Roe 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 03/25/2019. (jb)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
TIMOTHY J. ROE,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
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Case No. CIV-17-1035-G
OPINION AND ORDER
Plaintiff Timothy J. Roe 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 Title II of the Social Security Act, 42 U.S.C. §§ 401-434. The Court has
reviewed the administrative record (Doc. No. 10, hereinafter “R. _”),1 and the arguments
and authorities submitted by the parties and affirms the Commissioner’s decision.
I.
BACKGROUND
Plaintiff, formerly a floor hand in the oil field, was injured on the job on June 26,
2010, when a heavy metal object fell from an oil derrick from a height of approximately
60 feet and hit his right arm. He was immediately hospitalized with an open humerus
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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fracture and cervical nerve-root avulsion. From the beginning, Plaintiff was unable to feel
the lower part of his right arm or move his dominant right hand. R. 12, 47, 59, 241, 245.
Doctors surgically repaired the fracture and performed nerve root transplants during
the following months in an effort to restore function to Plaintiff’s right arm and hand. The
nerve damage to Plaintiff’s right brachial plexus was too extensive to be repaired, however,
and nineteen months after the accident, there was no evidence of reinnervation. Plaintiff
was left unable to move his right arm except to shrug his shoulders. R. 12-14, 292-95, 306,
327.
Ultimately, doctors amputated Plaintiff’s arm above the elbow. R. 14, 315-18.
Although he was fitted with a myoelectric prosthetic device and underwent occupational
therapy, Plaintiff testified that he is unable to actively use the device and rarely wears it.
R. 48, 895, 897, 900-01.
In his application for DIB, Plaintiff listed seven medical conditions to which he
attributed his disability: right-arm amputation, back injury and constant pain, optical nerve
eye injury, neck injury and constant pain, right-hip pain, right-knee pain, and headaches.
R. 177.
II.
PROCEDURAL HISTORY AND ADMINISTRATIVE DECISION
Plaintiff protectively filed his DIB application on January 6, 2015, alleging a
disability-onset date of February 12, 2014. R. 10, 157-60. The SSA denied his application
initially and on reconsideration. R. 63-83. At Plaintiff’s request, an administrative law
judge (“ALJ”) held a hearing on June 17, 2016, R. 40-62, after which the ALJ issued an
unfavorable decision on October 21, 2016. R. 10-26. The Social Security Appeals Counsel
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affirmed the ALJ’s unfavorable decision on August 10, 2017, finding no reason to review
the ALJ’s decision. R. 1-5. The unfavorable determination of the ALJ stands as the
Commissioner’s final decision. See 20 C.F.R. § 404.981.
The ALJ followed the prescribed five-step sequential evaluation process in
determining Plaintiff was not entitled 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 from February 12, 2014, the alleged
disability-onset date, through December 31, 2015, the date Plaintiff was last insured for
DIB. R. 12. At step two, the ALJ determined that Plaintiff has the following impairments:
status post right grade 2 open humerus fracture with cervical nerve root
avulsion injury; status post transfer of right distal accessory nerve to
suprascapular nerve; transfer of intercostal nerves 3 through 6 to
musculocutaneous nerve; and bank medial antebrachial cutaneous nerve
graft to intercostal nerves 7 and 8, after being diagnosed with trauma and
right brachial plexus; status post right arm trans-humeral amputation (above
the elbow), as well as diagnosis of degenerative disc disease, unsupported by
objective laboratory diagnostic findings, which singly and/or in combination
are severe.
R. 12.
At step three, the ALJ found that Plaintiff does not have an impairment or
combination of impairments that meet or medically equal the severity of any of the
presumptively disabling impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.
R. 21.
The ALJ next assessed Plaintiff’s residual functional capacity (“RFC”) based on all
his medically determinable impairments. The ALJ found that during the relevant period
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Plaintiff had the RFC to perform light work,2 except that Plaintiff can never use right hand
controls and cannot perform overhead reaching, fine or gross manipulation, or feeling with
his right upper extremity. R. 21-24. At step four, the ALJ found that Plaintiff unable to
perform his past relevant work as floor hand in the oil field, as that job requires at least
heavy level of exertion. R. 24.
At step five, the ALJ considered whether there are jobs existing in significant
numbers in the national economy that Plaintiff could perform in light of his age, education,
work experience, and RFC. R. 25. Taking into consideration the hearing testimony of a
vocational expert (“VE”) regarding the degree of erosion to the unskilled light occupational
base caused by Plaintiff’s additional limitations, the ALJ concluded that Plaintiff could
perform the light, unskilled occupations of ticket seller, cash clerk II, and laminatingmachine off bearer, and that such occupations offer jobs that exist in significant numbers
in the national economy. R. 25. Therefore, the ALJ determined Plaintiff had not been
disabled within the meaning of the Social Security Act during the relevant period. R 26;
see 20 C.F.R. § 404.1520(a)(4)(v).
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Pursuant to relevant regulation:
Light work involves lifting no more than 20 pounds at a time with frequent lifting
or carrying of objects weighing up to 10 pounds. Even though the weight lifted may
be very little, a job is in this category when it requires a good deal of walking or
standing, or when it involves sitting most of the time with some pushing and pulling
of arm or leg controls. To be considered capable of performing a full or wide range
of light work, you must have the ability to do substantially all of these activities. If
someone can do light work, we determine that he or she can also do sedentary work,
unless there are additional limiting factors such as loss of fine dexterity or inability
to sit for long periods of time.
20 C.F.R. § 404.1567(b).
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III.
STANDARD OF REVIEW
This Court’s 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,” in determining whether the ALJ’s decision is supported by
substantial evidence. Wall, 561 F.3d at 1052 (internal quotation marks omitted). Though
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).
IV.
THE CONSULTATIVE EXAMINATION
Sidney D. Williams, MD, examined Plaintiff at the request of the state agency on
March 17, 2015. R. 923-31 (Ex. 10F). Based on his interview of Plaintiff, Dr. Williams
reported the following symptoms as Plaintiff described them:
The resultant chronic pain level is high: estimated to be 6.5 on 0/10 numeric
rating scale of intensity, located in the right shoulder, stump right [arm,] low
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back and neck, is constant in timing. The pain limits standing longer than 30
minutes, sitting longer than 10-20 minutes, or walking farther than 1 block.
Sometimes the pain down the left leg makes the leg feel “dead.” The pain
interferes with use of the remaining hand (left) while holding cups. [The]
pain impairs his ability to climb stairs, [bathe] in bath tub (trouble getting out
of the tub), climbing stairs, bending, stooping, squatting, and reaching. [The]
pain interferes with getting up and down from a toilet, completing household
chores like mowing the lawn, and riding motorcycles which was his hobby
with his friends before the accident.
R. 923. Dr. Williams also reported he had relied on the medical records of Dr. Kenneth
Trinidad documenting Plaintiff’s treatment after his accident and a report from the Tulsa
Spine and Specialty Hospital that described a disc protrusion at L4-5. R. 923.
Upon examination, Dr. Williams reported mild reduction of motion in Plaintiff’s
neck, tenderness and restricted motion in the spine, and “[r]estricted ability to stand or sit
over 1 hour [without] moving about”. R. 924-25. Other neurological findings included
reduced reflexes in ankle and knee on the left, positive straight leg raising on the left,
positive Kernig’s sign on the left, and normal tandem walking. R. 924-25. Heel walking
and toe walking were both normal. R. 929.
Dr. Williams diagnosed Plaintiff with lumbar discogenic pain syndrome, left
sciatica neuralgia, chronic neck pain, cervical disc disease, chronic postoperative pain,
substantial physical debility, and “[g]ait impairment with limited ambulatory skills and
reduced walking distance.” R. 925.
In the written decision, the ALJ thoroughly discussed Dr. Williams’ opinion,
specifically noting the “[g]ait impairment” diagnosis. R. 17, 18. He also concluded that
Dr. Williams’ opinion regarding Plaintiff’s restricted ability to “‘stand or sit over one hour
w/o moving about’” was “somewhat inconsistent[]” with the doctor’s own examination
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results, specifically: (1) Dr. Williams’ finding of normal range of motion for all of
Plaintiff’s joints other than some limitation in the back, neck, and right shoulder; (2) Dr.
Williams’ finding that “heel and toe walking . . . was normal bilaterally”; and (3) Dr.
Williams’ finding that “tandem walking . . . was normal.” R. 17; see R. 925.
V.
DISCUSSION
In this action, Plaintiff raises one challenge to the ALJ’s written decision—that the
ALJ committed prejudicial legal error in implicitly rejecting the diagnosis of Dr. Williams
of “[g]ait impairment with limited ambulatory skills and reduced walking distance.” R.
925. Plaintiff argues that (i) the ALJ failed to provide valid and legitimate reasons for
rejecting this opinion; and that the ALJ’s error prejudiced Plaintiff because (ii) the opinion,
if accepted, would have limited Plaintiff to sedentary rather than light work, and (iii)
Plaintiff is unable to perform sedentary work due to his upper-extremity amputation. See
Pl.’s Br. (Doc. No. 14) at 9-10.
Defendant does not dispute that the ALJ rejected Dr. Williams’ diagnosis, that
acceptance of Dr. Williams’ diagnosis would result in an RFC limiting Plaintiff to
sedentary work, or that Plaintiff is unable to perform sedentary work. Defendant disputes,
however, the proposition that the ALJ’s implicit rejection of the diagnosis constituted
reversible legal error. Defendant argues instead that the ALJ’s reasoning was sufficiently
clear to “allow[] the Court to discern that the ALJ rejected the opinion because of
contradictory medical evidence.” Def.’s Br. (Doc. No. 16) at 10; see also id. at 14.
The Court agrees with Defendant that the ALJ’s treatment of Dr. Williams’ opinion
was legally adequate and properly based upon record evidence. Even assuming that
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adoption of Dr. Williams’ “[g]ait impairment” opinion would have resulted in an RFC that
precluded light work, and accepting that Plaintiff would be unable to perform sedentary
work, the Court finds no reversible legal error here.
The ALJ was required to “evaluate,” “consider,” and “address” the examining
physician’s medical opinions. 20 C.F.R. § 404.1527(b), (c); SSR 96-8p, 1996 WL 374184,
at *7 (July 2, 1996); see also 20 C.F.R. § 404.1502 (2016). While an examining medicalsource opinion “may be dismissed or discounted,” such action “must be based on an
evaluation of all of the factors set out in the cited regulations and the ALJ must provide
specific, legitimate reasons for rejecting it.” Chapo v. Astrue, 682 F.3d 1285, 1291 (10th
Cir. 2012) (internal quotation marks omitted); see 20 C.F.R. § 404.1527(c)(1)-(6); SSR 968p, 1996 WL 374184, at *7.
With respect to the ALJ’s failure to expressly assign a weight to Dr. Williams’
“[g]ait impairment” diagnosis, it is apparent—and both parties agree—that the ALJ
rejected that opinion and associated functional limitations in formulating an RFC with no
ambulation restrictions. R. 21. Thus, the failure of the ALJ to expressly assign a weight
(or, rather, no weight) to, or to note the fact of his rejection of, the “[g]ait impairment”
diagnosis is, at most, a “merely technical omission[],” which does not dictate reversal so
long as the Court “can follow the adjudicator’s reasoning” and “can determine that correct
legal standards have been applied.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th
Cir. 2012); cf. Oceguera v. Colvin, 658 F. App’x 370, 374 (10th Cir. 2016) (“Though the
ALJ did not expressly state the weight she gave to the [the treating physician’s] opinion,
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her language makes clear that she accorded it little to no weight.”). Here, the Court is able
to do both.
As noted, the ALJ undisputedly “discuss[ed]” the relevant diagnosis, Clifton v.
Chater, 79 F.3d 1007, 1010 (10th Cir. 1996). In that same discussion, the ALJ also cited
three of Dr. Williams’ own examination findings as inconsistent with Dr. Williams’
conclusion that Plaintiff was restricted in his ability to stand or sit without moving about.
R. 925. Read in context of the ALJ’s entire evaluation of the consultative-exam report, the
Court can readily discern that “the reason [the ALJ] gave [Dr. Williams’] [gait-impairment]
opinion no weight is because,” like Dr. Williams’ stand/sit restriction, “it is inconsistent
with” the three range-of-motion and walking findings. Lately v. Colvin, 560 F. App’x 751,
754 (10th Cir. 2014) (finding ALJ’s failure to discuss an examining physician’s opinion
was harmless where the court “c[ould] tell” from the ALJ’s rejection of a “nearly identical
opinion” that the ALJ gave no weight to the opinion and the reasons why). An examination
that does not find significant limitations on walking or most ranges of motion is reasonably
equally or more relevant to a claimant’s ambulation ability as to the claimant’s ability to
stand or sit for prolonged periods. See R. 927-30; Endriss v. Astrue, 506 F. App’x 772,
780 (10th Cir. 2012) (finding that objective evidence, including “normal heel/toe gait,”
supported an RFC assessment for light work); Poppa, 569 F.3d at 1172-73 (upholding the
ALJ’s RFC determination for light work where the ALJ cited records showing the
claimant’s “relatively full range of motion” in the upper extremities and “minimal decrease
in range of motion in the lower back area”); cf. Best-Willie v. Colvin, 514 F. App’x 728,
736 (10th Cir. 2013) (“[A]lthough the ALJ’s decision does not expressly address this lay
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witness evidence, any error in failing to do so is harmless because the same evidence that
the ALJ referred to in discrediting the claimant’s claims also discredits the lay witness’s
claims.” (internal quotation marks omitted)).
Further, an inconsistency between such findings and the physician’s conclusions is
a proper reason for those conclusions to be discounted. Vigil v. Colvin, 805 F.3d 1199,
1202 (10th Cir. 2015) (citing 20 C.F.R. § 404.1527(c)(3)). And Plaintiff does not dispute
the ALJ’s characterization of Dr. Williams’ relevant examination findings. See Pl.’s Br. at
9; R. 17, 927-30.
Thus, any error in the ALJ’s failure to state what weight he was affording the
consultative physician’s gait-impairment finding was harmless, and Plaintiff has not shown
that reversal is warranted. See Lately, 560 F. App’x at 754; Keyes-Zachary, 695 F.3d at
1166; Alvey v. Colvin, 536 F. App’x 792, 794 (10th Cir. 2013) (noting that harmless-error
review may be properly employed when “the record is not overly long or complex,
harmlessness is not fairly debatable, and reversal would result in futile and costly
proceedings”).
CONCLUSION
The decision of the Commissioner is affirmed. A separate judgment shall be
entered.
IT IS SO ORDERED this 25th day of March, 2019.
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