Tingey v. Berryhill
Filing
25
MEMORANDUM DECISION AND ORDER AFFIRMING THE COMMISSIONERS FINAL DECISION DENYING DISABILITY BENEFITS TO PLAINTIFF. Signed by Magistrate Judge Cecilia M. Romero on 9/09/2019. (nl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
AMY L. T,
MEMORANDUM DECISION AND
ORDER AFFIRMING THE
COMMISSIONER’S FINAL
DECISION DENYING DISABILITY
BENEFITS TO PLAINTIFF
Plaintiff,
vs.
ANDREW SAUL,
Commissioner of Social Security,
Court No. 2:18-cv-00152-CMR
Defendant.
Magistrate Judge Cecilia M. Romero
Pursuant to 42 U.S.C. § 405(g) Plaintiff seeks judicial review of the decision of the
Commissioner of Social Security (Commissioner) denying her claim for disability insurance
benefits (DIB) and supplemental security income (SSI) under Titles II and XVI of the Social
Security Act (Act). After careful review of the entire record, the parties’ briefs, and arguments
presented at a hearing held on August 22, 2019, the undersigned concludes that the
Commissioner’s decision is supported by substantial evidence and free of harmful legal error and
is, therefore, AFFIRMED.
I. LEGAL FRAMEWORK
A.
Statutory and Regulatory Background
To establish that she is disabled, a claimant must show that she was unable to engage in
any substantial gainful activity due to some medically determinable physical or mental
impairment or combination of impairments that lasted, or were expected to last, for a continuous
period of at least 12 months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A disabling physical or
mental impairment is defined as “an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and
laboratory diagnostic techniques.” 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D). The claimant has the
burden of furnishing medical and other evidence establishing the existence of a disabling
impairment. 42 U.S.C. § 423(d)(5)(A), applicable to SSI cases through § 1382c(a)(3)(H)(i).
The federal regulations set forth a five-step sequential analysis that an administrative law
judge (ALJ) must follow in determining the ultimate issue of disability. 20 C.F.R. §§ 404.1520,
416.920. A claimant bears the burden of proof at steps one through four, at which point the
burden shifts to the Commissioner to demonstrate that there is other work in the national
economy that the claimant can perform. See 20 C.F.R. §§ 404.1512(a), 416.912(a) (The claimant
generally bears the ultimate burden of proving that she was disabled throughout the period for
which benefits are sought); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
B.
Standard of Review
This Court reviews the Commissioner’s decision to determine whether substantial
evidence in the record as a whole supports the factual findings and whether the correct legal
standards were applied. See Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). “Substantial
evidence is such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Id. (citation omitted). The Court may neither “reweigh the evidence [n]or substitute
[its] judgment for the [ALJ’s].” Id. (citation omitted). Where the evidence as a whole can support
either the agency’s decision or an award of benefits, the agency’s decision must be affirmed. See
Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990).
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II. FACTUAL BACKGROUND
Plaintiff protectively filed for DIB in September 2014 and applied for SSI in December
2014, alleging disability since August 1, 2013 (Certified Administrative Transcript (Tr.)) 11,
180-90). She alleged disability due to symptoms related to lumbar degenerative disc disease,
migraine headaches, depression, and anxiety (Tr. 13, 208). Plaintiff attended two years of college
and worked previously for the Transportation Safety Administration (TSA) as a security screener
and a lead transportation security officer (Tr. 33-34, 47-48, 209, 262).
After a February 2017 administrative hearing (Tr. 27-51), an ALJ found that Plaintiff was
not disabled within the meaning of the Act (Tr. 11-22). The ALJ followed the familiar five-step
sequential evaluation for assessing disability. See generally 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4); Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (explaining the five-step
process). At step two the ALJ found Plaintiff had the severe impairments of degenerative disc
disease with lumbago, sacroiliac dysfunction, migraines, obesity, depressive disorder, and
anxiety disorder. (Tr. 13). None of these medical impairments were found to meet or equal the
criteria of the disabling impairments listed at 20 C.F.R. pt. 404, subpt. P, app’x 1 (Tr. 13-17).
After further consideration of the evidence, the ALJ found Plaintiff had the residual functional
capacity (RFC) to perform a range of light work involving simple, routine tasks that can be
learned within 30 days with no more than occasional changes in the workplace (Tr. 17-20). At
step four, the ALJ found that, given this RFC, Plaintiff was unable to perform her past relevant
work as a TSA screener or officer. At step five, however, the ALJ determined that she could
perform other light-exertion jobs in the national economy such as a cashier II, photocopy
machine operator and cafeteria attendant (Tr. 21-22; Tr. 49-50).
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The Appeals Council denied Plaintiff’s ensuing request for review (Tr. 1-4), making the
ALJ’s decision the Commissioner’s final decision for purposes of judicial review. See 20 C.F.R.
§§ 404.981, 416.1481, 422.210(a). 1 This timely appeal followed.
III. ANALYSIS
On appeal Plaintiff argues that: (1) the ALJ’s RFC findings about her subjective
symptom testimony are not supported by substantial evidence; and, (2) the ALJ erred by not
accepting responses to alternative hypothetical questions posed to the vocational expert after the
ALJ’s initial hypothetical question. 2 For the reasons explained below, the Court is not persuaded
by these arguments.
A.
The ALJ’s assessment of Plaintiff’s subjective symptom testimony is
supported by substantial evidence.
After step three of the five-step sequential analysis—and before moving on to step four—
the ALJ assesses a claimant’s RFC. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). RFC is “the
most [a claimant] can still do despite [her] limitations.” Id. §§ 404.1545(a)(1), 416.945(a)(1). Its
assessment is reserved to the ALJ at the administrative hearing level, who considers “all of the
relevant medical and other evidence,” including a claimant’s subjective symptom testimony.
Id. §§ 404.1545(a)(3), 416.945(a)(3); Id. §§ 404.1546(c), 416.946(c). The Court will give
“particular deference” to an ALJ’s subjective symptom testimony assessment when that
1
All Code of Federal Regulations (C.F.R.) citations are to the 2017 edition of 20 C.F.R. Parts
404 (DIB) and 416 (SSI), which were in effect at the time of the ALJ’s decision.
2
In her opening brief, Plaintiff appeared to make a due process argument asserting the ALJ did
not fairly adjudicate her case. During oral argument, Plaintiff’s counsel abandoned this argument
stating he had not intended to advance it and did not believe that the ALJ’s handling of the case
was unfair.
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assessment is supported by substantial evidence. See White v. Barnhart, 287 F.3d 903, 910
(10th Cir. 2002). Here, the ALJ’s RFC finding—including his assessment of Plaintiff’s
subjective symptom testimony—warrants such deference.
Based on the record, the Court finds the ALJ properly discounted Plaintiff’s subjective
symptom testimony about her disabling limitations. See 20 C.F.R. §§ 404.1529(c)(4),
416.929(c)(4) (in assessing subjective symptom testimony, the ALJ considers that testimony’s
consistency with the medical and nonmedical evidence of record). The ALJ relied on evidence
found in the record as a whole in finding that—despite her severe physical and mental
impairments—Plaintiff could perform a range of light work that involves only simple, routine
tasks that can be learned within 30 days or less and only occasional changes in the workplace
(Tr. 17). For example, Plaintiff told her medical providers that she had been “busy caring for her
young child and grandchildren” (Tr. 17 (citing Tr. 2290-91, 2328, 2647)); the ALJ noted the lack
of support in treatment notes from the medical providers for the extreme migraine limitations as
alleged by Plaintiff (Tr. 16 (citing Tr. 2288-2661, 2538-49)); and objective medical findings of
record described Plaintiff’s normal motor strength and bulk, intact sensory function, normal
reflexes, and normal gait, as well as unremarkable mental status examination findings (Tr. 16
(citing Tr. 2288-92, 2554-2661)). In sum, there is substantial evidence in the record to support
the ALJ’s symptom testimony assessment.
Similarly, Plaintiff’s related argument—that the ALJ did not consider and account for the
effects of her degenerative disc disease, migraine headaches, obesity, and mental impairments in
assessing her RFC—is also unpersuasive. The ALJ specifically noted that in determining
Plaintiff’s RFC he considered the symptoms that were consistent with the objective medical
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evidence. See Tr. 16 (considering Plaintiff’s migraines and obesity); Tr. 18 (“In making this
assessment, I have considered all symptoms and the extent to which these symptoms can
reasonably be accepted as consistent with the objective medical evidence and other evidence”);
Tr. 19 (“In terms of the claimant’s alleged combination of pain and physical limitations
secondary to degenerative back and joint changes and obesity . . .”). Because the ALJ stated that
he considered all of Plaintiff’s symptoms in assessing her RFC, the Court finds no reason to
depart from the “general practice” of “’tak[ing] a lower tribunal at its word when it declares that
it has considered a matter.’” Flaherty v. Astrue, 515 F.3d 1067, 1071 (10th Cir. 2007) (quoting
Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005)). The Court declines Plaintiff’s
invitation to reweigh the evidence with a more favorable interpretation toward her position. See
Lax, 489 F.3d at 1084 (“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 different choice had the matter been
before it de novo.” (citation and quotation omitted)). The Court affirms the ALJ’s RFC
assessment.
B.
The ALJ’s step-five finding—that Plaintiff could perform other work
existing in significant numbers—is supported by substantial evidence.
In determining—at step five of the sequential evaluation—whether a claimant can
perform a significant number of other jobs existing in the national economy, the ALJ may seek
the assistance of a vocational expert. See 20 C.F.R. §§ 404.1566(d)-(e), 404.966(d)-(e). The
vocational expert’s testimony may be considered substantial evidence, upon which the ALJ may
rely, when an ALJ propounds a hypothetical question to the vocational expert that includes all
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the limitations the ALJ ultimately includes in the RFC assessment. See Qualls v. Apfel, 206 F.3d
1368, 1373 (10th Cir. 2000) (finding no error when the ALJ relied upon a hypothetical question
to the vocational expert that included all the limitations the ALJ ultimately included in his RFC
assessment). Here, the ALJ’s initial hypothetical question to the vocational expert contained the
same limitations found in the ALJ’s RFC finding that the Court has already found is supported
by the record (compare Tr.48-49 with Tr. 17). Thus, the vocational expert’s testimony constitutes
substantial evidence on which the ALJ may rely in making his step-five finding.
Plaintiff contends the ALJ should have accepted the vocational expert’s responses to
subsequently-posed, alternative hypothetical questions with different limitations. An ALJ,
however, is not required to rely on vocational expert responses to questions containing
limitations that he reasonably excludes from the RFC finding. See Bean v. Chater, 77 F.3d 1210,
1214 (10th Cir. 1995) (“The ALJ was not required to accept the answer to a hypothetical
question that included limitations claimed by plaintiff but not accepted by the ALJ as supported
by the record.”); accord 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.”). The
ALJ did not err in excluding from his decision the vocational expert’s responses to the
alternative hypothetical questions. Based upon the record and the vocational expert’s responses
to the ALJ’s hypotheticals, the ALJ’s step-five finding that Plaintiff could perform other jobs in
the national economy is supported by substantial evidence.
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IV. CONCLUSION
The ALJ’s decision is supported by substantial evidence and is free of harmful legal
error, and is therefore AFFIRMED. Judgment shall be entered in accordance with
Fed. R. Civ. P. 58, consistent with the Supreme Court’s decision in Shalala v. Schaefer,
509 U.S. 292, 296-304 (1993).
DATED this 9 September 2019.
Magistrate Judge Cecilia M. Romero
United States District Court for the District of Utah
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