FRANK H. McCARTHY, Magistrate Judge.
Plaintiff, WILLIE EARL C., seeks judicial review of a decision of the Commissioner of the Social Security Administration denying Social Security disability benefits.
The role of the court in reviewing the decision of the Commissioner under 42 U.S.C. § 405(g) is limited to a determination of whether the decision is supported by substantial evidence and whether the decision contains a sufficient basis to determine that the Commissioner has applied the correct legal standards. See Briggs ex rel. Briggs v. Massanari, 248 F.3d 1235, 1237 (10th Cir. 2001); Winfrey v. Chater, 92 F.3d 1017 (10th Cir. 1996); Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994). Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L. Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The court may neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Casias v. Secretary of Health & Human Servs., 993 F.2d 799, 800 (10th Cir. 1991). Even if the court would have reached a different conclusion, if supported by substantial evidence, the Commissioner's decision stands. Hamilton v. Secretary of Health & Human Servs., 961 F.2d 1495 (10th Cir. 1992).
Plaintiff was 43 years old on the alleged date of onset of disability and 47 years old on the date of the denial decision. He has a high school education and past relevant work includes an electrician. [R. 21]. Plaintiff claims to have been unable to work since December 20, 2013 due to nerve damage in each arm; big knot on left wrist; screws, steel, and metal in neck and back; high blood pressure, high cholesterol; severe pain; six spurs in back; back fusion six times; degenerative disc disease; and unable to turn neck from side to side. [R. 178].
The ALJ determined that Plaintiff has the following severe impairments: cervical and lumbar degenerative disc disease; obesity, carpal tunnel syndrome, and paroxysmal supraventricular tachycardia. [R. 19]. The ALJ determined that the Plaintiff has the residual functional capacity to perform sedentary work in that Plaintiff is able to lift, carry, push or pull up to 5 pounds frequently and 10 pounds occasionally. He is able to sit for up to 6 hours in an 8-hour workday; able to stand and/or walk up to 2 hours in an 8-hour workday. Plaintiff should have the option to stand for 10 minutes after 30 minutes of sitting without leaving the workstation. The job should not require standing or walking for more than 20 minutes consecutively. Plaintiff should have the option to use a cane to ambulate. Plaintiff is able to occasionally climb ramps or stairs, and occasionally stoop. Plaintiff should never climb ladders, ropes, or scaffolds, and he should not kneel, crouch, or crawl. Plaintiff is able to frequently reach, handle, or finger. The job should provide regular breaks every 2 hours. [R. 20]. The ALJ determined that Plaintiff was unable to perform his past relevant work, however, based on the testimony of the vocational expert, there are a significant number of jobs in the national economy that Plaintiff could perform. [R. 26-27]. Accordingly, the ALJ found Plaintiff was not disabled. The case was thus decided at step five of the five-step evaluative sequence for determining whether a claimant is disabled. See Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (discussing five steps in detail).
Plaintiff asserts that the ALJ: 1) failed to properly develop the record; 2) the RFC assessment is erroneous; 3) credibility findings are not supported by substantial evidence; 4) erred in failing to develop vocational expert witness testimony; and 5) the decision in this case was rendered by an Administrative Law Judge whose appointment was invalid at the time she rendered her decision. [Dkt. 12, p. 3].
Plaintiff contends that the ALJ erred in failing to incorporate and consider the extensive evidence from the Plaintiff's first two Applications. [Dkt. 12, p. 4]. The ALJ specifically addressed the evidence in the case at the hearing:
Plaintiff's allegations that the ALJ failed to properly develop the record is denied.
Plaintiff argues that the ALJ's RFC assessment is erroneous because it was based on a record that was not fully and fairly developed, thus not based on substantial evidence. Further, the RFC assessment appears to be "boilerplate" statements. [Dkt. 12, p. 6]. Plaintiff contends that the ALJ's finding that he can frequently reach, handle, or finger is in error because objective medical tests show he has carpal tunnel syndrome and radiculopathy. [Dkt. 12, p. 7; R. 283-285]. The determination of RFC is an administrative assessment, based upon all of the evidence of how the claimant's impairments and related symptoms affect his ability to perform work related activities. See Social Security Ruling (SSR) 96-5p, 1996 WL 374183, at *2, *5. The final responsibility for determining RFC rests with the Commissioner, and because the assessment is made based upon all of the evidence in the record, not only the relevant medical evidence, it is well within the province of the ALJ. See 20 C.F.R. §§ 404.1527(e)(2); 404.1546; 404.1545; 416.946.
Contrary to Plaintiff's argument, the court has denied Plaintiff's allegation that the ALJ failed to properly develop the record. Further, the ALJ accurately discussed the medical record noting the EMG testing showed only mild carpal tunnel syndrome in right arm and mild radiculopathy in his left arm, both without motor axonal loss. [R. 25, 283]. Examinations revealed Plaintiff had full 5/5 muscle strength, including full strength in hand and arms. [R. 25-26, 273, 177-79, 331]. Plaintiff testified he could lift 5 pounds but indicated in his Functional Report that he was restricted to 25 pounds. [R. 21, 26; 198]. The ALJ determined Plaintiff was capable of performing reduced sedentary work. The RFC limitation to frequent reaching, handling, or fingering reasonably addressed Plaintiff's alleged limitations in the use of his hands and arms. [R. 20, 25, 273, 277-79, 283, 331].
The ALJ properly focused on the functional consequences of Plaintiff's condition and accurately described the doctors' findings. See e.g. Coleman v. Chater, 58 F.3d 577, 579 (10th Cir. 1995)(the mere presence of alcoholism is not necessarily disabling, the impairment must render the claimant unable to engage in any substantial gainful employment), Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988)(the mere diagnosis of arthritis says nothing about the severity of the condition), Madrid v. Astrue, 243 Fed.Appx. 387, 392 (10th Cir. 2007)(diagnosis of a condition does not establish disability, the question is whether an impairment significantly limits the ability to work), Scull v. Apfel, 221 F.3d 1352 (10th Cir. 2000)(unpublished), 2000 WL 1028250* (disability determinations turn on the functional consequences, not the causes of a claimant's condition). Moreover, DDS physicians, David Coffman, M.D. and David McCarty, M.D., both opined Plaintiff could perform light work. [R. 26, 65-66, 75-76]. Thus, the ALJ gave Plaintiff the benefit of the doubt by issuing a more favorable RFC assessment than was suggested by these physicians.
Further, the court disagrees with Plaintiff that the ALJ's findings were `boilerplate'. The ALJ noted Plaintiff's testimony, accurately discussed the medical and other evidence, and explained her finding that Plaintiff was not as limited as he claimed. The ALJ gave valid reasons for her findings and they were adequately linked to substantial evidence contained within the record. [R. 21-26]. Accordingly, the court sees no error in the ALJ's residual functional capacity determination.
Plaintiff argues the ALJ's decision does not contain a sufficient credibility analysis because the ALJ failed to consider all the factors that the regulations require her to consider. Plaintiff contends the ALJ did not properly link her credibility findings to the evidence of the case and failed to consider the following pain credibility requirements: location, duration, frequency, and intensity of Plaintiff's pain or other symptoms; factors that precipitate and aggravate the symptoms; the type, dosage, effectiveness, and side effects of any medication Plaintiff takes or has taken to alleviate pain or other symptoms; treatment, other than medication, Plaintiff receives or has received for relief of pain or other symptoms (sleeping in recliner) and any other factors concerning Plaintiff's functional limitations and restrictions due to pain or other symptoms. The ALJ also failed to consider Plaintiff's strong work history. [Dkt. 12, p. 7-11].
Although the Social Security Administration has eliminated the use of the term "credibility" from the agency's sub-regulatory policy, the agency continues to evaluate a disability claimant's symptoms using a two-step process: First, we must consider whether there is an underlying medically determinable physical or mental impairment(s) that could reasonably be expected to produce an individual's symptoms, such as pain. Second, once an underlying physical or mental impairment(s) that could reasonably be expected to produce an individual's symptoms is established, we evaluate the intensity and persistence of those symptoms to determine the extent to which the symptoms limit an individual's ability to perform work-related activities . . . . Soc. Sec. Ruling (SSR) 16-3p; Titles II & XVI: Evaluation of Symptoms in Disability Claims, 2016 WL 1119029 at 2 (Mar. 16, 2016) (superseding SSR 96-7p; Policy Interpretation Ruling Titles II and XVI: Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual's Statements, 1996 WL 374186 (July 2, 1996)). The two-step process substantially restates the prior two-step process set forth in SSR 96-7, which was characterized by the Tenth Circuit as a three-step process set forth in Luna v. Bowen, 834 F.2d 161, 163-64 (10th Cir. 1987), the seminal case regarding credibility followed in the Tenth Circuit. See, e.g., Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166-67 (10th Cir. 2012).
At step one of the process, "[a]n individual's symptoms, . . . will not be found to affect the ability to perform work-related activities for an adult . . . unless medical signs or laboratory findings show a medically determinable impairment is present." Id. at 3. At step two, the ALJ may consider, among other things, a number of factors in assessing a claimant's credibility, including the levels of medication and their effectiveness, the extensiveness of the attempts . . . 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, . . . and the consistency or compatibility of nonmedical testimony with objective medical evidence. Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (internal quotation marks and citations omitted); see 20 C.F.R. §§ 404.1529(c)(3) and 416.929(c)(3). The court is not to disturb an ALJ's credibility findings if they are supported by substantial evidence because "[c]redibility determinations are peculiarly the province of the finder of fact." Cowan v. Astrue, 552 F.3d 1182, 1190 (10th Cir. 2008) (quoting Kepler, 68 F.3d at 391). However, credibility findings "should be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings." Id. (citations omitted).
The ALJ cited numerous grounds, tied to the evidence, for the credibility finding including Plaintiff reported concentration problems due to pain. However, prior to Plaintiff's date last insured, he rated his pain as 2/10 and well controlled. Treatment records reflect Plaintiff was alert and demonstrated appropriate judgment, insight, train of thought, and memory for the situation at all of his appointments, even when he rated his pain as 7/10. Plaintiff consistently was alert, oriented times three, and followed three-step commands. [R. 26]. Plaintiff alleged he was unable to drive because he could not turn his head, however, his Spurling test was negative, and the EMG showed only mild carpal tunnel syndrome in right arm and mild radiculopathy in his left arm, both without motor axonal loss. [R. 25, 283]. Further, Plaintiff's activities of daily living included performing chores, reading, driving, shopping, and handling his own finances. [R. 25-26-200-02]. The ALJ found Plaintiff's subjective statements about intensity, persistence, and limiting effects of his symptoms were not entirely consistent with medical and other evidence. [R. 26]. The ALJ thus properly linked her credibility finding to the record. Therefore, the court finds no reason to deviate from the general rule to accord deference to the ALJ's credibility determination.
Plaintiff argues that the ALJ's hypothetical question presented to the vocational expert did not reflect Plaintiff's "true physical residual functional capacity," particularly his widespread pain, fatigue, and the carpal tunnel syndrome that impairs his ability to finger, feel, and handle. [Dkt. 12, 11-12]. Hypothetical questions should be crafted carefully to reflect a claimant's RFC, as "[t]estimony elicited by hypothetical questions that do not relate with precision all of a claimant's impairments cannot constitute substantial evidence to support the [Commissioner's] decision." Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir.1991) (quotation omitted); see also Evans v. Chater, 55 F.3d 530, 532 (10th Cir.1995) (noting "the established rule that such inquiries must include all (and only) those impairments borne out by the evidentiary record").
The hypothetical question posed to the vocational expert was not deficient. As this court has decided, the ALJ's RFC assessment was based on the substantial evidence of record. The hypothetical question posed by the ALJ to the vocational expert was appropriately based on the RFC assessment. Thus, this court finds that the ALJ's reliance on the vocational expert's testimony was proper.
Plaintiff argues that the ALJ who decided his case was not appointed in compliance with the Appointments Clause of the Constitution.
The Appointments Clause issue has been raised in a number of recent cases in response to Lucia v. S.E.C., ___ U.S. ___, 138 S.Ct. 2044, 2055, 201 L.Ed.2d 464 (2018) which held that the ALJs in the Securities and Exchange Commission (SEC) were not constitutionally appointed. The courts reviewing Social Security decisions where the Appointments Clause issue has been raised mostly find that the issue was forfeited because it was not raised before the Social Security Administration.
A small number of cases rely on the Court's analysis in Sims v. Apfel, 550 U.S. 103, 105, 120 S.Ct. 2080, 147 L. Ed.2d 80 (2000) and conclude that the Appointments Clause issue was not forfeited.
While Sims does not address issue exhaustion before the ALJ, the reasons cited by the Supreme Court to reject an issue exhaustion requirement before the Appeals Council also apply to the other steps in the Social Security Administration process. The statute still does not require issue exhaustion. In the 19 years since the Sims decision, the Social Security Administration has not enacted any regulation requiring issue exhaustion. The Social Security Administrative process remains non-adversarial and claimants, many of whom are unrepresented, are still not notified of any issue exhaustion requirement. Finally, the undersigned notes that a ruling that Sims does not apply to the other steps in the administrative process would result in an issue exhaustion requirement at some steps of the process and not at subsequent steps.
The court is persuaded that the cases finding that no forfeiture occurs when the claimant fails to raise the Appointments Clause issue before the Social Security Administration are better reasoned in light of the Supreme Court's analysis in Sims.
The court finds that at the time the decision in this case was entered, June 15, 2017, the ALJ who issued the decision under review was not appropriately appointed under the Appointments Clause of the Constitution. The court further finds that Plaintiff did not forfeit the Appointments Clause claim by failing to raise that issue before the Social Security Administration. As a result, the ALJ's decision is REVERSED and the case is REMANDED to the Commissioner for further proceedings before a different constitutionally appointed ALJ.
SO ORDERED.
