Grayson v. Commissioner of Social Security Administration

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

NANCY GRAYSON, )

)

Plaintiff, )

)

v. ) Case No. CIV-23-865-SM

)

MARTIN O’MALLEY, )

COMMISSIONER OF SOCIAL )

SECURITY )

ADMINISTRATION,1 )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Nancy Grayson (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). The parties have

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

§ 636(c). Docs. 6, 7.2

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

remand the case for further proceedings, arguing the Administrative Law

1 Martin O’Malley, as Commissioner of the Social Security

Administration, is substituted as Defendant in this suit. See Fed R. Civ. P.

25(d).

2 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.

Judge (ALJ) “failed to follow the [Appeals Council’s] remand order” and did not

properly evaluate her incontinence symptoms. Doc. 10, at 4. After careful

review of the record, the parties’ briefs, and the relevant authority, the Court

affirms the Commissioner’s decision. 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 [twelve] 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

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

Commissioner to show Plaintiff “retains the capacity to perform an alternative

work activity and that this specific type of job exists in the national economy.”

Id. (quoting Channel v. Heckler, 747 F.2d 577, 579 (10th Cir. 1984)).

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 1366-76; 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 that Plaintiff:

(1) had not engaged in substantial gainful activity since

November 6, 2018, the alleged onset date;

(2) had the following severe impairments: hypertension,

hypothyroidism, obesity, status post ovarian cancer;

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

or medically equaled the severity of a listed impairment;

(4) had the residual functional capacity3 (RFC) to perform light

work, except that she can frequently climb ramps/ stairs,

balance, stoop, kneel, crouch, and crawl, but cannot climb

ladders, ropes, or scaffolds;

(5) is able to perform her past relevant work as a psychiatrist;

(6) had not been under a disability from November 6, 2018, through

February 22, 2023.

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

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

See AR 1368-76.

2. Appeals Council’s findings.

After the ALJ’s initial decision and the Social Security Administration’s

Appeal Council’s denial of Plaintiff’s request for review, id. at 1434-43, 1465-

67, the Commissioner moved to remand before this Court. Id. at 1414-15. After

remand, id. at 1417-18, the Appeals Council vacated the final decision and

remanded the case to an ALJ to issue a new decision. Id. at 1426-28. It ordered

the ALJ to resolve Plaintiff’s subjective complaints related to her incontinence

after obtaining additional evidence concerning her impairments, further

evaluating Plaintiff’s alleged symptoms, and further considering Plaintiff’s

RFC and her past relevant work in light of the additional evaluation. Id. at

1427-28.

The ALJ then issued a new decision. Id. at 1366-76. The Appeals Council

denied Plaintiff’s request for review, see id. at 1354-57, making the ALJ’s

decision “the Commissioner’s final decision for [judicial] review.” Krauser v.

Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011); see also 20 C.F.R. § 404.984(b)(2).

II. Judicial review of the Commissioner’s 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). “An agency decision that either applies an incorrect legal

standard or is unsupported by substantial evidence is subject to reversal.”

Staheli v. Comm’r, SSA, 84 F.4th 901, 905 (10th Cir. 2023).

“Substantial evidence is such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Id. (quoting Wilson v.

Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010)); see also Lax, 489 F.3d at 1084

(defining substantial evidence as “more than a scintilla, but less than a

preponderance”); Wall, 561 F.3d at 1052 (explaining that “‘[e]vidence is not

substantial if it is overwhelmed by other evidence in the record’”) (quoting

Grogan v. Barnhart, 399 F.3d 1257, 1261-62 (10th Cir. 2005)). The Court “will

not reweigh the evidence or substitute [its] judgment for the Commissioner’s.”

Lax, 489 F.3d at 1084. Thus, “[t]he possibility of drawing two inconsistent

conclusions from the evidence does not prevent an administrative agency’s

findings from being supported by substantial evidence.” Id. (quoting Zoltanski

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

“[T]he failure to apply proper legal standards, may under the

appropriate circumstances, be sufficient grounds for reversal independent of

the substantial evidence analysis.” Hendron v. Colvin, 767 F.3d 951, 954 (10th

Cir. 2014) (quotations omitted). But the failure to apply the proper legal

standard requires reversal only where the error was harmful. Cf. Shinseki v.

Sanders, 556 U.S. 396, 409 (2009) (placing the burden to show harmful error

on the party challenging an agency’s determination).

B. The ALJ complied with the remand order.

Plaintiff maintains “[t]he ALJ obtained no written evidence and no

testimonial evidence of disability matters.” Doc. 10, at 4-5. As the

Commissioner points out, the ALJ conducted a second hearing with a

vocational expert and included over 250 pages of additional medical evidence.

Doc. 12, at 5; AR 1383-1413. And the Appeals Council declined to assume

jurisdiction over the ALJ’s second decision. AR 1354-57. “Under these

circumstances, it is appropriate to examine the Commissioner’s final decision

under [the] usual standards, rather than focusing on conformance with the

particular terms of the remand order.” Miller v. Barnhardt, 175 F. App’x 952,

956 (10th Cir. 2006).

C. The ALJ reevaluated Plaintiff’s incontinence and

substantial evidence supports the RFC assessment.

Plaintiff contends that the ALJ acknowledged that her incontinence

treatment had only “reduc[ed] leakage accidents and reduc[ed]

frequency/urgency,” not resolved them. Doc. 10, at 7. She complains the ALJ’s

failure to include any limitation for bathroom use, access, or frequency shows

the ALJ did not consider her incontinence in the RFC assessment. Id. at 7-9.

Plaintiff also assails the ALJ’s decision, maintaining he found Plaintiff “had

disqualified herself from benefits due to what he believed was her unacceptable

amount of travel over the past five (5) years.” Id. at 8.

The Commissioner concedes that “there is conflicting evidence in the

record about the extent of Plaintiff’s incontinence and the degree it is subject

to control.” Doc. 12, at 6. But he also points out that the ALJ considered the

evidence that was inconsistent with the presence of significant work-related

limitations, including Plaintiff’s reported level of physical activity and travel.

Id. at 6-9.

At step two, an ALJ must consider “whether an impairment is severe.”

Smith v. Colvin, 821 F.3d 1264, 1266 (10th Cir. 2016) “An impairment or

combination of impairments is not severe if it does not significantly limit [a

claimant’s] physical or mental ability to do basic work activities.” 20 C.F.R.

§ 404.1522(a).

When formulating a claimant’s RFC, the ALJ must consider all

impairments—both severe and non-severe—singly and in combination. See,

e.g., Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008) (“[A]t step two,

the ALJ must consider the combined effect of all of the claimant’s impairments

without regard to whether any such impairment, if considered separately,

would be of sufficient severity to survive step two.” (alternations omitted)

(quoting Langley v. Barnhart, 373 F.3d 1116, 1123-24 (10th Cir. 2004))); see

also Hill v. Astrue, 289 F. App’x 289, 292 (10th Cir. 2008) (“In determining the

claimant’s RFC, the ALJ is required to consider the effect of all of the

claimant’s medically determinable impairments, both those he deems ‘severe’

and those ‘not severe.’”). The ALJ did so here, and Plaintiff “bears the burden

of establishing a disability.” Turner, 754 F.2d at 328; see Zavala v. Kijakazi,

No. CIV-20-1139-STE, 2021 WL 6051107, at *4 (W.D. Okla. Dec. 21, 2021)

(“[E]ven when an ALJ disregards nonsevere impairments when assessing a

claimant’s RFC, such an error does not necessarily warrant remand if the

evidence in the case does not support a finding of functional limitations from

the non-severe impairments.” (citing Alvey v. Colvin, 536 F. App’x 792, 794

(10th Cir. 2013))). Plaintiff has not met her burden.

The ALJ found:

As mandated by the Federal Court and Appeals Council, the

undersigned is to give further consideration to the claimant’s

allegations of incontinence. The claimant has alleged that her

incontinence is uncontrollable, has grown worse over time, occurs

3-4 times daily, makes it difficult to work for 3 hours at a time, it

is worse when carrying weight, and is her most difficult

impairment; she further indicated that she has unsuccessfully

attempted to treat the condition with things like pads, medication,

nerve stimulation, and therapy (Exhibits 3E, p. 1, 10E, p. 2, 12E

pp. 1-3, hearing testimony). The court cited to evidence that

supported the claimant’s allegations (Exhibits 7F, pp. 26-31, 54;

12F, pp. 37-40, 331-334, 336-339, 348-351, 353-356, 378-381, 383,

385, 390). Having reviewed these allegations and cited records, the

undersigned still concludes that the claimant’s incontinence is

nonsevere.

First, the record reflects that the claimant’s treatment and therapy

were effective at reducing leakage accidents and reducing

frequency/urgency, at times even reporting normal bladder

function and only using pads as a precaution (Exhibits 7F, pp. 288,

299; 12F, pp. 5, 37, 169; 18F, pp. 1, 23, 33, 49, 61; 20F, pp. 4, 19,

29). The claimant has at other times indicated normal function for

a period only to have symptoms intermittently flare up, indicative

that this is not a constant issue as previously alleged (Exhibit 12F,

p. 376; 18F, p. 49). The general responsiveness treatment

undermines the alleged severity of this impairment.

Second, the claimant’s level of physical activity is inconsistent with

her allegations of uncontrollable incontinence. She is able to go

horseback riding (Exhibits 10F, p. 1; 12F, pp. 354, 371, 376, 429;

16F, p. 57); play pickle ball (Exhibit 16F, p. 28); go on vacations,

including a trip overseas to France and another to Canada

(Exhibits 16F, pp. 28, 44); do ballroom dancing (Exhibit 16F, p. 44);

swim as a hobby (Exhibit 16F, p. 28); and play tennis (Exhibit 16F,

pp. 29, 44). The claimant’s wide range of physical ability also

undermines the alleged severity of this impairment.

Regardless of the above, the undersigned considered all of the

claimant’s medically determinable impairments, including those

that are not severe, when assessing the claimant’s residual

functional capacity.

AR 1369-70 (emphasis added).

Plaintiff was consistently diagnosed with incontinence or mixed

incontinence, and the ALJ acknowledged this. AR 887 (March 22, 2019, “less

leakage,” “more control”); 875-877 (March 15, 2019, “tremendous leakage” and

referral to physical therapy); 387 (Feb. 26, 2019, discussion of non-surgical and

elective surgical treatments for incontinence); 341 (June 12, 2019); 1181 (Jan.

14, 2020); 1206 (Jan. 21, 2020); 1201 (Jan. 28, 2020). Although she had a

normal report on May 13, 2019, id. at 855, her doctors recommended a follow-

up with a urogynecologist to address urinary incontinence. Id. at 858.

On January 14, 2020, her bladder symptoms “seem[ed] to be getting

worse” after her first percutaneous tibial nerve stimulation (PTNS) treatment.

Id. at 1181. She continued weekly PTNS treatments. Id. at 1201. Her

February 27, 2020, goal was to stop urinary incontinence, and she added

physical therapy to her PTNS treatments. Id. at 1227. She noted that the

PTNS along with home exercise for “timed voiding” resulted in “drastic

improvement,” until she suffered a fractured fibula while horseback riding

(late January 2020). Id. at 1226-27. The improvement ended with a prescribed

heavy walking boot and she reported leakage. Id. at 1227. She stopped PTNS

noting it was not helpful in February 2020. Id. at 1782. An April 9, 2020 follow-

up general exam showed she was stable. Id. at 1788.

In August 2020, after pelvic floor physical therapy and prescription

treatment (Vesicare), and stimulator therapy, she noted she was “better,” but

she noticed no difference with the stimulator or medication. Id. at 1692. She

still reported “accidents out in public” and sought other alternatives. Id. An

October 15, 2020, six-month follow-up general exam did not suggest any

incontinence issues. Id. at 1798-1802.

By November 17, 2020, she was prescribed a new medication and noticed

“improvement over the past week or so,” and “[s]he admit[ted] her leakage

seem[ed] to be sudden urgency and no control” and that she has “triggers for

urgency.” Id. at 1782. By January 4, 2021, the assessment of Plaintiff’s urinary

incontinence was “unchanged,” and she received her first Botox treatment for

it. Id. at 1780. At her January 19, 2021 follow-up appointment, she reported

improvement for five days, but then “worsening of leakage.” Id. at 1770.

At a January 2021 three-month follow-up general exam, Plaintiff seemed

to be “doing well,” and incontinence was not mentioned. Id. at 1808. In

February 2021, she reported she increased her activity levels including playing

tennis and ballroom dancing, Id. at 1673. She had her second Botox injection

on May 5, 2021. Id. at 1756-59. On May 21, 2021, her treatment provider

discussed that each injection “may vary” but she should see “improvement over

the next few weeks.” Id. at 1754. A July 2021 six-month follow-up did not

mention incontinence and Plaintiff reported she “feels good.” Id. at 1813. In

September 2021, she reported playing tennis, pickleball, swimming, walking,

and practicing ballroom dancing. Id. at 1657; see also id. at 1658 (August 2,

2021, reported playing tennis). By December 27, 2021, she reported only one

leakage incident since her last injection. Id. at 1744. A September 9, 2022

follow-up general exam did not mention incontinence issues. Id. at 1818-22.

Plaintiff testified at her December 9, 2022 hearing that she was still

having frequency issues, needing to use the restroom at least once every two

hours. AR 1401-02. When she has an urge she needs immediate restroom

access, and sometimes she has leakage even without an urge. Id. at 1402. She

also testified she traveled to France for a few weeks in June, she visited her

sister in Colorado for a few days, and likely took a weekend trip or two in

Oklahoma with her husband. Id. at 1396-1400.

The vocational expert testified that with frequent unscheduled breaks

outside of normally allotted breaks, competitive employment would not be

available. Id. at 1410.

Plaintiff argues that she cannot be penalized for attempting to maintain

normalcy in her life. Doc, 10, at 8-9. She assails the ALJ’s lack of following up

to determine the level of activity in her travel. Id. at 10. And she maintains

that the activities the ALJ listed did not rely on a full and fair record because

the ALJ did not follow up to determine how or if these activities were physically

demanding. Doc. 15, at 4-5. But, if an impairment reasonably can be remedied

or controlled by medication or therapy, it cannot sustain a finding of disability.

20 C.F.R. § 404.1530.

Here the ALJ noted multiple medical records indicating that Plaintiff’s

treatments and therapies reduced her urinary urgency or incontinence and

leaking accidents. Id. at 1369, 1374 (“her incontinence issues have responded

well to Botox treatment”). He also noted her reported normal bladder function.

Id. at 1369. He concluded that “[t]he general responsiveness [to] treatment

undermines the alleged severity of this impairment.” Id.

The ALJ also pointed to Plaintiff’s reported activities, which included

pickleball, tennis, ballroom dancing, swimming, and international and

domestic travel. Id. at 1370.4 The ALJ looked to the consultative medical

examiner’s opinion, which he found persuasive as to the lack of manipulative

limitations. Id. at 1375. The ALJ found that opinion’s absence of exertional and

postural limitations inconsistent with the evidence. Id. And the ALJ found the

state agency medical consultants’ opinions persuasive in determining the RFC

assessment. Id.

Apart from her testimony, Plaintiff has not pointed to record evidence

showing that her incontinence prevented her from working. And the ALJ

discounted Plaintiff’s consistency, AR 1373. The ALJ addressed the subjective

symptom evaluation in accordance with the regulations. A claimant’s

allegations alone can never establish that she is disabled. 20 C.F.R. § 404.1529.

An ALJ can discount a Plaintiff’s subjective complaints when they are

unsupported by the record and Plaintiff need not be without symptoms for an

ALJ to find her not disabled. “Credibility determinations are peculiarly the

province of the finder of fact, and we will not upset such determinations when

supported by substantial evidence.” Wilson v. Astrue, 602 F.3d 1136, 1144

(10th Cir. 2010) (quoting Diaz v. Sec’y of Health & Human Servs., 898 F.2d

774, 777 (10th Cir. 1990)); see also Brown v. Bowen, 801 F.2d 361, 362-63 (10th

4 Plaintiff suffered a fractured fibula after an early 2020 fall while

horseback riding and the Court recognizes Plaintiff is no longer horseback

riding.

Cir. 1986) (“[D]isability requires more than mere inability to work without

pain. To be disabling, pain must be so severe, by itself or in conjunction with

other impairments, as to preclude any substantial gainful employment.”

(quoting Dumas v. Schweiker, 712 F.2d 1545, 1552 (2d Cir. 1983))).

Even where there is conflicting evidence that might have resulted in a

contrary decision, this Court’s review is limited to whether substantial

evidence supports the ALJ’s decision. The ALJ notes that Plaintiff’s healthcare

providers recommended activity as tolerated and that they have not

recommended restrictions. AR 1372. The Court finds the ALJ’s RFC

determination is supported by substantial evidence and the ALJ did not err by

omitting limitations because of urinary urgency or incontinence in his RFC

determination. Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (“[Substantial

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

mind might accept as adequate to support a conclusion.”). Based on the

evidence before the ALJ, the ALJ cited substantial evidence to support the RFC

determination.

III. Conclusion.

For the above reasons, the Court affirms the Commissioner’s final

decision.

ENTERED this 30th day of April, 2024.

hizo Ler > |

SUZANNE MITCHELL

UNITED STATES MAGISTRATE JUDGE

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