McCollough v. Social Security Administration

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF OKLAHOMA

ALISHA K. MCCOLLOUGH, )

)

Plaintiff, )

)

) Case No. CIV-18-227-KEW

)

COMMISSIONER OF THE SOCIAL )

SECURITY ADMINISTRATION, )

)

Defendant. )

OPINION AND ORDER

Plaintiff Alisha K. McCollough (the “Claimant”) requests

judicial review of the decision of the Commissioner of the Social

Security Administration (the “Commissioner”) denying her

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 Claimant was not disabled. For the

reasons discussed below, it is the finding of this Court 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 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

in the national economy. . .” 42 U.S.C. § 423(d)(2)(A). 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 two inquiries: first, whether the decision was

supported by substantial evidence; and, second, whether the

correct legal standards were applied. Hawkins v. Chater, 113 F.3d

1162, 1164 (10th Cir. 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

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 (10th Cir. 1988).

such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Richardson v. Perales, 402

U.S. 389, 401 (1971), quoting Consolidated Edison Co. v. NLRB, 305

U.S. 197, 229 (1938). The court may not re-weigh the evidence nor

substitute its discretion for that of the agency. Casias v.

Secretary of Health & Human Servs., 933 F.2d 799, 800 (10th 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 28 years old at the time of the decision. She

has a high school education. She has worked in the past as a

janitor, nurse aide, and dietary aide. She alleges an inability

to work beginning January 31, 2016, due to limitations resulting

from Attention Deficit Hyperactivity Disorder (“ADHD”) and

depression.

Procedural History

On October 1, 2015, Claimant protectively filed for a period

of disability and disability insurance benefits under Title II (42

U.S.C. § 401, et seq.) of the Social Security Act and for

supplemental security income benefits pursuant to Title XVI (42

U.S.C. § 1381, et seq.) of the Social Security Act. Claimant’s

applications were denied initially and upon reconsideration. On

March 20, 2017, Administrative Law Judge(“ALJ”) Deirdre O. Dexter

conducted a video hearing, presiding from Tulsa, Oklahoma.

Claimant appeared from Muskogee, Oklahoma. On May 24, 2017, the

ALJ entered an unfavorable decision. Claimant requested review by

the Appeals Council, and on May 18, 2018, the Appeals Council

denied review. 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 her decision at steps four and five of the

sequential evaluation. She determined that while Claimant suffered

from severe impairments, Claimant did not meet a listing and

retained the residual functional capacity (“RFC”) to perform work

at all exertional levels, with certain non-exertional limitations.

Errors Alleged for Review

Claimant asserts the ALJ committed error because: (1) the

hypothetical questions to the vocational expert (“VE”) were

incomplete, resulting in “a faulty” RFC determination; (2) the ALJ

failed to properly evaluate medical source evidence; (3) he failed

to properly assess the consistency of Claimant’s testimony with

the evidence; (4) the step-four findings were in error; and (5)

the step-five findings were in error.

Hypothetical Questions to the Vocational Expert

In her decision, the ALJ found Claimant suffered from severe

impairments of ADHD and depressive disorder (Tr. 16-17). She

determined Claimant could perform a full range of work at all

exertional levels, with non-exertional limitations. Claimant

could perform simple, routine, and repetitive tasks with regular

breaks every two hours. The job should not involve over-the-

shoulder supervision. She could perform low-stress work and could

make simple work-related decisions. Claimant could occasionally

interact with supervisors as needed to receive work instructions

and to work in proximity to co-workers, but she could have no more

than occasional direct work interaction with co-workers. Claimant

should never interact with the general public, and the job should

not require more than ordinary and routine changes in the work

setting or work duties. (Tr. 16-17).

After consultation with a VE, the ALJ determined Claimant could

return to her past relevant work as a janitor. (Tr. 23). The ALJ

also made an alternative finding at step five that Claimant could

perform the representative jobs of hand packager, conveyor line

bakery worker, and poultry processor, all of which were found to

exist in sufficient numbers in the national economy. (Tr. 24-25).

As a result, the ALJ concluded Claimant was not under a disability

from March 29, 2015, through the date of the decision. (Tr. 25).

Claimant contends the ALJ’s hypothetical questions to the VE

were incomplete, which resulted in “a faulty” RFC determination.

Specifically, Claimant asserts the ALJ should have included her

need for more frequent breaks than the usual every two-hour breaks,

and the recommendation that she be allowed to transfer from one

job to another and between job sites.

“Testimony elicited by hypothetical questions that do not

relate with precision all of a claimant’s impairments cannot

constitute substantial evidence to support the Secretary’s

decision.” Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir.

1991). In positing a hypothetical question to the VE, the ALJ need

only set forth those physical and mental impairments accepted as

true by the ALJ. Talley v. Sullivan, 908 F.2d 585, 588 (10th Cir.

1990). Additionally, the hypothetical questions need only reflect

impairments and limitations borne out by the evidentiary record.

Decker v. Chater, 86 F.3d 953, 955 (10th Cir. 1996). Moreover,

Defendant bears the burden at step five of the sequential analysis.

Hargis, 945 F.2d at 1489.

The Court finds no error in the ALJ’s RFC determination as it

relates to the hypothetical questions posed to the VE. The

hypothetical questions to the VE included those limitations found

to exist by the ALJ and included in the RFC. (Tr. 16-17, 62-63).

See Qualls v. Apfel, 206 F.3d 1368, 1373 (10th Cir. 2000) (finding

an ALJ’s hypothetical questioning of the VE provided an appropriate

basis for a denial of benefits because the question “included all

the limitations the ALJ ultimately included in his RFC

assessment.”), citing Gay v. Sullivan, 986 F.2d 1336, 1341 (10th

Cir. 1993). Moreover, as discussed herein, the ALJ assessed

Claimant with functional limitations consistent with the medical

evidence in the record.

Evaluation of Opinion Evidence

Claimant contends the ALJ failed to properly evaluate the

medical source evidence, including opinions from consulting

psychologists and evidence from psychologists who evaluated her

when she was in tenth grade. She asserts the ALJ failed to properly

weigh the various opinions.

Dr. Heather Ranger Kobel, Ph.D. conducted a psychological

consultative examination of Claimant on December 7, 2015. The ALJ

discussed Dr. Kobel’s examination findings in detail in the

decision. Dr. Kobel noted Claimant reportedly struggled with focus

and concentration in school, but she graduated on time and was

able to earn CNA and HHA licenses. Claimant was diagnosed with

ADHD in high school and took Ritalin and later Adderall until she

graduated. Claimant believed her main impediment to employment

was that she was too slow. She reportedly could do a variety of

daily activities, but indicated that such activities took her

longer because of her distractibility. He frustration level was

low, and she had difficulty managing money. Claimant’s cognitive

test scores indicated she had a mild level of cognitive impairment,

low frustration tolerance, and a significant problem with

concentration. Although Claimant presented as depressed and

somewhat irritable, she was alert and able to read, write, and

comprehend adequately to complete screening forms. Claimant’s

intelligence was estimated to be in the below average range and

she exhibited congruent social skills. She provided appropriate

responses to questions related to judgment, insight, and

abstraction. Claimant’s immediate memory was intact, but she

struggled with delayed recall, attention, and concentration. Dr.

Kobel assessed Claimant with ADHD, primarily inattentive type,

unspecified depressive disorder, and rule out intellectual

disability. She also indicated Claimant could not manage her own

finances. (Tr. 19, 739-44).

In July of 2016, Claimant was evaluated by psychologist

Barbara Beach, Ph.D., through the Cherokee Nation. The ALJ

discussed Dr. Beach’s examination findings in detail in the

decision. Dr. Beach noted that although Claimant’s thought content

seemed slow, it was appropriate for the interview. Claimant’s

performance on the Wechsler Abbreviated Scale of Intelligence –

Second Edition (WASI-II) was in the low average range (82, full

scale and 86 verbal). Claimant also scored in the borderline range

on the Repeatable Battery for the Assessment of Neuropsychological

Status (RBANS), measuring attention, language, visuospatial and

constructional abilities, and immediate and delayed memory. Dr.

Beach diagnosed Claimant with attention deficit/hyperactivity

disorder, combine presentation, and major depression, recurrent,

mild. In her report, Dr. Beach provided Claimant with several

strategies that could help her “compensate for her attention and

memory difficulties,” which the ALJ detailed in her decision. (Tr.

20-21, 761-65).

Claimant underwent a psychoeducational evaluation in

September of 2004 when she was in tenth grade. She had a full

scale IQ of 76, in the borderline range. Her verbal abilities

were in the low range and her perceptual reasoning abilities were

in the average range. (Tr. 776-71).

The ALJ is required to consider all medical opinions, whether

they come from a treating physician or non-treating source. Doyal

v. Barnhart, 331 F.3d 758, 764 (10th Cir. 2003). She must provide

specific, legitimate reasons for rejecting any such opinion, and

also must give consideration to several factors in weighing a

medical opinion. Id. Moreover, “an ALJ must give good reasons

for the weight assigned to a treating physician’s opinion, that

are sufficiently specific to make clear to any subsequent reviewers

the weight the adjudicator gave to the treating source’s medical

opinion and the reason for that weight.” Langley v. Barnhart, 373

F.3d 1116, 1119 (10th Cir. 2004). “As long as the ALJ provides

‘good reasons in his decision for the weight he gave to the . . .

opinion[], [n]othing more [is] required[.]’ . . . What matters is

that the decision is ‘sufficiently specific to make clear to any

subsequent reviewer[] that weight the adjudicator gave to the . .

. opinion and the reasons for that weight.’” Mounts v. Astrue,

479 Fed. Appx. 860, 865 (10th Cir. 2012), quoting Oldham v. Astrue,

509 F.3d 1254, 1258 (10th Cir. 2007).

The ALJ discussed in detail Dr. Kobel and Dr. Beach’s

psychological examinations of Claimant. (Tr. 19-21). She gave

“great weight” to Dr. Kobel’s opinion that Claimant was incapable

of managing her own funds. (Tr. 22). However, Dr. Kobel did not

include any limitations as to Claimant’s work functioning in her

findings for the ALJ to weigh. Moreover, the strategies Dr. Beach

provided to Claimant were characterized as strategies to help her

“compensate for her attention and memory difficulties,” and were

not specific limitations for work functioning. See Howard v.

Barnhart, 379 F.3d 945, 947 (10th Cir. 2004) (“When an ALJ does

not need to reject or weigh evidence unfavorably in order to

determine a claimant’s RFC, the need for express analysis is

weakened.”); Duncan v. Colvin, 608 Fed. Appx. 566, 574 (10th Cir.

2015) (“Given that the ALJ did not reject the medical impairments

found by [claimant’s doctor] and there were no medical opinions

regarding [claimant’s] work-related functional limitations, there

was no opinion on such matters by [claimant’s doctor] for the ALJ

to weigh.”). Thus, the Court finds there was no error by the ALJ

with respect to the assessments of Dr. Kobel and Dr. Beach.

Moreover, the Court finds there is no error by the ALJ for

failing to discuss Claimant’s psychoeducational evaluation from

2004. Again, there was no opinion given as to any work-related

functional limitations, and the ALJ discussed Claimant’s test

results from her examination with Dr. Beach. Dr. Beach noted in

her examination that Claimant’s test scores from 2004 were

comparable to her scores on the cognitive assessment Dr. Beach

administered. (Tr. 763). Thus, because the ALJ considered Dr.

Beach’s cognitive assessment of Claimant from July of 2016, the

comparative results from 2004 were not significantly probative.

See Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996)

(finding ALJ is not required to discuss every piece of evidence in

the record).

Credibility Determination

Claimant also contends the ALJ failed to describe the

inconsistencies between Claimant’s subjective allegations and the

other evidence in the record.

Deference must be given to an ALJ’s evaluation of Claimant’s

credibility, unless there is an indication the ALJ misread the

medical evidence as a whole. See Casias, 933 F.2d at 801. Any

findings by the ALJ “should be closely and affirmatively linked to

substantial evidence and not just a conclusion in the guise of

findings.” Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995)

(quotation omitted). The ALJ’s decision “must contain specific

reasons for the weight given to the [claimant’s] symptoms, be

consistent with and supported by the evidence, and be clearly

articulated so the [claimant] and any subsequent reviewer can

assess how the [ALJ] evaluated the [claimant’s] symptoms.” Soc.

Sec. Rul. 16-3p, 2017 WL 5180304, at *10. However, an ALJ is not

required to conduct a “formalistic factor-by-factor recitation of

the evidence[,]” but he must set forth the specific evidence upon

which he relied. Qualls, 206 F.3d at 1372.

As part of her evaluation of Claimant’s sympotms, the ALJ

noted the two-step process. (Tr. 17). She determined Claimant’s

medically determinable impairments could reasonably cause her

alleged symptoms, but she found that Claimant’s statements

regarding the intensity, persistence, and limiting effects of her

symptoms were not entirely consistent with the evidence in the

record. (Tr. 19). In making these determinations, the ALJ

summarized in detail reports by Claimant on the Adult Function

Report and her testimony from the administrative hearing. The ALJ

also summarized the medical evidence, noting that when taking

medication, Claimant reported that the medication worked well and

it helped with her focus. (Tr. 20-21). The ALJ further considered

the opinions from the state agency psychologists with regard to

Claimant’s work-related limitations, ultimately concluding that

Claimant had greater limitations than those assessed by the state

agency psychologists. (Tr. 21-22). The ALJ finally noted that

the statements by Claimant’s mother in the third-party function

report was based upon causal observation and not upon objective

medical examination and testing. (Tr. 22-23). The ALJ concluded

that Claimant’s RFC was supported by her reports that her

medication worked well, she no longer had mood swings, she could

focus better, and her treatment providers determined on most visits

that her severity level was mild and she was stable. (Tr. 23).

The Court finds no error with the ALJ’s assessment of Claimant’s

credibility, as it is supported by the medical record.

Step-Four Determination – Past Relevant Work

Claimant argues the ALJ erred at step four by finding her

past relevant work as a janitor was performed at the level of

substantial gainful activity. Claimant contends the only reason

she could perform the janitor position was because she had a

lenient supervisor and helpful co-workers.

Past relevant work is defined as work that occurred within

the past 15 years, was of sufficient duration to allow the worker

to learn how to perform the job, and was substantial gainful

employment. Jozetowicz v. Heckler, 811 F.2d 1352, 1355 (10th Cir.

1987). The ALJ reviewed the record and noted in the decision that

Claimant had worked as a janitor in the last 15 years. Claimant’s

earnings records revealed she worked at or above the substantial

gainful activity level. The ALJ determined Claimant worked a

sufficient amount of time to learn the skills to return to the

janitor position, as it was an unskilled job that required no more

than one month to learn. She concluded the janitor position

qualified as past relevant work. (Tr. 23). The Court finds no

error with regard to the ALJ’s determination that the Claimant’s

janitor position constituted past relevant work.

Claimant also contends that the ALJ improperly performed the

step-four analysis required by Winfrey v. Chater, 92 F.3d 1017

(10th Cir. 1996). She continues to assert that the RFC is

incomplete because the ALJ failed to include all limitations, and

she also argues the ALJ failed at step two of the Winfrey analysis

by failing to specifically determine the mental demands of

Claimant’s past work as a janitor. She further asserts that by

failing to perform a proper step-two analysis that the ALJ could

not perform a proper step-three analysis under Winfrey.

Step four of the sequential analysis requires the ALJ evaluate

a claimant’s RFC, determine the physical and mental demands of a

claimant’s past relevant work, and then conclude whether a claimant

has the ability to meet the job demands of her past relevant work

using the determined RFC. Winfrey, 92 F.3d at 1023. The ALJ may

rely upon the testimony of the VE when making the determination of

the demands of a claimant’s past relevant work, but “the ALJ

himself must make the required findings on the record, including

his own evaluation of the claimant’s ability to perform his past

relevant work.” Id. at 1025; see also Doyal, 331 F.3d at 761.

The ALJ deferred entirely to the VE’s testimony at the second

step when determining the mental demands of Claimant’s past

relevant work.

Assuming the claimant’s residual functional capacity as

assessed by the undersigned here, the vocational expert

testified that the claimant would be able to perform the

requirements of a janitor, per her description of the

jobs and the D.O.T. descriptions. Therefore, in

comparing the claimant’s residual functional capacity

with the physical and mental demands of the work as a

janitor, I find that the claimant is able to perform

this work as actually and generally performed, per the

vocational expert’s testimony.

(Tr. 23).

During the administrative hearing, Claimant testified about

her job as a janitor, indicating that it involved cleaning the

breakrooms and bathrooms. She estimated the heaviest amount of

weight she lifted on the job was 50 pounds. (Tr. 50). She

testified further that she became easily distracted when others

talked to her or by other noise and would forget what she was

doing. (Tr. 55-56). The VE testified that she had listened to

Claimant’s testimony and had reviewed her work history. When she

described Claimant’s work history with regard to the janitor

position, the VE noted the Dictionary of Occupational Titles

(“DOT”) code, 381.687-014, and that the job was unskilled, SVP 2,

and classified as heavy and medium as performed. (Tr. 60-61).

There was no testimony by the VE regarding the specific mental

demands of Claimant’s work as a janitor, nor are there any specific

findings by the ALJ. See Winfrey, 92 F.3d at 1024 (“Here, the ALJ

made no inquiry into, or any findings specifying, the mental

demands of plaintiff’s past relevant work, either as plaintiff

actually performed the work or as it is customarily performed in

the national economy.”). However, even if the ALJ’s step-two and

step-three Winfrey analysis is insufficient, as discussed below,

the ALJ made an alternative finding as step five that there is

other work in the national economy which Claimant can perform.

Step-Five Determination

Claimant asserts the ALJ’s step-five determination that

she could perform alternative jobs of hand packager, conveyor line

bakery worker, and poultry processor is unsupported by her RFC and

the job descriptions in the DOT. Claimant contends that the second

hypothetical to the VE, which the ALJ later incorporated into the

RFC, included a limitation against “fast-paced work,” and that all

the jobs the VE testified Claimant could perform required “working

at a production rate of pace,” which is synonymous with “fast

paced.”

A review of the hearing testimony reveals that the

hypothetical posed to the VE, which was later incorporated by the

ALJ into the RFC, did not include a limitation against fast-paced

work. The ALJ asked the VE to assume a hypothetical individual

who could perform simple, routine, and repetitive tasks with

regular work breaks every two hours. The ALJ indicated the job

would not involve over-the-shoulder supervision. She indicated the

work would need to be “low-stress,” involving simple work-related

decisions with only occasional interaction with supervisors as

needed to receive work instructions and no more than occasional

direct work interaction with co-workers. Claimant could never

interact with the general public and the job should not require

more than ordinary and routine changes in setting or duties. In

response, the VE testified Claimant could perform her past relevant

work as a janitor and other work, including the jobs of hand

packager, conveyor line bakery worker, and poultry processor. (Tr.

62-63).

Unlike the case authority cited by Claimant, the “low-stress”

limitation included in the hypothetical question to the VE and in

the RFC was not defined by the ALJ as related to pace. The ALJ

merely limited Claimant to “low-stress” jobs where she could make

simple work-related decisions. The Court finds no error in the

ALJ’s alternative step-five determination.

Conclusion

The decision of the Commissioner is supported by

substantial evidence and the correct legal standards were applied.

Therefore, this Court finds, in accordance with the fourth sentence

of 42 U.S.C. § 405(g), the ruling of the Commissioner of Social

Security Administration should be and is AFFIRMED.

IT IS SO ORDERED this 27th day of March, 2020.

KIMBERLY E. WEST

UNITED STATES MAGISTRATE JUDGE