SUZANNE MITCHELL, Magistrate Judge.
Katherine Dyer (Plaintiff) brings this action for judicial review of the Commissioner of Social Security's (Commissioner) 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 Stephen P. Friot has referred the 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). See Doc. 13.
After careful review, the undersigned recommends the entry of judgment affirming the Commissioner's final decision. See 42 U.S.C. § 405(g).
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 that 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 [her] underlying impairment." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Barnhart v. Walton, 535 U.S. 212, 218-19 (2002)).
Plaintiff "bears the burden of establishing a disability" and of "ma[king] a prima facie showing that [s]he 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 Plaintiff retains the capacity to perform a different type of work and that such a specific type of job exists in the national economy. Id.
The ALJ assigned to Plaintiff's case applied the standard regulatory analysis to determine whether Plaintiff was under a disability within the relevant timeframe. AR 21-35; see 20 C.F.R. § 404.1520(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (describing the five-step process). Specifically, the ALJ found Plaintiff:
AR 21-35.
The Social Security Administration's Appeals Council found no reason to review that decision, see id. at 1-7, "making [it] the Commissioner's final decision for [judicial] review." Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011).
A 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 (internal quotation marks omitted). A 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) (internal quotation marks omitted).
In addition, a court "must `exercise common sense' in reviewing an ALJ's decision and must not `insist on technical perfection.'" Jones v. Colvin, 514 F. App'x 813, 823 (10th Cir. 2013) (quoting Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (2012)). The ALJ's decision must be evaluated "based solely on the reasons stated in the decision." Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004). A "post hoc rationale is improper because it usurps the agency's function of weighing and balancing the evidence in the first instance." Carpenter v. Astrue, 537 F.3d 1264, 1267 (10th Cir. 2008).
Plaintiff claims error on two grounds. She contends, first, that "[t]he ALJ [g]ranted [g]reat [w]eight to [consultative psychological examiner] Whelan's [o]pinion [y]et [f]ailed to [i]ncorporate the [f]indings of [t]hat [o]pinion in his [RFC] or [e]xplain [w]hy [t]hey [w]ere [n]ot [i]ncluded," and, second, that "[t]he ALJ [i]mproperly [e]valuated [Plaintiff's] [f]ibromyalgia and the [f]unctional [l]imitations [t]herefrom in [h]is [RFC]." Doc. 15, at 3, 6 (bolding omitted).
Relevant to Plaintiff's specific claim of error, after the ALJ determined Plaintiff had a severe mental impairment—depressive disorder—he continued through the sequential analysis, finding Plaintiff was not presumptively disabled by that impairment and proceeding, then, to assess her RFC. See § I(C)(1).
In doing so, the ALJ noted that Plaintiff had been treated with "medication . . . for symptoms attributed to depression" and that her treatment records reflected her complaints about that condition. AR 22. He then examined and detailed those records dating from October 2013 through September 2016. See id. Following his review of Plaintiff's treatment records, he concluded "[Plaintiff's] complaint[] of depression . . . ha[s] been addressed with medication by providers she sees for her physical complaints"; "[t]he evidence of record does not document ongoing psychiatric care or psychotherapy"; and "[h]er symptoms are managed with medication." Id.
Next, the ALJ fully considered, see id. at 22-23, the results of Plaintiff's psychological evaluation by consultative examiner Christina Whelan, Ph.D., including these findings made by Dr. Whelan on mental status examination:
AR 349. Dr. Whelan's summary of her evaluation reflects that Plaintiff "demonstrated impairments in delayed recall and her ability to sustain concentration also appeared impaired"; "reported she has to have encouragement to complete most tasks"; "does not require assistance with activities of daily living"; "currently meets diagnostic criteria for Persistent Depressive Disorder"; and "described a pervasive pattern of depressive symptoms and denied periods of remission." Id. at 350. Dr. Whelan noted that "[c]urrent psychiatric conditions may also decrease [Plaintiff's] pain threshold and negatively impact her prognosis" and that "[Plaintiff] reported these symptoms to be in the severe range which limit her ability to socialize or maintain employment." Id.
The ALJ concluded Dr. Whelan's opinion merited "[g]reat weight" because "it was based, in part, on the Mental Status Exam," an examination he characterized as "a structured assessment of the patient's behavioral and cognitive functioning." Id. at 23. Noting that "[t]he specific cognitive functions of alertness, language, memory, constructional ability, and abstract reasoning are the most clinically relevant," id., the ALJ found "Dr. Whelan [had] made unstructured observations of [Plaintiff] while obtaining . . . biographical and social information" and had "considered [Plaintiff's] appearance, attitude, behavior, mood and affect, speech, thought processes, and thought content." Id. at 23-24. He accorded "great weight . . . to Dr. Whelan's opinion as it is used to establish the existence of impairments; the nature and severity of the impairments; and the impact of the impairments on [Plaintiff's] functional abilities." Id. at 24.
The ALJ also extended great weight to the opinions—Exhibits 2A, 4A, and 6F, see id. at 75-87, 89-104, 35—of two non-examining medical sources, "State agency psychological consultants Kieth McKee, Ph.D., and Randy Cochran, Psy.D., as to the nature and severity of [Plaintiff's] medically determinable mental impairments as well as the impact of the impairments on her functional abilities." Id. He explained:
Id.
The ALJ then determined that the criteria of paragraphs B
The ALJ also "considered the `B' criteria" in assessing Plaintiff's mental functional limitations. See id. He specifically recognized that "[t]he limitations identified in the "paragraph B" criteria are not a residual functional capacity assessment but are used to rate the severity of mental impairments at steps 2 and 3 of the sequential evaluation process." Id. at 26. He explained that "[t]he mental residual functional capacity assessment used at steps 4 and 5 of the sequential evaluation process requires a more detailed assessment by itemizing various functions contained in the broad categories found in paragraph B of the adult mental disorders listings in 12.00 of the Listing of Impairments (SSR 96-8p)." Id.
In evaluating Plaintiff's functional limitations in the context of the "B" criteria, the ALJ noted that "activities of daily living include adaptive activities" and that his assessment turned on "the extent to which [Plaintiff] is capable of initiating and participating in activities of daily living." Id. at 25 (emphasis omitted). He found Plaintiff "experiences mild restriction" because she "reportedly seeks assistance with some activities of daily living. . . ." Id. And, while he considered Dr. Whelan's finding that "[Plaintiff] put forth good effort and was cooperative during consultative evaluation," because Plaintiff "does not like to go out alone," "does not particularly enjoy socializing," and "reported difficulty handling stress," the ALJ reached the same conclusion regarding Plaintiff's social functioning, that is, she "experiences mild difficulties. . . ." Id. He then explained that "concentration, persistence, or pace refers to the ability to sustain focused attention and concentration sufficiently long to permit the timely and appropriate completion of tasks commonly found in work settings." Id. at 25-26 (emphasis omitted). He found Plaintiff "experiences moderate difficulties" in this area "as [a] result of affective disorder." Id. at 26. To support that finding, the ALJ pointed to "the consultative psychological evaluation performed by Dr. Whelan and particularly the Mental Status Examination which revealed impaired attention and concentration as evidenced by digit span and serial sevens." Id. He noted, "[m]oreover, Mental Status Exam showed impaired memory function as evidenced by inability to recall any of five words after a five-minute lapse in time." Id.
In sum, the ALJ concluded his "[RFC] assessment reflects the degree of limitation [he] found in the `paragraph B' mental function analysis." Id. And, as addressed, he imposed significant mental limitations in his assessment of Plaintiff's RFC. Id. at 27. He found Plaintiff's depressive disorder left her with the capacity to: "understand, remember, and carry out" only "simple and some detailed, but not complex tasks"; only "interact appropriately with supervisors and co-workers in a routine work setting"; only "work . . . where contact with the general public is incidental to work performed"; perform work that "involves only occasional, minimal changes in daily routines or work duties, and does not require fast-paced quota levels." Id.
To support her first claim of error, Plaintiff contends "the ALJ never discussed Dr. Whelan's opinion while determining how he arrived at RFC in consideration of Dr. Whelan's findings" but "only analyzed Dr. Whelan's opinion in his consideration of whether [Plaintiff] met or equaled a Listing." Doc. 15, at 4. She claims "[t]his was improper, as the ALJ should have specifically addressed Dr. Whelan's opinion in his RFC analysis because it was granted great weight." Id. In this same vein, Plaintiff contends "the ALJ simply recited the entirety of Dr. Whelan's findings, yet failed to discuss Dr. Whelan's findings in the determination of his RFC assessment and therefore this Court does not know how Dr. Whelan's opinion impacted the RFC, or if it did at all." Id. at 4-5. The undersigned's review of the ALJ's hearing decision debunks Plaintiff's assertions—the ALJ specifically addressed and considered Dr. Whelan's findings both in reaching his step three determination and in formulating Plaintiff's RFC.
Plaintiff further claims Dr. Whelan found four "limitations . . . that the ALJ failed to incorporate into his RFC. . . ." Id. at 5. In Plaintiff's view, the ALJ erred by failing to "provide any explanation as to why the limitations found in an opinion he granted great weight could not be found in his RFC." Id. at 6.
The first is a purported "limitation for the inability to remember any spoken instruction given to [Plaintiff] or the need for repeated instruction." Id. at 5 (emphasis omitted). But contrary to Plaintiff's contention, Dr. Whelan made no such finding. Instead, Dr. Whelan reported on mental status examination that Plaintiff "was unable to recall . . . five words after a fiveminute lapse in time with intervening tasks having been provided." AR 349. The ALJ then expressly found that Plaintiff exhibited "impaired memory function" and concluded that she "experiences moderate difficulties in concentration, persistence, or pace as result of affective disorder." Id. at 26. And, he accounted for these difficulties by limiting Plaintiff to work where: 1) she would be expected to understand, remember, and carry out only simple and some detailed (but never complex) tasks; 2) the work would involve only occasional, minimal changes in her daily routines or work duties; and 3) she would not be required to meet any fast-paced quota levels. See id. at 27.
The second supposed limitation is for an "inability to maintain attention and concentration, as well as having delayed recall. . . ." Doc. 15, at 5 (emphasis omitted). Once again, though, Dr. Whelan did not opine that Plaintiff was unable to maintain attention and concentration. Rather, she found Plaintiff's capacity to sustain concentration was "impaired," AR 350 (emphasis added), and, once again, the ALJ accommodated that limitation in formulating Plaintiff's RFC. See id. at 27.
Similarly, as to a third claimed limitation—this one to account for a "need for a supervisor to keep [Plaintiff] on task" and "to constantly encourage [her] to complete work tasks," Doc. 15, at 5 (emphasis omitted)—Dr. Whelan did not, as Plaintiff misrepresents, "f[ind] that [Plaintiff] will need to have encouragement to complete most tasks." See id. at 5-6. Instead, she repeated Plaintiff's "report[that] she has to have encouragement to complete most tasks." AR 350 (emphasis added).
Finally, regarding any purported "limitation for intellectual functioning that will suffer dramatically each week due to depressive episodes," Doc. 15, at 5 (emphasis omitted), Dr. Whelan found that "[Plaintiff's intellectual functioning appears to be in the average range. . . ." and would be greatly diminished "during periods of depression," but it was Plaintiff who reported that she had periods of depression on a weekly basis. AR 349.
Plaintiff has failed to demonstrate that the ALJ erred in his assessment of Plaintiff's mental RFC.
Plaintiff's claim here is that while the ALJ found Plaintiff's fibromyalgia to be a severe impairment,
Id. at 6-7 (quoting AR 34) (emphasis added by Plaintiff).
Contrary to Plaintiff's contention, the ALJ's so-called "boilerplate paragraph" followed his detailed consideration of the record, including the assessment of the State agency medical consultants that Plaintiff could perform light work despite her physical impairments, including fibromyalgia.
Consequently, Plaintiff's claim that the ALJ "simply stated, in blanket fashion, that `[t]he evidence of record does not document fibromyalgia and associated symptomology that preclude the performance of the range of light work,'" Doc. 15, at 8, is unsupported. The ALJ based his assessment on the medical evidence of record and on the unchallenged opinions of the State agency medical consultants.
Plaintiff also submits that the ALJ ignored her "symptoms and accompanying limitations in [his] fibromyalgia analysis." Doc. 15, at 9. She does not, however, challenge the legal underpinnings of the ALJ's evaluation of her subjective claims or his conclusion that the medical evidence and her claimed limitations "are not entirely consistent. . . ." AR 28. Neither does Plaintiff direct the court to any medical opinion evidence that the ALJ allegedly overlooked. See Doc. 15, at 9-10.
Likewise, by citing records reflecting her own subjective claims of pain and a finding on examination of "diffuse tenderness of the legs," see id. at 10 (citing AR 380, 441, 510), Plaintiff fails to show that the ALJ committed reversible error by not imposing "a limitation in the RFC for a sit-stand option. . . ." Doc. 15, at 10. None of the cited records show that any medical source suggested the need for such a limitation. The same is true of her contention that, "due to her body aches," she required an RFC limitation "for tardiness due to sporadic sleep." Id. (citing AR 306, 377, 441-42, 510). Finally, as to Plaintiff's claim that "due to . . . fatigue, shortness of breath, nausea, and diarrhea," her RFC should have included a limitation for "unscheduled breaks" or "restroom breaks," Doc. 15, at 10, none of the four records she cites—AR 441, 503, 507, 510—establish that she requires more "breaks" or "restroom breaks" than are allowed during an eight-hour workday with normal breaks.
Plaintiff has failed to demonstrate that the ALJ erred in his assessment of Plaintiff's physical RFC.
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 September 5, 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 and terminates the referral to the undersigned Magistrate Judge in the captioned matter.
AR 25.
AR 24-25.
