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Eric H. v. Berryhill

United States District Court, D. Utah, Central Division

August 3, 2018

ERIC H, Plaintiff,
NANCY A. BERRYHILL, acting Commissioner of the Social Security Administration, Defendant.

          Robert Shelby District Judge.


          Brooke C. Wells United States Magistrate Judge.

         This matter is referred to the undersigned in accordance with 28 U.S.C. 636(b)(1)(b) for a Report and Recommendation on all dispositive matters.[1] Plaintiff, Eric H, [2] seeks judicial review[3] of the Commissioner's decision denying his application for supplemental security income (SSI) under Title XVI[4] of the Social Security Act.[5] After careful consideration of the record, relevant law, and the parties' memoranda, the court has determined oral argument is unnecessary and decides this case based upon the record before it. For the reasons set forth below, the undersigned recommends the decision of the Commissioner be AFFIRMED.


         Mr. H applied for SSI in March 2014 alleging disability due to blindness and deafness on his life side, back pain, anxiety disorder, and post-traumatic stress disorder (PTSD).[7] The record indicates Plaintiff initially alleged his inability to work began on July 1, 1983, but that date was amended to March 25, 2014.[8] Plaintiff has applied for and been denied benefits on three prior occasions, including most recently being denied on March 13, 2014.[9]

         Mr. H appeared before an Administrative Law Judge (ALJ) regarding the instant claim for SSI on August 12, 2015. Plaintiff suffered a gunshot wound in 1983 when he was 19 years old and that allegedly led to the blindness and deafness on his left side. After hearing all the evidence, the ALJ issued a decision following the familiar five-step sequential evaluation process used to assess social security claims.[10] The ALJ found Mr. H had the severe impairments of degenerative disc and joint disease of the lumbar spine, no usable vision in the left eye, no usable hearing in the left ear, personality disorders and borderline intellectual functioning.[11] None of these severe impairments were found to meet or equal a listing. The ALJ determined Claimant could perform medium work with numerous limitations including inter alia, he could never climb ladders, ropes or scaffolds, he could perform no work requiring fine depth perception or full field of vision to the left, Claimant would be limited to decisions in simple, routine work and rare contact with the public.[12] Thereafter, based upon the vocational expert testimony, the ALJ found Claimant capable of performing other jobs in the national economy that exist in significant numbers.[13] Representative jobs include medical assembler plastic, small parts assembler and solderer.[14] Thus he was found not disabled.


         Because the Appeals Council denied the claimant's requested review the ALJ's decision is considered the Commissioner's final decision for purposes of this appeal.[15] The court reviews the ALJ's decision to determine whether the correct legal standards were applied and whether the factual findings are supported by substantial evidence in the record.[16] “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”[17]“A decision is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting it.”[18] In considering claimant's appeal the court may “neither reweigh the evidence nor substitute [its] judgment for that of the agency.”[19]


         On appeal Plaintiff raises a number of issues alleging error. These include:

I. Does new evidence require remand?
II. Did the ALJ fail to consider all impairments, Listings and Equivalence?
III. Is the hypothetical in the Administrative Law Judge Decision the same as the hypothetical presented at the hearing?
IV. Is the RFC based upon any citation to the record, and does it omit admitted limitations?
V. Did the ALJ fail to comply with SSR 00-4p by asking the VE if his testimony was consistent with the DOT?
VI. Was the VE testimony in error?
VII. Did the ALJ fail to comply with 20 CFR 416.927 by failing to accord adequate weight to the opinion of the plaintiff's treating physician or properly evaluate other medical opinions?
VIII. Did the ALJ improperly dismiss the third party report of the plaintiff's wife?[20]

         The court already rejected Plaintiff's motion to supplement the record with new evidence regarding PTSD.[21] As noted by the court previously in its order, the ALJ did consider PTSD multiple times in his decision including Dr. Malm's impression of PTSD, [22] Dr. Eastvold noting Plaintiff's “level of anger and PTSD”[23] and Dr. James' opinion that the psychological evaluation revealed PTSD.[24] Accordingly, the court need not readdress Claimant's argument that new evidence requires a remand.

         A. Mr. H's Credibility

         Before turning to Plaintiff's arguments the court notes the importance of Plaintiff's credibility in this case. “Credibility determinations are peculiarly the province of the finder of fact, and we will not upset such determinations when supported by substantial evidence. However, findings as to credibility should be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings.”[25]

         Here, the ALJ thoroughly discussed Mr. H's inconsistent stories, along with evidence in the record of normal test results[26] and improvement when taking certain medication such as Lithium.[27] For example, Plaintiff stated he needed hip replacement surgery, but x-rays of his hips did not support that claim.[28] Mr. H complained of serious back issues yet medical providers noted his physical fitness.[29] On another occasion, Plaintiff reported not using drugs in 30 years, but the record clearly reflected otherwise. There are also inconsistencies in the number of children Plaintiff reported having from three to fifteen[30] and in the circumstances surrounding his legal problems.[31] Finally, Mr. H stated to one medical provider, Dr. Liz McGill, “I've got multiple medical and it's time for me to get some money I've been locked up most of my life and I deserve to be paid.”[32] These inconsistencies support the finding of malingering in the record.[33]

         Based on the record, the undersigned finds that substantial evidence supports the ALJ's credibility determination of Claimant.[34] The credibility determination also lends support to the Commissioner's ultimate decision to deny benefits.

         B. The ALJ sufficiently considered Mr. H's impairments, listings and equivalence.

         Plaintiff argues the ALJ failed to consider all his impairments, the listings and equivalence. Plaintiff further argues the ALJ failed to include the PTSD symptoms and impairments. Mr. H points to the opinions of Dr. Malm concerning affective disorder, Dr. Grange's residual functional capacity finding, thoracic disease and failures to consider Listings 12.06 for anxiety related disorders or 12.07 somatoform disorders, as evidence of the ALJ's failures. The court is not persuaded by these arguments.

         First, as noted previously, PTSD was considered by the ALJ. Next, Plaintiff's alleged failures in considering impairments stem from reports that were not only part of his prior disability applications, but are undermined by the ALJ's current analysis. For example, the ALJ extensively discussed Dr. Karen Malm's visit with Plaintiff in November 2013, where Dr. Malm noted a mood disorder, not otherwise specified, an antisocial personality disorder and PTSD.[35] The ALJ also discussed evidence from, inter alia, Dr. Angela Eastvold, [36] Dr. Liz McGill, [37] Dr. Mary James, [38] Dr. Michael Conklin, [39] Dr. Tim Grange[40] and Dr. James Robbins.[41] “In the Tenth Circuit an ALJ need not discuss all the evidence when rendering a decision.”[42] A careful review of the ALJ's decision leads the court to find the ALJ sufficiently considered Plaintiff's impairments. The standard of perfection Plaintiff argues for is unreasonable and not required.[43]

         Third, the ALJ specifically considered listings 1.04, 12.05, 12.07 and 12.08 finding Plaintiff did not meet or medically equal them.[44] Contrary to Plaintiff's assertions, this matter is not the same as Clifton v. Chater, [45] where the ALJ did not “even identify the relevant Listing or Listings” and offered a “summary conclusion.”[46] Rather, the ALJ here specifically discussed certain criteria that were not met in the Listings.[47]

         Finally, in response to the Government's arguments regarding normal test results, Plaintiff asserts the Government is “attempting to engage in a post hoc rationalization to uphold the ALJ decision.”[48] This argument is completely unavailing because the Government is pointing to evidence that supports the ALJ's decision, something which the ALJ also cited to in the decision. That is not post hoc rationalization.

         C. Alleged errors in the hypothetical

         As is often the case, during the hearing the ALJ presented a hypothetical to the vocational expert (VE) to assess whether there were jobs that Claimant could perform in the national economy.[49] The hypothetical at the hearing lacked limitations regarding Plaintiff's vision and hearing. Following the hearing, the ALJ issued an interrogatory to the VE asking about the number of jobs available with the additional limitations of “no usable vision in the left eye” and “no usable hearing in the left ear.”[50] The VE responded that the number of small parts assembler jobs and solder jobs would be reduced by 40%, and the medical assembler jobs reduced by 30%.[51]

         Claimant takes issue with the hypothetical at the hearing arguing it is not the same as in the decision and confuses concepts such as proximity and teamwork.[52] Thus, according to Mr. H, the court “cannot evaluate exactly what the ALJ meant the hypothetical to be.”[53]

         In Hargis v. Sullivan, the Tenth Circuit noted that hypothetical questions should relate a claimant's impairments with precision.[54] Otherwise, the testimony elicited from hypothetical questions “cannot constitute substantial evidence to support the Secretary's decision.”[55] The hypothetical questions need only include those limitations the ALJ finds are established by the record.[56] Although the ALJ's hypotheticals at the hearing were imprecise, read closely and in conjunction with the additional interrogatory sent after the hearing, they describe Claimant's limitations as found in the record with sufficient precision to constitute evidence to support the denial of benefits. If the ALJ had failed to update his hypotheticals with the vision and hearing limitations, then they would have been in error. Taken together, however, they are adequate and the court rejects Claimant's request to remand based on the hypotheticals.

         D. Alleged errors with the RFC

         Claimant takes issue with the ALJ's determination of his residual functional capacity (RFC). RFC is essentially the most an individual can do despite their limitations.[57] And, it is based “on all of the relevant medical and other evidence.”[58]

         Mr. H specifically argues “that the ALJ is required to explain why [certain] limitations are not included.”[59] This is different, according to Claimant, than arguing the ALJ was required to include certain limitations. The limitations at issue include moderate limitations in concentration and persistence. The record does not support these arguments because they are undermined by the ALJ's RFC. The ALJ limited Plaintiff “due to deficits in attention and concentration” and to work that is simple and routine.[60]These limitations account for Claimant's alleged deficiencies in the RFC. Thus, Plaintiff's argument fails.

         Finally, Plaintiff also asserts the RFC is not based on any citation to the record. The court finds this argument disingenuous at best. The ALJ cites to the plentiful medical evidence in the record, Plaintiff's malingering and even a lay opinion as part of the RFC analysis.[61] Such an analysis is consistent with the Code of Federal Regulations.[62]

         E. The issues surrounding the vocational expert

         Occupational evidence provided by a VE should generally be consistent with the occupational information provided in the dictionary of occupational titles. If there is a conflict, then under SSR 00-4p an ALJ is to “elicit a reasonable explanation for the conflict before relying on the VE … evidence to support a determination or decision about whether a claimant is disabled.”[63] Plaintiff argues the ALJ erred by failing to comply with SSR 00-4p. Plaintiff further argues the VE testimony was in error because the VE provided jobs with a reasoning level of two. The court rejects both arguments.

         The ALJ asked the VE about conflicts at the hearing, [64] but did not do so in the follow up interrogatory. The court, however, agrees with the explanation offered in the ALJ's decision, to wit, the ALJ “relies on [the VE's] prior answer indicating that his testimony regarding job numbers and the sit/stand option were based on his experience.”[65] The follow up interrogatory was not given in a vacuum; rather, it added additional limitations and prior limitations were subsumed within it.

         In similar fashion, the court has carefully reviewed the record and finds no merit to Mr. H's contention that his RFC conflicts with the jobs that require a reasoning level of two.

         F. The weight given to ...

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