Copenhaver v. Social Security Administration

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OKLAHOMA

DENNIS C. C., )

)

Plaintiff, )

)

v. ) Case No. 4:21-CV-123-CDL

)

KILOLO KIJAKAZI,1 )

Acting Commissioner of the )

Social Security Administration, )

)

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). For the reasons, set forth below, the Court affirms the

Commissioner’s decision.

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

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).

reason of any 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 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) (quoting 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.

II. Background and Procedural History

Plaintiff filed an application for disability insurance benefits on March 22, 2019,

and for supplemental security income on March 25, 2019. (R. 15). He alleges that he

became disabled due to high blood pressure, diabetes, neuropathy, arthritis, joint pain, and

vision problems. (R. 66). He was 50 years old on the amended alleged onset date of April

13, 2019. (R. 15, 65). Prior to the onset date, plaintiff was an assembler in an oilfield and

a plumber’s helper.

The Commissioner denied plaintiff’s application on initial review and on

reconsideration. Plaintiff then requested a hearing before an Administrative Law Judge

(ALJ). (R. 140-141). The ALJ held a telephone hearing on July 20, 2020. (R. 34-60).

Testimony was given by plaintiff and a Vocational Expert (VE). On September 25, 2020,

the ALJ issued a decision denying benefits. (R. 17-32). On January 14, 2021, the Appeals

Council denied a request for review, which rendered the ALJ’s decision the agency’s final

decision. (R. 1-4). Plaintiff filed a timely appeal in this Court, which has jurisdiction to

review the ALJ’s September 25, 2020 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 v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988)

(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 v. Astrue, 489 F.3d

1080, 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,

considering the claimant’s age, education, and work experience. Id.

Here, at step one the ALJ noted that Plaintiff drove his brother-in-law to and from

a plumbing job during the alleged period of disability, but the ALJ found that this work did

not meet the threshold for substantial gainful activity. (R. 17). At step two, the ALJ

determined that Plaintiff’s type 2 diabetes mellitus with neuropathy; osteoarthritis of the

right knee, status post-total knee arthroplasty; bilateral cubital tunnel syndrome, status post

left-sided surgical release; and bilateral carpal tunnel release, status post-bilateral surgical

release, are severe impairments. (R. 18). The ALJ also found that Plaintiff’s

hyperlipidemia, hypertension, and non-alcoholic steatohepatitis are non-severe. Id.

At step three, the ALJ found that plaintiff’s impairments do not meet or equal the

severity criteria for Listing 1.02 (major dysfunction of a joint) or 11.14 (diabetic and

entrapment neuropathy). (R. 19). Although evidence showed the disorganization of motion

function, the ALJ found that the record did not establish the severity required to meet or

equal the Listing. Id. The ALJ considered plaintiff’s Diabetes Mellitus in addressing

various Listing categories, including 1.00 (musculoskeletal system); 2.00 (diabetic

retinopathy); 4.00 (coronary and peripheral vascular disease); 5.00 (abnormal

gastrointestinal motility); 6.00 (diabetic neuropathy); 8.00 (poor healing from bacterial or

fungal skin infection); 11.00 (diabetic peripheral and sensory neuropathies); 12.00

(cognitive impairment, depression, and anxiety). (R. 19; see also Social Security Ruling

(SSR) 14-2p).

At step four, after considering the entire record, the ALJ determined that plaintiff

has the RFC:

to perform light work, except that [plaintiff] can only stand and

walk 4 hours in and 8-hour workday; occasionally climb ramps

and stairs; can never climb ladders, ropes, or scaffold; can

vocationally push, pull and operate foot controls with the

bilateral lower extremities; can occasionally stoop, balance,

kneel and crouch; can frequently handle and finger with the

bilateral upper extremities; and can never work at unprotected

heights.

(R. 20). The ALJ indicated that in making this finding, he considered all of plaintiff’s

symptoms in connection with the objective medical evidence and other evidence, based on

the requirements of 20 C.F.R. §§ 404.1529 and 416.929 and SSR 16-3p, as well as medical

opinions and prior administrative findings, in accordance with the requirements of 20

C.F.R. §§ 404.1520c and 416.920c. Id.

Citing testimony by the VE as to a hypothetical person with plaintiff’s RFC, the

ALJ found at step four that plaintiff is unable to perform his past relevant work. (R. 24-

25). At step five, based on the VE’s testimony as to a hypothetical person with plaintiff’s

age, education, and RFC, the ALJ found that Plaintiff can perform the requirements of

occupations including:

Order Caller, light exertion, unskilled, specific vocational preparation (SVP)

level 2, Dictionary of Occupational Titles (DOT) # 209.667-014, with 13,000

jobs existing in the national economy;

Fastener, light exertion, unskilled, SVP level 2, DOT # 699.685-026, with

12,000 jobs existing in the national economy; and

Bander, light exertion, unskilled, SVP level 2, DOT # 920.687-026, with

4,000 jobs existing in the national economy.

(R. 25-26). Accordingly, the ALJ found plaintiff not disabled at step five. (R. 26).

IV. Discussion

Plaintiff argues that the ALJ’s RFC determination is not supported by substantial

evidence. He contends that, due to pain and other symptoms relating to his neuropathy and

total knee arthroplasty, he can only walk and stand for a total of two hours in a workday.

The Commissioner argues that the ALJ ’s physical RFC determination is supported by

substantial evidence and that the ALJ properly considered plaintiff’s subjective statements

about his pain and other symptoms.

A claimant’s subjective complaints of pain or other symptoms, alone, cannot

establish disability. See 20 C.F.R. §§ 404.1529(a), 416.929(a). In assessing the intensity

and persistence of a claimant’s pain, the Commissioner will consider objective medical

evidence and will “carefully consider any other information [a claimant] may submit about

[their] symptoms.” 20 C.F.R. §§ 404.1529(c), 416.929(c). In evaluating such statements,

an ALJ must consider: “(1) whether the claimant established a pain-producing impairment

by objective medical evidence; (2) if so, whether the impairment is reasonably expected to

produce some pain of the sort alleged (what we term a ‘loose nexus’); and (3) if so, whether

considering all the evidence, both objective and subjective, the claimant’s pain was in fact

disabling.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166-67 (10th Cir. 2012) (citing Luna

v. Bowen, 834 F.2d 161, 163-64 (10th Cir. 1987)).2 Consistency determinations “are

peculiarly the province of the finder of fact.” Kepler v. Chater, 68 F.3d 387, 391 (10th Cir.

1995); see also White v. Barnhart, 287 F.3d 903, 910 (10th Cir. 2001) (ALJ’s evaluation

of symptom allegations “warrant particular deference”).3 However, the ALJ must explain

2 While the Commissioner now describes the analysis as involving a two-step

process, the current regulatory policy generally comports with the approach as outlined in

previous cases, including Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987) and Keyes-

Zachary v. Astrue, 695 F.3d 1156 (10th Cir. 2012). See Paulek v. Colvin, 662 F. App’x

588, 593-94 (10th Cir. 2016) (unpublished). (Under 10th Cir. R. 32.1(A), “[u]npublished

decisions are not precedential, but may be cited for their persuasive value.”).

The applicable regulations further explain that in evaluating pain, the Commissioner

considers factors including

(i) [the claimant’s] daily activities;

(ii) The location, duration, frequency, and intensity of . . . pain or other

symptoms;

(iii) Precipitating and aggravating factors;

(iv) The type, dosage, effectiveness, and side effects of any

medication [the claimant] take[s] or ha[s] taken to alleviate . . . pain

or other symptoms;

(v) Treatment, other than medication, [the claimant] receive[s] or

ha[s] received for relief of . . . pain or other symptoms;

(vi) Any measures [the claimant] use[s] or ha[s] used to relieve . . .

pain or other symptoms (e.g., lying flat on your back, standing for 15

to 20 minutes every hour, sleeping on a board, etc.); and

(vii) Other factors concerning [the claimant’s] functional limitations

and restrictions due to pain or other symptoms.

20 C.F.R. § 404.1529(c); see also Keyes-Zachary, 695 F.3d at 1167; Branum, 385 F.3d at

1273-74 (quoting Hargis v. Sullivan, 945 F2d. 1482, 1489 (10th Cir. 1991)) (describing

several similar factors which should be analyzed).

3 The Commissioner no longer uses the term “credibility.” See SSR 16-3p, 2017 WL

5180304 (explaining purpose to “eliminat[e] the use of the term ‘credibility’ from [the

Commissioner’s] sub-regulatory policy, as our regulations do not use this term,” and

“clarify[ing] that subjective symptom evaluation is not an examination of an individual’s

character”). However, the agency continues to follow the same “fundamental rule . . . that

‘if an individual’s statements about the intensity, persistence, and limiting effects of

“the link between the evidence and” consistency determination. Kepler, 68 F.3d at 391; see

also 20 C.F.R. § 404.1529 (ALJ must provide “specific reasons . . . supported by the

evidence in the case record”). Courts “will not upset such determinations when supported

by substantial evidence.” Wilson v. Astrue, 602 F.3d 1136, 1144 (10th Cir. 2010) (citing

Diaz v. Sec’y of Health & Hum. Servs., 898 F.2d 774, 777 (10th Cir. 1990)).

At the hearing, plaintiff testified that, even after his knee surgery,

if I’m on [my] feet 30 minutes that knee starts to swell. And I can’t bend

over, I can’t squat. And even with this neuropathy I lose my balance, my feet

burn. I mean, it’s like I said if I bend over just a little bit, somebody’s going

to have to help me up. Because I lose my feeling in my toes with that

neuropathy.

(R. 46). Plaintiff also stated that he has trouble keeping his balance due to neuropathy. Id.

Plaintiff and his wife live on a ranch with “chickens and a few cows and dogs,” but plaintiff

testified that, because of his limitations, he can perform chores such as caring for the

animals only for 20 to 25 minutes at a time. (R. 42, 46-47).

The ALJ found that the degree of pain, persistence, lack of motion, etc. described

by plaintiff was not entirely supported by the medical evidence in the record. (R. 21). The

ALJ noted that plaintiff reported right knee pain in May 2018, after he was kicked by a

cow, but that x-rays showed only nominal degenerative change, and his reflexes and muscle

tone were normal. Furthermore, in July 2018, he had a normal range of motion and no

swelling, and he did not have any treatment for knee pain again until September 2019. (R.

symptoms are inconsistent with the objective medical evidence and the other evidence, [an

ALJ] will determine that the individual’s symptoms are less likely to reduce his or her

capacities to perform work-related activities.’” Zhu v. Comm’r, SSA, No. 20-3180, 2021

WL 2794533, at *5 n.7 (10th Cir. July 6, 2021) (unpublished) (quoting SSR 16-3p).

23; see R. 355-359). A few months later, in February 2020, plaintiff underwent surgery for

a total knee replacement. (R. 23).

Subsequent examination showed a reduced range of motion but only mild

tenderness and swelling, full motor strength, no instability, normal gait, and decreasing

pain. Id. The ALJ noted that,

[a]lthough [plaintiff] was walking with a walker . . . less than three weeks

after surgery, there is no indication that [plaintiff’s] surgeon expected less

than a full recovery from the surgery or a lack of improvement in symptoms

from his pre-operative state. Further, there is no indication [plaintiff]

reported to his surgeon, physical therapist, or any other provider that he has

had continued pain or a failure to respond to the surgery with improved

symptoms. As such, the record does not establish significant symptoms

affecting [plaintiff’s] ambulation for more than a five-month period, with the

expectation that [plaintiff] has continued, and will continue, to recover and

regain use of his right knee with time for healing and physical therapy.

Id. (citing exhibits).

Although plaintiff argues that the ALJ failed to provide “specific reasons” for his

assessment of plaintiff’s subjective statements, as required by SSR 16-3p, as set forth

above, the ALJ provided a detailed explanation, with references to relevant evidence in the

record. (Doc. 17 at 11). As the ALJ’s decision explained, plaintiff was expected to regain

use of his right knee after healing and completing physical therapy. (R. 23). Plaintiff

contends this was improper speculation by the ALJ. Plaintiff points to post-surgery records

indicating that plaintiff at times still had decreased strength in his lower right extremity,

daily swelling, and spasms.

However, the same treatment records also noted objective findings that support the

RFC determination for a limited range of light work. (See R. 635 (noting a good active

range of motion in the lower right extremity and a normal gait with “[g]ood stride [and]

ground floor clearance bilaterally”); R. 734-735 (noting mild tenderness, swelling and

incision healing, but flexion and extension strength were 5/5 and “all tests for stability

[were] normal”). Moreover, these treatment records reflected plaintiff’s condition only

weeks after his knee replacement surgery. (See, e.g., R. 637 (referring plaintiff for physical

therapy but noting prognosis was “[e]volving/changing”)).

The ALJ’s decision reflects that he appropriately considered this evidence in

assessing plaintiff’s RFC. (See R. 22-23). As the ALJ noted, there was no indication that

plaintiff’s surgeon “expected less than a full recovery from the surgery or a lack of

improvement in symptoms from his pre-operative state.” Id. As such, the ALJ’s finding

was consistent with the evidence of record. See Branum v. Barnhart, 385 F.3d 1268, 1271

(10th Cir. 2004) (“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.”).

Plaintiff argues that the ALJ ignored certain objective medical evidence, such as the

observations of Scott Dunitz, M.D. in October 2019, noting that plaintiff had a “minimal

antalgic limp” and “small effusion with marked tenderness over the medial joint space” of

the right knee. (R. 711). In fact, the ALJ’s decision provided an extensive discussion of Dr.

Dunitz’s examination notes. (R. 22). In December 2019, Dr. Dunitz again examined

plaintiff, who complained of worsening symptoms after an injection provided only brief

relief. (R. 715). As the decision explained, these events led to plaintiff’s knee replacement

surgery a few months later. (R. 22).

Moreover, the record contains no opinion contrary to the ALJ’s finding that plaintiff

can stand or walk up to four hours in a workday. The prior administrative findings are dated

prior to plaintiff’s knee replacement surgery in February 2020. (See R. 61-116). Edna

Daniel, M.D. and Matthew Khan, M.D. both opined that plaintiff retains an RFC for light

exertional work, with no additional postural or manipulative limitations. (See R. 24 (citing

exhibits)). After discussing these opinions in the context of more recent objective medical

evidence, the ALJ found that additional exertional, postural, and manipulative limitations

were appropriate. Id. As such, the medical opinions of Drs. Daniel and Khan do not support

plaintiff’s position that greater limitations are warranted.

Plaintiff objects to the ALJ’s consideration of his self-reported activities. An ALJ is

required to consider a claimant’s reported activities of daily living. See 20 C.F.R. §§

404.1529(c)(3)(i), 416.929(c)(3)(i). Here, the ALJ found “persuasive” the fact that, despite

his impairments, plaintiff “has continued to drive a vehicle, including in his job as a

plumber helper, shop in stores for household items and plumbing supplies, and work on his

ranch caring for livestock, with limitations on his ability to bend and squat.” (R. 24).

Plaintiff contends the activities he reported before the knee surgery are superseded by more

recent medical evidence that showed he had to limit standing and walking to 30 minutes or

his knee will swell. He asserts that the ALJ “downplayed” the limitations he faces when

performing activities and chores on the ranch. (Doc. 17 at 10-11).

However, the ALJ considered and addressed plaintiff’s hearing statements in his

decision. (See R. 21). The ALJ’s decision also discussed medical records both before and

after plaintiff’s knee surgery that addressed his complaints of swelling. (R. 21-23). While

plaintiff suggests that the record shows greater limitations by the time of the ALJ hearing

in July 2020, as set forth above, substantial evidence supports the ALJ’s conclusion that

the medical evidence in the record did not support the degree of limitation alleged. The

ALJ also adequately explained the link between the evidence and her assessment of

Plaintiff's subjective statements. See Kepler, 68 F.3d at 391. Accordingly, Plaintiff has

shown no reversible error. See id.; see also 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).

IV. Conclusion and Recommendation

As set forth above, the ALJ’s decision is supported by substantial evidence and

reflects the application of proper legal standards. Accordingly, the decision of the

Commissioner finding Plaintiff not disabled is affirmed.

SO ORDERED this 29th day of September, 2022.

Unristere 2 tiblee

Christine D. Little

United States Magistrate Judge

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