REPORT AND RECOMMENDATION
SUZANNE MITCHELL, Magistrate Judge.
Melissa Corum (Plaintiff) brings this action for judicial review of the Social Security Acting Commissioner's final decision that she was not "disabled" under the terms of the Social Security Act. See 42 U.S.C. §§ 405(g), 423(d)(1)(A). United States District Judge David L. Russell referred this matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (b)(3) and Fed. R. Civ. P. 72(b). Doc. 17.
After a careful review of the record (AR),1 the parties' briefs, and the relevant authority, the undersigned recommends the entry of judgment affirming the Commissioner's final decision. See 42 U.S.C. § 405(g).
I. Administrative determination.
A. Disability standard.
The Social Security Act defines "disability" as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). "This twelve-month duration requirement applies to the claimant's inability to engage in any substantial gainful activity, and not just his underlying impairment." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Barnhart v. Walton, 535 U.S. 212, 218-19 (2002)).
B. Burden of proof.
Plaintiff "bears the burden of establishing a disability" and of "ma[king] a prima facie showing that [she] can no longer engage in [her] prior work activity[.]" Turner v. Heckler, 754 F.2d 326, 328 (10th Cir. 1985). If Plaintiff makes that prima facie showing, the burden of proof then shifts to the Commissioner to show that Plaintiff retains the capacity to perform a different type of work and that such a specific type of job exists in the national economy. See id.
C. Relevant findings.
1. Administrative Law Judge (ALJ) findings.
The ALJ assigned to Plaintiff's case applied the standard regulatory analysis to decide whether Plaintiff was disabled during the relevant timeframe. See AR 104-17; see also 20 C.F.R. § 404.1520(a); Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (describing the five-step process). Specifically, the ALJ found Plaintiff:
(1) had not engaged in substantial gainful activity since October 5, 2012, the alleged onset date, through December 31, 2015, her date last insured;
(2) has the following severe impairments: (1) major depressive disorder; (2) generalized anxiety disorder; (3) post-traumatic stress disorder; (4) borderline personality disorder; (5) fibromyalgia; (6) obesity; (7) osteoarthritis of the right shoulder, status post adhesive capsulitis; and (8) Lyme disease;
(3) does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1;
(4) has the residual functional capacity2 to perform sedentary work except that she cannot climb ladders, ropes or scaffolds; can only occasionally crawl and reach overhead with the right upper extremity; can perform only simple, repetitive tasks; can work in proximity to others but not in coordination with coworkers; and should work in a nonpublic setting.
(5) could not perform her past relevant work as automobile detailer, caregiver, child monitor, or nurse aide;
(6) could perform other jobs existing in significant numbers in the national economy such as Final Assembler, Addressing Clerk, or Laminator; and, so,
(7) had not been under a disability, as defined in the Social Security Act, from October 5, 2012, through her date last insured.
AR 18-33.
2. Subsequent procedural history.
On appeal, the Social Security Appeals Council denied Plaintiff's request for review, and the ALJ's November 23, 2016 decision is the final agency decision. AR 1-5; see Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011).
II. Judicial review of the Commissioner's final decision.
A. Review standard.
The court reviews the Commissioner's final decision to determine "whether substantial evidence supports the factual findings and whether the ALJ applied the correct legal standards." Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016). Substantial evidence is "more than a scintilla, but less than a preponderance." Lax, 489 F.3d at 1084. A decision is not based on substantial evidence "if it is overwhelmed by other evidence in the record." Wall, 561 F.3d at 1052 (quoting Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005)). However, the court will "neither reweigh the evidence nor substitute [its] judgment for that of the agency." Newbold v. Colvin, 718 F.3d 1257, 1262 (10th Cir. 2013) (quoting Branum v. Barnhart, 385 F.3d 1268, 1270 (10th Cir. 2004)).
B. Issues for judicial review.
Plaintiff contends the Commissioner's final decision should be reversed and the cause remanded because the ALJ (1) failed to account for Plaintiff's fatigue in the RFC; (2) improperly discounted Plaintiff's credibility; (3) improperly considered Dr. Herd's assessment; and (4) "improperly cherry-picked" the opinion of Dr. Palmer. Doc. 20, at 4-15.
C. Analysis.
1. The ALJ's consideration of fatigue.
Plaintiff challenges the ALJ's assessment of her RFC. According to Plaintiff, the ALJ should have identified fatigue as a "functionally distinct limitation" and should have included additional resulting restrictions in the RFC. Id. at 5. Plaintiff states her fatigue would result in her being "off-task at work" during "random, unscheduled times." Id. Plaintiff states her fatigue is "due in part to her mood disorder" and "due to her Lyme's [sic] disease." Id. As discussed in further detail below, Plaintiff's fatigue was also due in part to the narcotic she was taking for pain. The resulting fatigue was one of the reasons she was advised to wean off the Lortab that had been prescribed. See AR 670.
At step two of the sequential evaluation process, the ALJ found Plaintiff has several severe mental disorders. Id. at 18. Thus, the ALJ was required to determine whether Plaintiff's mental disorder(s) met or equaled an impairment listed as a presumptively disabling disorder at 20 C.F.R. Part 404, Subpart P, Appendix 1. To make this determination, the ALJ considered the effects of Plaintiff's mental impairments on her concentration, persistence, and pace. The ALJ concluded Plaintiff has only moderate difficulties with concentration, persistence, and pace.
Moreover, the ALJ acknowledged Plaintiff's symptom of fatigue. AR 20, 22, 27. But the ALJ also took all of Plaintiff's symptoms resulting from her severe impairments into account by limiting her to the least mentally and physically demanding work—simple, repetitive, sedentary work. Id. at 21. The ALJ's thorough discussion of the evidence supports her decision that Plaintiff can perform such work.
2. The ALJ's credibility assessment.
Plaintiff contends the ALJ erred in his assessment of her credibility. Doc. 20, at 5-11. Specifically, Plaintiff takes issues with the ALJ's reliance on Plaintiff's reported daily activities and her possible drug-seeking behavior.
"[C]redibility determinations are particularly the province of the finder of fact, and should not be upset if supported by substantial evidence." White v. Barnhart, 287 F.3d 903, 909 (10th Cir. 2001) (internal quotation marks omitted). In this case, the ALJ's credibility findings are supported by substantial evidence.
Plaintiff contends the ALJ "mischaracterized the true nature of [her] daily activities." Doc. 20, at 9; see id. at 7-10. In analyzing the functional limitations attributable to Plaintiff's depression, the ALJ found Plaintiff's daily activities to be moderately restricted:
The claimant reported she [has] difficulty taking a shower and getting dressed. She also reported she rarely feels like making dinner or going anywhere (16F). However, she reported she attends church twice a week, sings in the church choir, grocery shops with family, has friends, gets her nails done, and gets massages. Furthermore, she spends her days outside with the animals, watching television or looking at Facebook. She enjoys watercolor painting, feeds animals, drives, performs most of her own self-care, cleans, cooks, and was a youth pastor from 2012 to May 2013 (3E, 3F, 16F, 21F, 25F, and 33F). Therefore, I find the claimant has moderate restriction in activities of daily living.
AR 19-20.
In determining Plaintiff's physical RFC, the ALJ cited these and other daily activities:
[I]t appears the claimant was engaging in a somewhat normal level of daily activities which is not consistent with her allegations. The claimant reported on February 15, 2013, that her weekly routine consisted of feeding animals, cleaning house, cooking, and going to church (33F). Additionally, on April 29, 2013, she stated she was still working as a youth pastor and in May 2013, she admitted she currently rode horses, which in itself is a moderate to strenuous activity that one can reasonably assume would require some fitness and flexibility on the part of the rider (16F and 21F).
Id. at 25.
Plaintiff contends the ALJ erred in considering her daily activities as a factor undermining her credibility. See Doc. 20, at 9. Plaintiff points to a function report dated January 17, 2013, in which she "gives a more complete picture of those daily activities." Id. (citing AR 441-48). She counters with her argument that she feeds only "three little dogs," that she cooks "quick easy stuff," and that when she does cook and clean, she does so with the help of her daughter. Id. at 9 (citing AR 442-43, 81).
As for riding horses, Plaintiff states the ALJ did not ask her whether she could get on a horse by herself. She also theorizes "there are many disabled `riding therapy horse' farms solely for the disabled and veterans." Id. at 8-9 (noting a Google search returned three such hits in Edmond, Oklahoma, alone). Although Plaintiff might have had help getting on the horse, and while she might have ridden a "therapy horse," Plaintiff stops short of representing that she did have help or that she did ride a horse for the disabled. See id.
The ALJ's assessment that Plaintiff's activities of daily living are moderately restricted is supported by substantial evidence in the record. The ALJ did not err in considering Plaintiff's daily activities as one factor in determining her credibility.
According to Plaintiff, the ALJ also mischaracterized her attempts to secure pain medication as suggesting possible "drug-seeking" behavior. Id. at 6-7. Plaintiff theorizes that the ALJ's credibility analysis, and ultimately her decision, was unduly influenced by her misconception that Plaintiff had exhibited drug-seeking behavior. Id. Plaintiff cites one medical record demonstrating a new treating source prescribed a non-narcotic medication the day after Plaintiff's visit to Dr. Robert L. McArthur. Id. at 7 (citing AR 670). Dr. McArthur did, as Plaintiff notes, "encourage[] her to wean off the Lortab as it is not helping much and discontinue the NSAIDs for now." AR 662. The very next day, Plaintiff presented to the Seminole Medical Clinic as a new patient. The physician's assistant signed the resulting medical record stating:
She presented to our clinic having her symptoms managed with Gabapentin 300 mg three times daily, Lortab 5/500 mg three times daily, diclofenac 75mg twice daily and Omeprazole 20 mg daily. New prescriptions on today's visit include Fluoxetine 20 mg daily and Tramadol 50mg one to two times daily as needed for pain in an effort to slowly decrease the amount of opioid use, which of note have caused fatigue, constipation and hyperalgesia.
Id. at 670. But Plaintiff neglects to mention that Dr. McArthur had increased her dosage of Gabapentin to 300 mg twice daily and 600 mg in the evening. Id. at 662. The ALJ could have reasonably interpreted that Dr. McArthur increased the dosage of Plaintiff's Gabapentin to help her wean off the Lortab. After all, Dr. McArthur could have prescribed additional medications if he thought them necessary, and it seems unlikely he instructed Plaintiff to visit a general practitioner to procure Tramadol and Fluoxetine. Viewed in this light, the ALJ could have reasonably determined Plaintiff's visit to the Seminole Medical Clinic was an attempt to secure additional drugs.
Moreover, other examples of Plaintiff's behavior supported the ALJ's conclusion. During Plaintiff's last visit to the Prague Family Clinic in May 2013, Plaintiff failed a urine drug screen. Id. at 860, 25. She admitted that she had taken her husband's Xanax the night before and that she had secured drugs from other sources. Id. On November 25, 2014, Plaintiff admitted she broke the pain management contract by obtaining fifteen Oxycodone from an ER visit. Id. at 1012-13.
The ALJ's credibility assessment is sound, and substantial record evidence supports her conclusions.
3. The ALJ's analysis of physician opinions.
Plaintiff contends the ALJ improperly analyzed the opinions of psychiatrist, Dr. Patrick Herd, and psychologist, Dr. R. Scott Palmer, Ph.D.
Plaintiff contends Dr. Herd was a "treating physician." Doc. 20, at 11. As such, Plaintiff contends the ALJ should have strictly followed the familiar two-step inquiry set forth in the regulations at 20 C.F.R. § 404.1527 (d)(2) and in Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). Doc. 20, at 11. Plaintiff argues the ALJ erred by failing to determine whether the opinion should be given "controlling weight" and, if not given controlling weight, by failing to discuss each of the six factors listed in the regulations to determine what lesser weight the opinion should be afforded. Id.
Dr. Herd had been treating Plaintiff for only one month when he completed a checklist mental-impairment questionnaire supplemented only by short, conclusory statements. AR 982-86. Despite the short treating relationship, Dr. Herd stated his opinion that Plaintiff's symptoms dated back as far as October 5, 2012. Id. at 986.
The ALJ gave Dr. Herd's opinion, as expressed in the questionnaire, "little weight" because of his conclusory statements that were inconsistent with other evidence in the record and because of the short time he had treated Plaintiff, which obviously resulted in "no longitudinal value." Id. at 29. The ALJ's analysis of Dr. Herd's opinion is sound. See Doyal v. Barnhart, 331 F.3d 758, 762 (10th Cir. 2004) ("As the Supreme Court recently observed, `the assumption that the opinions of a treating physician warrant greater credit than the opinions of [other experts] may make scant sense when, for example, the relationship between the claimant and the treating physician has been of short duration.'") (citation omitted).
Furthermore, Plaintiff contends the ALJ erroneously "cherry-picked" Dr. Palmer's opinion by discussing some of his findings that were, nonetheless, excluded from the RFC. Doc. 20, at 13-15.
The ALJ gave no weight to Dr. Palmer's letter, addressed "to whom it may concern," which expressed his opinion that Plaintiff's functional limitations were "much worse" than those of other patients he had treated "who receive social security disability." AR 29, 1048. The ALJ did, however, give Dr. Palmer's opinion "due consideration as that of a treating physician with some history with the claimant." Id. at 30. The ALJ gave partial weight to the narrative portion of Dr. Palmer's report, id. at 29, and adapted the portions of Dr. Palmer's report regarding Plaintiff's limitations in the areas of concentration, persistence, pace, and social functioning into his decision. Id. at 30.
The ALJ stated her reasons for not adopting Dr. Palmer's other opinions. First, the ALJ noted that Dr. Palmer had reviewed only fourteen pages of Plaintiff's medical records and that his opinion was based primarily on Plaintiff's subjective recollection. Id. at 29. She also found some of Dr. Palmer's conclusions too vague to be of value. Id. at 30. Finally, she declined to adopt Dr. Palmer's "blanket statement" that Plaintiff was incapable of doing tasks at "any level of complexity" and, instead, found the statement to be contradicted by other evidence in the record. Id.
Substantial evidence supports the ALJ's well-reasoned evaluations of the opinions of Dr. Herd and Dr. Palmer.
III. Recommendation and notice of right to object.
For the reasons discussed above, the undersigned recommends the entry of judgment affirming the Commissioner's final decision.
The undersigned advises the parties of their right to file an objection to this Report and Recommendation with the Clerk of Court by November 23, 2018, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises the parties that failure to make a timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal questions contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the Magistrate Judge in this matter.
