Dunegan v. Social Security Administration, No. 6:2011cv00138 - Document 21 (E.D. Okla. 2012)
Court Description: OPINION AND ORDER by Magistrate Judge Kimberly E. West (sjw, Chambers)
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA DEBRA L. DUNEGAN, ) ) ) ) Plaintiff, v. Case No. CIV-11-138-KEW ) } ) MICHAEL J. ASTRUE, Commissioner of Social Security Administration, ) ) ) ) Defendant. OPINION AND ORDER Plaintiff Debra L. Dunegan (the "Claimant") requests judicial review of the decision of the Commissioner of the Social Security Administration (the "Commissioner") denying Claimant's application for disability benefits under the Social Security Act. Claimant appeals the decision of the Administrative Law Judge ("'ALJ"} and asserts that the Commissioner erred because the ALJ incorrectly determined that discussed below, Claimant it is was the not disabled. finding of this For the Court reasons that the Commissioner's decision should be and is REVERSED and REMANDED for further proceedings. Social Security Law and Standard of Review Disability under the Social Security Act is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . " 42 U.S.C. § 423(d) (1) (A). Security Act "only if A claimant is disabled under the Social his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists §423 (d) (2) (A). in the national economy. 42 u.s.c. Social Security regulations implement a five-step sequential process to evaluate a disability claim. See, 20 C.F.R. §§ 404.1520, 416.920. 1 Judicial review of the Commissioner's determination is limited in scope by 42 U.S.C. § 405(g). This Court's review is limited to 1 Step one requires the claimant to establish that he is not engaged in substantial gainful activity, as defined by 20 C. F .R. §§ 404.1510, 416.910. Step two requires that the claimant establish that he has a medically severe impairment or combination of impairments that significantly limit his ability to do basic work activities. 20 C.F.R. §§ 404.1521, 416.921. If the claimant is engaged in substantial gainful activity (step one) or if the claimant's impairment is not medically severe (step two), disability benefits are denied. At step three, the claimant's impairment is compared with certain impairments listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1. A claimant suffering from a listed impairment or impairments ""medically equivalent" to a listed impairment is determined to be disabled without further inquiry. If not, the evaluation proceeds to step four, where claimant must establish that he does not retain the residual functional capacity ("RFC") to perform his past relevant work. If the claimant's step four burden is met, the burden shifts to the Commissioner to establish at step five that work exists in significant numbers in the national economy which the claimant - taking into account his age, education, work experience, and RFC - can perform. Disability benefits are denied if the Commissioner shows that the impairment which precluded the performance of past relevant work does not preclude alternative work. See generally, Williams v. Bowen, 844 F.2d 748, 750-51 (lOth Cir. 1988). 2 two inquiries: substantial first, evidence; and, standards were applied. (lOth Cir. whether the second, decision was whether supported by the correct legal Hawkins v. Chater, 113 F.3d 1162, 1164 1997) (citation The omitted). term ~substantial evidence" has been interpreted by the United States Supreme Court to require ~more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." (quoting Richardson v. Consolidated (1938)). Perales, 402 U.S. Edison Co. v. 305 401 U.S. (1971) 197, 229 The court may not re-weigh the evidence nor substitute its discretion for that of the agency. Health NLRB, 389, & Human Servs., 933 F.2d 799, Casias v. 800 Secretary of {lOth Cir. 1991). Nevertheless, the court must review the record as a whole, and the ~substantiality of the evidence must take into account whatever in the record fairly detracts from its weight." Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 {1951); see also, Casias, 933 F.2d at 800-01. C1aimant's Background Claimant was born on January 16, 1960 and was 50 years old at the time of the ALJ's decision. Claimant completed her high school education and is within one trimester of receiving her education as an administrative secretary. Claimant worked in the past as a 3 secretary, wiring harness maker, waitress, and boutique arranger. Claimant alleges an inability to work beginning January 23, 2008 due to limitations resulting from fibromyalgia, obstructive sleep apnea, degenerative disc disease, osteoarthritis, obesity, PTSD, major depression, and a personality disorder. Procedural History On July 10, 2008, Claimant protectively filed for disability insurance benefits under Title II {42 U.S.C. § 401, et seq.) of the Social Security Act. Claimant's application was denied initially and upon reconsideration. On April 5, 2010, an administrative hearing was held before ALJ Lantz McClain in Tahlequah, Oklahoma. On May 12, 2010, the ALJ issued an unfavorable decision. On February 16, 2011, the Appeals Council denied review of the ALJ's decision. As a result, the decision of the ALJ represents the Commissioner's final decision for purposes of further appeal. 20 C.F.R. §§ 404.981, 416.1481. Decision of the Administrative Law Judge The ALJ made his evaluation. decision at step five of the sequential He determined that while Claimant suffered from severe impairments, she did not meet a listing and retained the residual functional capacity ("RFC") to perform a range of light work with limitations. 4 Errors ~leqed for Review Claimant asserts the ALJ committed error in perform a proper analysis at step five; and (2) (1) failing to engaging in a faulty credibility analysis. Step Five Analysis Claimant first contends the ALJ failed to include all of her limitations in the hypothetical questions posed to the vocational expert employed decision, the to ALJ provide found testimony Claimant in this suffered case. from In the his severe impairments of fibromyalgia, obstructive sleep apnea, degenerative disc disease, osteoarthritis, obesity, posttraumatic disorder, major depression, and a personality disorder. stress (Tr. 19). He determined Claimant retained the RFC to occasionally lift and/or carry 20 pounds, frequently lift and/or carry 10 pounds, stand and/or walk for at least 6 hours in an 8 hour workday, sit for at least 6 hours in an 8 hour workday, all with normal breaks, while avoiding work above shoulder level, limited to simple repetitive tasks, and having no more than incidental contact with the public. (Tr. 21). While the ALJ concluded Claimant could not perform her past relevant work, he found jobs existed in the national economy in sufficient numbers that Claimant could perform, given her RFC including mail clerk, maid, and hand packager. 5 (Tr. 24). The ALJ, therefore, concluded Claimant was not disabled. {Tr. 25). On May 17, 2007, Claimant was evaluated by Dr. Jay K. Johnson. Dr. Johnson was asked to evaluate Claimant radiculopathy versus carpal tunnel syndrome. regarding cervical Claimant complained of no strength in both hands, an inability to walk in the morning when she gets up, and chronic joint pain in both the upper and lower extremities. (Tr. 267). Dr. Johnson's examination revealed symmetric strength in the upper and lower extremities with normal bulk and tone. sensation to pin. The sensory exam revealed a grossly intact Some patchy decreased sensation in the upper and lower extremities was noted which did not follow any particular dermatome or peripheral nerve pattern. reflexes were 2/4 at the biceps, triceps, Patellars were 2.4 and Achilles were 2/4. downgoing. Claimant's 268}. and brachioradialis. Claimant's toes were Dr. Johnson performed an EMG/NCV of the right and left upper extremity and the study was normal. Dr. {Tr. Johnson's impression was {Tr. 269). Claimant had tingling in the hands with uncertain etiology. numbness and Although she had pain in the neck and down the right arm, it did not appear that she had clinical or electrical evidence of carpal tunnel syndrome. He recommended Claimant have an MRI scan of the cervical spine. Id. On June 11, 2007, Claimant evaluated by Dr. Allan S. Fielding. 6 underwent an MRI which was The MRI showed some foraminal stenosis at C6-7. Claimant was complaining of neck pain spreading to both of her shoulders but her arm pain was completely gone. Claimant had no sensory loss or weakness. Upon examination, Dr. (Tr. 277). Fielding found the cervical foramen closure test was negative, Claimant's reflexes were trace, and she had full power and normal sensation. Claimant's neck was unremarkable to inspection but she had some paracervical muscular tenderness. X-rays revealed some foraminal stenosis, mild at C6-7, more on the right than on the left. concluded that Claimant had resolving but no arm pain. neck (Tr. pain 277). Dr. exclusively over-the-counter medications something is needed for pain. On October 10, 2008, that was He recommended taking no action but to "simply wait this out and give things time to resolve." that Fielding should be He advised administered if (Tr. 278). Dr. Hannah Swallow completed a Mental Residual Functional Capacity Assessment form on Claimant. Dr. Swallow found Claimant was markedly limited in the areas of the ability to understand and remember detailed ability to carry out detailed instructions, interact appropriately with the general public. instructions, the and the ability to (Tr. 623-24). She also determined Claimant was moderately limited in the area of the ability to work in coordination with or proximity to others without being distracted by them. (Tr. 7 623). In her narrative of Claimant's functional capacity assessment, Dr. Swallow found Claimant could perform simple tasks with routine supervision, can relate to supervisors and peers on a superficial work basis, cannot relate to the general public, and can adapt to a work situation. (Tr. 625). On the same date, Dr. Swallow also completed a Psychiatric Review Technique form on Claimant. She found Claimant suffered from moderate limitations in the activities of daily living, in difficulties in maintaining social functioning, and in difficulties in maintaining concentration, persistence, or pace. She diagnosed Claimant with affective disorders, disorders, and personality disorders. Claimant moderate first limitation contends in the of 619). anxiety-related (Tr. 609). the ALJ should have area (Tr. the ability included the to work in coordination with or proximity to others without being distracted by them in his hypothetical questioning of the vocational expert. A vocational expert's testimony can provide a proper basis for an ALJ's determination where the claimant's impairments are reflected adequately in the hypothetical inquiries to the expert. Sullivan, 986 F.2d 1336, 1341 (lOth Cir .. 1993). Gay v. The ALJ is required to accept and include in the hypothetical question only those limitations supported by the record. F. 3d 1196, 1203 (lOth Cir. 1999). 8 Shepherd v. Apfel, 184 The ALJ should have at least addressed this limitation in his hypothetical questioning. v. Barnhart, 2005 WL 4888068, 5 (lOth Cir. (Colo.)). Miranda On remand, the ALJ shall address this limitation in the record. Claimant next states the state agency reviewers had inconsistencies in their opinions which the ALJ did not resolve. The nature of these alleged inconsistencies escapes this Court from multiple reviews of Claimant s brief. 1 This Court finds no such error. Claimant also asserts the ALJ failed to include all of her impairments in his RFC assessment and hypothetical questioning of the vocational expert. Specifically/ the ALJ failed to include limitations in Claimant s use of her hands and degenerative disc 1 disease. While Claimant complained of hand pain, the medical evidence does not indicate she was diagnosed with a condition which would serve as a further limitation upon her ability to work. 265) . The same can be said regarding Claimant s 1 headaches, dizziness, fatigue, and poor sleep. (Tr. complaints of The entirety of these conditions are self diagnosed by Claimant and not by medical professionals. Accordingly, the ALJ's failure to include these limitations does not constitute error. Claimant contends the ALJ should have included her limitations in activities of daily living found by Dr. Swallow in her PRT in the hypothetical questioning of the vocational expert. 9 The ALJ did recognize these conditions but vocational expert questioning. discuss and include did not {Tr. 20). these include them in the On remand, the ALJ shall limitations in his hypothetical a faulty questioning. Credibility Analysis Claimant analysis. argues the ALJ engaged in credibility It is well-established that "findings as to credibility should be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings." Chater, 68 F. 3d 387, 391 (lOth Cir. 1995) . Kepler v. ''Credibility determinations are peculiarly in the province of the finder of fact" and, as such, substantial evidence. a claimant's will Id. not be disturbed when supported by Factors to be considered in assessing credibility include (1) the individual's daily activities; (2) the location, duration, frequency, and intensity of the individual's precipitate and pain or aggravate other the symptoms; symptoms; (3) (4) the factors type, that dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms; ( 5) treatment, other than medication, the individual receives or has received for relief of pain or other symptoms; ( 6) any measures other than treatment the individual uses or has used to relieve 10 pain or other symptoms {e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and (7) any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms. Soc. Sec. R. 96-7p; 1996 WL 374186, 3. An ALJ cannot satisfy his obligation to gauge a claimant's credibility by merely making conclusory findings and must give reasons for the determination Kepler, 68 F.3d at 391. based upon specific evidence. However, it must also be noted that the ALJ is not required to engage in a uformalistic factor-by-factor recitation of the evidence." (lOth Cir. 2000). Qualls v. Apfel, 206 F.3d 1368, 1372 Although Claimant repeatedly accuses the ALJ of "miscasting the evidence," the ALJ's findings as to credibility are well-supported and sufficiently tied to the factual record. No error is attributed to the credibility determination. Conclusion The decision substantial applied. fourth of evidence Therefore, sentence of the Commissioner and the correct legal this Court finds, 42 U.S.C. § is not supported standards were by not in accordance with the 405(g), the ruling of the Commissioner of Social Security Administration should be and is REVERSED and the matter REMANDED for further proceedings consistent 11 with this Opinion and Order~ IT IS SO ORDERED this ____ day of August, 2012. 12
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