Sunderland v. Berryhill
Filing
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Memorandum Opinion and Order. The hearing decision is affirmed in all respects. (Ordered by Magistrate Judge David L. Horan on 9/27/2018) (ykp)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
SHAUN S.,
§
§
Plaintiff,
§
§
V.
§
§
NANCY A. BERRYHILL,
§
Acting Commissioner of Social Security, §
§
Defendant.
§
No. 3:17-cv-1790-BN
MEMORANDUM OPINION AND ORDER
Plaintiff Shaun S. seeks judicial review of a final adverse decision of the
Commissioner of Social Security pursuant to 42 U.S.C. § 405(g). For the reasons
explained below, the hearing decision is affirmed.
Background
Plaintiff alleges that he is disabled as a result of a left leg injury, knee pain,
depression, blindness, dizzy spells, shortness of breath, uncontrollable bowel
movements, leg numbness, back problems, and spitting up blood. See Dkt. No. 13
(Administrative Record [“Tr.”] at 197-206, 226). After his applications for disability
insurance benefits and supplemental security income (“SSI”) benefits were denied
initially and on reconsideration, Plaintiff requested a hearing before an administrative
law judge (“ALJ”). That hearing was held on April 5, 2016. See id. at 36-61. At the time
of the hearing, Plaintiff was 38 years old. He has a high school equivalency diploma
and past work experience as an assistant chef, material handler, packer, parts delivery
driver and remodeler. Plaintiff has not engaged in substantial gainful activity since
April 1, 2011.
The ALJ found that Plaintiff was not disabled and therefore not entitled to
disability or SSI benefits. See id. at 10-20 (ALJ Decision). Although the medical
evidence established that Plaintiff suffered from status post tendon repair to the left
lower extremity with foot drop, cannabis disorder, personality disorder, major
depressive disorder, anxiety disorder, arthritis of the lumbar spine, chronic pain of the
leg, knee and back, and obesity, the ALJ concluded that the severity of those
impairments did not meet or equal any impairment listed in the social security
regulations. The ALJ further determined that Plaintiff had the residual functional
capacity to perform a limited range of sedentary work, but could not return to his past
relevant employment. Relying on a vocational expert’s testimony, the ALJ found that
Plaintiff was capable of working as a document preparer, touch-up screener
inspector/tester, and stem mounter -- jobs that exist in significant numbers in the
national economy.
Plaintiff appealed that decision to the Appeals Council. The Council affirmed.
Plaintiff then filed this action in federal district court. Plaintiff contends that the
hearing decision is not supported by substantial evidence and results from reversible
legal error. More particularly, Plaintiff argues that: (1) the ALJ erred in failing to
properly account for Plaintiff's moderate deficiencies in concentration, persistence or
pace in the residential functional capacity finding or in the hypothetical questions to
the vocational expert; (2) the ALJ's finding the Plaintiff could perform work involving
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two hours of standing or walking during an eight-hour work day is not supported by
substantial evidence; and (3) the ALJ's finding the Plaintiff could perform work
available in the national economy is not supported by the evidence.
The Court determines that the hearing decision must be affirmed in all respects.
Legal Standards
Judicial review in social security cases is limited to determining whether the
Commissioner’s decision is supported by substantial evidence on the record as a whole
and whether Commissioner applied the proper legal standards to evaluate the
evidence. See 42 U.S.C. § 405(g); Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014);
Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995). Substantial evidence is “more than
a mere scintilla. It means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971);
accord Copeland, 771 F.3d at 923. The Commissioner, rather than the courts, must
resolve conflicts in the evidence, including weighing conflicting testimony and
determining witnesses’ credibility, and the Court does not try the issues de novo. See
Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995); Greenspan v. Shalala, 38 F.3d
232, 237 (5th Cir. 1994). This Court may not reweigh the evidence or substitute its
judgment for the Commissioner’s but must scrutinize the entire record to ascertain
whether substantial evidence supports the hearing decision. See Copeland, 771 F.3d
at 923; Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988). The Court “may affirm
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only on the grounds that the Commissioner stated for [the] decision.” Copeland, 771
F.3d at 923.
“In order to qualify for disability insurance benefits or [supplemental security
income], a claimant must suffer from a disability.” Id. (citing 42 U.S.C. § 423(d)(1)(A)).
A disabled worker is entitled to monthly social security benefits if certain conditions
are met. See 42 U.S.C. § 423(a). The Act defines “disability” as the inability to engage
in substantial gainful activity by reason of any medically determinable physical or
mental impairment that can be expected to result in death or last for a continued
period of 12 months. See id. § 423(d)(1)(A); see also Copeland, 771 F.3d at 923; Cook v.
Heckler, 750 F.2d 391, 393 (5th Cir. 1985).
“In evaluating a disability claim, the Commissioner conducts a five-step
sequential analysis to determine whether (1) the claimant is presently working; (2) the
claimant has a severe impairment; (3) the impairment meets or equals an impairment
listed in appendix 1 of the social security regulations; (4) the impairment prevents the
claimant from doing past relevant work; and (5) the impairment prevents the claimant
from doing any other substantial gainful activity.” Audler v. Astrue, 501 F.3d 446, 44748 (5th Cir. 2007).
The claimant bears the initial burden of establishing a disability through the
first four steps of the analysis; on the fifth, the burden shifts to the Commissioner to
show that there is other substantial work in the national economy that the claimant
can perform. See Copeland, 771 F.3d at 923; Audler, 501 F.3d at 448. A finding that the
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claimant is disabled or not disabled at any point in the five-step review is conclusive
and terminates the analysis. See Copeland, 771 F.3d at 923; Lovelace v. Bowen, 813
F.2d 55, 58 (5th Cir. 1987).
In reviewing the propriety of a decision that a claimant is not disabled, the
Court’s function is to ascertain whether the record as a whole contains substantial
evidence to support the Commissioner’s final decision. The Court weighs four elements
to determine whether there is substantial evidence of disability: (1) objective medical
facts; (2) diagnoses and opinions of treating and examining physicians; (3) subjective
evidence of pain and disability; and (4) the claimant’s age, education, and work history.
See Martinez, 64 F.3d at 174.
The ALJ has a duty to fully and fairly develop the facts relating to a claim for
disability benefits. See Ripley, 67 F.3d at 557. If the ALJ does not satisfy this duty, the
resulting decision is not substantially justified. See id. However, the Court does not
hold the ALJ to procedural perfection and will reverse the ALJ’s decision as not
supported by substantial evidence where the claimant shows that the ALJ failed to
fulfill the duty to adequately develop the record only if that failure prejudiced Plaintiff,
see Jones v. Astrue, 691 F.3d 730, 733 (5th Cir. 2012) – that is, only if Plaintiff’s
substantial rights have been affected, see Audler, 501 F.3d at 448. “Prejudice can be
established by showing that additional evidence would have been produced if the ALJ
had fully developed the record, and that the additional evidence might have led to a
different decision.” Ripley, 67 F.3d at 557 n.22. Put another way, Plaintiff “must show
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that he could and would have adduced evidence that might have altered the result.”
Brock v. Chater, 84 F.3d 726, 728-29 (5th Cir. 1996).
Analysis
I.
The ALJ properly accounted for Plaintiff's mental limitations.
Plaintiff contends that the ALJ failed to properly account for his moderate
deficiencies in concentration, persistence, or pace in either the residual functional
capacity ("RFC") finding or in the hypothetical questions to the vocational expert
("VE"). The Commissioner responds that the ALJ properly accounted for Plaintiff's
moderate limitations in concentration, persistence, or pace by limiting Plaintiff to
understand, carry out, and remember detailed, but not complex, tasks and instructions.
During the RFC evaluation, an ALJ must conduct a function-by-function
assessment based on exertional and nonexertional capacity. See SSR 96-8p, 1996 WL
374184. As with exertional capacity, nonexertional capacity is expressed in
work-related functions. See id. Work-related mental functions and activities include
the abilities of: (1) understanding, remembering, and carrying out instructions; (2)
using judgment in work decisions; (3) responding appropriately to supervision and
peers, and (4) dealing with changes in a routine setting. See id.
But the function-by-function assessment does not require an exhaustive
discussion of each work-related mental activity as long as it is considered in the ALJ’s
analysis. See Haynes v. Colvin, No. 6:12-cv-330-WSS, 2015 WL 3964783, at *5 (W.D.
Tex. June 29, 2015) (citing Walton v. Astrue, No. 3:10-CV-815-D, 2011 WL 195975, at
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9-10 (N.D. Tex. Jan. 20, 2011)). “[E]ven if the ALJ fails to conduct a
function-by-function analysis, he satisfies this requirement if he bases his RFC
assessment, at least in part, on a state medical examiner’s report containing a
function-by-function analysis.” Jones v. Astrue, No. 3:11-cv-3416-M-BH, 2013 WL
1293900, at * 16 (N.D. Tex. Mar. 7, 2013) (citing Beck v. Barnhart, 205 F. App'x 207,
213-14 (5th Cir. 2006)).
In his decision, the ALJ found that Plaintiff had moderate difficulties in
concentration, persistence, or pace. See Tr. at 15; see also 20 C.F.R. §§ 404.1520a(c),
416.920a(c) (describing the special techniqueusing the paragraph B findings to analyze
mental impairments). The ALJ explained that Plaintiff indicated that he could manage
money and read. See Tr. at 15, 250, 259. The ALJ also stated that, at the psychological
consultative examination, Plaintiff indicated that he enjoyed reading, writing, and
playing computer games. See id. at 15, 323. And the ALJ found that Plaintiff displayed
good literacy skills, relevant and goal-directed thought processes, average
concentration,
compromised
short-term
memory
function,
good
conceptual
development, average to low average intelligence, and intact judgment. See id. at 15.
The ALJ then conducted a function-by-function assessment of the mental limitations
in Plaintiff’s RFC and ultimately determined that Plaintiff could understand, carry
out, and remember detailed, but not complex, tasks and instructions. See id. at 16.
At the hearing, the ALJ asked the VE whether a hypothetical individual with
the Plaintiff's age, education, and work experience who could perform light exertional
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work but is limited to standing or walking up to four hours in an eight-hour day;
limited to occasional climing of ramps and stairs, balancing, stooping, kneeling,
crouching, and crawling; precluded from climbing ladders, ropes, and scaffolds;
precluded from exposure to extreme heat; limited to occasional interaction with
coworkers, supervisors, and the public; and limited to understanding, remembering
and carrying detailed, but not complex tasks and instructions could perform Plaintiff's
past relevant work or any other work available in the national economy. See Tr. at 57.
The VE answered that he could not. See id.
The ALJ then changed the hypothetical from working at a light exertional level
to sedentary work and changed the four-hour stand/walk limitation to that for the
standard sedentary level. See id. at 58. The VE responded that, assuming those
changes, the hypothetical individual could perform jobs that exist in the national
economy such as the jobs of document preparer, PC board touch-up screener inspector
or tester, and stem mounter. See id.
The ALJ found that Plaintiff had the RFC
to perform sedentary work . . . in that he can lift and/or carry 10 pounds
occasionally, lift and/or carry less than 10 pounds frequently, stand/walk
for 2 hours in an 8-hour workday, and sit for 6 hours in an 8-hour
workday. The claimant can occasionally climb ramps and stairs,
balancing, stoop, kneel, crouch, and crawl. He should avoid climbing
ladders, ropes or scaffolds, and exposure to extreme heat. The claimant
has the ability to understand, carryout and remember detailed, but not
complex, tasks and instructions. The claimant is limited to no more than
occasional contact with coworkers, supervisors, and the general public.
Id. at 16.
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Plaintiff contends that the ALJ erred because his RFC finding and hypothetical
do not “reasonably incorporate” his finding that Plaintiff had moderate deficiencies in
concentration, persistence, or pace. Plaintiff relies extensively on a case from the
United States Court of Appeals for the Seventh Circuit holding that limiting an RFC
and hypothetical to “simple, repetitive work does not necessarily address deficiencies
of concentration, persistence or pace.” See Dkt. No. 18 at 13-15 (citing
O'Connor-Spinner v. Astrue, 627 F.3d 614, 620-21 (7th Cir. 2010)); see also Eastham
v. Comm'r of Soc. Sec. Admin., No. 3:10-cv-2001-L, 2012 WL 691893, at *8 (N.D. Tex.
Feb. 17, 2012) (same). Plaintiff then draws the conclusion that, if a limitation to
simple, repetitive work does not properly address moderate limitations in
concentration, persistence or pace, then the ALJ's determination that Plaintiff is
limited to detailed, but not complex, tasks and instructions would not do so.
As this Court recently explained in Grimes v. Berryhill, the United States Court
of Appeals for the Fifth Circuit has not formally adopted this reasoning and only
requires the RFC used in the hypothetical to “incorporate reasonably” the claimant’s
impairments. See No. 3:16-cv-3280-BH, 2018 WL 1210533, at *9 (N.D. Tex. Mar. 8,
2018) (citing Hardman v. Colvin, 820 F.3d 142, 149 (5th Cir. 2016) (internal citations
omitted)). The Fifth Circuit has previously found similar RFC assessments to
adequately account for moderate limitations in concentration, persistence, or pace. See
Herrara v. Comm'r of Social Sec., 406 F. App'x 899, 905 (5th Cir. 2010) (RFC for
unskilled work); Bordelon v. Astrue, 281 F. App'x 418, 423 (5th Cir. 2008) (RFC for rare
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public interaction, low stress, and simple one- or two-step instructions); see also Holmes
v. Astrue, No. 3:11-cv-2634-G-BH, 2013 WL 638830, at *16 (N.D. Tex. Jan. 25, 2013)
(finding that the ALJ’s determination that the claimant was moderately limited in
maintaining concentration, persistence, and pace was not inconsistent with his ability
to carry out detailed, but not complex instructions).
Even if the Fifth Circuit had adopted the Seventh Circuit's O'Connor-Spinner
holding, the ALJ’s RFC finding and hypothetical in this case are distinguishable
because he included more restrictions than simply “non-complex tasks.” He also
restricted Plaintiff to no more than occasional contact with supervisors, coworkers, and
the general public. See Capman v. Colvin, 617 F. App'x 575, 579 (7th Cir. 2015)
(finding that an RFC for simple, routine tasks that did not require working with the
public or in close proximity to others adequately accounted for moderate limitations in
concentration, persistence, or pace); see also Sweeten v. Astrue, No. 3:11-cv-934-G-BH,
2012 WL 3731081, at *12 (N.D. Tex. Aug. 13, 2012) (finding that, “[b]ecause of the
reference to pain and other significant limitations ..., the ALJ’s hypothetical contained
the requisite alternative phrasing discussed in [O'Connor-Spinner v. Astrue]”).
The record shows that the ALJ considered and incorporated Plaintiff’s moderate
limitations in maintaining concentration, persistence, or pace into the RFC assessment
and the hypothetical. Substantial evidence in the record supports the ALJ’s finding
that Plaintiff was limited to understanding, remembering and carrying detailed, but
not complex tasks and instructions and avoiding more than occasional contact with
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coworkers, supervisors, and the public. See Taylor v. Colvin, No. 4:13-cv-534, 2014 WL
4443434, at *6 n.10 (N.D. Tex. Sept. 9, 2014) (collecting cases) (finding that “the ALJ’s
mental RFC determination limiting [the plaintiff] to the performance of detailed, but
not complex, instructions is not contradictory with the ALJ’s finding [that the plaintiff]
was mildly limited in his activities of daily living and social functioning, and
moderately limited in his ability to maintain concentration, persistence, or pace”); see
also Smith v. Colvin, No. 3:13-cv-1884-N, 2014 WL 1407437, at *5 (N.D. Tex. Mar. 24,
2014) (finding that the “ALJ was not required to expressly include a limitation for
concentration, persistence, or pace in her hypothetical to the VE” when the “ALJ
considered the limitations in concentration, persistence, or pace when determining
Plaintiff’s RFC”).
Remand is not required on this issue.
II.
The ALJ's RFC "stand/walk" finding is supported by substantial evidence.
The ALJ found that Plaintiff retained the RFC to perform sedentary work,
including the ability to "stand/walk for 2 hours in an 8-hour workday." Tr. at 16.
Plaintiff contends that the ALJ's conclusion that he could "stand/walk for 2 hours in
an 8-hour workday" is not supported by substantial evidence. See Ripley, 67 F.3d at
557.
Plaintiff argues that, according to the evidence, he sustained a very serious
injury to his lower left leg, including severe tendon and artery lacerations that required
surgery. See Tr. at 49, 339. Subsequently, he required the use of a prescribed cane to
ambulate, as the consulting physical examiner, David Okumbor, M.D., reported. See
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id. at 49, 339. Plaintiff testified that he fell "quite often," even walking on even
surfaces. See id. at 43, 50. Plaintiff also argues that his testimony is consistent with
his prior injuries and Dr. Okumbor's observations. Dr. Okumber reported that Plaintiff
was unable to ambulate effectively without use of a cane; Plaintiff had a gait involving
dragging of his left foot, which had a left foot drop; Plaintiff could not toe or heel walk;
and Plaintiff was unsteady performing tandem walking. See id. at 339. The consulting
psychiatric examiner, J. Lawrence Muirhead, Ph. D., reported that Plaintiff had an
impaired gait. See id. at 333. Based on this evidence, Plaintiff argues that being on his
feet for two hours would put him at risk for serious injury and that the ALJ failed to
fully appreciate the extent of the limitations he had in the ability to stand and/or walk.
In his decision, the ALJ considered Plaintiff's injuries to his chest, left forearm,
left thigh, and leg after tripping and falling onto a fish tank in April 2011. See id. at
12, 314-23, 368-89. The ALJ stated that Plaintiff underwent ateriorraphy of the left
anterior tibial artery at Hunt Regional Medical Center and was then transferred to
Baylor Hospital in Dallas for tendon repair surgery on his left leg. See id. at 12, 314-23,
368-89. The ALJ further stated that the record reflects no treatment such as physical
therapy, injections, or further surgical intervention for the left leg, knees, or spine. See
id. at 17.
The ALJ also considered Dr. Okumbor's report. See id. at 13, 17, 337-39.
According to the ALJ, Dr. Okumbor noted that Plaintiff had decreased range of motion
of the spine, a left leg scar, bilateral knee tenderness, decreased range of motion, full
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motor strength, good coordination, normal reflexes and sensations, no spinal
tenderness or spasm, and normal upper and lower extremities. See id. at 13, 338-39.
Dr. Okumbor opined that Plaintiff was unable to ambulate effectively without a cane
for distances over 25 feet because his gait involved dragging the left foot, which had a
left foot drop. See id. at 13, 339. Dr. Okumbor also noted that Plaintiff had full motor
strength, good coordination, normal reflexes and sensation, no spinal tenderness or
spasm, and normal upper and lower extremities. Dr. Okumbor diagnosed Plaintiff
with, among other things, chronic back pain, mild degenerative arthritis of the lumbar
spine, chronic leg pain, and chronic knee pain. See id.
Plaintiff also argues that the ALJ failed to address his testimony that he lacked
the funds or insurance necessary to obtain treatment or prescription medication. But
there is no evidence that Plaintiff sought low cost medical treatment or that he was
denied medical care because of his financial condition. There is evidence that Plaintiff
was referred to a low cost medical clinic and a low cost dental clinic but no evidence
that he ever went to either. See id. at 354, 359, 361; Lovelace v. Bowen, 813 F.2d 55,
59 (5th Cir. 1987) (holding that an inability to afford treatment by itself is insufficient;
a claimant must also show that she could not obtain medical treatment from other
sources, such as free or low-cost health clinics).
Although Plaintiff relies primarily on his own testimony to support his argument
that he cannot stand or walk for two hours, the Court finds that the ALJ's
determination that Plaintiff could do so is supported by substantial evidence.
Accordingly, remand is not required on this issue.
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III.
The ALJ's Step Five determination is supported by substantial evidence.
After finding that Plaintiff was unable to perform his past relevant work, at Step
Five, the ALJ asked the VE two hypothetical questions. See supra at 7-8; Tr. at 57-58.
The first asked about a hypothetical person who was limited to work at the light
exertional level and, among other things, had a combined walk/stand limitation of up
to four hours in an eight-hour work day. The second asked about the same hypotheticl
person but was limited to sedentary work and had a combined stand/walk limitation
of two hours in an eight-hour work day. In response to the first question, the VE
testified that there were no jobs that the hypothetical person could perform. In
response to the second, the VE testified that there were other jobs that the hypothetical
person could perform, such as a document preparer, touch up screen inspector and
tester, and stem mounter. The ALJ's RFC finding mirrored the RFC posed in the
second hypothetical question and found that Plaintiff was capable of making a
successful adjustment to work that exists in significant numbers in the national
economy. See id. at 19.
Plaintiff contends that the ALJ erred in relying on the VE's testimony because
the VE's answers to the two hypothetical questions were contradictory. Plaintiff argues
that, if a person with a light RFC could perform no jobs in the national economy, then
a person further limited to sedentary work could not perform any jobs. According to
Plaintiff, the VE's answer to thoe first hypothetical that Plaintiff could not perform any
jobs at the light exertional level necessarily included jobs at the sedentary level.
Section 404.1567 provides that, "[a]lthough a sedentary job is defined as one
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which involves sitting, a certain amount of walking and standing is often necessary in
carrying out job duties. Jobs are sedentary if walking and standing are required
occasionally and other sedentary criteria are met." 20 C.F.R. § 404.1567(a). Light work
"requires a good deal of walking or standing.... 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). Plaintiff argues that the second hypothetical did not include
additional limiting factors but the ALJ changed the combined stand/walk limitation
from four to two hours in an eight-hour day.
Plaintiff also argues that, because his RFC limits him to no more than
occasional interaction with coworkers, supervisors, and the public, he cannot undergo
the training periods or probationary periods of any of the jobs identified by the VE.
But the VE was specifically asked about an individual who was limited to no
more than occasional interction with coworkers, supervisors, and the public, and the
VE testified as to jobs that Plaintiff could perform with those limitations and further
testified that those jobs did not present a conflict with the Dictionary of Occupational
Titles. See id. at 55-59.
The ALJ properly relied on the VE's testimony and, once the Commissioner met
its burden to show that Plaintiff could perform jobs that exist in the national economy,
Plaintiff did not prove that he could not perform the alternative work.
Accordingly, remand is not required on this issue.
Conclusion
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The hearing decision is affirmed in all respects.
DATED: September 27, 2018
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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