PAUL BARBADORO, District Judge.
Jennifer Lavoie challenges the denial of her claim for social security disability insurance (SSDI) benefits and supplemental security income (SSI) under Title II of the Social Security Act, 42 U.S.C. § 423. She argues that the administrative law judge (ALJ) erred by not finding that she had severe mental impairments at step two, by determining that her residual functional capacity (RFC) was greater than the evidence showed, and by finding that she could still perform some work at step five. The Acting Commissioner moves for an order affirming the decision. For the following reasons, I affirm.
In accordance with Local Rule 9.1, the parties have submitted a joint statement of stipulated facts. Doc. No. 21. Because that joint statement is part of the court's record, I only briefly discuss the facts here. I discuss further facts relevant to the disposition of this matter as necessary below.
Lavoie was a 37 year-old woman at the time of her alleged onset date.
Lavoie's first documented health problem was back pain, which she first reported in April, 2009.
Lavoie received treatment for her back pain on various occasions. Doc. No. 21 at 5. She received steroid injections in August and September 2011, but these did not relieve her pain.
Lavoie also claimed to have been anxious and depressed, at least partially due to her physical pain.
Lavoie filed claims for both SSDI and SSI on March 6, 2012, alleging that she has been disabled since August 22, 2009. Tr. 139, 141. Later, she amended her alleged disability date to October 29, 2011. Doc. No. 21 at 1. Her claims progressed to a hearing before the ALJ, who denied them in a written decision issued on June 6, 2013. Tr. 23. Lavoie appealed the denial of her claims to the district court.
I reviewed her claims and reversed and remanded because the ALJ ignored the opinion of Dr. Francis Milligan, a treating source, without "specifically address[ing his] various conclusions, cit[ing] contradictory medical opinions or evidence, or otherwise explain[ing] why [his] findings were unsupported by the record.
The same ALJ who evaluated Lavoie's claims in 2013 conducted another hearing on August 30, 2016. Tr. 483. The ALJ denied Lavoie's claims in a written decision issued on November 28, 2016. Tr. 499. In the decision, the ALJ applied the fivestep analysis required by 20 C.F.R. § 404.1520 (for SSDI claims) and 20 C.F.R. § 416.920 (for SSI claims). At step one, the ALJ determined that Lavoie had not engaged in substantial gainful activity since her alleged onset date. Tr. 486. At step two, the ALJ determined that Lavoie had the following severe impairments: "degenerative disc disease (lumbar spine, status post L5-S1 fusion) and obesity." Tr. 486. At step three, the ALJ determined that Lavoie did not have any of the impairments listed in 20 C.F.R., Subpart P, Appendix 1, which would render her disabled per se. Tr. 489. At step four, the ALJ determined that Lavoie's RFC allowed her to do "light work as defined in [§] 404.1567(b) and [§] 416.967(b)." Tr. 490. The ALJ further limited her RFC by specifying that she could "occasionally crouch, stoop, and climb ladders, ropes, and scaffolds; frequently balance, kneel, climb ramps and stairs; but must avoid all crawling." Tr. 490.
The ALJ determined that, in light of this RFC, Lavoie could not return to any past relevant work. Tr. 497. At step five, after considering the opinion of a vocational expert, the ALJ determined that Lavoie could work in a number of other jobs that existed in the national economy, including, "assembler of plastic hospital products," "deli cutter/slicer," and "toll collector." Tr. 498. The ALJ found that Lavoie was not disabled and denied her claims for both SSDI and SSI. Tr. 499.
Lavoie did not seek review of the ALJ's decision before the Appeals Council, and the Appeals Council did not review the decision on its own. Doc. No. 21 at 2. Instead, Lavoie filed a complaint for judicial review under 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3) on February 8, 2017. Doc. No. 1.
I am authorized under 42 U.S.C. § 405(g) to review the pleadings submitted by the parties and the administrative record and enter a judgment affirming, modifying, or reversing the "final decision" of the Commissioner. That review is limited, however, "to determining whether the [ALJ] used the proper legal standards and found facts [based] upon the proper quantum of evidence."
If the ALJ's factual findings are supported by substantial evidence, they are conclusive, even where the record "arguably could support a different conclusion."
Lavoie moves to reverse the decision of the ALJ because the ALJ erroneously found that she did not have severe mental impairments at step two, determined that her residual functional capacity (RFC) was greater than the evidence showed, and incorrectly found that she could still perform some work at step five.
Lavoie argues that the ALJ failed at step two by not recognizing that her anxiety and depression were severe mental impairments. She argues that the ALJ arrived at this erroneous conclusion by applying the incorrect legal standard for "severe mental impairment," improperly considering her failure to seek treatment for her mental impairments without also considering whether she could afford the treatment, failing to properly consider Dr. Moran's opinion that she had anxiety and depression, and improperly considering the fact that she had not noted these mental impairments when she initially applied for benefits. I decline to reverse the ALJ's decision on this basis because I determine that the ALJ did not commit the abovementioned errors, substantial evidence supports a finding that Lavoie did not have any severe mental impairments, and even if substantial evidence did support a finding of severe mental impairments, a failure to include these at step two is not reversible error.
Lavoie claims that the ALJ erred at step two by applying the incorrect standard for determining whether an impairment is "severe." For a mental impairment to be "non-severe," it must not prevent the claimant from participating in substantial gainful activity, even if the claimant "were of advanced age, had minimal education, and a limited work experience."
Here, the ALJ stated, "I find that the claimant's medically determinable mental impairments of depression and anxiety do not cause more than minimal limitation in the claimant's ability to perform basic mental work activities, and are therefore nonsevere." Tr. 486. Because the ALJ found that Lavoie's anxiety and depression had "no more than [a] minimal limitation" on her ability to work, he applied the correct standard. Tr. 487.
Lavoie also argues that the ALJ erred by justifying his finding that her mental impairments were non-severe by noting that she did not receive medical treatment for them, without considering whether she could afford treatment. Social Security Ruling 16-3P allows the ALJ to rely on the fact that a claimant did not seek treatment for a particular impairment as evidence that the impairment was not severe, as long as the ALJ considered that other factors, such as the ability to pay, could have been the reason why the claimant did not seek treatment.
Here, the ALJ did consider whether Lavoie could afford treatment for her anxiety or depression. Tr. 487.
Lavoie also claims that the ALJ erred by rejecting Dr. Moran's opinion because the ALJ had given it "great weight" in his 2012 decision and because it was a medical opinion. Doc. 13 at 4. There is no requirement that an ALJ must accord a source the same weight when evaluating that source for a second time, on remand. "The responsibility of weighing conflicting evidence, where reasonable minds could differ as to the outcome, falls on the Commissioner and his designee, the ALJ."
Moreover, while it is true that the "ALJ must evaluate all medical opinions from all sources," the ALJ did so in this case.
Lavoie further argues that the ALJ's statement that her depression and anxiety were non-severe because she "did not even allege mental health limitations in her Disability Report" in 2012 was error because her mental disabilities did not arise until 2012. An ALJ can discount a claim of disability that arises after a claimant's alleged onset date.
The ALJ's determination that Lavoie's anxiety and depression caused no "more than minimal limitation" is supported by substantial evidence. Lavoie "was able to work full-time jobs without significant functional limitations" despite claiming to have had "depression and anxiety for many years." Tr. 487. She testified that "work helped her mental health state." Tr. 487. She maintained a social schedule, Tr. 487, and has remained able to complete the "activities of daily living." Tr. 489.
At step two, the ALJ is required to determine whether a claimant has a severe impairment or combination of severe impairments. 20 C.F.R. § 404.1520(c); 20 C.F.R. § 416.920(c). Step two is a threshold inquiry, meant only to weed out unsubstantiated claims.
Here, at step two, the ALJ found that Lavoie had two "severe impairments" — "degenerative disc disease . . . and obesity," but not anxiety or depression — and moved on to step three. Tr. 486. Because the ALJ found that there was at least one severe impairment and proceeded to step three, he did not commit reversible error in his step two analysis.
Lavoie argues that the ALJ's RFC finding was not supported by substantial evidence because it improperly discredited her subjective pain complaints and improperly ignored the opinion of her treating physician, Dr. Milligan.
Pain is not a disability in and of itself, but, rather, a symptom of a disability. 20 C.F.R. § 404.1529(a);
Substantial evidence supports the ALJ's determination that Lavoie's back pain was not as significant as she claimed because objectively verifiable medical evidence supported a finding of only moderate pain, because Lavoie was able to participate in daily activities despite her pain, because Lavoie's levels of self-reported pain were inconsistent, and because Lavoie did not receive medical treatment for her pain. Tr. 490-495.
The ALJ is required to give particular attention to medical evidence from a "treating source." 20 C.F.R. § 404.1527(c)(2).
An ALJ must give the "treating source's" opinion "controlling weight" if that opinion is well-supported and consistent with substantial evidence.
If the ALJ rejects the opinion of a treating source, the ALJ must give "good reasons" for his determination, which must be "both specific and supportable."
As set out in my previous decision on Lavoie's application for SSI and SSDI, Dr. Francis Milligan was her "treating source."
Lavoie argues that the ALJ erred by relying upon the vocational expert's testimony because it was based on a hypothetical that did not include all of Lavoie's relevant severe impairments. Lavoie also argues that the vocational expert's opinion was invalid because the vocational expert did not explicitly state that his opinion was consistent with the directory of occupational titles (DOT).
An ALJ can rely on the opinion of a vocational expert to determine whether a claimant is disabled only if the vocational expert's opinion is based on a hypothetical question that "accurately portray[s] the claimant's physical and mental impairments.
At step two, Lavoie claimed that she had two "severe mental impairments": anxiety and depression. The ALJ examined the evidence of Lavoie's anxiety and depression, and determined that these mental limitations were "non-severe." Tr. 487. Nevertheless, the ALJ concluded that Lavoie's depression and anxiety were "mild limitations" on her ability to work, and stated, "I considered these impairments upon assessing her [RFC], and the [RFC] includes a limitation to simple, unskilled work." Tr. 487.
The ALJ's statement that Lavoie's RFC is limited to "simple, unskilled work" is supported by substantial evidence. Psychologist Edouard Carignan, who personally examined Lavoie and whose opinion the ALJ gave "great weight," stated that Lavoie had minimal difficulty in activities of daily living and diagnosed her with some depression and anxiety symptoms. Tr. 488. Dr. Laura Landerman, whose opinion the ALJ also credited, stated that Lavoie had "mild limitations in activities of daily living, social functioning, and maintaining concentration[,] persistence[,] and pace . . ." Tr. 488. Moreover, Lavoie's own testimony about her difficulties working, carrying out the activities of daily life, and maintaining a normal social schedule all support a finding of some limitation on her mental capacity. Tr. 488-489. These "minimal" and "mild" mental limitations support a finding that Lavoie was capable of performing unskilled work.
Despite the ALJ's statement at step two that Lavoie could only engage in "simple, unskilled work," the ALJ omitted that limitation from Lavoie's RFC and from the hypothetical question posed to the vocational expert at step five. Tr. 490 (the RFC limited Lavoie to "light work," with further limits on crouching, stooping, climbing, balancing, kneeling, and crawling, but no limit to simple, unskilled work); Tr. 509, 547 (the ALJ asked the vocational expert whether a claimant "of similar age, education, and vocational background[;] who is limited to light work[;] . . . can occasionally climb ladders, frequently climb stairs and ramps[;] sit, stand, or walk for six hours of an eight-hour workday, six hours each[;] frequently balance and kneel[;] occasionally crouch or stoop[; and] who should avoid all crawling" can perform any jobs in the national economy; notably omitting any reference to simple, unskilled work). Thus, the ALJ determined that the claimant had a relevant limitation (to simple, unskilled work), that limitation was supported by substantial evidence, but the limitation was not included in the hypothetical question presented to the vocational expert.
This failure to include a relevant limitation in the hypothetical question put to the vocational expert would usually require me to reverse the ALJ's finding that the claimant was not disabled.
If an ALJ errs by posing an incomplete hypothetical question to the vocational expert, the error is harmless if the vocational expert's opinion would have been the same even with the omitted impairment.
Here, the vocational expert testified that an individual limited to "light work" with additional limitations on crouching, stooping, climbing, balancing, kneeling, and crawling, but not with a limitation to "simple, unskilled work," could work as an "assembler of plastic hospital products," "delicatessen cutter/slicer," and "toll collector." Tr. 498. The Dictionary of Occupational Titles (DOT) classifies each of these jobs as requiring "level two reasoning." A job which requires "level two reasoning" under the DOT requires a claimant who is capable of "simple and routine work."
Lavoie also claims that the hypothetical was incomplete because the ALJ did not ask the vocational expert whether his opinion was consistent with the DOT. Doc. No. 13 at 35. While the ALJ did not ask the vocational expert whether his testimony conflicted with the DOT, the ALJ did ask the vocational expert whether he understood that "if [he] gave an opinion which conflicts with the information in the Dictionary of Occupational Titles, [he] need[ed] to advise [the ALJ] of the conflict . . ." Tr. 546. The ALJ answered that he did understand, and did not subsequently inform the ALJ of any conflicts between his opinion and the DOT. This question satisfied the requirements of Social Security Ruling 00-4P.
For the aforementioned reasons, I grant the Acting Commissioner's motion to affirm (Doc. 18) and deny Lavoie's motion to reverse (Doc. 13). The clerk is directed to enter judgment accordingly and close the case.
SO ORDERED.