JULIE A. ROBINSON, District Judge.
This matter is before the Court for review of the final decision of Defendant Commissioner of Social Security denying Plaintiff Dawn Berruecos' application for a period of disability and disability benefits under Title II of the Social Security Act,
On February 8, 2010, Plaintiff protectively applied for a period of disability and disability insurance benefits and supplemental security income. Her applications claimed an onset date of November 23, 2008; and she was last insured for disability insurance benefits on December 31, 2013. Plaintiff's applications were denied initially and upon reconsideration. Plaintiff timely requested a hearing before an administrative law judge ("ALJ"). After a hearing, the ALJ issued a decision finding that Plaintiff was not disabled; the Appeals Council denied plaintiff's request for review of the ALJ's decision. Plaintiff then timely sought judicial review before this Court.
Judicial review under 42 U.S.C. § 405(g) is limited to whether Defendant's decision is supported by substantial evidence in the record as a whole and whether Defendant applied the correct legal standards.
Under the Social Security Act, "disability" means the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment."
Plaintiff does not challenge the ALJ's determination at step one that Plaintiff has not engaged in substantial gainful activity
But Plaintiff challenges the ALJ's determination at step three that her severe impairment of sleep apnea does not meet Listing 3.10, and challenges the ALJ's failure to consider Listing 12.02 as part of that process. Plaintiff argues that this error had consequential effects, for sleep apnea can further impair cognitive functioning and Plaintiff also has a severe impairment of borderline intellectual functioning.
Plaintiff also challenges the ALJ's determination of RFC at steps four and five that Plaintiff "retains the ability to understand and remember simple instructions, maintain concentration, persistence and pace to complete simple tasks in a work environment that limits contact with the general public, coworkers and supervisors to occasional and can adapt to changes in a work environment with the above limitations." Plaintiff argues this mental RFC determination was the product of the ALJ's erroneous determination at step 3, as well as the ALJ's selective consideration of the evidence and the ALJ's erroneous rejection of treating-source opinions from Dr. Marek and APRN Koehn.
Plaintiff contends that the ALJ erred in finding that her sleep apnea did not meet or equal Listing 3.10 (sleep-related breathing disorders).
Plaintiff concedes that Listing 3.09 does not apply. But Plaintiff argues that the ALJ erred in finding that Listing 12.02 does not apply because there are no indications that a mental condition caused the sleep apnea. Plaintiff argues that sleep apnea is not caused by a mental condition, as the ALJ found; rather sleep apnea causes oxygen deprivation, which in turn often causes cognitive decline and mental impairment.
To be sure, the ALJ erred in not evaluating Plaintiff under both Listing 3.09 and Listing 12.02. But, the ALJ did evaluate Plaintiff's mental impairments under Listings 12.04 and 12.08.
Here, Plaintiff does not challenge the ALJ's determination that she did not meet the "paragraph C" criteria for Listings 12.02 and 12.04.
Here, the ALJ focused on the "paragraph B" criteria of Listings 12.04 and 12.08, which are identical to the "paragraph B" criteria of Listing 12.02.
Plaintiff argues that the ALJ erred in finding that she had shown no episodes of decompensation. But the ALJ actually found that she had "experienced no episodes of decompensation, which have been of extended duration."
Here, the record demonstrates, and the ALJ found, that in August 2009, Plaintiff was hospitalized for overdosing on Flexeril, in a failed suicide attempt. While this was undoubtedly an episode of decompensation, it was short-lived. Plaintiff was hospitalized for only two days, and her GAF score rose from 31-40 upon admission, to 60-70 upon discharge.
Furthermore, other than this short episode of decompensation, Plaintiff shows no other episodes of decompensation and certainly no episodes of extended duration. Plaintiff relies on treatment notes in 2012, and in particular an August 3, 2012 medication management note by APRN (nurse practitioner) Karen Koehn, that characterized Plaintiff's prognosis as "[g]uarded due to client experiencing numerous chronic physical conditions, client's living situation, psychotropics causing adverse effects, personality disorder, and poor insight." But that August 3, 2012 note discussed Plaintiff's situation over the past year and revealed that, while Plaintiff had ongoing problems with depression, anxiety, and marital problems, there was no exacerbation. In fact, in this August 3 note, APRN Koehn recommended that both Cymbalta and Depakote be discontinued, at Plaintiff's request, and that Plaintiff start taking Lamictal to help with mood stabilization, depression, anxiety, and agitation. Neither in this note, nor in the historical recap in this note, is there evidence of any exacerbation of symptoms indicative of an episode of decompensation.
Plaintiff also relies on a September 12, 2013 medication management note by APRN Tobe Schneider, where Plaintiff reported "much worse anxiety to the point she does not want to leave her home." But APRN Schneider noted that there as "[n]o acute impairment noted with mental status and/or memory at time of exam/testing" on September 7, 2013. Nothing in Schneider's note indicates that Plaintiff was suffering an exacerbation of symptoms accompanied by a loss of adaptive functioning, as manifested by worsening abilities to perform activities of daily living, maintain social relationships, or maintain concentration, persistence or pace." Indeed, this September 12 note was consistent with many treatment and medication notes in 2011 and 2012 which noted that while Plaintiff had poor insight and judgment, and impaired memory, attention and concentration, her cognitive functioning remained at her baseline. And, none of these same treatment notes indicated any loss of adaptive functioning.
Moreover, even if this September 12, 2013 note evidences an episode of decompensation—in the sense that Plaintiff's GAF was 50,
Given that, the ALJ did not err in concluding that Plaintiff had not met all the "paragraph B" criteria, for a claimant must show that she meets at least two of the four functional domains, and the only domains Plaintiff claims to meet are episodes of decompensation and marked limitations in concentration, persistence, or pace. Plaintiff having failed to show one of the two claimed requirements, it is clear the ALJ did not err in concluding that she had not shown she met all the "paragraph B" criteria.
Nonetheless, this Court considers and concludes that the ALJ did not err in also finding that Plaintiff had failed to show that she had marked limitations in concentration, persistence or pace. The ALJ relied upon the September 10, 2012 consultative examination by Dr. T.A. Moeller, Ph.D., who evaluated Plaintiff's attention and concentration with several tests that she performed well. Plaintiff was able to do serial 7s slowly, but correctly. She was able to remember her social security number and repeat it backwards. She was able to spell the word "world" but reversed two of the letters when spelling it backwards. Dr. Moeller noted that although Plaintiff claimed that her memory was impaired, his testing of mental status tasks did not support Plaintiff's allegation. Plaintiff was able to remember two of the four words given earlier in the evaluation and correctly identified the current and past three presidents. Dr. Moeller further noted, however, that Plaintiff's current memory functioning was lower than her cognitive abilities which appeared to be a function of Axis 1 pathology, that is Major Depressive Disorder, which Dr. Moeller found was not fully treated. Although Dr. Moeller noted that his testing also revealed that Plaintiff's WAIS-IV intelligence test composite scores were in the borderline or low average range, and her WMS-IV intelligence test scores were in the extremely low range, based on his testing of mental task function, he found at worst only moderate limitations in some categories of ability to understand, remember and carry out instructions in the workplace, and no marked or extreme limitations.
Plaintiff contends that the ALJ erred relying upon Dr. Moeller's opinion while rejecting the March 16, 2012 opinion of treating APRN Koehn, who opined that Plaintiff had marked limitations in the ability to maintain attention and concentration for extended periods and the ability perform work duties at a constance pace without an unreasonable number and length of rest periods. Generally, the ALJ is to assign and weigh every medical opinion in the claimant's case record.
Moreover, the ALJ did consider the considerable evidence provided by APRN Koehn, who treated Plaintiff monthly for her psychological issues from 2010 through 2012, and whose colleague, APRN Tobe Schneider treated Plaintiff in 2013. The ALJ's consideration of APRN Koehn's longitudinal treatment records is evident, from his discussion of treatment records authored by Ms. Koehn,
This Court agrees that APRN Koehn's records are largely inconsistent with her opinion. During the three years that Plaintiff was treated by Ms. Koehn, treatment notes consistently stated that Plaintiff's memory was "intact."
Notably, the ALJ, based on medical and nonmedical evidence, determined that Plaintiff had moderate limitations, which informed the ALJ's RFC that Plaintiff had the ability to understand and remember only simple instructions, and maintain concentration, persistence and pace for only simple tasks in a work environment that limits her to only occasional contact with the general public, coworkers and supervisors, and that Plaintiff can adapt to changes in a work environment only within these same limitations.
Based on his proper finding that Plaintiff had moderate limitations in attention, concentration and pace, and no repeated episodes of decompensation of an extended duration, the ALJ properly concluded that Plaintiff did not meet the "paragraph B" criteria for Listings 12.04 and 12.08, and in effect found that she did not meet the same criteria for Listing 12.02. Moreover, given that Plaintiff did not and cannot meet this criteria for Listing 12.02, Plaintiff's arguments concerning the ALJ's misunderstanding of the effects of sleep apnea are inapposite. Also inapposite are Plaintiff's arguments that the ALJ did not understand the effect of bipolar disorder. Plaintiff simply did not meet her burden of showing that bipolar disorder was a medically determinable impairment, and notably did not challenge, much less meet her burden of showing, that the ALJ's step two determination of Plaintiff's medically severe impairments was erroneous because it did not include bipolar disorder.
Because she must meet both "paragraph A" and "paragraph B" criteria for Listing 12.02, and because she fails to show substantial evidence that she satisfies two of the four domains of "paragraph B" upon which she relies, Plaintiff does not meet Listing 12.02. Thus, the ALJ's error in not applying Listing 12.02 is harmless error.
The ALJ determined that Plaintiff's physical residual functional capacity (RFC) was that she could: perform light work; lift and carry, as well as push and pull, 20 pounds occasionally and 10 pounds frequently; stand, walk and sit about six hours in an eight-hour work day with normal breaks; occasionally climb stairs, ramps, ladders and scaffolds, balance, kneel, crouch and crawl; and avoid concentrated exposure to vibrations.
Plaintiff maintains that the ALJ erred in giving little weight to the opinion of her treating physician, Dr. Ron Marek, who treated her for fibromyalgia and lumbar pain for six months, from May 2010 to November 2010. While the ALJ acknowledged that he had considered Dr. Marek's opinion, he concluded that he was unable to afford the opinion controlling weight. The ALJ thus acknowledged the rule that the opinion of a treating physicians must be given controlling weight if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques," and is not inconsistent with other substantial evidence in the record, but if it is "deficient in either respect, it is not entitled to controlling weight."
In fact, a treating physician's medical opinion is subject to a two-step inquiry. First, an ALJ must give such an opinion "controlling weight" if it is "`well-supported by medically acceptable clinical or laboratory diagnostic techniques'" and is not "`inconsistent with the other substantial evidence in the case record.'"
Here, the ALJ found that Dr. Marek's November 9, 2010 opinion was not entitled to controlling weight because it was inconsistent with Dr. Marek's own treatment records. The ALJ noted that in September 2010, Dr. Marek performed a physical examination and noted that Plaintiff's pain was stabilized; and in June 2010 Dr. Marek noted that her condition was unremarkable with no edema noted. The ALJ further noted that in June 2010, Plaintiff reported to Dr. Marek that she was walking nine blocks in 25 minutes and in August 2010 she reported that she was swimming for exercise.
Plaintiff argues that the ALJ selectively considered the evidence. But the ALJ does not need to discuss all of the evidence; and in mentioning Dr. Marek's treatment notes in June, August and September 2010, the ALJ focused on the important trajectory of his treatment of Plaintiff. He first saw Plaintiff in May 2010, when she was complaining of "pain everywhere" that was not helped by her current medications. Thereafter, Dr. Marek prescribed Lortab and tried a number of other pain medications, including Lyrica, Savella and a Lidoderm patch. Given that Dr. Marek tried a number of pain medications, in a number of combinations, it is notable that the very next month, June 2010, Plaintiff reported being able to walk nine blocks and in August 2010 Plaintiff reported swimming for exercise. The Court further notes that in July 2010, Plaintiff reported that the Savella was helping her pain.
Yet, Plaintiff continued to experience some degree of pain. Dr. Marek noted that Plaintiff needed to have full functional capacity testing by a physical therapist. And, in November 2010, Dr. Marek recommended x-rays and imaging, which was not accomplished until December 2010. This is important, because neither these studies, nor any full functional capacity test results were available to Dr. Marek when he completed the Medical Source Opinion Questionnaire in November 2010. The ALJ properly discredited Dr. Marek's November 2010 opinion that Plaintiff could only sit or stand fifteen to twenty minutes at a time, and could sit, stand or walk for less than two hours in an eight-hour workday, with a need for frequent, unscheduled breaks, including the need for fifteen-minute walking breaks every fifteen to twenty minutes. Nothing in Dr. Marek's examination and treatment records was consistent with that opinion of Plaintiff's limitations. In fact, it is rather incongruous to opine that Plaintiff needs to walk every fifteen minutes for fifteen minutes, but can only walk, sit, or stand a total of two hours in an eight hour workday. This is internally inconsistent.
Moreover, the imaging studies that were done one month after Dr. Marek's opinion are medical evidence that is inconsistent with his opinion. The results of the radiographic imaging studies of Plaintiff's left knee and lumbar spine were: no signs of osteoarthritis; normal bony and joint structures of the left knee with no fluid or arthritis; and no fracture, dislocation or other bony abnormality in the lumbosacral spine. There was normal curvature and alignment and vertebral bodies and intervertebral spaces were well maintained.
To be sure, there are no laboratory tests for the presence or severity of fibromyalgia,
For these reasons, the Court concludes that the ALJ did not err in finding that Plaintiff's sleep apnea did not meet Listing 3.09; and to the extent the ALJ erred in not evaluating Plaintiff's sleep apnea under Listing 12.02, that error was harmless in light of the ALJ's identical analysis under Listings 12.04 and 12.08 and his proper conclusion that Plaintiff failed to meet the "paragraph B" criteria. Furthermore, the ALJ properly rejected the opinion of Plaintiff's treating physician Dr. Marek as unsupported by substantial evidence and inconsistent with Dr. Marek's own treatment records.
