KIRTAN KHALSA, Magistrate Judge.
Judicial review in a Social Security appeal is limited in scope by 42 U.S.C. § 405(g) to two inquiries: first, whether substantial evidence supports the Commissioner's final decision
"Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Langley, 373 F.3d at 1118. A 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." Id. While the court may not reweigh 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 [Commissioner's] findings in order to determine if the substantiality test has been met." Grogan v. Barnhart, 399 F.3d 1257, 1262 (10
Disability under the Social Security Act is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment." 42 U.S.C. § 423(d)(1)(A). A claimant is disabled under the Act if his "physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work in the national economy." 42 U.S.C. § 423(d)(2)(A). To qualify for disability insurance benefits, a claimant must establish a severe physical or mental impairment expected to result in death or to last for a continuous period of twelve months, which prevents the claimant from engaging in substantial gainful activity. 42 U.S.C. §423(d)(1)(A); Thompson v. Sullivan, 987 F.2d 1482, 1486 (10
When considering a disability application, the Commissioner uses a five-step sequential evaluation process. 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At the first four steps of the evaluation process, the claimant must show that: (1) he is not engaged in "substantial gainful activity"; and (2) he 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 (3) his impairment(s) meet or equal one of the Listings
Although the claimant bears the burden of proving disability in a Social Security case, because such proceedings are nonadversarial, "[t]he ALJ has a basic obligation in every social security case to ensure that an adequate record is developed during the disability hearing consistent with the issues raised." Henrie v. U.S. Dep't of Health & Human Servs., 13 F.3d 359, 360-61 (10
Claimant Robert Romanczuk ("Mr. Romanczuk") was born on May 17, 1992. (Tr. 56.
Mr. Romanczuk was initially found eligible for Supplemental Security Income ("SSI") benefits under Title XVI of the Social Security Act, 42 U.S.C. § 1382(a)(3), effective March 1, 2000, at the age of seven, due to a seizure disorder and organic mental disorder. (Tr. 68.) Because Mr. Romanczuk began receiving benefits as a child, regulations required that his eligibility for SSI be redetermined when he turned 18.
As part of its review, the SSA requested Mr. Romanczuk's medical records, but found they were insufficient to address Mr. Romanczuk's alleged impairments. (Tr. 69.) The Disability Determination Services therefore purchased consultative examinations from George DeLong, Ph.D., to address Mr. Romanczuk's alleged behavioral problems, and from Mark Brecheisen, D.O., to address Mr. Romanczuk's alleged seizure disorder. (Tr. 69, 151-58, 160-64.) Their consultative reports, inter alia, were subsequently reviewed by State agency nonexamining medical consultants Stephen Fair, Ph.D., and Ernest Griffith, M.D. (Tr. 165-78, 184-87, 409-16.) On March 23, 2011, the SSA completed its age-18 redetermination and found that Mr. Romanczuk was not disabled under the definition of disability for an adult.
On April 20, 2011, Ms. Gray sought reconsideration on Mr. Romanczuk's behalf of both his age-18 redetermination decision and his childhood disability benefits application. (Tr. 63-64.) The SSA requested additional functional and medical information, and ultimately notified Mr. Romanczuk and Ms. Gray that if they failed to comply with the information requests within a specified period of time a decision would be made based on the information available. (Tr. 70.) On August 12, 2011, the Disability Determination Services proposed to cease Mr. Romanczuk's benefits due to insufficient evidence, failure to cooperate, and no medical evidence to substantiate worsening of his alleged impairments. (Id.) On October 14, 2011, Disability Hearing Officer Mike Campagna issued a Disability Redetermination Decision that included an Analysis of Evidence and Findings of Fact. (Tr. 65-73.) Mr. Campagna determined that there was "insufficient medical evidence to document the severity of the claimant's impairments at the present time and worsening of his impairments. The claimant's benefits are being ceased due to insufficient medical evidence, failure to cooperate issues." (Tr. 73.) Mr. Campagna stated that the childhood disability benefits application under Ms. Gray's social security number was adopted into his decision based on common issues. (Id.) On December 6, 2011, Ms. Gray sought reconsideration of the disability hearing decision and requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. 77-78.)
On September 14, 2012, Ms. Gray applied a second time for childhood disability benefits on Mr. Romanczuk's behalf under Title II of the Social Security Act, alleging disability since March 1, 2000, due to febrile seizure disorder and behavior problems. (Tr. 307-08.) On that same date, Ms. Gray requested a hearing by an ALJ. (Tr. 263-63A.) Mr. Romanczuk's second application for childhood disability benefits was denied.
On February 6, 2014, the ALJ conducted the administrative hearing by phone on Mr. Romanczuk's Title XVI and Title II claims.
On March 19, 2014, the ALJ issued an unfavorable decision. (Tr. 13-26.) At step one, he found that Mr. Romanczuk had not engaged in substantial gainful activity since his alleged onset date of May 17, 2010. (Tr. 19.) Because Mr. Romanczuk had not engaged in substantial gainful activity for at least twelve months, the ALJ proceeded to step two and found that Mr. Romanczuk suffered from severe impairments of "a mental impairment variously diagnosed to include ADHD, ADD, and borderline intellectual functioning; and a correctable visual disorder." (Id.) The ALJ also determined that Mr. Romanczuk suffered from a nonsevere impairment of seizures. (Id.) At step three, the ALJ concluded that through the date last insured, Mr. Romanczuk did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. (Tr. 20.)
Because he found that Mr. Romanczuk's impairments did not meet a Listing, the ALJ went on to assess Mr. Romanczuk's RFC, which is used to evaluate the claim at both step four and step five. 20 C.F.R. §§ 404,1520(a)(4), 404.1520(e, f, g), 416.920 (a)(4) and 416.920(e, f, g). The ALJ stated that
(Tr. 21-22.) The ALJ concluded that Mr. Romanczuk had no past relevant work, and proceeded to step five. At step five, based on the testimony of the VE, the ALJ determined that considering Mr. Romanczuk's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that Mr. Romanczuk could perform, including laundry worker, cleaner preparer, and furniture cleaner. (Tr. 25-26.)
On April 1, 2014, Ms. Gray requested a review of the ALJ's decision on Mr. Romanczuk's behalf. (Tr. 12.) On March 23, 2015, the Appeals Council issued its decision denying Mr. Romanczuk's request for review and upholding the ALJ's final decision regarding his claim for childhood disability benefits.
Mr. Romanczuk argues that the ALJ failed to properly evaluate the medical opinion evidence. (Doc. 18 at 6-10.) Mr. Romanczuk specifically asserts (1) that the ALJ failed to consider State agency examining medical consultant Dr. George DeLong's assessments regarding Mr. Romanczuk's abilities to maintain attention and concentration for extended periods, perform activities within a schedule, maintain regular attendance, and be punctual; (2) that the ALJ incorrectly disregarded Dr. DeLong's opinion because it was based on subjective complaints; and (3) that the ALJ failed to recognize that Dr. DeLong based his assessment, at least in part, on the diagnoses of borderline intellectual function, attention deficit disorder, and personality disorder. (Id. at 8-9.) Mr. Romanczuk further asserts that the ALJ failed to consider state agency nonexamining medical consultant's Dr. Ernest Griffith's opinion wherein he assessed an environmental limitation of "no concentrated extreme heat." (Id. at 9.) Mr. Romanczuk argues that including this limitation in the ALJ's RFC would eliminate the laundry worker job the VE identified, and then call into question whether the other two jobs identified are available in significant numbers. (Id.)
The Commissioner contends that the ALJ properly evaluated the medical opinion evidence. (Doc. 21 at 5-6.) The Commissioner asserts that the ALJ accorded moderate weight to Dr. DeLong's opinion and included nonexertional limitations he assessed in his RFC, but also found that some of the limitations Dr. DeLong assessed were based on Mr. Romanczuk's subjective complaints. (Id. at 5.) The Commissioner argues this is appropriate because an ALJ gives more weight to an opinion when the evidence is supported by objective evidence, and that Dr. DeLong's diagnoses, to the extent they are based on subjective evidence, do not amount to objective medical findings. (Id. at 21.) Finally, the Commissioner argues that there is no evidence in the record to show that Mr. Romanczuk had an impairment that required him to avoid extreme heat. (Id.) As such, the Commissioner contends that the Court need not address Mr. Romanczuk's argument that one of the jobs identified by the VE requires exposure to heat. (Id.)
"An ALJ must evaluate every medical opinion in the record, although the weight given each opinion will vary according to the relationship between the disability claimant and the medical professional." Hamlin, 365 F.3d at 1215. "An ALJ must also consider a series of specific factors in determining what weight to give any medical opinion." Id. (citing Goatcher v. United States Dep't of Health & Human Servs., 52 F.3d 288, 290 (10
On October 4, 2010, State agency examining medical consultant George DeLong, Ph.D., conducted a psychological evaluation on Mr. Romanczuk. (Tr. 151-58.) Dr. DeLong noted there was no clinical record available for review and that he reviewed an Adult Function Report prepared by Mr. Romanczuk's mother. (Tr. 151.) Dr. DeLong took a personal history and conducted a mental status exam. (Tr. 151-54.) Dr. DeLong also administered two diagnostic tests — the Wechsler Adult Intelligence Scale — IV and the Halsted-Reitan Trail Marking Procedure, Parts A and B. (Tr. 154-155.) Dr. DeLong's diagnostic impression was:
(Tr. 155.)
Dr. DeLong assessed Mr. Romanczuk's mental limitations as follows:
(Tr. 156.)
On December 3, 2010, State agency nonexamining medical consultant Stephen Fair, Ph.D., reviewed Dr. DeLong's report and prepared a Psychiatric Review Technique ("PRT") and a Mental Residual Functional Capacity Assessment ("MRFCA"). (Tr. 165-78, 184-87.) On the PRT, Dr. Fair assessed that Mr. Romanczuk did not meet any of the listings demonstrating that he was presumptively disabled. (Tr. 175-76.) Dr. Fair commented that Mr. Romanczuk was able to perform simple, repetitive work. (Tr. 177.) On the MRFCA, Dr. Fair assessed that Mr. Romanczuk was able to persevere and concentrate on simple, repetitive work over an extended period of time; was able to interact appropriately with others in a work situation on a limited basis; and was able to adapt to changes in a simple work environment. (Tr. 186.)
On August 23, 2011, State agency nonexamining medical consultant David Yandell, Ph.D., reviewed Mr. Romanczuk's records at reconsideration. (Tr. 189-201.) Dr. Yandell determined there was insufficient evidence to support that Mr. Romanczuk's alleged mental impairment had worsened due to Mr. Romanczuk's failure to cooperate. (Tr. 201.)
On November 19, 2010, State agency examining consultant Mark Brecheisen, D.O., conducted a physical exam. (Tr. 160-64.) Dr. Brecheisen noted Mr. Romanczuk reported his past medical history was remarkable for seizure disorder, kidney stones, left wrist fracture, and asthma. (Tr. 161.) Dr. Brecheisen noted that Mr. Romanczuk stated he had not had a seizure while awake for several years, although he believed he may still have seizures while sleeping. (Tr. 160.) Mr. Romanczuk stated his seizures were controlled by medication. (Id.) Dr. Brecheisen noted that Mr. Romanczuk reported he was able to perform his basic activities of daily living such as personal grooming and hygiene, as well as dress himself and drive a motor vehicle. (Id.) Dr. Brecheisen performed a physical exam and assessed that Mr. Romanczuk had no exertional limitations, no postural or manipulative limitations, and environmental limitations based on his history of seizure disorder that involved working around heights, working around moving machinery, and working with or around chemicals. (Tr. 163-64.)
On December 9, 2010, State agency nonexamining medical consultant Ernest Griffith, M.D., reviewed Dr. Brecheisen's report and prepared a Physical Residual Functional Capacity Assessment. (Tr. 409-16.) Dr. Griffith assessed no exertional limitations; postural limitations of frequent climbing of ramps/stairs and frequent balancing, and no climbing of ladders, ropes, or scaffolds; visual limitations of near and far acuity; and environmental limitations of avoiding concentrated exposure to extreme heat, fumes, odors, dusts, gases, and poor ventilation, and avoiding all exposure to machinery and height hazards. (Tr. 410-13.) Dr. Griffith indicated he based his environmental limitations on Mr. Romanczuk's reported history of seizure disorder and asthma. (Tr. 411, 413.)
On August 23, 2011, State agency nonexamining consultant James Hopkins, M.D., reviewed Mr. Romanczuk's records at reconsideration. (Tr. 188.) Dr. Hopkins noted that Mr. Romanczuk had failed to cooperate and there was insufficient evidence to adjudicate his case for reconsideration. (Id.)
Relying in part on Dr. DeLong's opinion, the ALJ's RFC contained the following mental limitations:
(Tr. 21-22.) Mr. Romanczuk states that the ALJ's RFC conflicts with certain parts of Dr. DeLong's opinion and argues that the ALJ improperly evaluated Dr. DeLong's opinion because he discounted portions of Dr. DeLong's assessment based on Mr. Romanczuk's subjective complaints. (Doc. 18 at 7-9.) The Court does not agree.
The ALJ properly evaluated Dr. DeLong's opinion. When an ALJ relies on a nontreating or examiner's opinion, he must explain the weight he is giving to it. Hamlin, 365 F.3d at 1215. If an ALJ accepts only part of the opinion, he must provide reasons for the portions he rejects. Chapo, 682 F.3d at 1291. Here, the ALJ satisfied both parts. First, the ALJ accorded Dr. DeLong's opinion moderate weight "because he interviewed and tested the claimant." (Tr. 23.) The ALJ also partially discounted Dr. DeLong's opinion because "his opinion appears to be based on the claimant's subjective complaints and reports and not on objective symptoms or the claimant's test results." (Tr. 23.) Mr. Romanczuk argues that the ALJ improperly discounted Dr. DeLong's opinion on this basis and rests his argument on Thomas v. Barnhart, 147 F. App'x 755, 759-60 (10
The ALJ did not substitute his judgment for that of Dr. DeLong. In Thomas, the Tenth Circuit held that the ALJ had not properly evaluated the consulting psychiatrist's opinion because he totally rejected it stating it was based solely on subjective findings from the evaluation. 147 F. App'x at 759. The Tenth Circuit held that rejecting a psychological opinion "solely for the reason that it was based on [a claimant's] responses" impermissibly substituted the ALJ's judgment for that of the psychiatrist. Id. at 760 (emphasis added). The Tenth Circuit explained that "psychology is necessarily dependent, at least in part, on a patient's subjective statements," and that a psychological opinion may rest on both "observed signs and symptoms or on psychological tests." Id. at 759 (quoting Robinson, 366 F.3d at 1083 (citing 20 CF.R. Subpart P, App. 1 § 12.00(B)). That said, Thomas does not stand for the proposition that an ALJ cannot, in determining what weight to assign an opinion, consider that the opinion is based on subjective information that the ALJ may have determined is not credible. To the contrary, the Tenth Circuit in Beard v. Colvin, ____ F. App'x ___, 2016 WL 805690, at *2 (10
Further, "there is no requirement in the regulations for a direct correspondence between an RFC finding and a specific medical opinion on the functional capacity in question." Chapo, 682 F.3d at 1288. "The ALJ, not a physician, is charged with determining a claimant's RFC from the medical record." Id. (citing Howard v. Barnhart, 379 F.3d 945, 949 (10
For these reasons, the ALJ applied the correct legal standard in evaluating Dr. DeLong's opinion.
Mr. Romanczuk next argues that the ALJ failed to consider state agency nonexamining medical consultant's Dr. Ernest Griffith's opinion wherein he assessed an environmental limitation of "no concentrated extreme heat." (Doc. 18 at 9.) The Commissioner argues that the record does not support a finding that Mr. Romanczuk had an impairment that would limit his exposure to extreme temperatures. (Doc. 21 at 6.) The Court agrees.
The ALJ's failure to discuss Dr. Griffith's opinion is harmless error. "It is the ALJ's duty to give consideration to all the medical opinions in the record. He must also discuss the weight he assigns to such opinions," including the opinions of state agency medical consultants. Mays v. Colvin, 739 F.3d 569, 578 (10
The ALJ did not need Dr. Griffith's opinion to determine Mr. Romanczuk's RFC. Here, the ALJ explicitly accorded great weight to Dr. Brecheisen's opinion. Hamlin, 365 F.3d at 1215. The ALJ's RFC also adopted in full Dr. Brecheisen's assessment in determining Mr. Romanczuk's physical RFC; i.e., no exertional limitations, but "seizure restrictions such as not working around heights, moving machinery, or with or around chemicals[.]" (Tr. 21, 24.) Moreover, the limitations Dr. Griffith assigned were not inconsistent with the ALJ's RFC but for the environmental limitations that appear to be based on Mr. Romanczuk's reported history of asthma which is not supported by substantial evidence. Thus, there was no reason for the ALJ to reject or weigh Dr. Griffith's opinion unfavorably in order to determine Mr. Romanczuk's RFC.
The alleged error does not prejudice Mr. Romanczuk. "It is axiomatic that all of the ALJ's required findings must be supported by substantial evidence." Haddock v. Apfel, 196 F.3d 1084, 1088 (10
The ALJ's decision is supported by substantial evidence and free of harmful error. For the reasons stated above, Mr. Romanczuk's Motion to Remand for Rehearing is