Lane v. Commissioner of Social Security Administration

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

LAURA MARIE LANE, )

)

Plaintiff, )

)

v. )

)

Cas e No. CIV-20-928-SM

KILOLO KIJAKAZI, )

ACTING COMMISSIONER OF )

SOCIAL SECURITY )

ADMINISTRATION, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Laura Lane (Plaintiff) brings this action for judicial review of the

Commissioner of Social Security’s final decision that she was not “disabled”

under the Social Security Act. See 42 U.S.C. §§ 405(g), 423(d)(1)(A). The parties

have consented to the undersigned for proceedings consistent with 28 U.S.C.

§ 636(c). See Docs. 19, 21.1

Plaintiff asks this Court to reverse the Commissioner’s decision and to

remand the case for further proceedings, arguing the Administrative Law

Judge (ALJ) erred in his (1) consideration of her medically determinable

impairments when formulating her residential functional capacity; (2) step-

1 Citations to the parties’ pleadings and attached exhibits will refer to this

Court’s CM/ECF pagination. Citations to the administrative record (AR) will

refer to its original pagination.

five findings; and (3) that the Appeals Council disregarded certain medical

records. Doc. 23, at 2. After a careful review of the AR, the parties’ briefs, and

the relevant authority, the Court affirms the Commissioner’s decision finding

that substantial evidence supports it and finding no legal error. See 42 U.S.C.

§ 405(g).

I. Administrative determination.

A. Disability standard.

The Social Security Act defines “disability” as the “inability to engage in

any substantial gainful activity by 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.” 42 U.S.C. § 423(d)(1)(A). “This twelve-month duration

requirement applies to the claimant’s inability to engage in any substantial

gainful activity, and not just [the claimant’s] underlying impairment.” Lax v.

Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Barnhart v. Walton, 535

U.S. 212, 218-19 (2002)).

B. Burden of proof.

Plaintiff “bears the burden of establishing a disability” and of “ma[king]

a prima facie showing that [s]he can no longer engage in h[er] prior work

activity.” Turner v. Heckler, 754 F.2d 326, 328 (10th Cir. 1985). If Plaintiff

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makes that prima facie showing, the burden of proof then shifts to the

Commissioner to show Plaintiff retains the capacity to perform a different type

of work and that such a specific type of job exists in the national economy. Id.

C. Relevant findings.

1. Administrative Law Judge’s findings.

The ALJ assigned to Plaintiff’s case applied the standard regulatory

analysis to decide whether Plaintiff was disabled during the relevant

timeframe. AR 21-34; see 20 C.F.R. § 404.1520(a)(4); see also Wall v. Astrue,

561 F.3d 1048, 1052 (10th Cir. 2009) (describing the five-step process). The

ALJ found Plaintiff:

(1) had not engaged in substantial gainful activity since her

alleged onset date of June 25, 2018;

(2) had the following severe medically determinable

impairments: degenerative disc disease, cervical spinal

stenosis, depressive disorder, hypertension, and chronic pain

syndrome;

(3) had no impairment or combination of impairments that met

or medically equaled the severity of a listed impairment;

(4) had the residual functional capacity2 (RFC) to perform

sedentary work, with certain restrictions and with the

nonexertional limitations that she can perform tasks with

2 Residual functional capacity “is the most [a claimant] can still do despite

[a claimant’s] limitations.” 20 C.F.R. § 404.1545(a)(1).

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routine supervision, can relate to others on a superficial

work basis, and she can adapt to a work situation;

(5) was not able to perform her past relevant work;

(6) was able to perform jobs that exist in the national economy,

such as ticket counter, addresser, and polisher; and so,

(7) had not been under a disability from June 25, 2018 through

March 2, 2020.

See AR 21-34.

2. Appeals Council’s findings.

The Social Security Administration’s Appeals Council denied Plaintiff’s

request for review, see id. at 8-11, making the ALJ’s decision “the

Commissioner’s final decision for [judicial] review.” Krauser v. Astrue, 638 F.3d

1324, 1327 (10th Cir. 2011).

II. Judicial review of the Commissioner’s final decision.

A. Review standard.

The Court reviews the Commissioner’s final decision to determine

“whether substantial evidence supports the factual findings and whether the

ALJ applied the correct legal standards.” Allman v. Colvin, 813 F.3d 1326,

1330 (10th Cir. 2016). Substantial evidence is “more than a scintilla, but less

than a preponderance.” Lax, 489 F.3d at 1084; see also Biestek v. Berryhill, 139

S. Ct. 1148, 1154 (2019) (“It means—and means only—such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion.”)

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(internal quotation marks and citation omitted). A decision is not based on

substantial evidence “if it is overwhelmed by other evidence in the record.”

Wall, 561 F.3d at 1052 (citation omitted). The Court will “neither reweigh the

evidence nor substitute [its] judgment for that of the agency.” Newbold v.

Colvin, 718 F.3d 1257, 1262 (10th Cir. 2013) (citation omitted).

B. Issues for judicial review.

1. Substantial evidence supports the ALJ’s RFC

assessment.

a. The ALJ adequately considered Plaintiff’s non-

severe impairments.

Plaintiff’s brief presents a zig-zag litany of arguments and non-

arguments. She outlines her testimony, Doc. 23, at 4, argues the ALJ did not

consider her mental impairments, id. at 5, alleges the ALJ did not adequately

consider over twenty impairments, id. at 3, argues the RFC lacked any

limitations on the use of her hands, id. at 6, maintains the ALJ disregarded

her spine impairments, id. at 7, challenges the ALJ’s “pain analysis,” id. at 8,

and argues the ALJ’s many step-two errors “prejudiced” his decisions at steps

three and four. Id. at 10. The Court addresses those claims for which Plaintiff

fleshes out an argument.3 See, e.g., Mays v. Colvin, 739 F.3d 569, 576 (10th Cir.

2014) (stating that the court “will not construct an argument for” the plaintiff);

3 Plaintiff does not further develop these claims in her reply brief. Doc. 27.

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Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (declining to

consider issues not “adequately briefed” for the court’s review).

i. The RFC assessment adequately accounted

for Plaintiff’s physical limitations.

Plaintiff argues the ALJ’s RFC assessment lacks any limitations on

handling, fingering, reaching, head turning and use of her hands. Doc. 23, at

4, 6. Much of these complaints are her subjective reports, as she claims “that

the record is replete with her complaints to medical providers about them.” Id.

at 6.

The ALJ discounted Plaintiff’s “statements about the intensity,

persistence, and limiting effects of [her] symptoms,” noting “they are

inconsistent because [she] is able to take care of grandchildren, drive, shop[],

use[] [a] computer for games and shopping,” and her symptoms improved “after

her surgery and with medications.” AR 31. Admittedly, Shannon Haddock,

P.A.C., noted Plaintiff was doing satisfactorily two weeks after neck surgery,

and limited her to continue with her overhead lifting of not more than ten

pounds. Id. at 29.

The Commissioner points to objective medical evidence showing 5/5

motor strength in all extremities and full and normal range of motion (June

2018), 5/5 upper and lower strength and grip strength bilaterally (November

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2018). Doc. 24, at 13; AR 27-28. The objective medical evidence shows grip

strength of 5 out of 5; no sensory loss in the first three fingers; the ability to

effectively oppose the thumb to the fingertips, to manipulate small objects, and

to effectively grasp tools. AR 28, 333, 335-36. Plaintiff also received an

assessment of “no restrictions” five months after her surgery. Id. at 29. Plaintiff

points to no objective medical evidence limiting her overhead reaching, head

turning, or use of her hands.

Plaintiff also argues that although the ALJ found her “DDD” severe at

step two, the ALJ did not account for her spine impairments, citing no

limitation on turning her neck. Doc. 23, at 7. As noted, the ALJ restricted

Plaintiff to sedentary activity (which is a greater restriction than the state

agency doctors recommended), and Plaintiff can point to no medical records

disputing the solid fusion surgery results. Substantial evidence supports the

ALJ’s RFC assessment.

(ii) The RFC assessment adequately accounted

for Plaintiff’s nonexertional limitations.

Plaintiff next argues the ALJ erred when he determined Plaintiff had

only mild limitations in the area of the ability to adapt and manage herself.

Doc. 23, at 5. State agency Dr. Tomak made a “criteria B” finding that she had

moderate limitation in this area. AR 32, 107-08.

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Listing 12.04 (affective disorders), which the ALJ specifically considered

(AR 24-25), consists of so-called “A” criteria, “B” criteria, and “C” criteria. See

20 C.F.R. pt. 404, subpt. P, app. 1, § 12.04. The A criteria documents the

presence of a particular mental disorder, while the B and C criteria describe

functional limitations that are incompatible with the ability to do any gainful

activity. See id. § 12.00(A) (introduction to the mental health listings).

Plaintiff does not argue she met this listing, she challenges only the

ALJ’s disagreement with Dr. Tomak’s finding of a moderate limitation. Doc.

23, at 5. But the ALJ continued and provided the required assessment in steps

four and five, as he must do. See SSR 96-8p, 1996 WL 374184, at *4 (July 2,

1996) (“[T]he limitations identified in the ‘paragraph B’ and ‘paragraph C’

criteria are not an RFC assessment but are used to rate the severity of mental

impairment(s) at steps 2 and 3 of the sequential evaluation process. The

mental RFC assessment used at steps 4 and 5 of the sequential evaluation

process requires a more detailed assessment by itemizing various functions

contained in the broad categories found in paragraphs B and C of the adult

mental disorders listings[.]”).

In assessing Plaintiff’s RFC, the ALJ relied on the consultants’ mental

RFC opinions in part. Those found she could carry out detailed but not complex

instructions, work-like procedures, and work-related decisions; interact

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appropriately with the general public and co-workers; respond to supervisors

on a superficial work basis and respond appropriately to changes in the work

setting. AR 111-13, 130-32. The ALJ incorporated these suggested restrictive

mental RFC limitations and imposed even more restrictive limitations: the

performance of only simple tasks with routine supervision; relating to others

superficially and adapting to a work situation. Id. at 26. Substantial evidence

supports the ALJ’s RFC assessment of Plaintiff’s mental limitations.

b. The ALJ did not err in his pain assessment.

Plaintiff next argues that although the ALJ found her chronic pain

syndrome to be a severe impairment, he erred in his pain analysis. Doc. 23, at

8. She cites her consistent pain management treatment, that all or most of her

treatment providers believed most or all of her complaints, and that her

complaints are consistent with the objective evidence. Id. at 8-9.

In assessing a claimant’s subjective complaints of pain. An ALJ must

consider and determine:

(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.

Brownrigg v. Berryhill, 688 F. App’x 542, 545 (10th Cir. 2017) (quoting Keyes-

Zachary, 695 F.3d at 1166-67); see also SSR 16-3p, 2017 WL 5180304, at *3

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(Oct. 25, 2017). The determination “‘must contain specific reasons for the

weight given to the individual’s symptoms, be consistent with and supported

by the evidence, and be clearly articulated so the individual and any

subsequent reviewer can assess how the adjudicator evaluated the individual’s

symptoms.’” Brownrigg, 688 F. App’x at 546 (quoting SSR 16-3p, 2017 WL

5180304, at *9).

The ALJ noted that after her surgery, Plaintiff was not in acute distress

but still had some left arm discomfort. AR 29. Dr. Winston Fong noted in June

2019 Plaintiff had no restrictions. Id. The ALJ reviewed Plaintiff’s 2018 pain

management for her back. Id. at 30. He observed that she reported stable pain

levels since January 2019 and similar pain levels in March 2019. She did report

occasional difficulties with normal activities due to pain. Id. She reported a

similar status in May 2019. Id. The ALJ reviewed her monthly Percocet use,

and observed that by September 2019, she reported increased pain levels and

was moderately distressed. Id. at 31. The ALJ noted Plaintiff reported

increased numbness and pain in her legs and hands, she wanted an assistive

device and that she thought she needed her neck pain reevaluated. Id.

As stated, the ALJ discounted Plaintiff’s statements about “the intensity,

persistence, and limiting effects of [her] symptoms,” noting “they are

inconsistent because [she] is able to take care of grandchildren, drive, shop[],

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use[] [a] computer for games and shopping,” and her symptoms improved “after

her surgery and with medications.” Id. at 31. The ALJ’s limitation to sedentary

work with additional exertional restrictions, along with his analysis, satisfies

Brownrigg.

2. Harmless error insulates the ALJ’s step-five decision.

The ALJ determined Plaintiff could perform the jobs of ticket counter,

DOT #219.587-010; addresser, DOT #209.587-010; and polisher, DOT

#713.684-038. AR 33. Plaintiff argues that because ticket counter requires a

reasoning level of three, she cannot perform this job as her RFC assessment

limits her to simple tasks with routine supervision. Doc. 23, at 10. The

Commissioner responds that Plaintiff’s “general educational background”

“made her suitable” to perform the duties of a ticket counter. Doc. 24, at 19-20.

The Court need not decide this issue.4 The Commissioner also argues

harmless error. Id. at 21. The other two jobs the vocational expert identified,

addresser and polisher, combine for 160,000 jobs nationally. AR 33. Thus, the

Court finds there were still a significant number of available jobs. See

Washington v. Saul, 2019 WL 4080925, at *4 (D. Kan. Aug. 29, 2019) (finding

4 Plaintiff again argues she cannot perform jobs of addresser or polisher

because both require frequent handling and fingering. Doc. 23, at 11. The

Court has rejected this argument. Supra § II.B.1.a.i.

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harmless error because “[t]here is no doubt that 53,000 is a significant number

of available jobs”); Sly v. Berryhill, 2018 WL 1954836, at *3 (W.D. Okla. Apr.

25, 2018) (finding harmless error where “the Court has no difficulty concluding

that 32,000 jobs is a significant number for purposes of step 5 of the sequential

process”); Fox v. Colvin, 2015 WL 5178414, at *4 (W.D. Okla. Sept. 3, 2015)

(finding that “the ALJ’s error in failing to reconcile the conflict between the

DOT” and two of the “VE’s recommended positions . . . was harmless” where

there were 32,000 jobs available in the national economy in one position).

Because the Court finds there are a significant number of addresser and

polisher jobs in the national economy, any step-five error is harmless.

3. The Appeals Council did not err when it determined

Plaintiff’s submission of medical records showed no

reasonable probability that they would change the

outcome of the ALJ’s decision.

Plaintiff submitted medical records her counsel received after the

hearing but that pertained to the period at issue. AR 39. The Appeals Council

denied Plaintiff’s request for review, rendering the ALJ’s decision the Final

Decision of the Commissioner for this appeal. Id. at 8-9; see Doyal v. Barnhart,

331 F.3d 758, 759 (10th Cir. 2003). The Appeals Council explained:

You submitted medical records from Saints Rheumatology/Fahed

Hamadeh, M.D. from August 13, 2019 through October 9, 2019 (36

pages). We find this evidence does not show a reasonable

probability that it would change the outcome of the decision. We

did not exhibit this evidence.

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AR 9. See, e.g., Martinez v. Saul, 2020 WL 4597024, at *5 (D.N.M. Aug. 11,

2020) (“When the Appeals Council stated it did not ‘exhibit’ the evidence, it

also necessarily conveyed that it did not ‘consider’ the evidence.”).

Under SSA regulations, the Appeals Council will review a case if it

“receives additional evidence that is new, material, and relates to the period

on or before the date of the hearing decision, and there is a reasonable

probability that the additional evidence would change the outcome of the

decision.” 20 C.F.R. § 404.970(a)(5). The claimant must also show “good cause”

for not submitting the evidence at an earlier date. Id. § 404.970(b). Evidence is

new “if it is not duplicative or cumulative.” Threet v. Barnhart, 353 F.3d 1185,

1191 (10th Cir. 2003) (internal quotation marks omitted). The Tenth Circuit,

relying on an older version of the regulation which did not include “reasonable

probability” language,5 held evidence is material “if there is a reasonable

possibility that it would have changed the outcome.” Id. (internal quotation

marks and alteration omitted). Based on the regulation’s new language,

however, courts have since applied a heightened materiality standard. See

Hanna v. Kijakazi, 2021 WL 3169203, at *5 (D.N.M. July 27, 2021) (“[T]he

5 Before January 17, 2017, 20 C.F.R. §§ 404.970 and 416.1470 required the

Appeals Council to consider additional evidence if it was “new and material,”

but did not include the “reasonable probability” language.

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prevailing view in this District is that ‘[t]his requirement heightens the

claimant’s burden to prove materiality: whereas the previous test required

merely a reasonable possibility of changing the outcome, now it requires a

reasonable probability of changing the outcome.’” (quoting Bisbee v. Berryhill,

2019 WL 1129459, at *3 n.5 (D.N.M. Mar. 12, 2019)).

This Court’s review is subject to, and affected by, whether additional

evidence is submitted after the ALJ’s decision.

The Appeals Council will only consider additional evidence

under paragraph (a)(5) of this section if you show good cause

for not informing us about or submitting the evidence as

described in § 404.935 because:

(1) Our action misled you;

(2) You had a physical, mental, educational, or

linguistic limitation(s) that prevented you from

informing us about or submitting the evidence

earlier; or

(3) Some other unusual, unexpected, or unavoidable

circumstance beyond your control prevented you

from informing us about or submitting the evidence

earlier. Examples include, but are not limited to:

(i) You were seriously ill, and your illness

prevented you from contacting us in

person, in writing, or through a friend,

relative, or other person;

(ii) There was a death or serious illness in

your immediate family;

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(iii) Important records were destroyed or

damaged by fire or other accidental cause;

(iv) You actively and diligently sought

evidence from a source and the evidence

was not received or was received less than

5 business days prior to the hearing; or

(v) You received a hearing level decision

on the record and the Appeals Council

reviewed your decision.

Id. § 404.970(b). “Whether evidence qualifies for consideration is a question of

law subject to de novo review.” See Padilla v. Colvin, 525 F. App’x 710, 712

(10th Cir. 2013) (citing Threet, 353 F.3d at 1191); Martinez, 2020 WL 4597024,

at *5 (“To reiterate: when never-before-considered evidence is presented to the

Appeals Council, the substantial-evidence review standard applies only if the

Appeals Council ‘considered’ the additional evidence as qualifying for review

under subsection (a)(5)’s three criteria.”). “If the evidence does not qualify, it

plays no further role in judicial review of the Commissioner’s decision.”

Chambers v. Barnhart, 389 F.3d 1139, 1142 (10th Cir. 2004). “[I]f the evidence

qualifies but the Appeals Council did not consider it, the case should be

remanded for further proceedings.” Id.

In submitting the documents on March 30, 2020, counsel represents he

received the documents after the February 13, 2020, hearing date. AR 39. This

does not present an instance in which an examination was close in time to the

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hearing date. The rheumatology records date from August 2019 through

October 2019, and counsel did not mention them at the hearing. Cf. Mary L.J.

v. Saul, 2021 WL 1156619, at *4 (N.D. Okla. Mar. 26, 2021) (finding submission

of a functional capacity evaluation was “not duplicative or cumulative, because

it provided new functional assessments of Plaintiff’s physical capabilities” and

was administered four days before the hearing).

Dr. Hamadeh’s records provide no new functional assessments. They

note Plaintiff’s normal gait, diffuse severe allodynia upper and lower

extremities, diffuse tender joints and extremely tender around the ankles. AR

44. She had some unremarkable x-rays, id. at 59-62, but a lumbar spine x-ray

showed severe intervertebral disc space narrowing with vacuum disc

phenomenon L5-S1. Id. at 63. The records noted Plaintiff had widespread joint

pain and inflammation of the joints, id. at 64, she had some good relief with

medication, id. at 65, was overall stable, id. at 68, and addition of the high-risk

prescription Methotrexate. Id. Plaintiff argues the medical records show only

two office visits but “suggest there are to be other appointments.” Doc. 23, at

13.

Plaintiff cannot show that these records establish “a reasonable

probability that the additional evidence would change the outcome of the

decision.” 20 C.F.R. § 404.970(a)(5). The ALJ rejected the medical consultants’

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opinions that found Plaintiff had an RFC for light exertion by limiting her to

sedentary work. AR 32. Nothing in the additional records suggests the ALJ’s

extreme limitations are insufficient. The Appeals Council committed no error.

III. Conclusion.

Based on the above, the Court affirms the Commissioner’s decision.

ENTERED this 10th day of September, 2021.

ga Ler _

SUZANNE MITCHELL

UNITED STATES MAGISTRATE JUDGE

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