SUZANNE MITCHELL, Magistrate Judge.
William Lawson (Plaintiff) brings this action for judicial review of the Defendant Commissioner of Social Security's (Commissioner) final decision he was not "disabled" under the terms of the Social Security Act. See 42 U.S.C. §§ 405(g), 423(d)(1)(A). United States District Judge Robin J. Cauthron referred this matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (b)(3) and Fed. R. Civ. P. 72(b). Doc. 15. Following a careful review of the parties' briefs, the administrative record (AR)
The Social Security Act defines "disability" as the "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). "This twelve-month duration requirement applies to the claimant's inability to engage in any substantial gainful activity, and not just his underlying impairment." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Barnhart v. Walton, 535 U.S. 212, 218-19 (2002)).
Plaintiff "bears the burden of establishing a disability" and of "ma[king] a prima facie showing that he can no longer engage in his prior work activity." Turner v. Heckler, 754 F.2d 326, 328 (10th Cir. 1985). If Plaintiff makes that prima facie showing, the burden of proof then shifts to the Commissioner to show Plaintiff retains the capacity to perform a different type of work and that such a specific type of job exists in the national economy. Id.
The ALJ assigned to Plaintiff's case applied the standard regulatory analysis in order to decide whether Plaintiff was disabled during the relevant timeframe. AR 12-19; see 20 C.F.R. § 416.920(a); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (describing the five-step process). Specifically, the ALJ found Plaintiff:
AR 12-19.
The SSA's Appeals Council denied Plaintiff's request for review on August 17, 2017, so the ALJ's unfavorable decision is the Commissioner's final decision in this case. AR 1-6; see Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011).
The court reviews the Commissioner's final decision to determine "whether substantial evidence supports the factual findings and whether the ALJ applied the correct legal standards." Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016). In applying that standard, the court will "neither reweigh the evidence nor substitute [its] judgment for that of the agency." Newbold v. Colvin, 718 F.3d 1257, 1262 (10th Cir. 2013) (internal quotation marks omitted).
Plaintiff contends that the ALJ (1) gave "great weight" to the opinion of consultative examiner Matthew Phillip Feist, MD, but failed to adopt all the functional limitations he assessed, (2) "obviously did not follow the standards required by the 10th Circuit" for weighing the other medical opinions in the record, (3) erred at step five by finding that Plaintiff could perform a range of sedentary jobs in spite of the reaching restrictions in the RFC, and (4) did not consider the effect of Plaintiff's migraines when assessing his residual functional capacity. Doc. 19, at 3-14.
As a preliminary matter, Plaintiff argues that as a consultative examiner, Dr. Feist's opinion is subject to the same inquiry as an opinion from a treating source physician and must be given "controlling weight" if it is "`wellsupported by medically acceptable clinical or laboratory diagnostic techniques'" and is not "`inconsistent with the other substantial evidence in the case record.'" Doc. 19, at 5 (citing Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (quoting SSR 96-2p, 1996 WL 374188, at *2 (July 2, 1996)).
For claims filed before March 27, 2017, SSR 96-2p governs the evaluation of treating source opinions.
Id. Binding case law further establishes the sequential, two-step inquiry discussed above relates exclusively to the evaluation of treating source opinions. See Krauser, 638 F.3d at 1330.
Plaintiff further argues that Dr. Feist's assessment is in "direct opposition" to the RFC. Doc. 19, at 4. Specifically, Plaintiff argues that Plaintiff has an unstable gait and dizziness that make it difficult for him to stand and/or walk for the two hours per workday indicated by the RFC. Id. Plaintiff argues that even if Plaintiff could stand and/or walk for two hours in an eight-hour workday, "his pace will not be equal to the rest of the workforce. . . ." Id.
Plaintiff argues that the ALJ's "worst" mistake was failing to properly consider the results of Dr. Feist's February 2015 physical examination of Plaintiff's left arm, elbow, and shoulder. Id. at 4. Plaintiff also argues that the ALJ did not include any RFC limitations related to the tremor Dr. Feist noticed in Plaintiff's right arm. Id. at 5. Plaintiff also cites this examination and the range of motion chart completed by Dr. Feist to support the proposition that Plaintiff would be incapable of performing the occasional overhead reaching indicated by the RFC. Id. at 4-5; AR 301, 308.
The otherwise detailed consultative examination report filed by Dr. Feist includes no specific functional limitations. In summarizing his examination findings, Dr. Feist concluded that
AR 308. In formulating the RFC, the ALJ assessed several exertional restrictions consistent with Dr. Feist's assessment, including a limitation to sedentary work, a requirement that Plaintiff use a cane for ambulation, and several other postural and environmental restrictions. Id. at 16.
While Dr. Feist's assessment indicates that Plaintiff's impairments would restrict his ability to perform jobs requiring physical exertion, it does not indicate that Plaintiff would be incapable of performing a restricted range of sedentary work or suggest that Plaintiff's work pace in a sedentary job would "not be equal to the rest of the workforce." See Doc. 19, at 4; AR 308.
Accepting Plaintiff's interpretation of Dr. Feist's findings would amount to re-weighing the evidence and substituting the court's judgment for that of the Commissioner in a manner inconsistent with binding precedent. See Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008); see also Lax, 489 F.3d at 1084 ("The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence. We may not displace the agency's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.").
In formulating the RFC, the ALJ assessed Plaintiff as being able to occasionally reach overhead with his left upper extremity. AR 16. Plaintiff, citing the results of Dr. Feist's examination, argues that an "occasional"
Plaintiff references an exhibit, prepared by Plaintiff,
Dr. Feist assessed Plaintiff as having a "decreased" range of motion in his left shoulder. AR 308. Dr. Feist's examination of Plaintiff's extremities further revealed muscle wasting in the left arm, 3/5 strength in the upper and lower extremity, and tenderness to palpitation over his left shoulder and neck. Id. The range of motion chart provided by Dr. Feist indicates that on examination, Plaintiff had 90° abduction in his left shoulder, 60° left shoulder forward elevation, 30° internal and external rotation in his left shoulder, and 90° left shoulder flexion. Id. at 301.
At no point in his report does Dr. Feist state that Plaintiff would be unable to reach overhead "at all" with his left arm, nor did he offer a specific opinion about how often Plaintiff would be able to reach overhead during an eight-hour workday. Physicians who did offer specific opinions, such as state agency consultants Andrew Monteiro, MD, and Frederick Robley, MD, indicated that Plaintiff would be able to reach overhead occasionally with his left upper extremity. Id. at 53, 69. With respect to the tremor in Plaintiff's right arm, neither Dr. Feist nor any other physician opined that this would impair Plaintiff's functioning in any way. Id. at 308, 53, 69. Further, Dr. Feist's physical examination revealed that Plaintiff was able to perform fine and gross tactile manipulation without difficulty and had no neurological deficits. Id. Substantial evidence supports the ALJ's evaluation of Dr. Feist's opinion.
Plaintiff argues that in evaluating the remaining medical opinions, the ALJ was "irresponsible" and "obviously did not follow the standards" required by the Tenth Circuit. Doc. 19, at 9-10. Plaintiff argues that the ALJ explained the weight assigned to the opinion evidence in an "elementary fashion," offering only "one sentence" of explanation for eight of the nine
Plaintiff's arguments have a degree of merit. First, the ALJ assigned weight to several exhibits which do not contain any opinion evidence. The ALJ assigned, without explanation, "some weight" to two pulmonary function studies and one echocardiogram. AR 17. Social Security regulations define medical opinions as "statements from acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions." See 20 C.F.R. § 416.927(a)(1). The exhibits the ALJ cited consist solely of diagnostic studies and do not contain opinions from an acceptable medical source about Plaintiff's functional limitations. AR 312-315, 318-320, 322-326. While the ALJ erred in assigning weight to these exhibits, this error does not have any effect on the outcome of the case.
With respect to the four state-agency opinions, to which the ALJ gave "great weight," the ALJ stated that the opinions of the state agency consultants were "consistent with the records as a whole [sic]." Id. at 17. As the ALJ also noted, the evidentiary record in this case is "very thin" and the only opinion evidence regarding Plaintiff's precise physical limitations was provided by the state agency consultants. Id.
The ALJ evaluated the available evidence, including Plaintiff's subjective allegations and the treatment record, and discussed at length the findings of the consultative examiners and Dr. Feist. Id. at 12-17. In assessing the RFC, the ALJ adopted virtually all the restrictions assessed by the state agency physicians, adding only a restriction involving use of a cane and clarifying that Plaintiff would have a free hand available to carry small items. Id. at 16, 51-53, 69-70. As such, substantial evidence supports the ALJ's statement that these opinions were "consistent with the record." Id. at 17. With respect to the ALJ's evaluation of state-agency psychological consultant Michael Gomez, PhD, the ALJ was clear that he was assigning this opinion "partial weight" not only because it was inconsistent with the record, but also because Plaintiff had never received any "significant psychological treatment." Id. at 17.
As for the ALJ's evaluation of Dr. Feist's opinion, the ALJ discussed Dr. Feist's examination in detail, specifically noting Plaintiff's musculoskeletal problems and COPD, and stating that the results of his exam "essentially validated" Plaintiff's subjective allegations. Id. at 13, 16-17. The ALJ specifically noted that Plaintiff had an unstable gait during the examination and cited Dr. Feist's observation that Plaintiff was unable to ambulate without a cane, a restriction the ALJ incorporated into the RFC. Id. at 13, 16. Again, substantial evidence supports the ALJ's evaluation of the consultants' opinions.
Plaintiff argues that the ALJ's RFC is "incorrect and does not match the jobs given by the VE." Doc. 19, at 10. Citing the Dictionary of Occupational Titles (DOT), Plaintiff reasons that Plaintiff would be unable to perform the three jobs cited by the vocational expert (VE) because they require "frequent" reaching, handling, and fingering, which exceeds the "occasional" overhead reaching restrictions assessed by the ALJ. Id.
Plaintiff's argument is incorrect. First, in posing the relevant hypothetical to the VE, the ALJ clearly included the restriction involving occasional overhead reaching, along with the other restrictions ultimately adopted into the RFC. AR 42. The VE then stated that given the restrictions in the RFC, Plaintiff would be capable of performing the three jobs cited in the hearing decision. Id. at 16, 42; see 20 C.F.R. § 416.966 (noting that the ALJ can rely on vocational expert testimony to determine "whether your work skills can be used in other work and the specific occupations in which they can be used"); see also Qualls v. Apfel, 206 F.3d 1368, 1373 (10th Cir. 2000) ("The ALJ propounded a hypothetical question to the VE that included all the limitations the ALJ ultimately included in his RFC assessment. Therefore, the VE's answer to that question provided a proper basis for the ALJ's disability decision."). The VE confirmed that her testimony was consistent with the DOT. AR 43.
The only available functional restrictions concerning Plaintiff's reaching capabilities come from the state-agency physicians, who assessed Plaintiff as being limited in reaching overhead on the left. Id. at 53, 69. Plaintiff is correct that the three jobs cited by the VE require "frequent" reaching. Neither the DOT nor the Selected Characteristics of Occupations
However, "even a job requiring frequent reaching does not necessarily require more than occasional overhead reaching." Segovia v. Astrue, 226 F. App'x 801, 804 (10th Cir. 2007). In Segovia, the court noted,
Id. (internal citation omitted). In this case, there is nothing in the DOT descriptions of the occupations cited by the VE at step five to indicate that they would require more than occasional overhead reaching.
Plaintiff alleges that the ALJ did not consider the impact of Plaintiff's migraines when assessing the RFC. Doc. 19, at 12. Plaintiff mentioned these migraines during his consultative examination with Dr. Feist and testified during the hearing that he has migraine headaches between three and four times a week, each lasting for between twelve and fourteen hours. Id. at 12-13; AR 38-39. Plaintiff acknowledges that he does "not have much" medical evidence regarding his migraines but argues that he has a "legitimate excuse" for this, saying that he was unable to seek treatment for this condition due to financial constraints. Doc. 19, at 13. Plaintiff argues that the ALJ provided "no evidence" that Plaintiff had access to free medical care. Id.
Plaintiff argues that if the ALJ did not believe Plaintiff's testimony concerning the severity of his migraines, the ALJ should have sent Plaintiff to a neurologist to obtain an opinion concerning Plaintiff's headaches, since Dr. Feist's examination "was only evaluating [Plaintiff's] physical impairments." Id. at 14. In making this argument, Plaintiff is implying, without support, that Plaintiff's headaches are the result of an undiagnosed neurological condition. There is nothing in the record to support such a conclusion, and speculation of this kind is insufficient to justify additional investigation. See Hawkins v. Chater, 113 F.3d 1162, 1167 (10th Cir. 1997) ("How much evidence must a claimant adduce in order to raise an issue requiring further investigation? . . . [T]he starting place must be the presence of some objective evidence in the record suggesting the existence of a condition which could have a material impact on the disability decision requiring further investigation. . . . Isolated and unsupported comments by the claimant are insufficient, by themselves, to raise the suspicion of the existence of a nonexertional impairment."). And, the ALJ discounted Plaintiff's credibility, a finding Plaintiff does not challenge. AR 16-17.
With respect to Plaintiff's ability to pay for treatment, SSR 16-3p establishes that an inability to afford treatment can be a legitimate reason for not seeking medical care. 2017 WL 5180304, at *10 (October 25, 2017). "[T]he ALJ is ordinarily required to address such financial considerations before drawing adverse inferences from the claimant's failure to seek or pursue treatment." Alarid v. Colvin, 590 F. App'x 789, 793 (10th Cir. 2014); see also Miranda v. Barnhart, 205 F. App'x 638, 642 (10th Cir. 2005) (an inability to afford treatment "may be a legitimate reason" for a failure to seek treatment). Here, the ALJ's reference to a "very thin" evidentiary record appears to be merely descriptive, and there is no indication that the ALJ inferred that the limited treatment record was evidence, in and of itself, that Plaintiff was not disabled. AR 17. Further, as the Commissioner correctly argues, Plaintiff did have access to prescription medication from a local free clinic. Doc. 22, at 12; AR 328-335, 346, 348-359.
There is some uncertainty about whether the ALJ found Plaintiff's migraines to be a medically determinable impairment. Plaintiff notes that the ALJ found this condition to be a non-severe impairment, a conclusion supported by the ALJ's reference to the regulatory definition of a "not severe" impairment immediately after discussing Plaintiff's migraines. Doc. 19, at 12; AR 14-15, citing 20 C.F.R. § 416.921, SSRs 85-28, 96-3p, 96-4p. The Commissioner acknowledges that the ALJ found Plaintiff's migraines nonsevere. Doc. 22, at 11. However, the Commissioner also contends that the ALJ's discussion of Plaintiff's migraines implies that this condition was nonmedically determinable, a proposition supported by the fact that the ALJ discussed Plaintiff's migraines in the context of other non-medically determinable impairments, emphasized the lack of corroborating lab tests, and noted that Plaintiff had never been diagnosed with this condition or received specific treatment for it. Doc 22, at 11-12; AR 14. The Commissioner argues that the ALJ "could not include limitations in his RFC finding when there was not an underlying medically-determinable impairment." Doc 22, at 11.
Either interpretation is plausible, and the Commissioner acknowledges that the ALJ "could have been clearer on this point." Id. at 12 n.6. Regardless of which interpretation is correct, the record is clear that the ALJ considered Plaintiff's allegations concerning his migraines, and Plaintiff does not argue that the record justifies additional migraine-related limitations beyond those already contained in the RFC. Substantial evidence supports the ALJ's opinion.
For the reasons discussed above, the undersigned recommends the entry of judgment affirming the Commissioner's final decision.
The undersigned advises the parties of their right to file an objection to this Report and Recommendation with the Clerk of Court by June 15, 2018, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises the parties that failure to make a timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal questions contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the Magistrate Judge in this matter.
