LOURDES A. MARTÍNEZ, Magistrate Judge.
On April 20, 2009, Plaintiff protectively filed an application for Disability Insurance Benefits (hereinafter "DIB"), alleging disability that began on May 31, 2008. [Doc. 13-8 at 19]. Plaintiff's application was denied at the initial level on September 17, 2009 (Doc. 13-4 at 2) and, at the reconsideration level, on March 10, 2010 (id. at 3). Plaintiff requested a hearing to review the denial of her application (Doc. 13-5 at 13), and Administrative Law Judge Barry Robinson (hereinafter "ALJ Robinson") conducted a hearing on October 12, 2011 (Doc. 13-3 at 27-65). Plaintiff appeared at the hearing, represented by her former attorney Michelle Vaca, and testified (id. at 29, 31-57), as did Vocational Expert Michael L. Driscoll (hereinafter "VE Driscoll")
On January 10, 2012, ALJ Robinson issued a decision (Doc. 13-3 at 12-22) finding that Plaintiff "has not been under a disability, as defined in the Social Security Act, from May 31, 2008, through the date of this decision." Id. at 21. On February 24, 2012, Plaintiff requested that the Appeals Council review ALJ Robinson's decision. Id. at 7. On February 21, 2013, the Appeals Council denied Plaintiff's request for review on the ground that there was "no reason under our rules to review the [ALJ]'s decision." Id. at 2. This decision was a final decision of the Commissioner. Plaintiff appealed that decision to this district court (Jacquez v. Colvin, Civ.-13-383 SMV) and, on September 16, 2016, the decision was reversed and the case was remanded to the agency for further proceedings.
Pursuant to that remand order, another hearing was held on October 20, 2015 (Doc. 13-13 at 2-31) by ALJ Ann Farris (hereinafter "ALJ Farris"), at which Plaintiff again appeared, represented by her current attorney, Michael Armstrong, and testified (id. at 4, 8-26). Also appearing and testifying at the hearing was Vocational Expert Karen Nixon Provine (hereinafter, "VE Provine"). Id. at 4, 27-30. On December 18, 2015, ALJ Farris issued a decision finding that Plaintiff "was not under a disability . . . at any time through December 31, 2013, the date last insured" for purposes of her DIB claims. [Doc. 13-12 at 15]. However, ALJ Farris also determined that Plaintiff became disabled "[b]eginning on September 9, 2013, the date [her] age category changed."
The standard of review in a Social Security appeal is whether the Commissioner's final decision is supported by substantial evidence and whether the correct legal standards were applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008) (citing Hamilton v. Sec'y of Health & Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992)). If substantial evidence supports the ALJ's findings and the correct legal standards were applied, the Commissioner's decision stands, and the plaintiff is not entitled to relief. See Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). A court should meticulously review the entire record but should neither re-weigh the evidence nor substitute its judgment for that of the Commissioner. Hamlin, 365 F.3d at 1214; Langley, 373 F.3d at 1118.
"Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Langley, 373 F.3d at 1118 (citation and quotation marks omitted); Hamlin, 365 F.3d at 1214 (citation and quotation marks omitted); Doyal, 331 F.3d at 760 (citation and quotation marks omitted). An ALJ's decision "is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting it." Langley, 373 F.3d at 1118 (citation and quotation marks omitted); Hamlin, 365 F.3d at 1214 (citation and quotation marks omitted). While a court may not re-weigh the evidence or try the issues de novo, its examination of the record as a whole must include "anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met." Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005) (citations omitted). "The possibility of drawing two inconsistent conclusions from the evidence does not prevent [the ALJ]'s findings from being supported by substantial evidence." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).
For purposes of DIB and SSI, a person establishes a disability when he or she is unable "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), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). In light of this definition for disability, a five-step sequential evaluation process (hereinafter "SEP") has been established for evaluating a disability claim. 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At the first four steps of the SEP, the claimant has the burden to show that: (1) the claimant is not engaged in "substantial gainful activity;" and (2) the claimant has a "severe medically determinable . . . impairment . . . or a combination of impairments" that has lasted or is expected to last for at least one year; and either (3) the claimant's impairment(s) meet(s) or equal(s) one of the "Listings" of presumptively disabling impairments; or (4) the claimant is unable to perform his or her "past relevantwork." 20C.F.R.§§404.1520(a)(4)(i-iv), 416.920(a)(4)(i-iv); Grogan, 399 F.3d at 1261. At the fifth step of the evaluation process, the burden of proof shifts to the Commissioner to show that the claimant is able to perform other work in the national economy, considering his or her residual functional capacity (hereinafter "RFC"), age, education, and work experience. Grogan, 399 F.3d at 1261.
Plaintiff was born on September 10, 1964 (Doc. 13-7 at 2), and was 44 years old on May 31, 2008, the alleged date of disability onset. Plaintiff turned 50 years old on September 10, 2014. For the purposes of her disability claims, Plaintiff was considered to be a "younger person" until she turned 50, and was thereafter considered to be "closely approaching advanced age."
Plaintiff's medical records include: treatment record, dated February 22, 2013, from Andrew J. Veitch, M.D. (Doc. 13-22 at 2-3); outpatient treatment records for the periods from October 3, 2011 to February 27, 2013 (id. at 9-28), from May 18, 2012 to September 12, 2013 (Doc. 13-23 at 5-44), from September 4, 2013 to September 10, 2015 (Doc. 13-24 at 10-21), and from October 1, 2013 to October 6, 2015 (Doc. 13-25 at 3 through Doc. 13-27 at 19), from the University of New Mexico Health Sciences Center; medical assessment of work-related abilities, physical (Doc. 13-22 at 29) and non-physical (id at 30), both dated May 1, 2013, from Dr. Andrew Veitch; medical assessments of work-related abilities, physical, dated September 3, 2013 (Doc. 13-24 at 6) and September 7, 2013 (id. at 3), listing 12.04 assessments, dated September 3, 2013 (id. at 7) and September 7, 2013 (id. at 4), and listing 12.06 assessment, dated September 3, 2013 (id. at 8) from Grace Mishkin, CFNP; and medical assessment of work-related abilities, physical, dated March 25, 2014, from Lesley Toser, DPT (id. at 5). Where relevant, Plaintiff's medical records are discussed in more detail below.
At step one of the five-step evaluation process, ALJ Farris found that Plaintiff had not engaged in substantial gainful activity since the alleged onset date of disability. [Doc. 13-12 at 8]. At step two, she found that Plaintiff has had the following severe impairments since May 31, 2008: "scoliosis, anxiety, patellafemoral
Prior to step four, ALJ Farris determined that, since May 31, 2008, Plaintiff had the RFC to:
Id. In support of this RFC assessment, ALJ Farris found that Plaintiff's "medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, [Plaintiff]'s statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible for the reasons explained in this decision." Id. at 12.
At step four, ALJ Farris found that Plaintiff "has been unable to perform any past relevant work" since May 31, 2008, because the requirements of Plaintiff's previous work exceed her present RFC. Id. at 13. At step five, ALJ Farris found that, prior to September 9, 2014, jobs existed in significant numbers in the national economy that Plaintiff could have performed. Id. at 14. ALJ Farris indicated that, "if [Plaintiff] had the [RFC] to perform the full range of sedentary work, a finding of `not disabled' would be directed by Medical-Vocational Rule 201.19," but that Plaintiff's ability to perform sedentary work "was impeded by additional limitations." Id. Therefore, ALJ Farris relied on VE Provine's testimony that an individual with Plaintiff's work history, education, and RFC could have performed the following representative jobs: stuffer (DOT 731.685-014), table worker (DOT 739.687-182), and addresser (DOT 209.587-010). [Doc. 13-12 at 14]. Based on that testimony, ALJ Farris concluded that a finding of "not disabled" was appropriate for the period prior to September 9, 2014. Id. However, ALJ Farris then found that, "[b]eginning on September 9, 2014, the date [Plaintiff]'s age category changed, considering [Plaintiff]'s age, education, work experience, and [RFC], there are no jobs that exist in significant numbers in the national economy that she could perform." Id. at 15.
In her current motion to remand, Plaintiff argues that ALJ Farris: (1) failed to provide specific, legitimate reasons for rejecting the medical opinions of treating physician, Andrew Veitch, M.D.; (2) breached her administrative duty to develop the record concerning whether Plaintiff has additional mental health impairments; and (3) failed to properly analyze VE Provine's testimony and, therefore, her step five determination is not supported by substantial evidence. [Doc. 21 at 2]. Defendant responds that: (1) ALJ Farris reasonably weighed Dr. Veitch's opinion; (2) the record regarding Plaintiff's mental condition was adequately developed; and (3) ALJ Farris appropriately relied on VE Provine's testimony. [Doc. 23 at 5, 8, and 10, respectively]. In reply, Plaintiff argues that: (1) Defendant failed to respond to the arguments in her motion and, instead, offered impermissible post hoc explanations; (2) ALJ Farris relied on medical sources that never offered "true medical opinions"; (3) that Defendant is "imputed with the knowledge" that VEs have been providing jobs numbers that are unreliable; and (4) the case should be remanded for an immediate award of benefits.
In her analysis of Plaintiff's RFC, ALJ Farris considered, among other medical records and opinions, a check-box form filled out by treating physician, Andrew Veitch, M.D. on May 1, 2013 (Doc. 13-22 at 29-30) and, ultimately, gave that opinion "limited weight." [Doc. 13-12 at 11]. ALJ Farris indicated that, on "a form provided by [Plaintiff]'s representative," Dr. Veitch "list[ed] functional limitations that are out of proportion to the diagnostic evidence, the examining sources who follow[,] and [Plaintiff's activities of daily living] as reported to Dr. [Karl] Moedle." Id. In addition, she noted that "although [Dr.] Veitch's treatment notes confirm crepitus and arthritic characteristics in [Plaintiff]'s knees, they do not emphasize pain. Rather, [Plaintiff] walks without an assistive device in no obvious distress." Id. ALJ Farris also noted that "[Dr.] Veitch discouraged [Plaintiff] from having surgery, which appears contrary to an assessment that her condition is so severe she would be markedly limited in completing work activities." Id. Plaintiff argues that "ALJ Farris failed to perform the requisite `controlling weight' analysis, instead collapsing the two-step [treating physician] inquiry into a single step," and that this was error, citing Chrismon v. Colvin, 531 F. App'x 893 (10th Cir. August 21, 2013) (unpublished). [Doc. 21 at 16]. Plaintiff also argues that ALJ Farris failed "to provide specific, legitimate reasons for rejecting the opinion of Dr. Veitch." Id. The Court is not persuaded.
Pursuant to Soc. Sec. Reports 96-2p, at *1, "controlling weight" must be given to treating acceptable source opinions that are "well-supported by medically acceptable clinical and laboratory diagnostic techniques," and are "not inconsistent with the other substantial evidence in the case record." The unpublished case cited by Plaintiff, Chrismon, recognized the standard, as it was described in Krauser v. Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011), which indicated that an ALJ's determination regarding the weight to be accorded to an opinion by a treating acceptable source is "a sequential two-step inquiry," where the first step is determining whether the opinion at issue meets the standard for "controlling weight," and if not, "the ALJ must make clear how much weight the opinion is being given." Plaintiff would have this Court rigidly apply that standard and reverse ALJ Farris' decision on the ground that she did not specifically state that Dr. Veitch's opinion was "not entitled to controlling weight." However, neither Krauser nor Chrismon appears to support such a rigid application of the rule. In Krauser, the ALJ concluded that the treating physician failed to satisfy the conditions for controlling weight, and rejected it solely on that basis. Krauser, 638 F.3d at 1331. The court first determined the ALJ's conclusion to be "flatly incorrect." Id. However, despite the ALJ's incorrect conclusion regarding controlling weight, the court continued, noting that, "[e]ven leaving aside the noted complications with the grounds cited for that decision, the ALJ's assessment of [the doctor's] opinion is patently inadequate for the distinct reason that it ends halfway through the required two step analysis," because the ALJ failed to both assign weight to the opinion and to state the reasons for the weight given. Id. As such, the Krauser court found it necessary to remand because it could not "meaningfully review the ALJ's determination absent findings explaining the weight assigned to the treating physician's opinion." Id. (quoting Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003)).
In Chrismon, 531 F. App'x at 901, the ALJ's entire stated reason for rejecting a treating physician's opinion was that "longitudinal mental health records were not submitted as evidence on this record," such that "the basis of th[e] opinion, if any, cannot be assessed or reviewed." Again, the court noted that it "could perhaps read" the ALJ's stated reason "as an implicit finding" that the opinion did not satisfy the controlling weight criteria, yet there were two problems with doing so. Id. The first reason was the ALJ's failure to analyze the amount of weight to which the opinion was entitled. Id. The second reason was that the court found that the record did not support the single stated reason for discounting the opinion, since "longitudinal treatment notes underlying the treating source opinion" had, in fact, been submitted and accepted. Id.
In the present case, a finding that Dr. Veitch's opinion was not entitled to controlling weight, though not specifically expressed, is clearly implied by ALJ Farris' assignment of "limited weight" to the opinion, along with the specific reasons she gave for that weight. Under these circumstances, the Court is unaware of any cases that would require remand. Moreover, this Court is not inclined to construe the law in such a way that it requires "unwarranted remands needlessly prolonging administrative proceedings." Fischer-Ross v. Barnhart, 431 F.3d 729, 730 (10th Cir. 2005). The failure to specifically state that a treating physician's opinion is not entitled to controlling weight is an example of "harmless error" that should not, by itself, require remand.
However, Plaintiff also argues that "ALJ Farris failed to cite any contrary evidence or supply any specific references to the evidence of record that would tend to indicate Dr. Veitch's assessment was `out of proportion,'" and that, "[a]s such, this Court is unable to review ALJ Farris's conclusions for substantial evidence." [Doc. 21 at 17] (citations omitted). Again, the Court disagrees. First, it is up to this Court to determine whether or not it is able to effectively review an ALJ's decision. In addition, contrary to Plaintiff's assertion, ALJ Farris did, in fact, cite evidence and give reasons regarding why she considered Dr. Veitch's opinion to be "out of proportion." Specifically, ALJ Farris noted that Dr. Veitch had opined Plaintiff's "ability to complete a normal work week without interruption from pain or fatigue [to be] markedly limited," then indicated that Dr. Veitch's "treatment notes . . . do not emphasize pain," and that Dr. Veitch had "discouraged [Plaintiff] from having surgery." [Doc. 13-12 at 11]. Plaintiff calls these findings "simply false" (Doc. 21 at 18), then picks out every mention of pain or discomfort that appear in Dr. Veitch's notes (id. at 18-19). Unfortunately, what Plaintiff is asking this Court to do is to "reweigh" the evidence and to draw a different conclusion from it than did ALJ Farris. This is neither allowed (see, e.g., Grogan, 399 F.3d at 1262 (reviewing courts may not reweigh the evidence)), nor warranted in this case. Having reviewed Dr. Veitch's notes, this Court cannot conclude that ALJ Farris' findings regarding them are either false or unsupported by substantial evidence. "In reviewing the ALJ's decision, `we neither reweigh the evidence nor substitute our judgment for that of the agency.'" Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir.1991)). Thus, an ALJ's findings may not be reversed simply because two inconsistent conclusions may be drawn from the same evidence (see, e.g., Lax, 489 F.3d at 1084), nor does a court have to "agree" with an ALJ's findings to determine that they are supported by substantial evidence (Hoyl v. Babbitt, 129 F.3d 1377, 1383 (10th Cir. 1997) (even though court "may not agree" with administrative agency's findings, they may not be set aside "if they are supported by substantial evidence")).
In any event, the evidence cited by Plaintiff from her medical records as supportive of Dr. Veitch's May 1, 2013 opinion is more supportive of ALJ Farris' conclusion that the records do not "emphasize pain," than contrary to it. Out of nine treatment notes cited by Plaintiff as support for Dr. Veitch's "marked" limitation of Plaintiff's work functions, only one is actually a treatment note written by Dr. Veitch, and one is a citation to his opinion itself. [Doc. 21 at 18-19]. The first is a note by David A. Rust, M.D.
On January 8, 2010, Plaintiff was seen by John J. Jasko, M.D., who was listed as "House Officer" in Orthopedics, who indicated that Plaintiff "used to wear a lift in her shoe but does not any longer and has some hip and SI (sacroiliac) joint area pain but no radicular symptoms." Id. at 24. Dr. Jasko indicated that, on examination, Plaintiff had "full motion of her knees," and "pain with the extremes of [hip] motion." Id. Dr. Jasko indicated that Plaintiff "needs physical therapy" as "[s]he has not had a good non-operative trial in treatment for her conditions consisting of her hip SI joint and patellofemoral instability." Id. He prescribed "Shields braces," and wanted to see her back in two to three months for x-rays of "her anatomic alignment." Id. On June 10, 2010, Plaintiff was seen by John P. Mann, M.D. (also a "House Officer" in Orthopedics), who reported that Plaintiff said "her knee caps bother her really only about 2 times a year, but she has pain quite a bit," including "going up and down stairs," but that "she has used braces which gave her some relief," though she reported having gone through "6 weeks of physical therapy with no help." Id. Dr. Mann noted that "her ligamentous exam is normal," and "[f]ull-length x-ray shows overall normal mechanical alignment of the coronal plane." Id. Dr. Mann stated that a "shoe lift for leg length discrepancy" would be ordered, as well as "bilateral MRIs of her knees." Id.
The next three records cited by Plaintiff (Doc. 21 at 19) relate to "Euflexxa injections" in Plaintiff's knees given her by Carina S. Pierce, PA-C on May 11, 18, and 25, 2012. [Doc. 13-23 at 13, 7, and 5, respectively]. On May 11, 2012, Ms. Pierce indicated that Plaintiff "was referred by Dr. Veitch" for the injections, and that Plaintiff "ha[d] never had them before but looks forward to having them and getting relief of her arthritic pain," which Plaintiff rated as three out of ten. Id. at 13. Plaintiff had "good range of motion in both knees, and had "no other complaints." Id. Plaintiff "tolerated [the injections] well." Id. On May 18, 2012, Plaintiff reported that she had "not noticed any difference," that "[s]he looks forward to continuing," and that "she has no other complaints." Id. at 7. Ms. Pierce noted that Plaintiff's knees [we]re stable." Id. However, Plaintiff was noted to be "having pretty significant pain after this injection today on the right knee," which was wrapped with an ice bag, and Plaintiff "was able to ambulate out." Id. On May 25, Plaintiff reported "having some continued achiness," and rated her pain at six out of ten, but again had "no other complaints." Id. Her knees were once again "stable" and had "good range of motion," and Plaintiff again tolerated the injection well. Id. Plaintiff was to return back to Dr. Veitch for reevaluation, and Ms. Pierce indicated she would be "happy to see her back on an as needed basis." Id.
Dr. Veitch saw Plaintiff on February 22, 2013 and indicated that her "chief complaint" was both "[b]ilateral knee patellofemoral instability with degenerative joint disease," and "[l]eg length discrepancy." Id. at 9. Dr. Veitch noted that an attempt was made to treat the patellar instability and degenerative joint disease with Euflexxa injections "which have failed to offer her pain relief. She has instability a few times a year but has chronic daily pain. Her knee braces have helped her, although not totally relieved her symptoms." Id. Plaintiff reported that the limb length discrepancy "causes her back pain," and Dr. Veitch noted that, on examination, Plaintiff "[wa]s in no obvious distress," but "does walk with a slow gait which is antalgic." Id. Dr. Veitch noted having had "a pleasant discussion with the patient today concerning her treatment options. I think her options are learn to live with her disability and use her braces or undergo a major surgery," which "will probably not address her degenerative joint disease." Id. at 10. He noted that "[a]t this point, the patient states that she is unwilling to undergo surgical management. This is not an unreasonable decision as I think this would be complicated and may not offer her complete relief." Id. Dr. Veitch indicated that he, too, would be "happy to see [Plaintiff] back on an as needed basis." Id.
The last record Plaintiff cites as evidence that ALJ Farris's findings are "simply false" (Doc. 21 at 18), is a "Final Report" by internist George D. Comerci, Jr., M.D. on October 6, 2013 (Doc. 13-23 at 23-27). Dr. Comerci indicated that Dr. Veitch had referred Plaintiff "to the Pain Consultation and Treatment Center" for "[b]ack, neck pain and knee pain." Id. at 23. Plaintiff reported to Dr. Comerci that "[s]he has been using braces on her knees for sometime [sic] with some relief"; she had physical therapy, but was "not sure if it helped"; had been offered operative and nonoperative interventions and had "elected to try Euflexxa," which "offered some relief, but not much'"; and, while Dr. Veitch "did discuss the possibility major surgery . . .[h]e felt that this would not deal with degenerative joint disease," and Plaintiff "opted not to pursue this." Id. Plaintiff also reported that her "scoliosis has resulted now in very significant back pain . . . which almost rivals her knee pain," and that "[s]he cannot afford the insert into the right shoe, which is troubling because the leg length discrepancy, she feels, is making the back pain worse." Id. at 23-24. Plaintiff "describe[d] the pain as achy, sometimes sharp," and "rate[d] it as a 5 now, but it can go as high as an 8-10 if she exerts herself by being more active with doing anything." Id. at 24. "Pain is up and down the back. It is also in the knees as mentioned. The neck pain is `driving [her] crazy," and "[s]he reports that she is unable to sleep given the pain waking her up." Id. Dr. Comerci indicated that Plaintiff was "a very pleasant lady in no acute distress who was quite anxious." Id. at 25. He further noted "exquisite pain of the cervical paraspinous musculature," "distinct and very significant myofascial trigger points involving the superior border of the trapezius, particularly on the left. Range of motion of the neck is normal but it does reproduce pain particularly in the posterior cervical region," "[t]horacic spine demonstrates full range of motion," and "[p]alpation of the thoracic spine was unremarkable, but palpation of the lumbar spine did, again, show paraspinous muscular tenderness . . . consistent with myofascial pain." Id. With respect to Plaintiff's "upper extremities," Dr. Comerci noted "well developed musculature and joints with no pathology noted. She had full range of motion of all major joints. No arthropathy noted." Id. Regarding her "lower extremities," Plaintiff "had normal hips," "clearly had bilateral grind sign when examining the knees with some instability but not inflammatory changes, effusion, etc. Ankles were normal." Id. On neurological examination, Plaintiff's upper extremities "had excellent strength, reflexes and sensory exam," and her lower extremities "had excellent motor strength with normal sensation, reflexes. Gait was slightly antalgic and stiff." Id. at 26. Among other things, Dr. Comerci recommended that Plaintiff stop taking cyclobenzaprine, because of its "significant drug interaction with amitriptyline,"
At best, the evidence presented by Plaintiff indicates that she has clear anatomical disorders that cause her some pain, which is sometimes high, but typically no more than moderate. Her ability to ambulate is only mildly affected, and both her functionality and pain are alleviated somewhat when she wears knee braces. Although Plaintiff has some back pain, it has not been the focus of her visits to most medical practitioners, nor did any of these providers indicate that shoulder functionality is a significant issue. In fact, virtually every provider found normal range of motion in Plaintiff's knees, which are her primary impairment, and recommended fairly conservative treatments. This evidence, even if it can be attributed to Dr. Veitch himself, simply does not support Dr. Veitch's extreme functionality limitations. Therefore, the Court cannot conclude that ALJ Farris erred in her assignment of "limited weight" to Dr. Veitch's May 1, 2013 opinion.
Plaintiff argues that ALJ Farris "breached her administrative duty to develop the record regarding Plaintiff's mental health issues, which she contends raised "more than a `reasonable possibility' that [she] suffered from limitations stemming from depression, anxiety, and pain disorder." [Doc. 21 at 21]. Defendant responds that "[a]n ALJ need only develop the record. . . when the existing record is inadequate for the ALJ to make a determination regarding the claimant's disability," and that Plaintiff's mental status was adequately accounted for by Krishna Chari, Psy.D., Plaintiff's treating therapist. [Doc. 23 at 8-9] (relying, in part, on 20 C.F.R. § 404.1512(e),
In this case, it does not appear that additional evidence regarding Plaintiff's mental health was either necessary or would have been particularly helpful to resolving the issue of her impairments. First, at step two of the SEP, ALJ Farris found that Plaintiff has a "severe impairment" consisting of "anxiety." [Doc. 13-12 at 8]. ALJ Farris also had detailed notes from Dr. Chari, an acceptable medical source who specializes in mental health issues, as well as from other acceptable sources who, although not specialists in mental health, do regularly treat such conditions and/or make referrals to mental health specialists when a need to do so is perceived.
ALJ Farris summarized Dr. Chari's interactions with Plaintiff, as follows:
[Doc. 13-12 at 12].
In August 2013, Dr. Comerci, who saw Plaintiff for pain management at Dr. Veitch's request, noted that Plaintiff was "extraordinarily discouraged by her situation," "reports that she is anxious all the time," "is extraordinarily frustrated," and "thinks that she is also starting to get depressed," although "[s]he is well supported by family members and boyfriend." [Doc. 13-23 at 24]. He indicated that Plaintiff's affect was anxious, and "[m]ood was quite worried," but that her behavior was "normal." Id. at 26. Dr. Comerci also indicated, as one of his "impressions," that one of Plaintiff's issues was "Depression/anxiety." Id. He also recommended that Plaintiff increase her medication for depression, amitriptyline, and stop taking another drug that significantly interacted with amitriptyline. [Doc. 13-23 at 26]. However, Plaintiff was subsequently told by Dr. Comerci "that she must stop the amitriptyline and no longer use it because it is causing electrical problems with the heart." [Doc. 13-25 at 31]. Dr. Comerci indicated at the same visit that he was "disappointed that [Plaintiff] does not want to continue with clinical psychology with Dr. Chari," noting:
Id.
At the end of the 2015 hearing, ALJ Farris asked Plaintiff's counsel to get the records from Plaintiff's psychologist, Dr. Chari, stating, "I have that letter, but it's kind of been worthless," and "[d]oesn't really have any psychological diagnosis even." [Doc. 13-13 at 30 (referring to Dr. Chari's September 10, 2015, one-page, letter in Doc. 13-24 at 21)]. ALJ Farris indicated that, once she had Dr. Chari's records, "then I'll look at that and then I may want to send [Plaintiff] for a consultative evaluation depending on whether that's sufficient. But, otherwise then once I get those records . . . then I'll issue a written decision." Id. at 30-31. At this time, which was approximately five months after Plaintiff had essentially terminated regular treatment by Dr. Chari (Doc. 13-25 at 15), Plaintiff's counsel did not attempt, in any way, to convince ALJ Farris that available records regarding Plaintiff's mental issues were insufficient, or that a psychological consult should be ordered. Id. Dr. Chari was a treating acceptable mental health source, to whom ALJ Farris accorded "great weight." Dr. Chari became Plaintiff's treating psychologist at the behest of another treating physician, Dr. Comerci, based on his evaluation that Plaintiff was "quite anxious." [Doc. 13-23 at 25]. Dr. Comerci later "encouraged" Plaintiff to return to Dr. Chari.
Plaintiff asserts that "[h]ad ALJ Farris complied with her duty to develop the administrative record, the nature and extent of [Plaintiff]'s psychological conditions would have been explored by a qualified medical professional." [Doc. 21 at 22]. Indeed, Dr. Chari is just such a "qualified medical professional" who provided treatment records in which she "explored" Plaintiff's psychological complaints. ALJ Farris did not, as Plaintiff contends "[see] fit to play doctor by `assessing' [Plaintiff]'s psychological limitations herself, without any supporting evaluations" (id.); rather, ALJ Farris relied on a treating acceptable source, to whose opinion of "mild psychological issues" she added a limitation to "simple work," based on giving Plaintiff "some benefit of the doubt" regarding her claimed impairments (Doc. 13-12 at 12). It is well established that an ALJ does not err in "tempering" medical opinions for a claimant's benefit. Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012) ("if a medical opinion adverse to the claimant has properly been given substantial weight, the ALJ does not commit reversible error by electing to temper its extremes for the claimant's benefit"). The Court finds this contention by Plaintiff to be without merit.
Plaintiff asserts that VE Provine's testimony is insufficient to support ALJ Farris' step five determination that there are sufficient numbers of jobs that Plaintiff could perform, because the numbers to which VE Provine testified are for "groupings" of jobs, rather than for the individual jobs that Ms. Provine testified Plaintiff could perform. [Doc. 21 at 24-25]. Plaintiff's counsel has raised this argument before. See, e.g., Romero v. Berryhill, CV-16-121-LAM, Doc. 19 at 20-24; Michelback v. Colvin, CV-14-1082-LAM, Doc. 25 at 21-26; Young v. Colvin, CV-14-346-WPL, Doc. 18 at 23-27 Plaintiff's counsel bases this argument, in part, on testimony by a different VE in an unrelated case.
Despite Plaintiff's assertions, which are in any event based entirely on extraneous "evidence" submitted by her counsel, that the ALJ could not reasonably rely on VE Provine's "unreliable" testimony, there is absolutely no evidence in this record that VE Provine's testimony is not, in fact, accurate. Where a claimant's counsel, who is well-versed regarding a potential challenge to a VE's testimony and the methodology used to determine jobs numbers, consciously chooses not to offer that challenge, the ALJ does not have a duty to interrogate the VE regarding her methods.
In Glass v. Shalala, 43 F.3d 1392, 1396 (10th Cir. 1994), the court rejected a plaintiff's claim that the ALJ "did not develop the record sufficiently to evaluate her pain," stating:
The Glass court also rejected the plaintiff's claim that she was denied due process by the ALJ's failure to allow her to cross-examine a VE who had testified at a hearing that plaintiff did not attend, noting that the ALJ had questioned plaintiff's counsel about the VE's statements at a subsequent hearing and inquired whether he had any objection to the testimony. Id. Based on counsel's statement that "he had no objections to the testimony and had nothing further for the ALJ's consideration," the court concluded that the plaintiff "waived her right to cross-examine the witness." Id.
In Hawkins v. Chater, 113 F.3d 1162 (10th Cir. 1997), the court relied on Glass in its denial of a plaintiff's claim that the ALJ erred by failing to order a consultative examination, stating:
Id. at 1167-68 (citation omitted). Finally, in Maes v. Astrue, 522 F.3d 1093, 1097 (10th Cir. 2008), in considering the claimant's assertion that the ALJ had failed to adequately develop the record, the court stated that"[a]lthough the ALJ has the duty to develop the record, such a duty does not permit a claimant, through counsel, to rest on the record—indeed, to exhort the ALJ that the case is ready for decision—and later fault the ALJ for not performing a more exhaustive investigation" (citation omitted). The court then opined that doing so "would contravene the principle that the ALJ is not required to act as the claimant's advocate in order to meet his duty to develop the record," and noting that counsel's failure to even attempt to obtain the records "suggest[s] that counsel has abandoned his role as advocate in favor of relegating that responsibility to the ALJ."
This Court is not inclined to find error in the ALJ's failure in this case to further interrogate VE Provine regarding the methodology she used to obtain her jobs figures. Doing so would simply allow Plaintiff yet another hearing at which to delve into an issue that could either have been resolved at the previous hearing, or, at least, would have been sufficiently developed for this Court's appellate review.
For the reasons stated above, the Court
