Opinion

Young v. Social Security Administration

Court: District Court, N.D. Oklahoma
Filed: Mar 30, 2022
Cited by: 0 cases
Authority: More cited than 28.5%

on appeal, court reviews only sufficiency of evidence, not its weight

How later courts described this case

on appeal, court reviews only sufficiency of evidence, not its weight

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The opinion

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OKLAHOMA

BOBBY E. Y., )

)

Plaintiff, )

)

v. ) Case No. 20-CV-438-CDL

)

KILOLO KIJAKAZI, )

Acting Commissioner of the )

Social Security Administration,1 )

)

Defendant. )

OPINION AND ORDER

Plaintiff seeks judicial review under 42 U.S.C. § 405(g) of a decision of the

Commissioner of the Social Security Administration (Commissioner) denying Social

Security disability benefits. For the reasons set forth below, the Commissioner’s decision is

affirmed.

I. Standard of Review

The Social Security Act (Act) provides disability insurance benefits to qualifying

individuals who have a physical or mental disability. See 42 U.S.C. § 423. The Act defines

“disability” as an “inability to engage in any substantial gainful activity by reason of any

1 Pursuant to Federal Rule of Civil Procedure 25(d)(1), Kilolo Kijakazi is substituted

as the defendant in this action, effective upon her appointment as Acting Commissioner of

Social Security in July 2021. No further action need be taken to continue this suit by reason

of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

medically determinable physical or mental impairment which can be expected to result in

death or which has lasted or can be expected to last for a continuous period of not less than

12 months.” See id. § 423(d)(1)(A).

Judicial review of a Commissioner’s disability determination “‘is limited to

determining whether the Commissioner applied the correct legal standards and whether the

agency’s factual findings are supported by substantial evidence.’” Noreja v. Soc. Sec.

Comm’r, 952 F.3d 1172, 1177 (10th Cir. 2020) (citing Knight ex rel. P.K. v. Colvin, 756

F.3d 1171, 1175 (10th Cir. 2014)). “Substantial evidence is more than a mere scintilla and

is such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Id. at 1178 (quoting Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir.

2005)); see also Biestek v. Berryhill, --- U.S. ---, 139 S.Ct. 1148, 1154 (2019). “Evidence

is not substantial if it is overwhelmed by other evidence in the record or constitutes mere

conclusion.” Noreja, 952 F.3d at 1178 (quoting Grogan, 399 F.3d at 1261-62).

So long as supported by substantial evidence, the agency’s factual findings are

“conclusive.” Biestek, 139 S. Ct. at 1152 (quoting 42 U.S.C. § 405(g)). The court may not

reweigh the evidence or substitute its judgment for that of the agency. Noreja, 952 F.3d at

1178.

II. Procedural History

On May 25, 2018, Plaintiff protectively filed a Title II application for disability

insurance benefits, alleging a disability onset date of March 9, 2017. The ALJ determined

that Plaintiff has insured status through December 31, 2022. (Doc. 15, R. 17). Plaintiff was

56 years old on his alleged onset date. (R. 69).

Plaintiff has a high school and trade-school education. (R. 42). Before his alleged

disability, Plaintiff worked as cable television installer. He alleged disability due to anxiety,

insomnia, high blood pressure, acid reflux, and allergies. (R. 211).

Plaintiff’s claim was denied initially and on reconsideration. Plaintiff then requested

a hearing before an Administrative Law Judge (ALJ). ALJ Jeffrey S. Wolfe held a hearing

on August 29, 2019, at which Plaintiff testified and was represented by Stephen Gragg, a

non-attorney representative. A vocational expert (VE), Diana L. Kizer, also testified at the

hearing. Id. The ALJ denied benefits in a decision dated September 16, 2019. (R. 27).

Plaintiff appealed the ALJ’s decision to the Appeals Council, which denied Plaintiff’s

request for review on July 7, 2020. (R. 1-5). As a result, the ALJ’s decision became the final

decision of the Commissioner. Plaintiff then timely appealed to the district court by filing

the Complaint on August 29, 2020. (Doc. 2). Accordingly, the Court has jurisdiction to

review the ALJ’s September 16, 2019 decision under 42 U.S.C. § 405(g).

III. The ALJ’s Decision

The Commissioner uses a five-step, sequential process to determine whether a

claimant is disabled. See 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). At step

one, the ALJ determines whether the claimant is engaged in substantial gainful activity. At

step two, the ALJ determines whether the claimant has an impairment or a combination of

impairments that is severe. At step three, the ALJ determines whether the claimant’s severe

impairment or combination of impairments is equivalent to one that is listed in the

applicable regulation, which the Commissioner “acknowledges are so severe as to preclude

substantial gainful activity.” Williams, 844 F.2d at 751 (internal quotation and citation

omitted); see 20 C.F.R. § 404.1520(d); 20 C.F.R. Part 404, subpt. P, App’x 1 (Listings).

At step four, the claimant must show that her impairment or combination of impairments

prevents her from performing her previous work. The claimant bears the burden on steps

one through four. Lax, 489 F.3d at 1084. If the claimant satisfies this burden, thus

establishing a prima facie case of disability, the burden of proof shifts to the Commissioner

to show at step five that the claimant retains the capacity to perform other work available

in the national economy, in light of the claimant’s age, education, and work experience. Id.

Here, the ALJ determined at step one that Plaintiff has insured status through

December 31, 2022 and has not engaged in substantial gainful activity since his alleged

disability onset date of March 9, 2017. (R. 17-18).

At step two, the ALJ found that Plaintiff suffers from the severe impairments of

generalized anxiety disorder and insomnia. Id. The ALJ found the following non-severe

impairments: right knee osteoarthritis, hypertension, and reflux. (R. 18-19).

At step three, the ALJ determined that Plaintiff’s impairments do not meet or

medically equal a Listing. The ALJ discussed the “paragraph B” criteria—four areas of

mental functioning used to determine whether a claimant’s mental impairments

functionally equal a Listing. (R. 14); see 20 C.F.R. § 404 Subpt. P App’x 1. The ALJ found

that Plaintiff has a mild limitation in understanding, remembering, and applying

information; a mild limitation in interacting with others; a mild to moderate limitation in

concentrating, persisting, or maintaining pace; and a mild limitation in adapting or

managing oneself. (R. 19-20). Because Plaintiff does not have at least one extreme or two

or more marked limitations, the ALJ found the paragraph B criteria are not satisfied. The

ALJ also considered the “paragraph C” criteria (for “serious and persistent mental

disorders,” see Listing 12.00A(2)(c)) and determined that they are not present. (R. 18).

At step four, the ALJ determined that Plaintiff has the residual functional capacity

(RFC) to perform

a full range of work at the heavy level and all exertional levels. He

is able to lift and carry 100 pounds occasionally and 50 pounds

frequently. He is unable to drive at night.

(R. 20). Citing the hearing testimony of Plaintiff and the VE, the ALJ found that Plaintiff

can return to his past relevant work, as a cable television installer, as generally performed.

(R. 26). Accordingly, the ALJ found Plaintiff not disabled at step four. (R. 26-27).

IV. Discussion

Plaintiff argues that (1) the RFC is not supported by substantial evidence, (2) the

ALJ improperly relied on the VE’s testimony in finding Plaintiff could perform his past

relevant work, (3) the ALJ failed to conduct a proper analysis of Plaintiff’s subjective

statements, and (4) the ALJ erred by failing to rule on Plaintiff’s post-hearing objections

to the VE’s testimony. Defendant contends the ALJ’s decision is supported by substantial

evidence and that the ALJ applied the correct legal standards.

A. RFC

Before his alleged disability, Plaintiff worked as a cable television installer for

approximately 29 years. (R. 46). He testified that he stopped working because, after being

transferred to Oklahoma from Missouri, he was asked to go on standby during nights and

weekends and perform jobs in another location, “an hour-and-a-half away,” in an area he

was not familiar with. (R. 46-47). His job would have also required him to go out at night.

See id. Plaintiff testified that he could not perform those duties because he takes Xanax, a

benzodiazepine, and may not drive within four hours of taking a dose. (See R. 47-48).

The ALJ’s RFC determination provided that Plaintiff cannot be required to drive at

night, due to his prescribed medication. However, Plaintiff argues that medical source

evidence supports further limitation of the RFC in connection with his medication. Plaintiff

asserts that a limitation to driving at night is not sufficient, because sometimes he takes

Xanax during the day. (See Doc. 17 at 15 & n.7).

Plaintiff takes Xanax for anxiety, and he testified that it also helps him sleep. (R.

48). Plaintiff regularly takes Xanax at night, but he testified that at times, he took Xanax

during the day “in low dosages.” (R. 49). He said his doctor had instructed him to “take a

third of [a] dose in the day if [he is] really struggling, but try to avoid it.” Id. Plaintiff was

cautioned that he should not drive while taking Xanax. See id. In September of 2016,

Plaintiff reported that he was taking 1/3 of a Xanax pill each in the morning and afternoon.

(R. 21-22). On November 9, 2017, Mickey Tyrrell, M.D., Plaintiff’s treating physician,

noted that Plaintiff “was trying to limit his use of Xanax, but was taking it at night and

sometimes during the day.” (R. 22).

Dr. Tyrrell treated Plaintiff for generalized anxiety and prescribed Xanax “as

needed.” (R. 25, 351). In a letter dated September 25, 2017 Dr. Tyrrell addressed a

questionnaire he received from an insurance company in connection with Plaintiff’s claim

for long-term disability. (R. 347-348). The questionnaire asked, “Does [Plaintiff] have the

ability to safely drive a commercial vehicle?” (R. 347). Dr. Tyrrell stated that

generally [Plaintiff] can operate a commercial vehicle. [Plaintiff]

cannot, however, operate a commercial vehicle while he is taking the

medications I have prescribed, including Xanax. Generally, . . .

[Plaintiff] takes the medication I prescribed for him in the evening

and can drive a commercial vehicle during the day provided he is not

in need of further medication during the day. Obviously, [Plaintiff]

cannot accept call[sic] during the evenings after he has taken the

medication and should not drive a commercial vehicle when he feels

it is necessary to take Xanax or other medications which I have

prescribed which may impair his ability to operate any vehicle,

including a commercial vehicle. The full answer to your question is

therefore: Yes, unless he has taken Xanax within 4 hours of being

asked to drive a commercial vehicle.

(Id.; see R. 23-24).

Plaintiff objects to the ALJ’s conclusion that Plaintiff can drive during the daytime.

(See Pl.’s Br., Doc. 17 at 16-17). “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.” Branum v. Barnhart, 385 F.3d 1268, 1271

(10th Cir. 2004) (citation omitted). The threshold for evidentiary sufficiency under the

substantial evidence standard “is not high.” Biestek, --- U.S. ---, 139 S. Ct. at 1154.

Substantial evidence “means—and means only—such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Id. (quotation omitted).

The ALJ’s decision included an extensive discussion of Dr. Tyrrell’s opinion and

explanation of why the ALJ found it partially, but not entirely, persuasive. (See R. 24-26).

The ALJ noted that, due to the side effects of Plaintiff’s medication, “a limitation from

medication is fair, given [Plaintiff’s] treatment with a controlled substance.” (R. 25).

Specifically, the ALJ found that “the limitation of not driving at night [is] persuasive.” Id.

However, the ALJ also noted that Plaintiff’s increased stress was primarily due to the

conditions of his previous job. Dr. Tyrrell reported that Plaintiff’s employer required him

to be “on-call” during nights and weekends, and changed Plaintiff’s job duties so that

Plaintiff had “to travel more and get up at night, duties that increased his level of stress.”

(R. 25). Dr. Tyrrell stated that Plaintiff’s work-related stress “has been well documented.”

(R. 356; R. 22; see also, e.g., R. 436 (noting Plaintiff’s “anxiety and stress have

skyrocketed secondary to increased burden from work”)).

Thus, as the ALJ reasonably observed, the evidence of record—including Plaintiff’s

testimony—indicated that the stress causing Plaintiff to sometimes take Xanax during the

day was attributable to the conditions of his job. (See R. 21, 22, 24-25). The ALJ also noted

that Plaintiff “was trying to limit his use of Xanax.” (R. 22). As such, substantial evidence

supports the ALJ’s conclusion that Plaintiff did not require daytime driving restrictions.2

2 Plaintiff’s daily activities suggest that generally, he is able to go out during the

daytime. (See R. 53). He testified that he leaves his house “daily,” for thirty minutes to four

hours at a time, and that he routinely travels to Joplin, Missouri, to shop. (R. 44, 53).

Under substantial evidence review, the fact that another adjudicator might weigh the

evidence differently does not constitute reversible error. See Oldham v. Astrue, 509 F.3d

1254, 1257-58 (10th Cir. 2007) (on appeal, court reviews only sufficiency of evidence, not

its weight); Lax, 489 F.3d at 1084. The court may not “reweigh the evidence or retry the

case.” Wall, 561 F.3d at 1052 (quotation omitted). Furthermore, Plaintiff has shown no

legal error in the ALJ’s analysis of the evidence in reaching the RFC determination.

Accordingly, the Court must affirm the ALJ’s RFC finding.

B. Past Relevant Work

Plaintiff asserts that the ALJ erred in concluding that he can perform his past

relevant work as a cable television installer. In assessing a claimant’s ability to do past

relevant work, an ALJ must: 1) evaluate the claimant’s RFC; 2) determine the demands of

the claimant’s past relevant work; and 3) compare the claimant’s RFC with his past relevant

work to determine whether the claimant can do this work. See S.S.R. 82-62, 1982 WL

31386, *2-3; Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003).

Plaintiff contends the ALJ ignored evidence that he is unable to obtain the necessary

federal driver’s license to perform this work. Plaintiff testified that when he tried to renew

his license, “the [Department of Transportation] guy told me that I need to not be taking

[Xanax] when I’m driving.” (R. 49). During the hearing, the VE confirmed that an

individual must pass certain federal Department of Transportation requirements in order to

drive a bucket truck, i.e., the type of vehicle Plaintiff used in his work as a cable installer.

(See R. 50, 60-61). Plaintiff’s representative questioned the VE about physical qualification

standards to drive a bucket truck:

Q: And are you aware of any kind of medication preclusions from

passing that physical?

A: There are, yes, but I do not know specifically that list.

(R. 61).

“An ALJ may rely on information supplied by the VE at step four.” Doyal, 331 F.3d

at 761 (internal citation omitted). An ALJ is permitted to “quote the VE’s testimony

approvingly, in support of his own findings at phases two and three of the [step-four]

analysis.” Id. However, an ALJ may not “make RFC findings and then to delegate the

remaining phases of the step four analysis to the [VE], because in such cases, ‘the

remainder of the step four assessment takes place in the VE’s head’ and ‘we are left with

nothing to review.’” Id. (citing Winfrey v. Chater, 92 F.3d 1017, 1025 (10th Cir. 1996)).

“[W]hile the ALJ may rely on information supplied by the VE at step four, 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.” Winfrey, 92 F.3d at 1025.

In his decision, the ALJ cited the VE’s testimony in finding that Plaintiff’s past

relevant work is skilled work at specific vocational preparation (SVP) level 5, generally

performed at the heavy exertion level. (R. 26; see R. 56). The ALJ noted Plaintiff’s

testimony that, due to his prescribed usage of Xanax, he cannot pass the physical

examination required to perform the job. (R. 21.) However, as the ALJ explained, Plaintiff

was able to renew his license, even after informing the Department of Transportation about

his medications. (Id.; R. 26; see id. at 49). Thus, the ALJ relied on Plaintiff’s own

testimony, as well as testimony by the VE, in concluding that Plaintiff can perform his past

relevant work as generally performed. (See R. 26).

Plaintiff argues that the VE’s testimony presented a conflict with the Dictionary of

Occupational Titles (DOT) that the ALJ was required to resolve. “If the VE’s . . . evidence

appears to conflict with the DOT, the adjudicator will obtain a reasonable explanation for

the apparent conflict.” SSR 00-04p. However, “[f]or a difference between an expert’s

testimony and the [DOT’s] listings to be fairly characterized as a conflict, it must be

obvious or apparent. This means that the testimony must be at odds with the [DOT’s] listing

of job requirements that are essential, integral, or expected.” Gutierrez v. Colvin, 844 F.3d

804, 808 (9th Cir. 2016); see also Brown v. Berryhill, No. 17-cv-00556-GKF-GBC, 2019

WL 2488730, at *6 (N.D. Okla. 2019) (unpublished) (citing Gutierrez) (finding ALJ “was

not required to ask more specific follow-up questions” of the VE, where “based on the

DOT descriptions, no apparent or obvious conflict existed”).3

Here, Plaintiff has failed to establish a conflict that the ALJ was required to resolve.

Plaintiff did not present VE testimony or other evidence establishing that his medication

would necessarily preclude him from obtaining the required license. To the contrary,

Plaintiff confirmed in his testimony that he was never turned down for a license. (R. 61

(“Q: Did you submit your [license] for renewal? A: I did not. Q: Okay. So you were never

3 Under 10th Cir. R. 32.1(A), “[u]npublished decisions are not precedential, but may

be cited for their persuasive value.”

turned down by [the Department of Transportation]? A: I was not. Q: Okay. Why didn’t

you turn it in to renew it? A: I did[sic] have a need to because I was no longer driving.”)).

As such, there was no “obvious or apparent” conflict between the VE’s testimony and the

requirements of Plaintiff’s past relevant work as a cable installer. Plaintiff had the burden

to show that his medically determinable impairments prevent him from performing his past

work as a cable television installer. See Lax, 489 F.3d at 1084; see also Barker v. Astrue,

459 F. App’x 732, 741 (10th Cir. 2012) (unpublished) (noting that a “claimant bears the

burden of proving his inability to return to his particular former job and to his former

occupation as that occupation is generally performed throughout the national economy”).

Here, as set forth above, substantial evidence supports the ALJ’s conclusion that Plaintiff’s

medication does not preclude him from performing his past relevant work as generally

performed.

In Plaintiff’s submission to the Appeals Council, he included material from the

federal Department of Transportation’s website. Plaintiff argued in his letter to the Appeals

Council that he would not be able to pass the required medical physical examination. (R.

294). However, the exhibit provided does not support his argument. The website specifies

that, while a driver is deemed “medically unqualified” for a Commercial Motor Vehicle

license if the driver uses certain substances, an exception exists if “the prescribing doctor .

. . write[s] that the driver is safe to be a commercial driver while taking the medication.”

(R. 304, 330). As discussed above, Dr. Tyrrell’s opinion indicates that Plaintiff can safely

operate a commercial vehicle, so long as it is not within 4 hours of taking Xanax. (See R.

347-348).

Plaintiff also objects that, even with a limitation to driving during the daytime, he

might be required to drive in the dark, such as during stormy weather, or after sunset during

the wintertime. (Pl.’s Br., Doc. 17 at 8, 9). However, Plaintiff points to no opinion or

medical evidence that he cannot drive in dark or stormy conditions, so long as he has not

taken controlled substances during the daytime. Accordingly, this argument lacks merit.

As discussed above, the ALJ’s decision addressed the work-related limitations he

reasonably found to result from Plaintiff’s medication. Substantial evidence supports the

ALJ’s conclusion. (See R. 47-48, 63; see also R. 347-348, 356). The hypothetical

appropriately included “the need to take medication which precludes work at night because

of the inability to drive at night.” (R. 57). The VE testified that an individual with this

limitation would be able to perform Plaintiff’s past work as generally performed, although

not as Plaintiff actually performed it. Id. The VE confirmed that “driving at night or

working at night would not be required as generally performed” and explained that most

companies do not require a person in this job “to work after 5 or 6:00 in the evening.” (R.

57-58). Thus, there was no conflict the ALJ was required to resolve, and the ALJ properly

relied on the VE’s testimony that an individual with Plaintiff’s RFC could perform his past

relevant work.

C. Subjective Statements

Plaintiff argues that the ALJ failed to properly evaluate the consistency of Plaintiff’s

subjective complaints with the evidence of record. In evaluating a claimant’s statements

regarding pain or other symptoms, the ALJ “must consider (1) whether [a c]laimant

established a pain-producing impairment by objective medical evidence; (2) if so, whether

there is a ‘loose nexus’ between the proven impairment and the [c]laimant’s subjective

allegations of pain; and (3) if so, whether, considering all the evidence, both objective and

subjective, [the c]laimant’s pain is in fact disabling.” Thompson v. Sullivan, 987 F.2d 1482,

1488 (10th Cir. 1993) (internal citation omitted).

When determining the credibility of pain testimony, the ALJ should

consider such factors as “the levels of medication and their

effectiveness, the extensiveness of the attempts (medical or

nonmedical) to obtain relief, the frequency of medical contacts, the

nature of daily activities, subjective measures of credibility that are

peculiarly within the judgment of the ALJ, the motivation of and

relationship between the claimant and other witnesses, and the

consistency or compatibility of nonmedical testimony with objective

medical evidence.

Id. at 1489 (internal citations omitted).4

The ALJ must explain “the link between the evidence and credibility

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

regulations, the ALJ’s decision must give “specific reasons for the weight given to the

individual’s symptoms, be consistent with and supported by the evidence, and be clearly

4 The agency no longer uses the term “credibility” to describe the ALJ’s analysis of

subjective symptoms. See Social Security Ruling (SSR) 16-3p, 2017 WL 5180304 (the

Commissioner “eliminat[ed] the use of the term ‘credibility’ from [the] sub-regulatory

policy, as [the] regulations do not use this term,” and “subjective symptom evaluation is

not an examination of an individual’s character”). However, the standard of review of the

ALJ’s consistency analysis is the same as when the agency used the term “credibility.” See,

e.g., Zhu v. Comm’r, SSA, --- F. App’x ---, 2021 WL 2794533, *5, n.7 (10th Cir. Jul. 6,

2021).

articulated so the individual and any subsequent reviewer can assess how the [ALJ]

evaluated the individual’s symptoms.” SSR 16-3p. However, “[c]redibility determinations

are peculiarly the province of the finder of fact”—that is, the ALJ, not the court. Wilson v.

Astrue, 602 F.3d 1136, 1144 (10th Cir. 2010) (citing Kepler, 68 F.3d at 391). “So long as

the ALJ sets forth the specific evidence he relies on in evaluating the claimant’s credibility,

the dictates of Kepler are satisfied.” Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000);