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Smith v. Berryhill

United States District Court, N.D. Oklahoma

March 29, 2018

NANCY A. BERRYHILL,[1] Acting Commissioner of the Social Security Administration, Defendant.


          Gerald B. Cohn, United States Magistrate Judge.

         This matter is before the undersigned United States Magistrate Judge for decision. Pamela Renee Smith (“Plaintiff”) seeks judicial review of the Commissioner of the Social Security Administration's decision finding of not disabled. As set forth below, the Court DENIES Plaintiff's appeal and AFFIRMS the Commissioner's decision in this case.

         I. Procedural Background

         On January 8, 2013, Plaintiff filed an application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401-433, 1382-1383 (“Act”), with a last insured date of December 31, 2014, [2] and a disability onset date of May 5, 2012. (Tr. 29). On October 29, 2014, the Administrative Law Judge (“ALJ”) found Plaintiff was not disabled within the meaning of the Act. (Tr. 26-44). Plaintiff sought review of the unfavorable decision, which the Appeals Council denied on April 29, 2016, thereby affirming the decision of the ALJ as the “final decision” of the Commissioner of the Social Security Administration. (Tr. 1-7).

         On July 1, 2016, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g) to appeal a decision of Defendant denying social security benefits. (Doc. 1). On March 17, 2017, Defendant filed an administrative transcript of proceedings. (Doc. 10). On August 21, 2017, Plaintiff filed a brief in support of the appeal. (Doc. 14 (“Pl. Br.”)). On October 19, 2017, Defendant filed a brief in response. (Doc. 16 (“Def. Br.”)). On November 6, 2017, Plaintiff filed a reply. (Doc. 17 (Reply)).

         II. Issues On Appeal

         On appeal, Plaintiff alleges three errors: (1) the Residual Functional Capacity (“RFC”) finding is erroneous; (2) the credibility findings are not supported by substantial evidence; and (3) the ALJ failed to develop vocational testimony based on substantial evidence. (Pl. Br. at 4).

         III. Facts in the Record

         A. Background

         Plaintiff was born in December 1960 and thus is classified by the regulations as an individual closely approaching advanced age through the date of the ALJ decision. (Tr. 35); 20 C.F.R. §§ 404.1563(d), 416.963(d). Plaintiff alleged disability due to: (1) status post-surgery of bilateral shoulders, one wrist, and one knee; (2) bilateral shoulder pain which includes difficulty to lift or hold things; (3) numbness in left wrist; (4) left knee painful to stand long; (5) lower back pain, and; (6) arthritis in neck, chest, shoulders, and arms. Pl. Br. at 1-2. Plaintiff completed the twelfth grade. (Tr. 207). The vocational expert testified that Plaintiff's past relevant work consisted of working as a customer service manager, which was classified as medium work and with an SVP level of 7. (Tr. 86-87).

         B. Medical Opinions

         1. Orthopedic Surgeon: Eugene Feild, M.D.

         Dr. Field treated Plaintiff from March 2009 to October 2010 (Tr. 301-326). Dr. Feild operated on the Plaintiff's right shoulder on December 4, 2009, (Tr. 283-300) and on her left shoulder on March 5, 2010 (Tr. 275-282). On May 6, 2010, Dr. Feild stated that Plaintiff presented with a full range of motion and stated that:

Even though she has had both shoulders operated it is unlikely that she will qualify for any significant disability from a Social Security standpoint. She is anxious to return to her activities and return to work. I therefore have released her with restrictions primarily for avoidance of overhead work but she may return to full under shoulder activity and lifting without weight restrictions. [Plaintiff] is, in my opinion, maximally medically improved.

(Tr. 305). In an attached report Dr. Feild released Plaintiff to modified work as of May 6, 2010, with a permanent restriction of above chest and overhead reaching. (Tr. 306). Dr. Feild opined that continuing treatment or vocational rehabilitation was unnecessary. (Tr. 306).

         2. Workers' Compensation Evaluations: William Gillock, M.D.

         In March 2011, Dr. Gillock examined Plaintiff and noted that the motor function of the shoulders was normal, no crepitance was noted on range of motion (ROM) testing, left hand had normal motor function. (Tr. 437-38). In the March 2011 evaluation, Dr. Gillock assigned a fifteen percent permanent partial impairment rating to the left arm, which converted to a nine permanent partial impairment to the left shoulder. (Tr. 438).

         In an April 2011 examination, Dr. Gillock observed normal sitting posture, standing posture, gait, no assistive devices, no tenderness upon palpation, normal sensor examination of the lower extremities, Straight Leg Raise (“SLR”) produced back pain at thirty degrees of elevation bilaterally, and motor function of the shoulders were normal. (Tr. 445-48). Dr. Gillock concluded that Plaintiff reached maximum medical improvement and had no permanent partial impairment to her neck, shoulders, left arm, hands or low back from her alleged injuries. (Tr. 449).

         In July 2012, Dr. Gillock reviewed diagnostic testing and upon examination observed that motor function in Plaintiff's shoulders were normal, there was no crepitance upon range of motion testing of the shoulders (Tr. 455). Dr. Gillock noted that the range of motion in the right shoulder was less than the left shoulder. (Tr. 455). Plaintiff's right arm flexion was 120 degrees, while left was 150 degrees, right abduction was 120 degrees while left was 140 degrees, right internal and external rotation was 60 degrees and the left was 90 degrees. (Tr. 455). Dr. Gillock concluded Plaintiff had a nineteen percent permanent partial impairment to her right arm, nine percent due to loss of motion and ten percent due to resection arthroplasty of the distal clavicle. (Tr. 456).

         In October 2012, Dr. Gillock again reviewed Plaintiff's medical history and report of symptoms. (Tr. 458-460) Dr. Gillock noted that Plaintiff had a period of temporary total disability from April 13, 2012, to June 7, 2012. (Tr. 461). Upon examination, Dr. Gillock observed that Plaintiff had a normal gait, no ambulatory aids were used, no instability was present in the anterior and posterior drawer testing, sensory and motor testing of the leg was normal, and, flexion was 110 degrees in left knee and 130 degrees in the right knee. (Tr. 461-62). Dr. Gillock opined Plaintiff had a seven percent permanent partial impairment to her left knee, released her without restrictions, and said she did not require vocational rehabilitation. (Tr. 462). Dr. Gillock added, “I find no evidence of injury or impairment to any other body part.” (Tr. 462).

         In April 2013, Dr. Gillock examined Plaintiff and observed that her gait was normal and she did not use any ambulatory aids. (Tr. 384). Regarding range of motion testing, Dr. Gillock noted (1) bilateral shoulder adduction at fifty degrees and internal and external rotation at thirty degrees; (2) bilateral elbows with zero degrees extension, 150 degrees flexion, eighty degrees pronation, and eighty degrees supination, and; (3) bilateral wrists with sixty degrees extension and flexion, twenty degrees radial deviation, and thirty degrees ulnar deviation. (Tr. 385). Dr. Gillock concluded that Plaintiff was not permanently and totally disabled. (Tr. 386).

         3. Workers' Compensation ...

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