Varnell v. Social Security Administration, No. 6:2011cv00276 - Document 22 (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 EARL W. VARNELL, ) ) Plaintiff, ) ) ) ) ) v. MICHAEL J. ASTRUE, Commissioner of Social Security Administration, Case No. CIV-11-276-KEW ) ) } ) Defendant. OPINION AND ORDER Plaintiff Earl W. Varnell (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. appeals the decision of the Administrative Law Judge Claimant ("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 AFFIRMED. 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). A claimant is disabled under the Social Security Act "only if 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. two inquiries: § first, 405(g). This Court's review is limited to whether the 1 decision was supported by 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 substantial evidence; and, standards were applied. (lOth Cir. second, whether the correct legal Hawkins v. Chater, 113 F.3d 1162, 1164 1997) (citation omitted). The 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." Richardson v. Edison Perales, Co. v. 402 U.S. NLRB, 389, Consolidated (1938)). The court may not re-weigh the evidence nor substitute Health Human & Servs., 933 F.2d 799, U.S. {1971) (quoting its discretion for that of the agency. 305 401 Casias v. 800 197, 229 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. Claimant's Background Claimant was born on April 6, 1967 and was 43 years old at the time of the ALJ' s decision. through the tenth grade. driver, saw inability to operator, Claimant completed his education Claimant worked in the past as a truck and delivery man. work beginning April 3 4, 2009 Claimant due to alleges an limitations resulting from back pain and leg numbness. Procedural History On April 6, 2009, Claimant protectively filed for disability insurance benefits under Title II {42 U.S.C. § 401, et seq.) and supplemental security income pursuant to Title XVI 1381, et seq.} of the Social Security Act. {42 U.S.C. § Claimant's applications were denied initially and upon reconsideration. On April 4, 2009, an ALJ administrative hearing Kirkpatrick in Poteau, was Oklahoma. issued an unfavorable decision. held before On December 6, On July 1, Council denied review of the ALJ's decision. Michael 2010, 2011, A. the ALJ the Appeals 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 decision at step five evaluation. 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 wide range of sedentary work. Errors Alleged for Review Claimant asserts the ALJ committed error in (1) failing to include all of Claimant's impairments in his RFC assessment; 4 (2} reached an improper RFC determination; and ( 3} engaged in an improper step five analysis. Evaluation of Claimant's Impairments Claimant first contends the ALJ failed to include a mental impairment or Claimant's gastrointestinal ailments and intestinal bleeding in his step two findings. Claimant's original problems arose from a stab wound in his back in February of 1999. suffered weakness of the right lower sensation in the left lower extremity. extremity Claimant and decreased Claimant underwent surgery where it was revealed that he had a bone fragment from T12 and a contusion to his spinal cord. He experienced marked weakness on the right and walked with assistance. Claimant was diagnosed with a cord contusion at T12 secondary to a penetrating wound. (Tr. 178) . On July 10, 2009, Dr. Jimmie W. Taylor provided a consultative physical examination of Claimant. He found Claimant had residual weakness and neuropathy of the right leg secondary to previous stabbing, hyperlipidemea, and a history of rectal bleeding. 196) . Claimant had good range of motion in his back. his right leg but had a safe gait. 27, 2009, He favored Heel, toe, and tandem walk was 4/5, 4/5, and 3/5 with weakness in the right leg. On April (Tr. 195). Claimant was attended by Dr. 5 (Tr. Jennifer Scoufus, complaining of a cough and bright red rectal bleeding. (Tr. 214). Dr. Scoufus ordered a colonoscopy which showed small external hemorrhoids. (Tr. Claimant was later diagnosed 222) . with chronic gastritis and received Prilosec for treatment. (Tr. 221) . On August Source 10, Statement (Physical) 2009, of Dr. Scoufus Ability on Claimant. to also completed a Do Work-Related Medical Activities She found Claimant could occasionally lift/carry less than 10 pounds, no weight frequently, stand and/or walk less than 2 hours in an 8 hour workday, sit for less than 6 hours in an 8 hour workday, limited in his ability to push or pull in his lower extremities. (Tr. 218). She estimated Claimant could occasionally climb and kneel but never balance, crouch, or crawl. She stated that climbing was cannot to unsafe, {Tr. 219). were nerve damage his balance was kneel on his painful. feeling due right leg, to Claimant's not good, right he falls leg, over, and crouching and crawling was Claimant's reaching, handling, fingering, and unlimited. vibration and hazards. He was limited in his exposure to (Tr. 220). On December 1, 2009, Dr. Diane Brandmiller conducted a mental status examination on Claimant. Claimant experiencing flashbacks from the stabbing. treatment but was nervous and left. 6 reported he was He attempted to seek Claimant's ex-wife tells him that when the person who stabbed him gets out he will finish him off. Claimant's recent mood was "in the dumps" and had felt that way for the past five to seven years. night and sometimes has nightmares. his concentration was "OK." He sleeps two hours per His energy level was low and Dr. Brandmiller diagnosed Claimant with mood disorder, NOS with a GAF of 61-70. She found Claimant's long short term memory was intact but his term memory, concentration, and abstract thinking were mildly impaired. expressive and receptive language skills were intact. He appeared able to understand and carry out simple instructions. need assistance in managing funds due to subtraction and inability to write checks. On January 14, 2010, Dr. Sally his suffered depressive from syndrome an affective He would limitations Varghese disorder; completed specifically, characterized by appetite disturbance with (Tr. She found Claimant had mild limitations in restriction on activities of daily living, functioning, and his difficulties in maintaining social difficulties persistence, or pace. In a She determined change in weight, sleep disturbance, and decreased energy. 231-34). in (Tr. 226-30). Psychiatric Review Technique form on Claimant. Claimant His decision, in maintaining concentration, (Tr. 241). the ALJ concluded Claimant's mental impairment was not severe based upon the findings of Dr. Varghese 7 and considering the evaluation by Dr. Brandmiller. (Tr. 20-21). The burden of proof at step two is on the plaintiff. See Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993} (the claimant bears the burden claimant's of proof showing at through step step two four that he of or impairment has been described as ''de minimis." 113 F.3d 1162, 1169 F.2d 748, severity") . 751 the she analysis) . has a A severe Hawkins v. Chater, (10th Cir. 1997); see Williams v. Bowen, 844 (10th Cir. 1988) ("de minimis showing of medical A claimant need only be able to show at this level that the impairment would have more than a minimal effect on his or her ability to do basic work activities. 751. Williams, 844 F.2d at However, the claimant must show more than the mere presence of a condition or ailment. If the medical severity of a claimant's impairments is so slight that the impairments could not interfere with or have a serious impact on the claimant's ability to do basic work activities, the impairments do not prevent the claimant from engaging in substantial work activity. Thus, at step two, the ALJ looks at the claimant's impairment or combination of impairments only and determines the impact the impairment would have on his or her ability to work. Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997). No evidence in the record indicates that Claimant's affective disorder, though diagnosed, affects his ability to engage in work 8 activity. No medical professional has provided an opinion of diminished mental capabilities caused by the disorder. Claimant in large measure simply seeks an award of benefits for the existence of a medical condition which is without foundation. Claimant next gastrointestinal contends ailments impairments at step two. the and ALJ should intestinal have bleeding included as severe The parties ·agree that three medical records indicate some type of intestinal bleeding. The first from November 4, 2005 from the emergency room shows Claimant reported bright red stools on three occasions with rectal discomfort. 159). (Tr. The second from March 28, 2001 indicates Claimant underwent surgery for a radial hemorrhoidectomy. {Tr. 175). final record on this subject was from May 8, complained of bloody bowel movements. The third and 2009 when Claimant Claimant underwent colonscopy but the bleeding was attributable to hemorrhoids. a (Tr. 222, 322-24). Claimant speculates that this condition would "necessitate greater-than-normal breaks to use the restroom, concentration due to the interference from his pain, negative effects." of severity. years. lack of and other No medical professional has made such a finding Indeed, the time between treatments was several Moreover, although Claimant characterizes the condition as "intestinal bleeding," in fact, 9 the diagnosis was external hemorrhoids. The ALJ did not err in failing to include this condition at step two as a severe impairment. RFC Determination Claimant also contends the ALJ reached an improper RFC by failing to give the opinion of Dr. Scoufus controlling weight. The ALJ found Dr. Scoufus (1) was not a treating source whose opinion was entitled to weight; controlling weight entitled to substantial (2) failed to identify any medical findings which support a conclusion of disability; Claimant or for his (3) did not provide pain medication to condition; and (4) rendered a opinion not supported by other evidence in the record. This Court agrees with Defendant that the ALJ did not find Dr. Scoufus to not be a treating physician as Claimant suggests. Rather, the ALJ found her opinion was not entitled to controlling weight because it was not supported. repeatedly found Claimant's Dr. Scoufus' treatment notes abdomen, extremities, general appearance were within normal limits. joints, and (Tr. 210-14). The ALJ examined Dr. Scoufus' findings on physical limitations under the Watkins v. 350 Barnhart, F.3d 1297, 1300 {lOth Cir. 2003) rubric and determined the opinions were not entitled to controlling weight or any significant weight. ALJ' s assessment This Court finds no error in the of and reduction in weight 10 attributed to Dr. Scoufus' opinion. Claimant repeatedly states the ALJ had a duty to develop the record in ordering additional consultative testing and evaluations by Dr. Taylor and Dr. Brandmiller. Generally, the burden to prove disability in a social security case is on the claimant, and to meet this burden, the claimant must furnish medical and other evidence of the existence of the disability. Branam v. Barnhart, 385 F.3d 1268, 1271 (lOth Cir. 2004) citing Bowen v. Yuckert, 482 u.s. 137, 146 (1987). nonadversarial, ensuring that A social security disability hearing is however, "an and the ALJ bears adequate record is responsibility developed disability hearing consistent with the issues raised." during for the Id. quoting Henrie v. United States Dep't of Health & Human Services, 13 F.3d 359, 360-61 (lOth Cir. 1993). As a result, "[a]n ALJ has the duty to develop the record by obtaining pertinent, records which come hearing." to his available medical attention during the course of the Id. quoting Carter v. Chater, 73 F.3d 1019, 1022 (lOth Cir. 1996). This duty exists even when a claimant is represented by counsel. Baca v. Dept. of Health & Human Services, 5 F.3d 476, 480 (lOth Cir. 1993). The court, however, is not required to act as a claimant's advocate. Henrie, 13 F.3d at 361. The primary consideration on review is whether the record was sufficiently developed to reflect ( 1) the nature 11 of a claimant's alleged impairments; (2) the ongoing treatment and medication the claimant is receiving; and (3) the impact of the alleged impairment on a claimant's daily routine and activities. F.2d 1371, 1375 (lOth Cir. 1992). Musgrave v. Sullivan, 966 When a claimant is represented by counsel at the administrative hearing, the ALJ should ordinarily be able to claimant's rely case upon in a the way claimant's such that counsel all to claims present are the adequately explored without imposing an additional duty to develop the record on the ALJ. 1997). As consultative Hawkins v. Chater, 113 F.3d 1162, 1167-1168 (lOth Cir. a result, examination an ALJ unless established in the record." is the not required need for "to one order is a clearly Id. at 1168. The evidence in the record did not give rise to a clear need for a consultative examination to simply compare the reports of different physicians "apples-to-apples" as Claimant urges. this Court finds no error in the ALJ' s failure Thus, to employ the services of an additional consultative examiner. Conclusion The decision of the Commissioner is supported by substantial evidence and the correct legal standards were applied. Therefore, this Court finds the ruling of the Commissioner of Social Security Administration should be and is AFFIRMED. 12 IT IS SO ORDERED this 3D~y of July, 2012. ' JUDGE 13
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