GARY M. PURCELL, Magistrate Judge.
Plaintiff seeks judicial review pursuant to 42 U.S.C. § 405(g) of the final decision of Defendant Commissioner denying his application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 416(i), 423. Defendant has answered the Complaint and filed the administrative record (hereinafter AR___), and the parties have briefed the issues. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended that the Commissioner's decision be affirmed.
Plaintiff applied for Title II disability insurance benefits on September 26, 2013. In his application, Plaintiff alleged that he became disabled on June 1, 2013, due to asthma, brain injury, chronic fatigue syndrome, hearing loss, bipolar disorder, anxiety, post-traumatic stress syndrome ("PTSD"), depression, right shoulder injury, and deviated septum. AR 178, 181.
Plaintiff was 40 years old on the date of the ALJ's decision, had a college degree, and had served in the military. AR 19, 247. Plaintiff has a history of treatment at the Veteran's Affairs ("VA") Medical Center for issues including adjustment disorder with anxiety and depressed mood, anger issues, and PTSD. See AR 240-314, 323-328, 329-411. Plaintiff has a VA disability rating of 90%. AR 245.
Plaintiff appeared with counsel and testified at an administrative hearing conducted on June 2, 2015, before an Administrative Law Judge ("ALJ"). AR 27-58. A vocational expert ("VE") also testified at the hearing. The ALJ issued a decision in which the ALJ found that Plaintiff was not disabled within the meaning of the Social Security Act. Following the agency's well-established sequential evaluation procedure, the ALJ found at the first step that Plaintiff met the insured status requirements of the Social Security Act through December 31, 2018. The ALJ further found that Plaintiff had engaged in substantial gainful activity during the period from June 2013 to July 2013, but there had been a continuous 12-month period during which Plaintiff did not engage in substantial gainful activity. The ALJ's findings addressed the periods during which Plaintiff did not work. At the second step, the ALJ found that Plaintiff had severe impairments of PTSD, bipolar disorder, chronic right shoulder pain, use of binaural hearing aids, and migraines. At the third step, the ALJ found that these impairments were not per se disabling as Plaintiff did not have an impairment or combination of impairments that met or medically equaled the requirements of a listed impairment.
At step four, the ALJ found that Plaintiff had the residual functional capacity ("RFC") to perform work at the light exertional level in that he could lift and carry up to 20 pounds occasionally and 10 pounds frequently; stand and walk up to 30 minutes at a time, up to 4 hours in an 8-hour workday; and sit at least 6 hours in an 8-hour workday. The ALJ also included additional limitations as follows:
AR 14.
Based on this RFC finding and Plaintiff's and the VE's testimony regarding the requirements of Plaintiff's previous work, the ALJ determined that Plaintiff was unable to perform any past relevant work.
Reaching the fifth and final step of the required sequential analysis, and relying on the VE's testimony as to the ability of a hypothetical individual with Plaintiff's work history, age, education, and this RFC for work, the ALJ found that Plaintiff was capable of performing jobs that existed in the national economy. These included work as a clerical worker, data entry clerk, or bill sorter. Based on these findings, the ALJ concluded that Plaintiff had not been under a disability, as defined by the Social Security Act, from June 1, 2013, through the date of the decision.
The Appeals Council denied Plaintiff's request for review, and therefore the ALJ's decision is the final decision of the Commissioner. See 20 C.F.R. § 404.981; Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009).
Plaintiff argues that the ALJ erred in determining the RFC because he (1) failed to include in the RFC limitations for the severe impairments of migraines and PTSD; (2) failed to consider the cumulative effect of Plaintiff's impairments; and (3) failed to include limitations for social functioning and for concentration, persistence, or pace. Plaintiff's Opening Brief (Doc. # 17) at 2-10. Plaintiff also asserts that the ALJ failed to properly consider the VA rating. Pl.'s Br. at 10-12.
The Court must determine whether the Commissioner's decision is 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); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). The "determination of whether the ALJ's ruling is supported by substantial evidence must be based upon the record taken as a whole. Consequently, [the Court must] remain mindful that evidence is not substantial if it is overwhelmed by other evidence in the record." Wall, 561 F.3d at 1052 (citations, internal quotation marks, and brackets omitted).
The Social Security Act authorizes payment of benefits to an individual with disabilities. 42 U.S.C. § 401 et seq. A disability is an "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); accord 42 U.S.C. § 1382c(a)(3)(A); see 20 C.F.R. § 404.1509 (duration requirement). Both the "impairment" and the "inability" must be expected to last not less than twelve months. Barnhart v. Walton, 535 U.S. 212 (2002).
The agency follows a five-step sequential evaluation procedure in resolving the claims of disability applicants. See 20 C.F.R. § 404.1520(a)(4), (b)-(g). "If the claimant is not considered disabled at step three, but has satisfied her burden of establishing a prima facie case of disability under steps one, two, and four, the burden shifts to the Commissioner to show the claimant has the [RFC] to perform other work in the national economy in view of her age, education, and work experience." Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005). "The claimant is entitled to disability benefits only if he [or she] is not able to perform other work." Bowen v. Yuckert, 482 U.S. 137, 142 (1987).
Though Plaintiff argues that the ALJ failed to include in the RFC limitations for migraines and PTSD, Plaintiff does not provide citations to record evidence of any limitations that should have been included in the RFC but were not. See Pl.'s Br. at 3-8. Rather, Plaintiff cites to:
With respect to Plaintiff's testimony and self-reports, the ALJ was not required to categorically credit Plaintiff's reports regarding his psychological symptoms, as Plaintiff seems to suggest. The ALJ found Plaintiff's statements about the intensity, persistence, and limiting effects of his symptoms were not fully credible and Plaintiff does not challenge that determination here. See AR 18; White v. Comm'r of Soc. Sec. Admin., No CIV-16-439-HE, 2017 WL 986210, at *4 (W.D. Okla. Feb. 14, 2017) (R. & R.), adopted, 2017 WL 979069 (W.D. Okla. Mar. 13, 2017).
With respect to the VA treatment notes indicating treatment and diagnoses, "[t]he burden to prove disability in a social security case is on the claimant, and to meet this burden, the claimant must furnish medical and other evidence of the existence of the disability." Branum v. Barnhart, 385 F.3d 1268, 1271 (10th Cir. 2004). Diagnosis of certain conditions does not automatically mean that Plaintiff is disabled; what matters is whether those conditions result in work-related limitations. See Bernal v. Bowen, 851 F.2d 297, 301 (10th Cir. 1988). Here, Plaintiff has not shown that they do. Cf. Orso v. Colvin, 658 F. App'x 418, 420-21 (10th Cir. 2016) (affirming finding of nondisability when plaintiff provided no evidence or argument regarding specific functional limitations stemming from his impairments); Paulsen v. Colvin, 665 F. App'x 660, 668 (10th Cir. 2016) (affirming finding of nondisability when there was "no evidence" that plaintiff's diagnosed conditions "resulted in any work-related limitations beyond those found by the ALJ").
And with respect to Plaintiff's argument that "it is posited that the ALJ should have made some accommodation for all the severe impairments in [the] RFC," Pl.'s Br. at 4, the ALJ did include in the RFC the restrictions that Plaintiff "is limited to quiet or office level noise environment. He should have no more than occasional interaction with coworkers and supervisors; and no more than rare contact with the public." AR at 14. In determining the RFC, the ALJ specifically considered and discussed Plaintiff's PTSD and migraines. AR 16-17. Plaintiff has offered no explanation as to why the limitations included in the RFC are not adequate; nor has Plaintiff cited evidence demonstrating inadequacy. Instead Plaintiff bases his argument only on the step-two determination, which does not suffice to prove reversible error. See, e.g., Banks v. Colvin, 547 F. App'x 899, 903 (10th Cir. 2013) (explaining that a step-two determination that an impairment is severe "only allows the sequential process to proceed; it does not reflect the severity of [the claimant's] functional limitations relevant to step four").
Plaintiff argues that the ALJ did not consider the combined impact of his impairments. Pl.'s Br. at 8-9. The ALJ, however, specifically explained in his written decision that he considered Plaintiff's impairments both separately and in combination. See, e.g., AR 12 (ALJ stating that Plaintiff's impairments are severe "in combination if not singly"), 13 (ALJ stating that he had considered all of Plaintiff's impairments "individually and in combination"), 14 (ALJ stating he considered "the entire record" and "all symptoms"). Plaintiff offers no reason to find otherwise beyond his dissatisfaction with the result. Cf. Flaherty v. Astrue, 515 F.3d 1067, 1071 (10th Cir. 2007) (rejecting plaintiff's argument that ALJ did not consider combined effect of impairments when ALJ stated he had considered all the evidence and noting that the "general practice" "is to take a lower tribunal at its word when it declares that it has considered a matter").
At step three, the ALJ considered whether the severity of Plaintiff's impairments met or medically equaled the criteria of Listings 12.04 or 12.06. AR 13-14. The ALJ determined that they did not and, in making this determination, evaluated whether Plaintiff satisfied the regulatory requirements, including what are known as "paragraph B" criteria related to activities of daily living; social functioning; and concentration, persistence, or pace. AR 13-14; see also 20 C.F.R. pt. 404, subpart P app. 1 §§ 12.04(B), 12.06(B). In doing so, the ALJ found that Plaintiff had moderate limitations in social functioning and in concentration, persistence, or pace. AR 13.
Plaintiff argues that, because the ALJ made these step-three findings, corresponding restrictions for social functioning and for concentration, persistence, or pace should have been included in the RFC. Pl.'s Br. at 9-10. As explained by the ALJ, however, the limitations and restrictions found at step three of the sequential evaluation do not necessarily translate into functional limitations and restrictions in an RFC assessment.
AR 14; see SSR 96-8p, 1996 WL 374184, at *4 (July 2, 1996) ("The adjudicator must remember that the limitations identified in the `paragraph B' . . . criteria are not an RFC assessment but are used to rate the severity of mental impairment(s) at steps 2 and 3 of the sequential evaluation process."). Though Plaintiff relies on case law from the Seventh Circuit, the Tenth Circuit has rejected the argument that an ALJ must incorporate "paragraph B" criteria findings of moderate limitations into the RFC finding. See Vigil v. Colvin, 805 F.3d 1199, 1203 (10th Cir. 2015) ("The ALJ's finding of a moderate limitation in concentration, persistence, or pace at step three does not necessarily translate to a workrelated functional limitation for the purposes of the RFC assessment."); see also Patterson v. Colvin, 662 F. App'x 634, 638 (10th Cir. 2016) (relying on Vigil to reject Plaintiff's argument that the ALJ erred in failing to include in the RFC limitations related to the ALJ's step three findings of moderate limitations in social functioning and in concentration, persistence, or pace).
Plaintiff does not argue that record evidence, rather than the ALJ's step-three statements, requires RFC limitations for social functioning and for concentration, persistence, or pace. And here, record evidence supports the ALJ's RFC determination. The ALJ gave little weight to the psychological consultant at the initial level who assessed no severe mental impairments. AR 18. But the ALJ gave great weight to the psychological consultant at the reconsideration level. AR 18. This consultant found that Plaintiff's "[c]oncentration and persistence is variable but should be sufficient to maintain employment." The consultant also found that Plaintiff "can relate to supervisors and peers on a superficial work basis [and] can tolerate incidental contact with the general public but should not seek employment where public contact is frequent and necessary for successful work performance." AR 82. Plaintiff has not shown that substantial evidence does not support the ALJ's RFC determination.
Plaintiff contends that the ALJ did not properly consider his 90% VA disability rating when determining that he was not disabled. Pl.'s Br. at 10-11.
In this case, the ALJ recognized in the decision that Plaintiff had been determined to be 90% disabled by the Department of Veterans Affairs, and also recognized that the VA's disability rating was not binding on the agency under the pertinent regulations. AR 17. The VA's disability rating of 90% was comprised primarily of PTSD, which was rated at 70%. AR 245. The ALJ noted the VA rating and acknowledged that Plaintiff "clearly has [PTSD] and anger management related issues," but found that, because the VA rating "is a different program with different rules," "in this instance" it was "not helpful." AR 17; see Jones v. Barnhart, 53 F. App'x 45, 47 (10th Cir. 2002) ("Simply put, the . . . [VA] proceedings are entirely different and separate from a claim under the Social Security Act, with different parties, different evidentiary standards, and different bodies of law governing their outcomes."). And, as discussed above, the ALJ properly considered Plaintiff's PTSD when determining the RFC. See AR 17. Thus, the ALJ considered Plaintiff's 90% VA disability rating and explained why he found that Plaintiff was not disabled under the Social Security Administration's disability standards; Plaintiff has shown no reversible error. See McFerran v. Astrue, 437 F. App'x 634, 638 (10th Cir. 2011) (finding the ALJ's consideration of claimant's VA rating sufficient when "[t]he record demonstrates that the ALJ examined the VA medical records and acknowledged the VA's 100% disability rating"); Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005) (declining to remand where the claimant "has not pointed to any specific factual finding or evidence in [another agency's] disability determination that should have changed the [Social Security Administration's] decision").
In the ALJ's decision, the ALJ imposed limitations in the RFC finding that are supported by the record, including limitations to account for Plaintiff's mental impairments. There is substantial evidence in the record to support the RFC determination, and the Commissioner's final decision should be affirmed.
In view of the foregoing findings, it is recommended that judgment enter AFFIRMING the decision of the Commissioner to deny Plaintiff's application for benefits. The parties are advised of their respective right to file an objection to this Report and Recommendation with the Clerk of this Court on or before
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.
