Innes v. Social Security Administration

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OKLAHOMA

JOHN S. I., )

)

Plaintiff, )

)

v. ) Case No. 20-CV-279-CDL

)

KILOLO KIJAKAZI, )

Acting Commissioner of the )

Social Security Administration,1 )

)

Defendant. )

OPINION AND ORDER

Plaintiff seeks judicial review of a decision of the Commissioner of the Social

Security Administration (Commissioner) denying Social Security disability benefits. The

parties have consented to proceed before a United States Magistrate Judge in accordance

with 28 U.S.C. § 636(c)(1), (2). For the reasons set forth below, the Court affirms the

Commissioner’s decision denying benefits.

I. Standard of Review

The Social Security Act (the 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 medically determinable physical or mental impairment which can be

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).

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 42 U.S.C. § 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)). Thus, the court may

not reweigh the evidence or substitute its judgment for that of the agency. Noreja, 952 F.3d

at 1178 (quoting Knight, 756 F.3d at 1175).

II. Procedural History

Plaintiff filed an application for social security disability benefits under Title II of

the Social Security Act (Act) on December 14, 2016, alleging a disability onset date of

June 27, 2016. Plaintiff alleged that he became disabled due to cervical osteoarthritis,

numbness in the left upper extremity, and migraine headaches. Plaintiff was 55 years old

on the alleged onset date and had previously worked as a dentist for approximately 30

years. (R. 105).

The Commissioner denied Plaintiff’s application on May 18, 2017. Plaintiff then

requested a hearing before an Administrative Law Judge (ALJ).2 The ALJ held a hearing

by videoconference on June 11, 2019. Testimony was given by the Plaintiff and a

Vocational Expert (VE). On July 2, 2019, the ALJ issued a decision denying disability

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

Plaintiff’s request for review on April 13, 2020. As a result, the ALJ’s decision became the

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

Accordingly, the Court has jurisdiction to review the ALJ’s July 2, 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

2 The Court notes that Plaintiff resided in California at the time of his application and

the hearing before the ALJ. Plaintiff and his representative appeared by video from Los

Angeles. (R. 13, 100-101). However, Plaintiff subsequently changed his residence to

Mayes County, Oklahoma, where he resided when he filed complaint for judicial review.

(Doc. 2). Thus, jurisdiction in this Court is proper based on Plaintiff’s stated residence at

the time of filing his complaint.

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 had not engaged in substantial

gainful activity since his alleged onset date of June 27, 2016. (R. 15). At step two, the ALJ

determined that Plaintiff has a severe impairment of degenerative disc disease of the

cervical spine. Id. The ALJ also found non-severe impairments, including headache

disorder, hyperlipidemia, and esophagitis. (R. 15-16). At step three, the ALJ found that

Plaintiff’s physical and mental impairments do not meet or equal the criteria for any

Listing. (R. 16). In reaching this conclusion, the ALJ specifically addressed Listing 1.04 in

connection with Plaintiff’s degenerative disc disease of the cervical spine, and explained

why the evidence does not satisfy the criteria for that Listing. See id.

At step four, the ALJ determined that Plaintiff has the RFC

to perform light work as defined in 20 CFR 404.1567(b) except

[Plaintiff] can perform all postural activities on an occasional basis.

[Plaintiff] can occasionally reach overhead with his bilateral upper

extremities. He can occasionally push and pull with his left upper

extremity. [Plaintiff] can frequently handle and finger with his left

upper extremity.

Id. Citing the VE’s hearing testimony in response to a hypothetical reflecting these

limitations, the ALJ found that Plaintiff can return to his past relevant work as a dentist.

(R. 18-19). Accordingly, the ALJ found Plaintiff not disabled at step four.

IV. Discussion

A. Plaintiff’s Arguments

Plaintiff objects to the RFC determination, arguing that the evidence supports a

more restrictive RFC that would preclude Plaintiff’s past work as a dentist. Plaintiff also

argues that the VE’s testimony conflicted with the Dictionary of Occupational Titles

(DOT) regarding the physical requirements of Plaintiff’s past relevant work as a dentist.

However, for the reasons set forth below, the ALJ’s decision must be affirmed.

B. Substantial Evidence Supports the RFC Determination.

Plaintiff objects to the finding that he can perform frequent handling and fingering

with the left upper extremity. “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).

Here, the RFC determination is consistent with the opinions of consultative

examiner Sohail K. Afra, M.D. and state agency reviewing physician H.M. Estrin, M.D.

(See R. 123, 344). Both physicians opined that Plaintiff can perform a restricted range of

light work involving frequent use of the left hand for manipulative functions, among other

restrictions. (See R. 123, 344). The ALJ properly accorded substantial weight to the

opinions of these examiners. (R. 18). As such, the RFC determination is supported by

substantial evidence. See 20 C.F.R. § 404.1527(c) (applicable to claims filed before March

27, 2017) (listing factors used in weighing medical opinions)).

Plaintiff notes that the record contains objective medical evidence supporting his

allegations, including imaging showing degenerative disc changes, foraminal narrowing,

and decreased left hand grip strength. (See, e.g., R. 311, 341-342, 391). Plaintiff also notes

that treatment records reflect complaints of neck pain and upper extremity paresthesias. In

March 2016, prior to Plaintiff’s alleged disability onset date, Brooks Michaels, M.D. noted

that Plaintiff had been “working 28 hours per week, which is his baseline for 10-15 years.

But maintaining these hours is progressively more difficult.” (R. 334).

The existence of conflicting evidence in the record, alone, does not deprive the

ALJ’s findings of substantial support in the record. See Lax v. Astrue, 489 F.3d 1080, 1084

(10th Cir. 2007) (quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).

Moreover, many of the same documents cited by Plaintiff contain evidence supporting the

RFC determination. (See, e.g., R. 342 (wrist movement and hand flexion and extension

were within normal limits bilaterally)). In February 2017, Plaintiff reported that radicular

symptoms had improved. Id. (citing R. 336). During subsequent pain management

appointments in 2017 and 2018, Plaintiff reported continuing pain in his neck, arm, and

headaches, and numbness in the left arm, as well as stiffness and neck pain worsened with

flexion and extension; however, Plaintiff had moderate relief of his symptoms with

prescribed medication and said the numbness of his left arm and shoulder had been

“manageable.” (R. 374-393). Additionally, as the ALJ noted, on another occasion in 2018,

Plaintiff “denied musculoskeletal, neck, or back pain . . . , which was consistent with a

normal examination conducted at the time.” (R. 17). Plaintiff also “informed his pain

management provider that he was able to maintain . . . activities of daily living and function

with his current opioid therapy without any side effects.” Id.

The ALJ accounted for Plaintiff’s degenerative disc disease of the cervical spine,

finding it is a severe impairment at step two of his analysis. (R. 15). As explained in the

ALJ’s decision, based on the medical and opinion evidence, the ALJ determined that the

postural and other limitations in the RFC were appropriate. (R. 17-18). Nothing further was

required. Where substantial evidence supports the ALJ’s decision, as it does here, the fact

that Plaintiff would 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 (court may not reweigh

evidence and displace agency choice between two fairly conflicting views).

C. Substantial Evidence Supports the ALJ’s Finding that Plaintiff Can

Perform His Past Relevant Work as a Dentist.

Plaintiff points to comments made by Dr. Michaels on a form entitled “Disabled

Dentist Application for Waiver of 50% of License Renewal Fee,” dated February 1, 2017.

(See R. 325). Dr. Michaels stated that Plaintiff “has had cervical spine neuropathy affecting

his upper extremities and has contributed to chronic pain.” Id. Dr. Michaels checked a box

indicating that Plaintiff’s condition is permanent. Id. However, this document does not

establish that Plaintiff is disabled under the rules applicable to Social Security benefits. A

determination of disability by another agency is not binding on the Commissioner. See

Grogan v. Barnhart, 399 F.3d 1257, 1262-63 (10th Cir. 2005). As the Commissioner

explained in a May 18, 2017 letter regarding Plaintiff’s claim, “there are many types of

disability programs, both government and private, which use different rules,” and “[a]

person may be receiving benefits under another program and still not be entitled under our

rules. This may be true in [Plaintiff’s] case.” (R. 128).

Moreover, the form completed by Dr. Michaels does not define “disability” or state

the criteria for determining whether a person is disabled for the purpose of the 50% license

renewal fee waiver. Nor was the ALJ obligated to accord any special significance to Dr.

Michaels’ comments under the treating physician rule. Under the rules applicable to

Plaintiff’s application for benefits, no special deference is due to the opinion of a treating

physician on issues that are reserved to the Commissioner, such as whether an individual

can perform his or her past relevant work. See 20 C.F.R. § 404.1527(d); SSR 96-5p.3 Thus,

Dr. Michaels’ comments do not satisfy Plaintiff’s burden at step four to show that he is

unable to perform his past relevant work.

Plaintiff also argues that the VE’s testimony conflicts with the DOT. The VE opined

that Plaintiff can perform his past relevant work based on the same limitations included in

the RFC determination. However, Plaintiff contends that the DOT definition of his past

relevant work as a dentist requires more than occasional overhead reaching with the

3 SSR 96-5p has been rescinded and replaced, but still applies to claims that were

filed prior to March 27, 2017, such as Plaintiff’s Title II application.

bilateral upper extremities and more than occasional pushing and pulling with the left upper

extremity.

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). “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. In contrast, 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.

Plaintiff argues that the VE’s testimony did not accurately reflect the demands of

Plaintiff’s past relevant work as a dentist. The DOT describes the job of dentist as follows:

Diagnoses and treats diseases, injuries, and malformations of teeth

and gums, and related oral structures: Examines patient to determine

nature of condition, utilizing x rays, dental instruments, and other

diagnostic procedures. Cleans, fills, extracts, and replaces teeth,

using rotary and hand instruments, dental appliances, medications,

and surgical implements. Provides preventive dental services to

patient, such as applications of fluoride and sealants to teeth, and

education in oral and dental hygiene.

DOT # 072.101-010 (1991). Plaintiff notes that, per the Selected Characteristics of

Occupations (SCO) portion of the DOT, the job of dentist also requires frequent reaching.

See Selected Characteristics of Occupations, Part A, at 25 (1993). Reaching is defined by

the SCO as “extending hand(s) and arm(s) in any direction.” Id. Plaintiff argues that the

requirement of frequent reaching exceeds an RFC that is limited to occasional reaching

overhead bilaterally and occasionally pushing and pulling with the left upper extremity.

In his decision, the ALJ explained his conclusion that Plaintiff’s “past relevant work

as a Dentist . . . does not require the performance of work-related activities precluded by

[his RFC]”:

I accept the [VE]’s testimony in this regard based upon his education

and experience. The [VE] testified that [Plaintiff’s] past work is

categorized as a Dentist, (DOT) # 072.101-010, light as generally

performed, light as actually performed, skilled at [SVP] 8. . . .

In comparing [Plaintiff’s RFC] with the physical and mental

demands of [Plaintiff’s past relevant work as a Dentist], I find that

[Plaintiff] is able to perform it as it is generally performed. Upon

questioning by me, the [VE] testified that if an individual had

[Plaintiff’s RFC], such an individual could perform [Plaintiff’s] past

relevant work as a Dentist. Further, according to the [VE], his

testimony at the hearing was consistent with the [DOT].

Accordingly, in comparing [Plaintiff’s RFC] with the physical and

mental demands of his work, I find that [Plaintiff] is able to perform

his past relevant work as a Dentist as actually and generally

performed.

(R. 18-19).

In response to the ALJ’s questioning at the hearing, the VE indicated that her

testimony was consistent with the DOT. (R. 113 (Q: “So in the RFC, as per the DOT, that

hypothetical individual could still do their past job.” Q: Would that be as actually

performed or as per the [DOT] or both, in your opinion? A: I believe both.”).4 Plaintiff

argues that the ALJ had a duty to inquire further about the requirements of Plaintiff’s past

relevant work in light of the limitations found in the use of Plaintiff’s upper extremities.

“When a VE . . . provides evidence about the requirements of a job or occupation, the

adjudicator has an affirmative responsibility to ask about any possible conflict between that

VE . . . evidence and information provided in the DOT.” SSR 00-04p. The ALJ did so here,

as noted above.

“If the VE’s . . . evidence appears to conflict with the DOT, the adjudicator will

obtain a reasonable explanation for the apparent conflict.” Id. 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

4 After obtaining the VE’s testimony regarding Plaintiff’s past relevant work based

on the limitations in the RFC determination, the ALJ further questioned the VE regarding

additional hypothetical limitations. The VE testified that the individual would not be able

to perform the job of dentist with the additional limitation of occasional handling and/or

fingering with the left upper extremity. (R. 113).

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”).5

Here, the requirements of a dentist, as set forth in the DOT, are not obviously or

apparently in conflict with a limitation to occasional overhead reaching or to occasional

pushing and pulling with the left upper extremity. The functions described in the DOT

largely consist of operations performed on a patient; as dental patients are commonly

understood to be sitting in a reclining position, it is unlikely that a dentist would need to

reach overhead more than two-thirds of the time (i.e., more than “frequently”) to perform

these tasks. See, e.g., Gutierrez, 844 F.3d at 804 (“[W]here the job itself is a familiar one—

like cashiering—less scrutiny by the ALJ is required” as to potential conflicts with the

DOT). Nor is it obvious that a dentist would be required to use the left upper extremity

more than occasionally for pushing and pulling, particularly where the individual, like

Plaintiff, is unlimited in using his dominant right hand for those functions. See SSR 83-10;

Segovia v. Astrue, 226 F. App’x 801, 804 (10th Cir. 2007) (unpublished) (holding, where

VE “was aware of [the claimant’s] limitations on overhead reaching,” that VE’s testimony

that claimant could perform certain jobs requiring frequent reaching was substantial

evidence, as DOT did not specify that frequent overhead reaching was required); see also

Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012) (stating that a court

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

be cited for their persuasive value.”

reviewing an ALJ’s decision under § 405(g) “should, indeed must, exercise common sense.

... [W]e cannot insist on technical perfection.”).°

Here, the burden remained with Plaintiff to show that his medically determinable

impairments prevent him from performing his past work as a dentist. See Lax, 489 F.3d at

1084. Plaintiff was represented by counsel at the hearing, yet Plaintiff's counsel did not

ask the VE any follow-up questions regarding the overhead reaching or pushing/pulling

required of a dentist. (See R. 113-114). As such, the ALJ properly relied on the VE’s

testimony that a hypothetical individual with Plaintiff's RFC can perform Plaintiff's past

relevant work. See Branum, 385 F.3d at 1271 (an ALJ is generally entitled to “rely on the

claimant’s counsel to structure and present the claimant’s case in a way that [his] claims

are adequately explored.’’).

V. Conclusion

For the reasons set forth above, the Court finds the ALJ’s decision is supported by

substantial evidence and reflects application of the proper legal standards. Therefore, the

decision of the Commissioner finding Plaintiff not disabled for the relevant period is

affirmed.

ORDERED this 28th day of September, 2021.

nietre 2 Liklee

Christine D. Little

United States Magistrate Judge

6 As the Commissioner notes, Plaintiff testified that he is right-handed. (See R. 102).

13