BERNARD M. JONES, Magistrate Judge.
Plaintiff, Salvador Gonzalez, seeks judicial review of the Social Security Administration's denial of supplemental security income (SSI).
On March 6, 2015, Plaintiff protectively filed an application for DIB. See AR 11. The Social Security Administration denied the DIB application initially and on reconsideration. AR 69, 79. Plaintiff protectively filed an application for SSI on October 2, 2015, which was escalated to the hearing level. AR 11.
After amending his onset date to October 2, 2015, Plaintiff voluntarily withdrew his application for DIB at the hearing. AR 11. Following the hearing, an Administrative Law Judge (ALJ) issued an unfavorable decision dated April 4, 2017. AR 8-29. The Appeals Council denied Plaintiff's request for review. AR 1-7. Thus, the decision of the ALJ became the final decision of the Commissioner. Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011). Plaintiff seeks judicial review of this final agency decision.
The ALJ followed the sequential evaluation process required by agency regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005) (explaining five-step sequential evaluation process); see also 20 C.F.R. § 416.920. The ALJ first determined Plaintiff had not engaged in substantial gainful activity since October 2, 2015, the amended alleged onset date. AR 13.
At step two, the ALJ determined Plaintiff suffers from the following severe impairments: obesity; hypothyroidism; asthma; anxiety disorder; depression disorder; and a learning disability related to arithmetic. Id.
The ALJ next determined Plaintiff's residual functional capacity (RFC), concluding:
AR 16-23. The ALJ then found Plaintiff could not perform any past relevant work. AR 23-24. Relying on the testimony of a vocational expert (VE), the ALJ found there were other jobs that existed in significant numbers in the national economy that Plaintiff could perform—touch up screener, document preparer, and semiconductor bonder. AR 24-25. The ALJ concluded, therefore, that Plaintiff was not disabled for purposes of the Social Security Act. AR 25.
Judicial review of the Commissioner's final decision is limited to determining whether the factual findings are supported by substantial evidence in the record as a whole and whether the correct legal standards were applied. See Poppa v. Astrue, 569 F.3d 1167, 1169 (10th Cir. 2009). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003) (quotation omitted). 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. Branum v. Barnhart, 385 F.3d 1268, 1270 (10th Cir. 2004). The court "meticulously examine[s] the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met." Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (citations omitted). While the court considers whether the ALJ followed the applicable rules of law in weighing particular types of evidence in disability cases, the court does not reweigh the evidence or substitute its own judgment for that of the Commissioner. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quotations and citations omitted).
Plaintiff asserts that the ALJ improperly weighed the opinion of his treating physician and improperly evaluated Plaintiff's symptoms. The Court finds no reversible error with regard to either claim.
Plaintiff claims the ALJ erred in her consideration of an opinion of Dr. James Love, M.D., one of his treating doctors. There are two opinions from Dr. Love in the record. In March 2014, Dr. Love diagnosed Plaintiff with anxiety and depression/agoraphobia, giving Plaintiff a fair prognosis. AR 246. Dr. Love noted that Plaintiff had difficulty with stressful situations and dealing with people, but was released to work. Id. The ALJ gave this opinion great weight. AR 18.
In October 2015, Dr. Love opined that Plaintiff had moderate limitations in understanding and memory, marked limitations in attention and concentration, marked limitations in interacting appropriately with the public, and moderate limitations in the ability to accept instructions and criticism from supervisors. AR 355-357. Dr. Love noted that Plaintiff had significant issues with maintaining sleep and work schedules and that he had significant difficulty in dealing with coworkers, supervisors, and the public. Id. The ALJ gave this opinion limited weight. AR 23. Plaintiff contends the second opinion was improperly considered by the ALJ.
A sequential, two-step inquiry governs an ALJ's evaluation of the medical opinions of a claimant's treating physician. Krauser, 638 F.3d at 1330. The two-step inquiry is mandatory and each step of the inquiry is "analytically distinct." Id. First, the ALJ must decide whether the opinion is entitled to "controlling weight." If the opinion is "well-supported by medically acceptable clinical or laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the record," then the opinion must be given controlling weight. Id. A deficiency in either of these areas requires that the opinion not be given controlling weight. Id.
When a treating physician opinion is not entitled to controlling weight, the inquiry does not end. The opinion is still entitled to deference. Thus, at the second step of the inquiry, "the ALJ must make clear how much weight the opinion is being given (including whether it is being rejected outright) and give good reasons, tied to the factors specified in the cited regulations for this particular purpose, for the weight assigned." Id. As the Tenth Circuit has made clear: "[i]f this is not done, a remand is required." Id. The relevant factors governing the second step of the inquiry include: "(1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship, including the treatment provided and the kind of examination or testing performed; (3) the degree to which the physician's opinion is supported by relevant evidence; (4) consistency between the opinion and the record as a whole; (5) whether or not the physician is a specialist in the area upon which an opinion is rendered; and (6) other factors brought to the ALJ's attention which tend to support or contradict the opinion." Id. at 1331 (citation omitted).
The ALJ first found that Dr. Love's opinion was "not wholly supported by the evidence" and was not entitled to controlling weight. AR 21. In the preceding paragraphs, the ALJ noted the opinion's inconsistencies with the record. Id. She noted that other records described Plaintiff's concentration and memory as average—in contrast to Dr. Love's finding that Plaintiff had marked limitations in the area. Id. The ALJ also determined that the opinion did not explain how Plaintiff's functional limitations "worsened dramatically" from Dr. Love's prior assessment, "especially given that [Plaintiff] has reported that his current impairments have been present his whole life." Id. The ALJ further stated that the opinion was drafted before the onset date and was therefore addressing limitations existing prior to the alleged onset date, decreasing its relevance because Plaintiff began to show improvement in his symptoms, especially when he was not around his family. Id. Ultimately, the ALJ gave the opinion limited weight "because [Plaintiff's] reported symptoms, including those reported to his physicians, have been inconsistent with the record as a whole." AR 23. Plaintiff contends the ALJ erred by giving Dr. Love's October 2015 opinion limited weight.
Plaintiff argues that the ALJ failed to consider all the evidence when she determined Dr. Love's second opinion was unsupported. Pl.'s Br. 6-14. In support of his proposition, Plaintiff cites multiple medical records from visits to Dr. Love between June 2014 and January 2016. Pl.'s Br. 9-10. He contends these records show that his mental health was deteriorating, both leading up to and after the alleged onset date of October 2, 2015, which is in contrast to the ALJ's finding that Plaintiff had begun to show improvement in symptoms. The Court notes that the ALJ referenced Plaintiff's treatment with Dr. Love during that time period. AR 18-19. Although the ALJ did not go into appointment-by-appointment detail, "[t]here is obviously no requirement that the ALJ reference everything in the administrative record." Wilson v. Astrue, 602 F.3d 1136, 1148 (10th Cir. 2010). The decision illustrates that the ALJ considered Plaintiff's treatment with Dr. Love.
Plaintiff also asserts that the ALJ "was playing doctor" when she found Plaintiff had shown improvement. Pl.'s Br. 11. Plaintiff argues that the medical records do not show "any resemblance of sustained improvement—the [medical evidence] only showed that his condition remained the same or, arguably, worsened." Id. (emphasis in original). Therefore, he contends that "by looking at the progression of [his treatment with Dr. Love], a reasonable mind should conclude that [Plaintiff's] mental health was not improving leading up to or following Dr. Love's second assessment (as the ALJ believes)." Id. (emphasis in original). The decision, however, shows the ALJ supported her assertions with citations to the medical record.
The ALJ considered that Plaintiff had a "downturn in symptoms" in 2014—after the first opinion—related to his divorce. AR 18 (citing AR 262). The decision, however, further notes that "in the months leading up to the onset date, [Plaintiff] continued to be treated for depression and anxiety, with modest improvement noted while adhering to treatment" and that Plaintiff reported improved symptoms in October 2015. AR 18 (citing AR 252-316, 328-354). The cited medical records support the ALJ's finding. See AR 252 (noting modest improvement for depression on 3/5/15 visit to Dr. Love); AR 328 (noting that Plaintiff was "doing fair" with depression, but Plaintiff had "stopped all meds" because he "felt overmedicated" on 6/22/15 visit to Dr. Love); AR 351 (noting that Plaintiff was seeing counselor and it "seems to help" on 10/6/15 visit to Dr. Love). Plaintiff's argument, therefore, is nothing more than a request for the Court to reweigh the evidence, a task it is forbidden to perform. See Bowman, 511 F.3d at 1272.
Finally, Plaintiff argues that Dr. Love's second opinion was consistent with his treatment records following the first opinion. Pl.'s Br. 11-12. He notes that the medical records indicate that Plaintiff began having increased difficulty sleeping and that he was staying up all night and sleeping during the day. Id. at 12. Plaintiff contends that the problem did not become a "significant issue" and he was not diagnosed with daytime hypersomnolence until after the first opinion, which explains why Dr. Love did not include difficulty "maintaining a sleep and work schedule" in his first opinion and did in his second opinion. Id. Therefore, Plaintiff argues, that the ALJ should have included limitations on maintaining a sleep and work schedule in the RFC, such as an inability to remain on task, unscheduled breaks in the workday to nap, the ability to show up late for work at unscheduled times, at least two absences per month, and no contact with coworkers, supervisors, or the public. Id. at 12-13.
The decision makes multiple references to Plaintiff's sleep issues. The ALJ considered Plaintiff's hypersomnolence ongoing issues with in erratic sleep schedule. AR 19. The decision cites a visit with Dr. Lawrence K. Kaczmarek, M.D. in which Plaintiff noted increased sleep after taking Ambien. AR 19 (citing AR 384). Further, the ALJ noted a visit with Dr. John Hurley, Ph.D., in which Plaintiff reported an irregular sleep cycle, which was in part due to staying up late and playing games with friends. AR 19 (citing AR 407). In other words, the ALJ considered the evidence related to Plaintiff's sleep issues and formulated the RFC. Although Plaintiff asserts the ALJ should have assessed additional limitations due to his sleep issues, he does not direct the Court to a portion of the record supporting such particular limitations. Thus, even if the ALJ weighed Dr. Love's second opinion more favorably, nothing would require the implementation of the particularized limitations Plaintiff seeks to include in the RFC.
The Court does not find error with the ALJ's consideration of Dr. Love's second opinion.
Plaintiff alleges the ALJ erred in her analysis of Plaintiff's symptoms. Specifically, he contends that the ALJ improperly considered his activities of daily living. The Court finds no reversible error with regard to the ALJ's findings.
Plaintiff argues the ALJ erred when she evaluated Plaintiff's symptoms and subjective complaints. Pl.'s Br. 14-24. The Court will not disturb an ALJ's evaluation of a claimant's symptoms if they are supported by substantial evidence because such "determinations are peculiarly the province of the finder of fact." Cowan v. Astrue, 552 F.3d 1182, 1190 (10th Cir. 2008) (citing Diaz v. Secretary of Health & Human Servs., 898 F.2d 774, 777 (10th Cir. 1990)).
Plaintiff generally complains that the ALJ mischaracterized the evidence by utilizing word choices to "try and destroy the credibility" of Plaintiff. Pl.'s Br. 15. The ALJ noted: "[Plaintiff] testified that he has a driver's license, but specified he has not driven since his amended onset date of disability of October 2, 2015. However, he admitted that he rides as a passenger in a vehicle at least once a week." AR 22. Plaintiff contends that the ALJ's word choice made it appear that he was trying to hide something by using the word "admitted" instead of "testified." Pl.'s Br. 15. He also contends that the ALJ made a false equivalency between driving and riding. Id. The Court finds nothing improper with the way the ALJ phrased her recap of the evidence. She simply considered that Plaintiff did not drive, but has been a passenger in a vehicle. The Court does not find any hidden meaning in the ALJ's words, and Plaintiff has not cited any law prohibiting the ALJ from using such language even if there was.
Plaintiff also takes issue with another portion of the decision in which the ALJ found:
AR 23. Plaintiff argues that by using the term "neglected," the ALJ insinuated that he was hiding information about his daily activities. Pl.'s Br. 17-18. Plaintiff contends he testified that he performed some of the activities and he was not asked whether he performed others. Id. The Court notes that Plaintiff testified about his personal medical research, watching television on his computer, using Facebook, and traveling as a passenger in a vehicle. AR 47, 49, 50, 56. Plaintiff, however, does not appear to contest the ALJ's assertion that he performed the activities about which he did not testify. The ALJ is permitted to consider the performance of activities of daily living when making a determination about the severity of Plaintiff's symptoms. See 20 C.F.R. § 416.929(c). Regardless of whether Plaintiff testified about the activities, what matters is Plaintiff performed them. Thus, the Court finds no error with regard to the ALJ's consideration of such activities.
Plaintiff contends the ALJ improperly considered the evidence of his activities of daily living by failing to inquire further into certain topics during the hearing. The Court does not find error with regard to the ALJ's evidentiary conclusions.
The ALJ noted that while Plaintiff indicated on a function report that his medication made him drowsy, dizzy, have blurred vision, and sleepy, AR 208, his mother filled out a function report on the same day that did not report any such side effects.
Plaintiff also asserts the ALJ erred with regard to her consideration of Plaintiff's ability to walk. The ALJ noted that Plaintiff reported only being able to walk a few feet before needing to rest, while other records indicated he walked on a treadmill regularly. AR 23. Plaintiff claims the ALJ should have elicited testimony regarding his ability to walk on a treadmill, as the record was not clear as to how far Plaintiff walked on the treadmill. Pl.'s Br. 19-20. Here too, the ALJ was presented with an evidentiary conflict and made a reasonable determination that Plaintiff's assertion that he could walk just a few feet was not consistent with his ability to walk on a treadmill regularly.
The ALJ also referenced that Plaintiff "has admitted to staying up late and playing video games with friends." AR 23. Plaintiff argues that the statement is consistent with his testimony about using the computer several hours a day. Pl.'s Br. 20 (citing AR 49-50). He also asserts that because video games can be played online, the use of such technology allows him to be isolated in a way consistent with his symptoms. Id. Plaintiff contends the ALJ should have asked whether he plays games online or whether his friends come over to play games. Id. The Court finds the ALJ did not err in failing to inquire further. Plaintiff reported broken sleep patterns as the result of his mental impairments. The ALJ appropriately considered that broken sleep patterns may have been the result of Plaintiff staying up late to play video games.
The ALJ noted that Plaintiff "has reported daily panic attacks that require anti-anxiety medication to be taken each time for relief; however, when he was drug tested in February of 2016, no anti-anxiety medication was detected in his system." AR 23; see also AR 19 (noting the drug test "returned negative for the use of benzodiazepines, the medications [Plaintiff] uses for anxiety"). Plaintiff claims that he was previously prescribed benzodiazepines from Dr. Love, but his last visit with Dr. Love was January 7, 2016 and he ran out of his thirty-day prescription. Pl.'s Br. 21-22. Plaintiff cites no part the record reflecting that Plaintiff's prescription lasted only 30 days, and Dr. Love's treatment records are silent as to the prescription length. See AR 394-395 (medical record reflecting January 7, 2016 visit with Dr. Love). Furthermore, the ALJ is entitled to resolve evidentiary conflicts, Allman, 813 F.3d at 1333, and it was reasonable for her to find that Plaintiff's symptoms may not have been as severe as reported if he was not taking prescribed medication or let his prescription expire.
The ALJ also found that Plaintiff "has not sought treatment for some of his alleged conditions, reportedly due to financial hardship, but he is able to smoke cigarettes or e-cigarettes regularly." AR 23. Plaintiff complains that the ALJ simply assumed that Plaintiff is purchasing the cigarettes, but "that may not be the case." Pl.'s Br. 22. The Court finds no error with the ALJ's consideration of Plaintiff's smoking, as it was within the ALJ's purview to conclude that Plaintiff—an adult—procured the cigarettes he smoked. Furthermore, an ALJ may consider a claimant's smoking when assessing a claimant's claim of financial hardship. See Wishard v. Colvin, No. 2:16-CV-382, 2017 WL 4570748, at *7 (S.D. Tex. Sept. 25, 2017), report and recommendation adopted, No. 2:16-CV-382, 2017 WL 4551376 (S.D. Tex. Oct. 12, 2017) (affirming where "the ALJ specifically considered Plaintiff's alleged financial inability for not complying with prescribed treatment and found his testimony to be not entirely credible, based in part on his financial ability to maintain his 1 1/2 pack a day smoking habit"); Rinaldi v. Berryhill, No. 2:16-CV-1403-RBH, 2017 WL 4003384, at *4 (D.S.C. Sept. 12, 2017) ("[A]n ALJ may consider a claimant's use of cigarettes and that impact on the ability to afford treatment."); Poole v. Berryhill, No. 3:16-CV-3078, 2017 WL 3838485, at *4 (W.D. Ark. Sept. 1, 2017) (noting, during a discussion of Plaintiff's allegation of a lack of finances to seek treatment, that "Plaintiff's medical records indicated that Plaintiff was able to support his daily smoking habit throughout the relevant time periods").
The Court finds the ALJ did not err when she did not ask Plaintiff additional questions at the hearing.
Plaintiff asserts the ALJ erred in her analysis because some of the activities referenced in the decision were actually performed sporadically. The Court finds that the ALJ appropriately considered these activities for the reasons stated below.
Plaintiff argues the ALJ improperly relied on the fact that Plaintiff uses a cell phone, activated internet access, and has email and Facebook accounts. Pl.'s Br. 16-17. Plaintiff contends the ALJ failed to include a reference to Plaintiff's testimony that he uses his cell phone and Facebook once or twice a week and only uses them to contact his mother. Id. at 16 (citing AR 50-51). Further, Plaintiff argues that while Plaintiff can use the computer five-to-six hours per day, the ALJ did not note that he used his computer to watch television or anything to keep him entertained in order to keep his mind at bay and not have panic symptoms. Id. at 17 (citing AR 23, 49-50). Thus, he contends the activities are more limited than the ALJ represents. The record is clear that Plaintiff's use of electronics is not sporadic. Plaintiff admits to using his computer between five-to-six hours per day. Id. While Plaintiff points to his own testimony where he claims the use of computer was a form of self-medication, he does not direct the Court to any medical records substantiating those claims. Thus, the ALJ properly considered Plaintiff's utilization of electronics.
Another portion of the ALJ's discussion states that Plaintiff "emphasized repeatedly that he stays at home due to his symptoms, but at other points in the record, it is revealed that his family only had one car and [Plaintiff] did not have insurance to drive it, so he rarely drove but did leave his house frequently." AR 23 (citing AR 325). Plaintiff asserts this interpretation is inaccurate because the portion of the record cited states that he had been hanging out at home, had not been getting out as much as he wanted to, but had been stepping out to get fresh air. Pl.'s Br. 22 (citing AR 325). The Court construes the ALJ's statement to mean that while Plaintiff alleges he stayed home due to his symptoms, it was actually because he was not able to drive to leave his home. Indeed, the record cited by Plaintiff noted that he was not getting out lately as much as he had wanted. AR 325.
The Court finds no error with regard to the ALJ's consideration of the frequency of his activities.
Plaintiff takes issue with the portion of the decision stating:
AR 22-23. Plaintiff contends this portion is inaccurate because his mother indicated that she and Plaintiff's stepfather take care of the dog on the function report. Pl.'s Br. 16. Indeed, the function report reflects that Plaintiff's mother stated Plaintiff did not care for the dog, but that his mother and stepfather did. AR 186. While Plaintiff admits the mental health provider's records indicate he walks the dog, there is no reference to taking care of the dog in the cited portion of the record. AR 318-326. Thus, with the exception of walking the dog, the ALJ's conclusion that Plaintiff took care of his dog is incorrect. Nevertheless, an ALJ does not commit error when one or two of the reasons given are not supported by substantial evidence. See Pickup v. Colvin, 606 F. App'x 430, 433-34 (10th Cir. 2015) (unpublished) (despite finding two problems with the ALJ's rationale for finding the claimant not credible, the other reasons given by the ALJ made the conclusion "entirely proper"); Wilson v. Astrue, 602 F.3d 1136, 1145-46 (10th Cir. 2010) (affirming despite finding one piece of evidence would not support an adverse credibility finding). As such, the Court does not consider this error reversible considering the many other reasons the ALJ gave in the symptom analysis.
For the reasons set forth above, it is recommended that the Commissioner's decision be affirmed.
The parties are advised of their right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by November 23, 2018. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. Moore v. United States, 950 F.2d 656 (10th Cir. 1991).
This Report and Recommendation terminates the referral by the Chief District Judge in this matter.
