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Case 4:12-cv-00506-FHM Document 24 Filed in USDC ND/OK on 09/20/13 Page 1 of 8






Commissioner of the Social Security


) CASE NO. 12-CV-506-FHM


Plaintiff, Alex H. Walker, seeks judicial review of a decision of the Commissioner of

the Social Security Administration denying Social Security disability benefits.1 In

accordance with 28 U.S.C. § 636(c)(1) & (3), the parties have consented to proceed before

a United States Magistrate Judge.

Standard of Review

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

1 Plaintiff Alex H. Walker’s application was denied initially and upon reconsideration. A hearing
before Administrative Law Judge (ALJ) John Volz was held July 29, 2010. By decision dated August
19, 2010, the ALJ entered the findings which are the subject of this appeal. The Appeals Council
granted Plaintiff’s request for review on April 19, 2012. The Appeals Council rendered its decision on
July 13, 2012, finding that Plaintiff had not been under a disability, as defined in the Social Security Act,
at any time from May 27, 2009, through the August 19, 2010 decision date. The decision of the
Appeals Council represents the Commissioner's final decision for purposes of further appeal. 20 C.F.R.
§§ 404.981, 416.1481.


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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 39 years old on the alleged date of onset of disability, 40 years old on

the date of the ALJ’s denial decision, and 42 years old on the date of the Appeals Council’s

decision. He has a high school education and he previously worked as an automobile

mechanic. Plaintiff claims to have been unable to work since June 25, 20092, due to

crushed right ankle, pulmonary embolism, and rheumatoid arthritis in back. [R. 148].

The ALJ’s Decision

The ALJ determined that the Plaintiff has severe impairments relating to status post

pulmonary embolism, status post right ankle fracture repair, rheumatoid arthritis, and

obesity. [R. 21]. The ALJ found that the Plaintiff has the residual functional capacity (RFC)

2 Plaintiff amended his alleged onset date to June 25, 2009, which is the date he filed his
application. [R. 138]. The ALJ’s Decision, the Brief in Support of Defendant’s Administrative Decision,
and the Hearing Transcript incorrectly identify Plaintiff’s application date as May 27, 2009 and June 24,
2009. [R. 53, Dkt. 20, p. 1].


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to perform less than the full range of sedentary exertional work3 as defined in 20 CFR

416.967(a). The ALJ found that Plaintiff could perform simple tasks with routine

supervision, and have normal contact with the public. [R. 27]. The ALJ determined at step

five that there are a significant number of jobs in the national economy that Plaintiff could

perform. [R. 28]. Accordingly, the ALJ found Plaintiff was not disabled. The case was thus

decided at step five of the five-step evaluative sequence for determining a claimant is

disabled. See Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (discussing five

steps in detail). The Appeals Council granted Plaintiff’s request for review of the ALJ’s

decision and issued a decision finding Plaintiff was not under a disability as defined in the

Social Security Act at any time from May 27, 2009 through August 19, 2010. [R. 4-7].

Plaintiff’s Allegations

Plaintiff asserts that the ALJ: 1) failed to properly evaluate the medical source

opinions and other source opinion evidence; 2) failed to perform a proper step five

determination; and 3) failed to perform a proper credibility determination.


Evaluation of Medical and Other Source Opinion Evidence

Plaintiff argues that the ALJ failed to properly evaluate the medical source opinion

evidence, specifically, the opinions of Dr. Lawrence Lieberman, M.D., and physical

therapist Todd Alpers, DPT, OCS, CHT. On June 1, 2010, Plaintiff underwent a functional

3 Pursuant to CFR § 404.1567 sedentary work involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is
defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying
out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary
criteria are met.


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capacity evaluation (FCE) which was performed by Mr. Alpers. Mr. Alpers found that

Plaintiff demonstrated the ability to return to a sedentary occupation within the guidelines

of the functional capabilities for an eight hour day. The capabilities profile indicated that

Plaintiff could not push or pull, climb ladders, kneel or squat, could seldom bend or climb

stairs. Plaintiff could occasionally stand, grip, reach, or perform fine or gross manipulation.

Mr. Alpers further opined that if the guidelines cannot be accommodated then Plaintiff did

not demonstrate the ability to return to gainful employment. [R. 491-505]. The ALJ found:

A DPT is not an “acceptable source” of medical evidence as
outlined in 20 CFR 1513 (sic), but is rather an “other source”.
Although the information he provides may be helpful in learning
more about the claimant’s condition, I am not required to give
significant weight to the opinion. Further, the Administrative
Law Judge notes the claimant was seen by Mr. Alpers one
time, solely for the purpose of this evaluation.

R. 25]. Plaintiff contends that Dr. Lieberman, Plaintiff’s treating physician, adopted Mr.

Alpers’ report thereby making the opinion his own. [Dkt. 17, p. 2; Dkt. 23, p. 1]. Plaintiff

argues that the ALJ failed to analyze Dr. Lieberman’s opinion using the appropriate factors

as required by Goatcher v. U.S. Dep’t of Health & Human Servs., 52 F.3d 288, 290 (10th

Cir. 1995) and 20 CFR § 416.927(d). The ALJ’s decision is not the last word on the

subject of the weight afforded these opinions because, pursuant to Plaintiff’s request, the

Appeals Council granted review of the ALJ’s decision. The Appeals Council issued a

decision wherein it adopted the ALJ’s decisional findings and conclusions. The Appeals

Council also provided additional rationale concerning the opinions of Dr. Lieberman and Mr.



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On June 1, 2010, Mr. Alpers opined that the claimant could
perform sedentary work, but was restricted to occasionally
performing fine and gross manipulation (Exhibit 13F, Page 18).
The Council finds that the assessed manipulative limitations
are inconsistent with the longitudinal record. Specifically, the
record shows that the claimant had 5/5 grip strength and full
range of motion in his hands (Exhibit 6F, Page 5).

The decision also found that Dr. Lieberman opined that the
claimant was limited to sedentary work (Decision, Page 8);
however, Dr. Lieberman never rendered such an opinion
(Exhibit 14R, Page 1). Rather, Dr. Lieberman merely
referenced Mr. Alpers’ opinion and concluded that the claimant
was not able to return to his previous employment. The
Council agrees with this conclusion.

[R. 5]. The Appeals Council thus determined that Dr. Lieberman did not “adopt” the opinion

of Mr. Alpers that Plaintiff was limited to sedentary work, but agreed that Plaintiff was not

able to perform his past relevant work.

The court finds that while there may be room for disagreement over the meaning of

Dr. Lieberman’s opinion, the Appeals Council’s interpretation is not unreasonable. The

court may not displace the agency’s choice between two fairly conflicting views, even

though the court might have justifiably taken a different view had the matter been before

it de novo. The court reviews only the sufficiency of the evidence to support the decision,

not the weight of the evidence. Oldham v. Astrue, 509 F.3d 1254, 1257-58 (10th Cir.


Dr. Lieberman’s opinion that Plaintiff could not return to his past relevant work does

not conflict with the ALJ’s decision and does not warrant further discussion or analysis by

the Commissioner. The opinion of Mr. Alpers, that Plaintiff could perform sedentary work

is also in accord with the Commissioner’s decision. To the extent that Mr. Alpers found

Plaintiff had further manipulative limitations, the Appeals Council adequately explained the


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basis for rejecting that limitation was that those limitations were not consistent with the

longitudinal record, especially Plaintiff’s grip strength and the range of motion in his hands.

[R. 5]. That, together with the ALJ’s observation that the opinion was rendered by a

physical therapist who examined Plaintiff one time, is a sufficient explanation for not

crediting Mr. Alpers’ opinion.

The court finds no merit to Plaintiff’s assertion that the ALJ stated he gave the

opinions of the State Disability Determination Services (DDS) physicians great weight,

when in fact, he did not adopt their opinions. The DDS physicians found Plaintiff could

perform light work, [R. 349, 377], whereas the ALJ found Plaintiff could only perform

sedentary work. The ALJ’s adoption of the DDS opinions would not benefit Plaintiff’s quest

to obtain disability. See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1163 n.2 (10th Cir.

2012)(analysis of opinions inconsistent with ALJ’s decision not necessary where

disregarded opinion is not favorable to claimant). The court finds that the evaluation of

medical source opinions by the Commissioner is appropriate and supported by substantial


Step Five Determination

Plaintiff contends that the hypothetical questions posed by the ALJ to the vocational

expert did not include the manipulative limitations found by physical therapist Todd Alpers,

and adopted by Dr. Lawrence Lieberman. Plaintiff contends that he is unable to perform

the two jobs testified to by the vocational expert – semiconductor assembler and clerical

mailer – as they require frequent reaching, handling, and fingering. [Dkt. 17, p. 6]. There

is no merit to this argument. Rejection of Mr. Alpers’ manipulative limitations is supported

by substantial evidence. In posing a hypothetical question, the ALJ need only set forth


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those physical and mental impairments which are accepted as true by the ALJ. See Kepler

v. Chater, 68 F.3d 387, 392 (10th Cir. 1995) (Talley v. Sullivan, 908 F.2d 585, 588 (10th

Cir. 1990) (ALJ is not bound by the vocational expert's response to a hypothetical question

which includes impairments that are not accepted as true by the ALJ).

Credibility Determination

“Credibility determinations are peculiarly the province of the finder of fact, and [the

court] 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.” Hackett v. Barnhart, 395 F.3d

1168, 1173 (10th Cir. 2005)(citation, brackets, and internal quotation marks omitted). The

ALJ cited numerous grounds, tied to the evidence, for the credibility finding, including:

Plaintiff’s inconsistent statements about his activities; his weak work history before the

alleged onset of disability; and lack of functional restrictions by treating physicians. [R. 26-

27]. The ALJ thus properly linked his credibility finding to the record, therefore, the

undersigned finds no reason to deviate from the general rule to accord deference to the

ALJ’s credibility determination.

Plaintiff also argues that the ALJ erred in his use of stock boilerplate language. The

Tenth Circuit has made it clear that in the absence of a more thorough analysis, the use

of boilerplate language is not sufficient to support an ALJ’s credibility determination. The

Tenth Circuit has made it equally clear that when the ALJ provides specific reasons for his

credibility determination and links the credibility determination to the evidence, the

presence of boilerplate language will not require remand. Cf. Boehm v. Astrue, 2013 WL

541067 at *2 (10th Cir. 2013). Moreover, the Tenth Circuit “precedent ‘does not require a


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formalistic factor-by-factor recitation of the evidence so long as the ALJ sets forth the

specific evidence he relies on in evaluating the claimant’s credibility.’” Poppa v. Astrue, 569

F.3d 1167, 1171 (10th Cir. 2009) (quoting Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir.

2000)) (ellipsis and brackets omitted).

The court is satisfied that the ALJ's credibility findings are closely and affirmatively

linked to substantial evidence. Therefore, the court finds no reason to deviate from the

general rule to accord deference to the ALJ’s credibility determination.


The court finds that the ALJ evaluated the record in accordance with the legal

standards established by the Commissioner and the courts. The court further finds there

is substantial evidence in the record to support the ALJ’s decision. Accordingly, the

decision of the Commissioner finding Plaintiff not disabled is AFFIRMED.

SO ORDERED this 20th day of September, 2013.