TENA CAMPBELL, District Judge.
Elva Powell seeks judicial review of the decision of the Commissioner of Social Security denying Ms. Powell's application for supplemental security income (SSI) under Title XVI of the Social Security Act. 42 U.S.C. §§ 1381-1383f. After careful review of the record and for the reasons discussed below, the court finds that the Commissioner's decision is supported by substantial evidence and is therefore AFFIRMED.
On June 29, 2011, Ms. Powell filed an application for SSI benefits. Ms. Powell's application was denied initially and on reconsideration. Ms. Powell requested a hearing, and a video hearing was held June 3, 2013, before Administrative Law Judge Deborah J. Van Vleck. In a decision dated June 14, 2013, Judge Van Vleck concluded that Ms. Powell was not disabled. After the Appeals Council denied review,
Ms. Powell was fifty-nine years old at the time of Judge Van Vleck's decision in this case. Ms. Powell completed high school and attended beauty school, although she does not have an active cosmetology license. (R. at 65-66.)
In her SSI application, Ms. Powell indicated that she had been disabled since January 1, 2006, due to depression, "possible COPD," joint and muscle pain, and insomnia. (R. at 238.) Ms. Powell later added the following conditions: sleep apnea, overactive bladder, acid reflux, heel spurs, knee pain, and back pain. (R. at 272.) In addition, Ms. Powell testified at her hearing about additional problems with bunions, hammer toe, and calf spasms. (R. at 72-75.)
From 2011 through 2013, Ms. Powell saw numerous medical providers for her knee and back pain, which are the relevant medically severe impairments identified by Judge Van Vleck.
Ms. Powell first reported knee pain on February 23, 2011, at an appointment with Dr. Susan Cochella at Sugarhouse Family Practice.
After filing her SSI application, Ms. Powell saw the state's consultative examiner, Dr. Richard Ingebretsen, on September 29, 2011. Dr. Ingebretsen observed that Ms. Powell walked normally, sat down easily, moved freely, and leaned over easily while seated. (R. at 361.) Ms. Powell explained that she had chronic lower back pain, which seemed to worsen with moving, lifting, and bending. (
X-rays of Ms. Powell's knees showed "some irregularity of the articular surface of the patella" in Ms. Powell's right knee, but her knees were otherwise normal. (R. at 374.) The impression for Ms. Powell's lumbar spine was "[m]ild levoscoliosis" with "no findings of acute abnormality." (R. at 375.)
In November 2011, Dr. David Peterson reviewed Ms. Powell's records as part of her SSI application. (R. at 112.) Based on his review, Dr. Peterson concluded, "There does not appear to be a severe physical impairment." (
On January 31, 2012, Ms. Powell met with her primary care physician, Dr. Stoesser, for knee pain. (R. at 481-87.) Dr. Stoesser recommended that Ms. Powell continue to take her previously prescribed medication for the pain. (R. at 485.) In an August 2012 visit with Dr. Stoesser, Ms. Powell complained that she had had knee pain for two months and had fallen approximately twenty times in the previous six months. (R. at 441.) Dr. Stoesser did not see any abnormality and noted full range of motion and full strength. (R. at 442.)
About a month later, Ms. Powell went to an urgent care facility with "bilateral leg swelling and pain." (R. at 433.) The urgent care doctor diagnosed mild edema. (R. at 434.)
In January 2013, Ms. Powell reported that all of her symptoms were "well controlled with medications." (R. at 573.)
Ms. Powell saw Dr. Stoesser again on February 1, 2013, and asked Dr. Stoesser to "fill out [the] paper for SSI." (R. at 586.) At the time, Ms. Powell was washing dishes at Utah Jazz games, working shifts of up to five hours, two to three times per week. (
(
On March 12, 2013, Ms. Powell saw Dr. Stoesser for a thumb injury and said she had no lower extremity pain. (R. at 598.) At this time, Ms. Powell continued to work at Utah Jazz games where she stood for eight hours. (
The court has reviewed the transcript of Ms. Powell's hearing and finds that Judge Van Vleck accurately summarized Ms. Powell's testimony in her decision. (R. at 42.)
Ms. Powell testified that her symptoms include muscle spasms in her calves, foot pain, frequent falling, knee pain that increased with prolonged standing or walking, and back pain that increased when she sweeps or does dishes. (R. at 42.) As a result of these symptoms, Ms. Powell testified that she can only walk a couple of blocks, stand for twenty minutes at a time, sit for five to ten minutes at a time, and lift ten pounds. (R. at 77-79.) Ms. Powell bathes and dresses herself, goes grocery shopping, washes dishes, prepares meals, does laundry, changes linens, takes out the garbage if not too heavy, does "[a] little bit" of yard work, and performs other household chores, although she testified that sweeping and mopping hurt her lower back. (R. at 79-82.)
When asked about her dishwashing work at Utah Jazz games and whether she had trouble lifting dishes, she replied, "Not too bad, it would hurt me bending down in the dish pan and it did bother me lifting them, you know, because there's thousands of them —." (R. at 88.) Ms. Powell confirmed that she had worked two or three nights each week, working five- or six-hour shifts. (R. at 89, 91.) Ms. Powell experienced back pain during her shift, which started about thirty minutes into her shift. (R. at 92.)
After Ms. Powell's testimony, Judge Van Vleck questioned the vocational expert, Kourtney Layton. Judge Van Vleck asked Ms. Layton the following question:
(R. at 100-01.) Ms. Taylor responded that a hypothetical person as described by Judge Van Vleck could be a kitchen helper, team assembler, or dietary aide. (R. at 101.) And there are thousands of positions available in the national economy for each of these jobs. (
Judge Van Vleck issued a written decision on June 14, 2013, concluding that Ms. Powell was not disabled. (R. at 32-52.)
On August 7, 2013, the WorkAbility Centers completed a Functional Capacity Evaluation (FCE) for Ms. Powell. (R. at 8-30.) The FCE indicates that Ms. Powell could perform work at the sedentary level. (R. at 16-17.) Ms. Powell, through her attorney, submitted the FCE to the Appeals Council as additional evidence for its review. (R. at 6.) On October 11, 2013, the Appeals Council made the FCE part of the record but denied review because it "found no reason under [its] rules to review the Administrative Law Judge's decision." (R. at 1, 5.)
The court "review[s] the Commissioner's decision to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied."
A person seeking Social Security benefits bears the burden of proving a disability.
Once the claimant demonstrates a disability, the burden shifts to the Commissioner "to show that the claimant retains the residual functional capacity (RFC) to do other work that exists in the national economy."
At step one of the sequential analysis, Judge Van Vleck found that Ms. Powell had not engaged in substantial gainful activity since she filed her application on June 29, 2011. Although Ms. Powell worked as a part-time dishwasher in late 2012 and early 2013, "this work activity did not rise to the level of substantial gainful activity." (R. at 37.)
Judge Van Vleck identified the following severe impairments at step two: "(1) Mild degenerative changes of the bilateral knees; (2) Mild degenerative changes of the spine; and (3) A mental impairment variously diagnosed to include situational depressed moods, borderline intellectual functioning, alcohol dependence." (
At step three, Judge Van Vleck analyzed each of Ms. Powell's medically severe impairments and concluded that Ms. Powell's impairments do not meet the listing requirements in the relevant regulations. (R. at 39-41.)
Proceeding to step four, Judge Van Vleck found that Ms. Powell had the residual functional capacity to perform medium work but with the following restrictions:
(R. at 41.)
Considering this RFC, along with Ms. Powell's age, education, and work experience, Judge Van Vleck analyzed whether Ms. Powell could perform jobs that exist in the national economy.
While Ms. Powell does not contest Judge Van Vleck's findings at steps one through three, Ms. Powell challenges three aspects of Judge Van Vleck's decision at steps four and five. At step four, Ms. Powell argues that Judge Van Vleck erred in two ways in determining Ms. Powell's RFC: (1) by failing to perform a function-by-function analysis that specifically addressed Ms. Powell's lifting ability, and (2) by giving "little weight" to the SSI form completed by Dr. Stoesser. (R. at 44.) In response to Judge Van Vleck's conclusions at step five, Ms. Powell contends that Judge Van Vleck presented incomplete hypotheticals to the vocational expert.
Ms. Powell also maintains that the Appeals Council should have reversed Judge Van Vleck's decision based on the above errors and based on the additional evidence from the FCE performed on August 7, 2013.
A claimant's residual functional capacity is defined as the most he or she can do despite limitations. 20 C.F.R. § 416.945(a)(1). In determining a claimant's RFC, "an ALJ is permitted, and indeed required, to rely on all of the record evidence, including but not limited to medical opinions in the file."
Ms. Powell first asserts that Judge Van Vleck failed to perform a function-by-function analysis in determining Ms. Powell's residual functional capacity. In particular, Ms. Powell argues that Judge Van Vleck did not discuss Ms. Powell's ability to meet the lifting requirements for medium work, which "involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds." 20 C.F.R. § 416.967(c). The Commissioner counters that Judge Van Vleck considered all of Ms. Powell's conditions and determined that Ms. Powell could perform medium work with additional limitations.
Ms. Powell relies on Social Security Ruling (SSR) 96-8p, 1996 WL 374184 (1996), which reads:
The Tenth Circuit recently applied SSR 96-8p and concluded that the claimant had not demonstrated error even though the ALJ failed to explicitly find that the claimant could meet the sitting requirements for sedentary work.
The court disagreed, reasoning that the ALJ considered the claimant's evidence but decided that the evidence did not support the claimant's alleged limitation.
As in
First, Judge Van Vleck reasonably found that "[t]he medical record does not support [Ms. Powell's] allegations of severe functional limitations." (R. at 42.) As Judge Van Vleck noted, Ms. Powell's September 2011 x-rays showed mild levoscolios and a mildly abnormal right knee image, but the radiology studies were otherwise normal. (R. at 374-75.) Judge Van Vleck further considered medical records reflecting Ms. Powell's complaints of minor back, hip, and knee pain. (R. at 42.) But Judge Van Vleck relied on other records from the time of Ms. Powell's first visit for knee pain, in which her medical providers consistently reported that physical examinations showed that Ms. Powell had a normal gait, normal range of motion, and full strength. (R. at 335-36, 382, 442, 588.) Consultative examiner Dr. Ingebretsen similarly observed that Ms. Powell walked normally, had full strength, and had full range of motion with only minor knee and back pain. (R. at 362-64.)
To counter these records, Ms. Powell relies on the SSI form completed by her primary care physician, Dr. Stoesser, in which Dr. Stoesser marked the box indicating that Ms. Powell could lift no more than ten pounds. But during this same visit, Dr. Stoesser performed a physical examination which demonstrated Ms. Powell's normal gait, normal range of motion, and full strength. (R. at 588.) While Ms. Powell testified that she could lift no more than ten pounds, there is no objective evidence in the record that supports such a lifting restriction.
In addition, Judge Van Vleck appropriately considered Ms. Powell's daily activities in judging Ms. Powell's credibility.
After providing a thorough summary of Ms. Powell's daily activities and the objective medical evidence, Judge Van Vleck reasonably concluded that Ms. Powell had the residual functional capacity to perform medium work but with restrictions related to climbing, balancing, stooping, kneeling, crouching, and crawling. (R. at 41.) Judge Van Vleck also stated that Ms. Powell should be limited to simple, routine, and repetitive work, where she would have limited contact with the general public. (
And Judge Van Vleck followed the necessary steps to reach her RFC decision. She provided "a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations)." SSR 96-8p, 1996 WL 374184, at *7;
For these reasons, the court finds that Judge Van Vleck's RFC determination fully complies with SSR 96-8p and is supported by substantial evidence.
Ms. Powell also challenges Judge Van Vleck's decision to discount the SSI form signed by Ms. Powell's treating physician, Dr. Stoesser. In deciding how much weight to give the opinions of various providers, "[a]n ALJ is required to give controlling weight to a treating physician's well-supported opinion, so long as it is not inconsistent with other substantial evidence in the record."
An ALJ is not required to "apply expressly each of the six relevant factors in deciding what weight to give a medical opinion."
Here, Judge Van Vleck determined that Dr. Stoesser's opinion, as provided in the SSI form she completed on February 1, 2013, was entitled to "little weight." (R. at 44.) Although Judge Van Vleck did not explicitly address each of the above factors, she provided two good reasons for her decision.
First, the SSI form was inconsistent with Dr. Stoesser's own clinical findings. When Dr. Stoesser completed Ms. Powell's SSI form, she marked certain boxes indicating that Ms. Powell should lift no more than ten pounds, stand no more than two hours, and sit no more than six hours. (R. at 619.) But after a physical examination performed during the same visit, Dr. Stoesser observed that Ms. Powell had a normal gait, normal range of motion, and full strength in both her upper and lower extremities. (R. at 588.) Even though the SSI form was completed by Dr. Stoesser as Ms. Powell's treating physician, Dr. Stoesser did not explain the discrepancy between her choices on the form and her contemporaneous findings. This inconsistency was sufficient reason to reject Dr. Stoesser's opinions.
Moreover, the form conflicted with Dr. Stoesser's previous examinations of Ms. Powell, which consistently showed that Ms. Powell had full strength, and any pain she had was controlled with prescribed medications. (R. at 442, 485, 573.) With no resolution of the inconsistencies between Dr. Stoesser's exam notes and the SSI form, Judge Van Vleck appropriately found that Dr. Stoesser's opinion was not well supported.
Judge Van Vleck also declined to defer to the SSI form because "Dr. Stoesser filled in the limitations based on [Ms. Powell's] subjective responses to the questionnaire." (R. at 44.) As explained above, Judge Van Vleck concluded that Ms. Powell did not provide credible statements about her alleged limitations. Because the SSI form merely restated Ms. Powell's subjective statements about her functional abilities, and because Ms. Powell's statements were "belied by her reported daily activities, her post onset work and the objective findings in Dr. Stoesser's treatment records" (R. at 44), Judge Van Vleck reasonably discounted Dr. Stoesser's opinions.
Ms. Powell's final challenge at step five relates to Judge Van Vleck's questioning of the vocational expert, Kourtney Layton. Ms. Powell contends that Judge Van Vleck erred because her hypothetical questions were premised on a person limited to medium work. But the court has already concluded that Judge Van Vleck appropriately assessed Ms. Powell's RFC, which limited Ms. Powell to restricted medium work. Judge Van Vleck asked about a hypothetical person limited to medium work and then explained the significant restrictions that related to Ms. Powell's specific conditions. Judge Van Vleck also asked the vocational expert to consider Ms. Powell's age, education, and lack of work experience. (R. at 100-01.) After reviewing the totality of the record, including the transcript of Ms. Powell's hearing, the court finds that Judge Van Vleck did not err in her questioning of the vocational expert. Judge Van Vleck covered all of the necessary areas of inquiry and provided a complete picture of Ms. Powell's demonstrable limitations.
Finally, Ms. Powell argues that she submitted additional evidence to the appeals council that demonstrates her disability. "[A]ny new evidence submitted to the Appeals Council on review `becomes part of the administrative record to be considered when evaluating the Secretary's decision for substantial evidence.'"
Judge Van Vleck issued her written decision on June 14, 2013. On August 7, 2013, Ms. Powell went to the WorkAbility Centers and obtained a Functional Capacity Evaluation (FCE). Although Ms. Powell submitted the FCE as additional evidence for the Appeals Council to consider, an evaluation performed nearly two months later cannot provide evidence that "relates to the period on or before the date of the administrative law judge hearing decision." 20 C.F.R. § 404.970(b). As such, the FCE plays no role in this court's review.
For the reasons stated above, the court finds that the Commissioner's decision in this case is supported by substantial evidence and is therefore AFFIRMED.