet place. She stated that she’d see her
mother perform household tasks although she had to stop and rest
periodically. The claimant’s boyfriend Randy [Gwin] also testified that he
had seen the claimant have problems with her neck and suffered from
migraines 2 to 3 days [a] week. He stated that the claimant had problems
doing dishes because she takes so many breaks. He stated that he performs
most of the cooking on or after [he] starts or stops his daily job and goes by
her . . . house. The witness also stated that the claimant occasionally passes
out in the bathroom living room for unknown reasons. She is not receiv[ing]
medications for the seizure or blackout activity.
R. 15-16. The ALJ’s summary is consistent with the hearing testimony of Mr. Gwin and
Ms. White. See R. 45-47. While the ALJ did not provide a separate evaluation of Mr.
Gwin’s third-party statement, he did address the functional limitations contained in this
report in the context of evaluating the hearing testimony of Plaintiff, Plaintiff’s daughter,
and Mr. Gwin. And contrary to Plaintiff’s contentions, the ALJ did address the effects of
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Plaintiff’s migraines, her need to take frequent breaks, the side effects of Plaintiff’s
medication, and the limitations caused by her mental impairments. R. 13-16.
In comparing Plaintiff’s allegations with the record, the ALJ found that Plaintiff
retained the ability to perform many activities of daily living but restricted her to light work
in consideration of her cervical impairment. R. 17. With respect to Plaintiff’s allegations
concerning her fatigue, the ALJ found that Plaintiff did have a “certain amount of fatigue”
and would require breaks throughout the day when performing exertional activity. R. 17.
The ALJ further found that Plaintiff’s medications had been “relatively effective” in
controlling Plaintiff’s symptoms, and that these medications had caused no “significantly
limiting” side effects.” R. 17. In evaluating Plaintiff’s allegations concerning her mental
limitations, the ALJ found these inconsistent with the results of a February 2015
consultative examination performed by Robert Danaher, PsyD, concluding that while
attention and concentration were identified as issues by Dr. Danaher, the examiner “did not
conclude that the deficits would interfere with daily activity.” R. 16-17. The ALJ further
concluded that Plaintiff had not sought mental health treatment for anxiety or depression
and that the record revealed “very few signs or symptoms that would interfere with
sustained activity.” R. 17-18.
The record thus demonstrates that the ALJ considered the testimony offered by
Plaintiff, Plaintiff’s daughter, and Mr. Gwin, and properly compared that testimony against
the objective evidence in formulating Plaintiff’s RFC. In so doing, the ALJ did not offer a
detailed, specific evaluation of Mr. Gwin’s third-party report, but he did address the
substance of the allegations contained in that report.
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The ALJ was not required to set forth a point-by-point weighing or refutation of
these nonmedical statements. See SSR 06-3p, 2006 WL 2329939, at *4, *6. And the record
demonstrates that the ALJ considered the relevant evidence in the record as required. See
id.; Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). As such, the ALJ’s decision
reflects no reversible legal error, harmless or otherwise, and no lack of substantial
evidence, and the Commissioner’s decision is affirmed.
CONCLUSION
The decision of the Commissioner is affirmed. A separate judgment shall be
entered.
ENTERED this 25th day of February, 2019.
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