ERIC F. MELGREN, District Judge.
Plaintiff Elizabeth Anne Carpenter ("Plaintiff") seeks review of a final decision by Defendant, the Commissioner of Social Security ("Commissioner"), denying her application for Disability Insurance Benefits under Title II of the Social Security Act. In her pleadings, Plaintiff alleges multiple assignments of error with regard to residual functional capacity and credibility, vocational expert testimony, use of additional evidence, the demands of Plaintiff's past employment, and the weight assigned to an opinion of one of Plaintiff's treating healthcare professionals. Upon review, the Court finds that the Commissioner's decision was supported by substantial evidence contained in the record. As such, the decision of the Commissioner is affirmed.
Plaintiff's medical issues date back to April 6, 2009, when she began complaining of severe neck and back pain, allegedly due to repetitive activity associated with her job as a bank customer service associate. Over the course of the next three years, Plaintiff visited multiple doctors and underwent numerous evaluations, including radiological scans, for her alleged impairments. While initially told that she was not a candidate for surgery, Plaintiff did indeed undergo a cervical discectomy and fusion on June 29, 2012.
Allegedly forced to leave the workplace as a result of her impairments, Plaintiff filed for benefits on February 2, 2010, alleging a disability beginning that same day. Her claim was denied initially on April 16, 2010, and upon reconsideration. Plaintiff timely filed a request for an administrative hearing, which took place on July 8, 2011, before Administrative Law Judge Gary J. Suttles ("ALJ Suttles"). Plaintiff appeared and testified from Columbia, Missouri. ALJ Suttles appeared via video from Houston, Texas.
At the time of the hearing, Plaintiff was a fifty-year-old mother of four who resided with her husband and oldest adult child. Plaintiff, who was represented by counsel, testified that she graduated from high school and completed a minimal amount of college. Plaintiff indicated that her neck and nerve issues prevented her from returning to work and affected her activities of daily living, including grocery shopping, basic housework, and socializing.
In addition to Plaintiff's testimony, ALJ Suttles also sought the expert testimony of Vocational Expert Byron Pettingill ("VE Pettingill") to determine how, if at all, Plaintiff's impairments and limitations affected her ability to return to the workforce. VE Pettingill described Plaintiff's past relevant work as a customer service representative as semi-skilled, typically performed at either a light or sedentary level. Based on this description, as well as his review of the entire record, ALJ Suttles questioned the VE as to whether a hypothetical individual with certain limitations representative of the Plaintiff's legitimate limitations, including the need for an at-will sit/stand option, would be able to return to Plaintiff's work as a customer service representative. VE Pettingill answered in the affirmative. On cross-examination, Plaintiff's counsel posed additional hypothetical questions that contained limitations that, in the VE's expert opinion, prevented the hypothetical individual from sustaining competitive employment.
On July 27, 2011, ALJ Suttles issued his decision, finding that Plaintiff suffered from a variety of severe impairments, including osteoarthritis, peripheral neuropathy, cervical pain, left knee replacement, headaches, and obesity. Despite these findings, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. More specifically, ALJ Suttles determined that Plaintiff failed to meet either Listing 1.02, which describes major dysfunctions of a joint, or Listing 1.04, which includes all disorders of the spine. ALJ Suttles concluded that Plaintiff retained the residual functional capacity to perform light work, as that term is defined under Social Security Regulations, with the following limitations and/or exceptions: (1) only occasional lifting of twenty pounds and frequent lifting of ten pounds; (2) sit/stand option; (3) walking for only four hours out of an eight-hour workday; (4) only occasional overhead extension with the neck and no excessive repetitive neck movements; (5) use of a headset with receiver for telephone work; (6) occasional climbing of stairs but no climbing of ladders, ropes, or scaffolds; (7) no running; (8) no squatting; and (9) limited exposure to heights, dangerous machinery, and uneven surfaces. The ALJ therefore concluded that Plaintiff had not been under a disability since February 2, 2010, the alleged onset date, through the date of his decision.
Given this unfavorable result, Plaintiff sought reconsideration of ALJ Suttles' decision from the Appeals Council. In her application, Plaintiff included additional medical evidence relating to the time period between April and September 2012. On October 25, 2012, upon review of this additional evidence and the ALJ's decision, the Appeals Council denied Plaintiff's request for review. As such, the ALJ's July 2011 decision became the final decision of the Commissioner.
On December 27, 2012, Plaintiff filed a Complaint in the United States District Court, District of Kansas seeking reversal of the ALJ's decision and the immediate award of benefits or, in the alternative, a remand to the Commissioner for further consideration. Given Plaintiff's exhaustion of all administrative remedies, her claim is now ripe for review before this Court.
Judicial review of the Commissioner's decision is guided by the Social Security Act (the "Act") which provides, in part, that the "findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive."
An individual is under a disability only if she can "establish that she has a physical or mental impairment which prevents her from engaging in substantial gainful activity and is expected to result in death or to last for a continuous period of at least twelve months."
Pursuant to the Act, the Social Security Administration has established a five-step sequential evaluation process for determining whether an individual is disabled.
The first three steps of the sequential evaluation require the Commissioner to assess: (1) whether the claimant has engaged in substantial gainful activity since the onset of the alleged disability; (2) whether the claimant has a severe, or combination of severe, impairments; and (3) whether the severity of those severe impairments meets or equals a designated list of impairments.
Upon assessing the claimant's residual functional capacity, the Commissioner moves on to steps four and five, which require the Commissioner to determine whether the claimant can either perform her past relevant work or whether she can generally perform other work that exists in the national economy, respectively.
Plaintiff challenges the ALJ's decision on the following grounds: (1) failure to consider additional evidence, (2) failure to properly evaluate Plaintiff's residual functional capacity, and (3) failure to adequately assess the demands of Plaintiff's past relevant work.
Plaintiff makes repeated attempts to draw this Court's attention to evidence submitted after the administrative hearing but before the Appeals Council review. This evidence contains Plaintiff's medical records from April to September 2012, most notably, Plaintiff's June 29, 2012, cervical discectomy and fusion. In its October 2012 decision, the Appeals Council noted that this additional information did "not provide a basis for changing the [ALJ's] decision."
In general,
However, this does not mean that the court simply ignores this later evidence; rather,
The Court must therefore determine whether this qualifying new evidence either upsets the ALJ's determination or provides a basis for changing the ALJ's decision.
Plaintiff now argues that this additional evidence, most especially the fact that she required surgery to correct her neck and back issues, serves to prove the following points: (1) her pain was debilitating to the point that she could not work, and (2) her subjective complaints of pain were credible. What Plaintiff fails to disclose, however, is the fact that this cervical discectomy and fusion seemingly corrected her back and neck issues. By the second day after surgery, Plaintiff reported no numbness or pain in her arms. One month later, on July 31, 2012, Plaintiff's surgeon reported that Plaintiff had good use of her left arm and minimal to no neck pain. As Plaintiff's neck pain was her primary impairment, its subsequent correction does not upset the ALJ's decision, nor is it a basis for changing the ALJ's finding of non-disability. Rather, it simply lends credence to the Commissioner's conclusion that Plaintiff was not, in fact, disabled. As such, Plaintiff's assignment of error with regard to the consideration of new evidence is without merit and is therefore dismissed.
Plaintiff's next four assignments of error, namely her issues concerning credibility, evaluation of opinion evidence, failure to link specific medical evidence to findings, and vocational expert testimony, all stem from the ALJ's assessment of Plaintiff's residual functional capacity. Specifically, Plaintiff alleges that the ALJ's failure to properly evaluate these four components resulted in an improper assessment of Plaintiff's residual functional capacity. Plaintiff's argument is without merit. As a preliminary matter, some general information regarding residual functional capacity is helpful.
"[R]esidual functional capacity consists of those activities that a claimant can still perform on a regular and continuing basis despite his or her physical limitations."
Plaintiff first alleges that the ALJ failed to properly consider and weigh her credibility, especially in light of Plaintiff's newly submitted evidence. Plaintiff's argument is without merit.
At the administrative hearing, Plaintiff testified that she experienced debilitating neck pain brought on by years of repetitive movement in her job as a customer service representative. When asked to rate her pain level on a scale of one to ten, Plaintiff stated that, even with pain medication, she was "approaching a seven."
Recognizing that "some claimants exaggerate symptoms for the purposes of obtaining government benefits,"
In evaluating a disability claim based on nonexertional symptoms, including pain, the ALJ must first determine whether the objective medical evidence demonstrates that a claimant suffers from an underlying medically determinable physical or mental impairment.
The ALJ cited Plaintiff's lack of regular care and treatment and further noted that any care Plaintiff did seek was minimal and conservative in nature. While "[m]inimal or conservative medical treatment may evince a pain that is not disabling,"
In addition to the inconsistency about Plaintiff's ability to pay, ALJ Suttles cited other inconsistencies relevant to Plaintiff's credibility. For example, while Plaintiff testified that she left her job at the bank "because of her health,"
Finally, the ALJ noted that Plaintiff's admitted activities of daily living did not correspond to her level of pain. Plaintiff was able to maintain her personal grooming and hygiene and indicated that she was able to do household chores and perform the responsibilities of being a wife and mother. Plaintiff testified that she could, for the most part, do household chores, except for the laundry, the only reason being that her washing machine was downstairs and she had difficulty with stairs. Plaintiff also noted that she was able to travel in a car nearly four hours to visit her sister in Kansas City just one month before the administrative hearing. Plaintiff did not indicate any difficulty with her neck or back during the drive.
Based on a review of the record, this Court determines that the ALJ articulated specific reasons for finding Plaintiff not credible, and these reasons are affirmatively linked to evidence in the record. As stated above, the Court will not reweigh the evidence or substitute its own judgment for that of the ALJ.
Next, Plaintiff argues that the ALJ failed to properly assess Plaintiff's residual functional capacity because he inappropriately discounted the opinion evidence of Plaintiff's treating nurse practitioner Carlene McMillian, FNP ("McMillian"). In his decision, the ALJ noted that as a family nurse practitioner, McMillian was not considered an acceptable medical source under Social Security Regulations. He assigned the opinion "very little weight," as he found McMillian's opinion not supported by the objective medical evidence of record.
As a general rule, "the Commissioner may use evidence from `other medical sources' such as nurse-practitioners, physician's assistants, naturopaths, chiropractors, audiologists, and therapists, none of which are on the list of `acceptable medical sources,' to show the severity of [a] plaintiff's impairments and how they affect [her] ability to work."
The Ruling further explains that a disability "adjudicator generally should explain the weight given to opinions from these `other sources,' or otherwise ensure that the discussion of the evidence . . . allows a claimant or subsequent reviewer to follow the adjudicator's reasoning, when such opinions may have an effect on the outcome of the case."
Here, Plaintiff claims that ALJ Suttles erred by failing to specifically discuss what evidence in the record conflicted with McMillian's opinion. In a medical source statement dated June 15, 2011, McMillian opined that Plaintiff was able to: (1) lift and carry five pounds; (2) sit, stand, and walk for fifteen to twenty minutes; and (3) occasionally balance, reach, handle, finger, and feel. McMillian concluded that Plaintiff was limited in her ability to push and pull, could never climb, stoop, kneel, crouch, or crawl, and required rest to cope with her symptoms every fifteen to twenty minutes. After comparing McMillian's opinion to the balance of Plaintiff's record, the ALJ concluded that her opinion was entitled to
As stated above, an ALJ should "generally" explain the weight given to opinions from other sources; however, the Ruling does not provide any set formula for what constitutes a general explanation.
Plaintiff next argues that the ALJ failed to link his residual functional capacity findings to any specific evidence of record, in direct contravention of Social Security Ruling 96-8p. Instead, Plaintiff argues, ALJ Suttles provides only a general summary of his findings, which is insufficient to satisfy the requirements of the Ruling. This Court disagrees.
In an effort to flesh out the Social Security Administration's policies and procedures regarding residual functional capacity, the Administration set forth Social Security Ruling 96-8p, which provides the basic framework for residual functional capacity assessment. The Ruling requires that an assessment
As discussed above, this Court found no error with regard to either the ALJ's credibility determination or his evaluation of the opinion of McMillian, a non-acceptable medical source. The only issue left for this Court to consider is the ALJ's narrative discussion of his residual functional capacity findings. Plaintiff alleges that "[w]hen the ALJ fails to provide a narrative discussion describing how the evidence supports each conclusion, citing to specific medical facts and nonmedical evidence, the court will conclude that his RFC conclusions are not supported by the substantial evidence."
The point of Plaintiff's assignment of error is unclear. If she is arguing that the ALJ failed to pinpoint, in the evidence of record, his basis for each and every conclusion, Plaintiff's assignment of error is without merit. Courts in the Tenth Circuit have clarified SSR 96-8p to mean that a residual functional capacity assessment "does not require citation to a medical opinion, or even to medical evidence in the administrative record for each RFC limitation assessed."
Plaintiff is likewise mistaken if she is arguing that the ALJ failed to support his residual functional capacity assessment with record evidence. ALJ Suttles discusses at length the reasons for his findings, basing his assessment on Plaintiff's conservative treatment, lack of credibility, treatment non-compliance, and activities of daily living. The decision also mentions reports of Plaintiff's healthcare providers, including McMillian and Dr. Todd Stewart, MD, as well as the results of some of Plaintiff's radiological scans. As such, Plaintiff's assignment of error alleging the ALJ's failure to "link" his residual functional capacity assessment to specific evidence in the record is without merit and is therefore dismissed.
Plaintiff sets forth two issues of concern with regard to the VE: (1) the ALJ failed to include all of Plaintiff's medically determinable limitations in his hypothetical questions, and (2) the ALJ failed to inquire as to whether the VE's testimony conflicted with the Dictionary of Occupational Titles ("DOT"). The Court finds both arguments to be without merit.
Plaintiff first argues that the ALJ failed to present the VE with a complete hypothetical question. In support of this argument, Plaintiff cites to the additional medical evidence submitted on administrative appeal as well as the opinion of McMillian.
"Hypothetical questions posed to the vocational expert must reflect with precision a claimant's impairments, but only to the extent that they are shown by the evidentiary record."
As noted by ALJ Suttles' residual functional capacity assessment, Plaintiff requires a workplace accommodation that allows her to sit or stand at will. VE Pettingill testified that, even with this need, Plaintiff would be able to return to her past relevant work as a customer service representative. Plaintiff now argues that this conclusion conflicts with information set forth in the DOT, as the DOT does not specifically address a claimant's need for a sit/stand option. As such, ALJ Suttles was required to resolve this conflict before relying on the VE's testimony in assessing Plaintiff's residual functional capacity. Instead, Plaintiff argues, the ALJ failed to inquire of the VE whether his testimony was consistent with the DOT, an error that now requires remand. Based on a review of the record, this Court disagrees.
In his first hypothetical question to the VE, ALJ Suttles asked the VE to assume a hypothetical individual who, among other things, required a "sit/stand option at will."
At the outset, Plaintiff offers no evidence, other than her own conclusion, that an at-will sit/stand option is not within the purview of the DOT. However, giving Plaintiff the benefit of the doubt, the Court acknowledges well established Tenth Circuit precedent which holds that
Failure to elicit such an explanation is grounds for remand.
First and foremost, the Court notes that Plaintiff's counsel had ample opportunity to inquire of the VE as to the basis of his conclusions. Counsel failed to do so, despite posing four separate hypothetical questions to the VE, at least one of which contained an at-will sit/stand limitation. Furthermore, in light of the medical evidence of record showing that Plaintiff's alleged impairments were corrected with surgery, any potential error resulting from this oversight is harmless. "An error is deemed harmless when it does not have a `substantial influence' on the outcome of the case."
In her final assignment of error, Plaintiff argues that the ALJ failed to include, in his analysis at step four of the sequential evaluation, the specific mental or physical demands of Plaintiff's past work. An ALJ's analysis at step four is three-fold and requires the ALJ to make specific findings of fact regarding: "(1) the individual's residual functional capacity, (2) the physical and mental demands of prior jobs or occupations, and (3) the ability of the individual to return to the past occupation given his or her residual functional capacity."
Here, the VE testified that Plaintiff's past relevant work as a customer service representative was a semi-skilled occupation performed at both the light and sedentary levels. Transferable skills included the ability to: (1) open new customer accounts, (2) explain and process investments, (3) greet customers, (4) explain various financial services, (5) input information into a computer, (6) complete financial applications, (7) obtain credit reports, and (8) investigate customer concerns. While ALJ Suttles did not list these skills by name in his decision, he did make note of the fact that Plaintiff had "numerous transferable skills."
In addition to this expert testimony, the ALJ obtained testimony from Plaintiff about her work activities, which Plaintiff testified included handling "all the new accounts, all the correspondence. Anything to do with customer service and the computers."
While this Court certainly would have appreciated a more direct discussion of the physical and mental requirements of Plaintiff's past relevant work, such an in-depth discussion is not required.
