KRISTEN L. MIX, Magistrate Judge.
This matter is before the Court
Plaintiff alleges that she became disabled at the age of forty-three on February 9, 2009, due to a variety of impairments. Tr. 15, 25.
The ALJ determined that Plaintiff met the insured status requirements of the Act through September 30, 2012, and that Plaintiff had not engaged in substantial gainful activity ("SGA") since February 9, 2009 (the alleged onset date of her disability). Tr. 15. The ALJ found that Plaintiff suffers from two severe impairments: (1) disorder of the back and (2) left knee problems. Tr. 15. However, the ALJ also found that these impairments, individually or in combination, do not meet or medically equal "the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926)." Tr. 21. The ALJ next concluded that Plaintiff has the residual functional capacity ("RFC") to perform sedentary work except with occasional bending, squatting, kneeling and climbing and no use of foot or leg controls. Tr. 22. Based on the RFC and the testimony of an impartial vocational expert ("VE"), the ALJ found that Plaintiff was unable to perform any past relevant work but that "there are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform...." Tr. 24-25. Specifically, based on the testimony of the VE, the ALJ concluded that Plaintiff could perform the representative occupations of hand packager, interviewer, and telephone clerk. Tr. 25. He therefore found Plaintiff not disabled at step five of the sequential evaluation. Tr. 26. The ALJ's decision has become the final decision of the Commissioner for purposes of judicial review. 20 C.F.R. §§ 404.981, 416.1481.
Pursuant to the Act:
Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003) (quoting 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B)). Under the applicable legal standard, a claimant is disabled if he or she is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(a); see also Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009) (quoting 20 C.F.R. § 416.905(a)). The existence of a qualifying disabling impairment must be demonstrated by "medically acceptable clinical and laboratory diagnostic" findings. 42 U.S.C. §§ 423(d)(3), 423(d)(5)(A).
"When a claimant has one or more severe impairments the Social Security [Act] requires the [Commissioner] to consider the combined effects of the impairments in making a disability determination." Campbell v. Bowen, 822 F.2d 1518, 1521 (10th Cir. 1987) (citing 42 U.S.C. § 423(d)(2)(C)). However, the mere existence of a severe impairment or combination of impairments does not require a finding that an individual is disabled within the meaning of the Act. To be disabling, the claimant's condition must be so functionally limiting as to preclude any substantial gainful activity for at least twelve consecutive months. See Kelley v. Chater, 62 F.3d 335, 338 (10th Cir. 1995).
The Court reviews a final decision by the Commissioner by examining the administrative record and determining "whether the [ALJ's] factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied." Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010). However, the Court "may neither reweigh the evidence nor substitute [its] judgment for that of the agency." Harper v. Colvin, 528 F. App'x 887, 890 (10th Cir. 2013) (quoting Barnett v. Apfel, 231 F.3d 687, 689 (10th Cir. 2000)). In other words, the Court does not reexamine the issues de novo. Sisco v. U.S. Dep't of Health & Human Servs., 10 F.3d 739, 741 (10th Cir. 1993). Thus, even when some evidence could support contrary findings, the Court "may not displace the agency's choice between two fairly conflicting views," even if the Court may have "made a different choice had the matter been before it de novo." Oldham v. Astrue, 509 F.3d 1254, 1257-58 (10th Cir. 2007).
The Social Security Administration uses a five-step framework to determine whether a claimant meets the necessary conditions to receive Social Security benefits. See 20 C.F.R. §§ 404.1520, 416.920. The claimant bears the burden of proof at steps one through four, and if the claimant fails at any of these steps, consideration of any subsequent step or steps is unnecessary. Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988) ("If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary."). The Commissioner bears the burden of proof at step five. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
Step one requires the ALJ to determine whether a claimant is "presently engaged in substantial gainful activity." Wall, 561 F.3d at 1052 (quoting Allen v. Barnhart, 357 F.3d 1140, 1142 (10th Cir. 2004)). If not, the ALJ considers at step two whether a claimant has "a medically severe impairment or impairments." Id. "An impairment is severe under the applicable regulations if it significantly limits a claimant's physical or mental ability to perform basic work activities." Wall, 561 F.3d at 1052 (citing 20 C.F.R. § 404.1521). Next, at step three, the ALJ considers whether a claimant's medically severe impairments are equivalent to a condition "listed in the appendix of the relevant disability regulation," i.e., the "Listings." Wall, 561 F.3d at 1052 (quoting Allen, 357 F.3d at 1142). "If a claimant's impairments are not equivalent to a listed impairment, the ALJ must consider, at step four, whether a claimant's impairments prevent her from performing her past relevant work." Wall, 561 F.3d at 1052 (citing Allen, 357 F.3d at 1142). "Even if a claimant is so impaired, the agency considers, at step five, whether she possesses the sufficient [RFC] to perform other work in the national economy." Id.
An ALJ must consider all evidence and explain why he or she finds a claimant not disabled. Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). However, the ALJ need not specifically "reference everything in the administrative record." Wilson, 602 F.3d at 1148. "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. at 1140 (internal quotation marks omitted). "It requires more than a scintilla, but less than a preponderance." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). A decision by the ALJ is not based on substantial evidence "if it is overwhelmed by other evidence in the record. . . ." Grogan v. Barnhart, 399 F.3d 1257, 1261-62 (10th Cir. 2005). In other words, the Court's determination of whether the ALJ has supported his or her ruling with substantial evidence "must be based upon the record taken as a whole." Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994). Further, evidence is not substantial if it "constitutes mere conclusion." Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). In addition, "if the ALJ failed to apply the correct legal test, there is a ground for reversal apart from a lack of substantial evidence." Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
Plaintiff requests judicial review of the ALJ's decision denying her disability insurance benefits and supplemental security income. Brief [#14] at 5. Specifically, Plaintiff argues that: (1) the ALJ improperly assessed Plaintiff's mental health impairment, (2) the ALJ's RFC finding does not account for both severe and nonsevere impairments, (3) the ALJ improperly rejected the medical opinion of Carlos Rodriguez, Ph.D. ("Dr. Rodriguez"), (4) the ALJ's finding that Plaintiff can perform the job of hand packager is inconsistent with the RFC, and (5) the ALJ did not properly follow the two-step process for assessing the credibility of Plaintiff's testimony. Id. at 4. The Court begins with Plaintiff's credibility argument.
"Credibility determinations are peculiarly the province of the finder of fact, and we will not upset such determination when supported by substantial evidence." Smith v. Colvin, ___ F. App'x ___, ___, 2015 WL 5315660, at *3 (10th Cir. Sept. 14, 2015) (quoting Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (internal quotation marks omitted)). "But `findings as to credibility should be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings.'" Id. "An ALJ must do more than simply `recite[] the general factors he considered . . . [without] refer[ring] to any specific evidence.'" Smith, 2015 WL 5315660, at *3 (quoting Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000)). "Kepler does not, however, `require a 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, the dictates of Kepler are satisfied.'" Id.
Plaintiff's argument here is a bit of a moving target. First, despite some statements hinting to the contrary in the Motion [#14], she does not argue that the ALJ erred by finding that some of Plaintiff's testimony was not credible. See Reply [#16] at 23-24 ("Plaintiff's argument wasn't that the ALJ didn't have proper reasons for discounting portions of plaintiff's testimony."). Rather, Plaintiff's argument appears to be that the ALJ did not specifically state which of Plaintiff's statements were credible and how he incorporated her credible statements into the RFC. See id. at 24. However, the specificity sought by Plaintiff is not the standard. The ALJ is not required to discuss every piece of evidence he considers. Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). The ALJ is only required to explain and support with substantial evidence which of a claimant's testimony he did not believe and why, see McGoffin v. Barnhart, 288 F.3d 1248, 1254 (10th Cir. 2002), which, as Plaintiff concedes, he did.
In connection with this argument, Plaintiff attacks certain alleged boilerplate used by the ALJ in connection with his credibility assessment of Plaintiff. Motion [#14] at 41-42; Reply [#16] at 25. In Smith v. Colvin, 2015 WL 5315660, at *3, the claimant also attacked as improper the alleged boilerplate statement that her "statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the [RFC] assessment," a statement which is materially identical to the one used by the ALJ here. Tr. 22. The Tenth Circuit Court of Appeals found no error in using this language so long as the Kepler test was otherwise met. The dictates of Kepler are met when the ALJ sets forth the specific evidence he relied on in evaluating the claimant's credibility. See Qualls, 206 F.3d at 1372. Here, the ALJ did just that:
Tr. 22-23.
The Court finds that the ALJ's analysis meets the Kepler test, and the ALJ therefore did not commit reversible error on this point.
Plaintiff argues that the ALJ improperly assigned "no weight" to the opinion of Dr. Rodriguez, a licensed psychologist. Motion [#14] at 31-35.
An ALJ must give the opinion of a treating physician controlling weight only when it is both: (1) "well-supported by medically acceptable clinical and laboratory diagnostic techniques" and (2) "consistent with other substantial evidence in the record." Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). "[I]f the opinion is deficient in either of these respects, then it is not entitled to controlling weight." Id. Even if a treating physician's medical opinion is not entitled to controlling weight, however, "[t]reating source medical opinions are still entitled to deference and must be weighed using all of the factors provided in 20 C.F.R. § 404.1527." Fowler v. Bowen, 876 F.2d 1451, 1453 (10th Cir. 1989). Those factors are:
Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001); 20 C.F.R. § 404.1527(c). Although the six factors listed above are to be considered in weighing medical opinions, the Court does not insist on a factor-by-factor analysis so long as the "ALJ's decision [is] `sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight.'" Oldham, 509 F.3d at 1258 (quoting Watkins, 350 F.3d at 1300).
Because it is based on a onetime examination of Plaintiff which did not include treatment, Dr. Rodriguez's opinion is not entitled to controlling weight as a treating physician. See Watkins, 350 F.3d at 1300. The ALJ therefore appropriately considered most of the other factors when determining the weight to give to Dr. Rodriguez's opinion. See Drapeau, 255 F.3d at 1213. The ALJ stated:
Tr. 21 (internal citation omitted). The ALJ's analysis is sufficiently specific to make clear the weight he gave to the medical opinion and the reasons for that weight. See Oldham, 509 F.3d at 1258. Thus, with one exception, the Court finds no reversible error in the ALJ's analysis of Dr. Rodriguez's opinion.
The exception turns on the ALJ's statement that "[n]o testing was done" was done by Dr. Rodriguez. Tr. 21. However, as noted by Plaintiff, Motion [#14] at 32, Dr. Rodriguez administered a Mini-Mental Status Examination. See Tr. 577, 579. Under most circumstances, the Court would find such error to be harmless, because it is clear from the ALJ's discussion that he fully evaluated Dr. Rodriguez's report, even going so far as to cite to information located on the same page that the Mini-Mental Status Examination was mentioned. See Tr. 579. However, the ALJ also stated that he gave no weight to the medical opinion because the bases for Dr. Rodriguez's diagnosis were meager mental health records and unsubstantiated, uncreditable statements made by Plaintiff. Tr. 21. It is clear from the evaluation, though, that Dr. Rodriguez also based his diagnosis on the Mini-Mental Status Examination. Tr. 577, 579. The reason why this is important is because inclusion of this information could potentially alter the ALJ's decision to give "no weight" to the medical opinion to giving it some level of increased weight. The repercussions of this potential change are argued throughout Plaintiff's briefs, and the Court must address some of those arguments to demonstrate the possible importance of an altered evaluation of this medical opinion.
Plaintiff argues that the ALJ erred by failing to find her mental impairments "severe" at step two of his analysis. See, e.g., Reply [#16] at 5-11. The Tenth Circuit Court of Appeals has addressed how an ALJ's error at step two is often harmless:
Similarly, here the ALJ found that Plaintiff could not conclusively be denied benefits at step two and proceeded to steps three, four, and five of his analysis. Thus, under most circumstances, such error is harmless.
However, Plaintiff further argues that the ALJ failed to account for Plaintiff's non-severe mental impairment of depression as part of his RFC analysis. Plaintiff misconstrues the ALJ's decision at step two. Not only did the ALJ find that the scant evidence of Plaintiff's depression did "not support a finding of a severe work limiting mental health impairment," Tr. 21, but he also failed to find that it was a non-severe impairment, i.e., he found that it was not an impairment at all. The ALJ explicitly stated which of the alleged impairments were non-severe, and he did not include depression among those impairments. Tr. 22 (discussing cardiac problems, bilateral rib pain, hip pain, abdominal pain, and gastric problems). Given his analysis of Plaintiff's credibility and his decision to give Dr. Rodriguez's opinion no weight, the ALJ clearly found that the record did not support a finding that depression was an impairment at all. If the alleged impairment was unsupported by the record, then the ALJ was under no obligation to later consider it as part of his step four analysis. See Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007) (differentiating "moderate impairment" from "no impairment" and holding that the former must be considered by the ALJ at step four of analysis).
Having clarified this point, the Court turns to the related issue of whether the ALJ may have committed reversible error by finding that depression was not an impairment. If the ALJ had decided to give any weight to Dr. Rodriguez's opinion, Plaintiff's alleged mental impairment(s) would change from being "no impairment" to being a non-severe impairment. If that were the case, then the ALJ's analysis at later steps would be impacted, because "[i]n determining the claimant's RFC, the ALJ was required to consider the effect of all of the claimant's medically determinable impairments, both those he deems `severe' and those `not severe.'" Hill v. Astrue, 289 F. App'x 289, 292 (10th Cir. 2008). As noted, this was not done as part of the ALJ's current analysis and, indeed, he was under no obligation to do so if he deemed the alleged impairment to be "no impairment." Because the ALJ's decision regarding the weight of Dr. Rodriguez's opinion may be impacted by consideration of Dr. Rodriguez's testing, and because this weight may affect all later steps, the ALJ committed reversible error. The Court cannot reweigh the evidence before it and guess at what the ALJ's decision would be under such circumstances.
Because consideration of the test administered by Dr. Rodriguez could impact the ALJ's analysis at steps two, three, four, and five, this case must be remanded for further proceedings.
For the foregoing reasons,
IT IS HEREBY
IT IS FURTHER
