KATHRYN H. VRATIL, District Judge.
Laura Farmer appeals the final decision of the Commissioner of Social Security to deny disability insurance benefits and supplemental security income (SSI) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-434, 1281-1383. For reasons set forth below, the Court finds that the final decision of the Commissioner should be reversed and remanded.
Plaintiff was born on February 17, 1980. On October 27, 2011, she applied for disability insurance benefits alleging a period of disability beginning September 16, 2011. She applied for supplemental security income the next day. Plaintiff alleged disability due to depression, anxiety, agoraphobia, fibromyalgia, chronic pain and chronic fatigue. Tr. 204. The agency denied her application initially and upon reconsideration. On June 11, 2013, following a hearing, an administrative law judge ("ALJ") found that plaintiff was not disabled as defined in the Social Security Act. On September 15, 2014, the Appeals Council denied plaintiff's request for review. The ALJ decision thus stands as the final decision of the Commissioner. Plaintiff appealed to this Court the final decision of the Commissioner.
The Court reviews the Commissioner's decision to determine whether it is "free from legal error and supported by substantial evidence."
Plaintiff bears the burden of proving disability under the Social Security Act.
The Commissioner uses a five-step sequential process to evaluate disability. 20 C.F.R. § 404.1520;
At step four, the ALJ makes specific findings of fact at three phases: (1) the individual's residual functioning capacity ("RFC"), (2) the physical and mental demands of prior jobs or occupations and (3) given her RFC, the individual's ability to return to the past occupation.
The following is a summary of the evidence presented to the ALJ.
Beginning in February of 2011, plaintiff sought counseling for anxiety, to improve relationships and for concerns about her parents' health. Tr. 337-59. After her father died in June of 2011, plaintiff complained of depression and anxiety.
In September of 2011, Robert Jacoby, M.D., wrote that he was treating plaintiff for severe anxiety and depression and that she should remain off work until further notice. Tr. 380. A few weeks later, plaintiff reported that although she was not sure that she wanted to keep her job, "things were beginning to be more stable" Tr. 362. Dr. Jacoby urged plaintiff to get a psychiatric consultation. In December of 2011, Dr. Jacoby opined that plaintiff should be restricted from work-related activity until further notice because of anxiety and depression.
In February of 2012, Dr. Stanley Mintz, Ph.D., completed a consultative psychological examination of plaintiff, who related significant complaints about her physical and mental problems. Dr. Mintz found that plaintiff had normal speech, was fully oriented and could describe recent news events. She did not show any signs of hallucinations, delusions, bipolar symptoms, phobias, post-traumatic stress disorder or adult attention deficit disorder. Tr. 426. Plaintiff appeared to function within the average range of intelligence, had intact verbal abstraction skills, judgment, reasoning, memory, attention span and concentration. Dr. Mintz remarked that plaintiff's mental illness symptoms "may make it difficult for her to concentrate and focus on work, but . . . her symptoms do not preclude work functioning. . . . While [she] perhaps would have difficulty doing full-time sustained work . . . she most likely would be able to do more simple basic work." Dr. Mintz thought that plaintiff's capacity for work would improve if she resumed mental health treatment. He opined that plaintiff appeared able to understand simple and intermediate instructions and that her concentration capacity appeared "perhaps" limited by anxiety and depressive symptoms. Tr. 427.
In April of 2012, plaintiff saw Annette Norris, LCSW, for an intake examination. Norris noted that plaintiff had normal eye contact, psychomotor activity, speech, thought process and content. Tr. 444. She had an anxious mood but a full affect. Plaintiff had poor concentration and judgment, but she was cooperative and fully oriented with intact memory, fair insight and abstraction skills and average intellectual ability. Tr. 445. Norris recommended individual therapy and a medication assessment. In May of 2012, nurse practitioner Arlene Long assessed plaintiff and found that she was cooperative and had normal eye contact, psychomotor activity and speech. Tr. 468-70. Long agreed with Norris' diagnostic impression and planned to continue plaintiff's medications. Tr. 472.
A few weeks later, Norris opined that plaintiff was markedly limited in her ability to maintain attention and concentration for extended periods; work in coordination with or in proximity to others without being distracted; interact appropriately with the general public; ask simple questions or request assistance; and respond appropriately to changes in the work setting. Tr. 489-90. Norris opined that plaintiff was extremely limited in her ability to accept instructions and respond appropriately to criticism from supervisors. Tr. 490.
On June 11, 2012, plaintiff told Long that she kept busy outside. Plaintiff was alert and oriented with good eye contact, normal motor functioning, appropriate affect and relaxed mood. Plaintiff had normal speech, thought process, good concentration and intact memory. She also had good insight and judgment, and displayed good intelligence. Neither Norris nor Long saw plaintiff again.
After June of 2012, plaintiff's primary care doctor, Patrick A. Raney, M.D., provided plaintiff anti-depressant and anxiety medication. In September of 2012, plaintiff told Dr. Raney that the medications were helping her depression and that she was "very active." Tr. 461.
In July of 2012, Robert H. Blum, Ph.D., a state agency psychologist, reviewed the evidence and assessed plaintiff's mental RFC. He concluded that plaintiff was "moderately limited" in her ability to carry out detailed instructions, maintain concentration for extended periods and interact with the public. Dr. Blum found that plaintiff was capable of carrying out a simple routine and could work in jobs requiring only infrequent social interactions. Tr. 102-03.
Plaintiff has a history of joint pain, fatigue, headaches, paresthesias and muscle weakness. Tr. 310, 412. On April 6, 2010, she reported to Dr. Robert Jacoby that she was experiencing easy bruising as well as fatigue. She reported that fluoxetine helped her pain. By the end of April of 2010, plaintiff reported that her arthralgias and myalgias had been more symptomatic with her pain averaging a five or six on a scale of one to ten. She reported chronic headaches, back and neck pain, swelling in her joints, irritability and difficulty concentrating and focusing. Tr. 315-16. During this time period, Dr. Vijay Mhatre noted that plaintiff had multiple trigger and tender points as well as spasms and diminished range of motion in her cervical and lumbar spines, crepitus in both knees and tenderness in her knees and hips. Dr. Mhatre's impression was of generalized arthragias and myalgias suggestive of fibromyalgia. He prescribed tramadol and recommended strengthening and stretching exercises. Tr. 318. Plaintiff continued to report significant pain and insomnia. Tr. 312, 370-371.
On February 3, 2011, plaintiff reported to Dr. Jacoby a seven-year history of upper right abdominal pain that had worsened in the past two weeks. Tr. 369. On January 23, 2012, plaintiff went to the emergency room with abdominal pain. A week later she had a cholecystectomy.
On January 28, 2012, Dr. Aaron Rupp examined plaintiff. Plaintiff reported a history of fibromyalgia that caused sleep disturbance, morning stiffness and worsening symptoms with weather changes. Tr. 418. Plaintiff reported pain in her back, neck, elbows, hips, ankles and knees. Tr. 419-20. Dr. Rupp concluded that plaintiff had five paired trigger points which suggested fibromyalgia.
On March 19, 2012, plaintiff saw Dr. J. Douglas Gardner, a rheumatologist, for an evaluation. She reported worsening joint and muscle pain, particularly in her arms and legs and unrefreshed sleep and fatigue. She reported that tramadol provided some benefit but made her sleepy if she took it during the day. Tr. 434. Dr. Gardner noted multiple tender points consistent with fibromyalgia. He prescribed Celebrex and encouraged plaintiff to exercise. Tr. 436.
On May 22, 2012, plaintiff reported that Medicaid would not pay for Celebrex and that meloxicam only provided mild benefit. Plaintiff continued to have chronic aching, and Dr. Gardner started her on nabumetone. Tr. 476. She still experienced chronic musculoskeletal pain, fatigue, migraines, depression and anxiety. Tr. 453; 474-75. She reported continued right-sided abdominal pain, intermittent constipation and loose stools with "crampy" pain. On September 4, 2012, Dr. Patrick Raney opined that this could represent irritable bowel syndrome. Tr. 462. A month later, Dr. Raney diagnosed her with an ovarian cyst. Tr. 458.
Plaintiff testified as follows.
She feels that she is unable to work due to pain, severe anxiety and depression. She has constant pain in most of her joints, including her back, hips, shoulders, ankles, knees, elbows and wrists. Despite pain medication and exercise, on an average day plaintiff's pain is at a level of six on a scale of one to ten. Her pain causes difficulty with sitting or standing for long periods, lifting, bending, twisting, pushing and pulling. Tr. 42. Her medications cause sleepiness and dehydration.
Plaintiff takes medication for anxiety but still has three to five anxiety attacks a week during which her heart races, she gets short of breath, feels overwhelmed and is unable to think clearly. Crowds trigger her anxiety, and she is unable to shop for groceries by herself. Tr. 47. She has difficulty concentrating and working with others. Tr. 48.
Plaintiff does light housework including loading and unloading the dishwasher, cooking meals and sorting the laundry; her husband and daughter help her with these tasks when she is in too much pain. Tr. 49-50. Plaintiff avoids driving because it exacerbates her pain and sometimes causes anxiety attacks. Tr. 38.
The ALJ proposed the following hypothetical individual to the vocational expert:
Tr. 53-54. The vocational expert testified that such an individual could not return to her past relevant work but could perform other jobs in the light, unskilled category including racker, garment sorter, or bindery-machine feeder.
The ALJ then proposed a second hypothetical with the additional limitations that due to psychologically-based symptoms, she would be unable to interact and cooperate with co-workers, unable to interact and cooperate with the general public, unable to maintain attention and concentration for two-hour periods, unable to adapt to changes in the workplace and unable to accept supervision. The vocational expert testified that an individual with such limitations would not be able to do any jobs in the economy. Tr. 54-55.
The ALJ proposed a third hypothetical with the additional limitations of sedentary work, lift and carry ten pounds occasionally and frequently walk or stand two hours out of an eight-hour day, but only sit or stand for 15 minutes at a time. The vocational expert testified that an individual with such limitations would not be able to do any jobs in the economy. Tr. 55.
In his order of June 11, 2013, the ALJ made the following findings:
Tr. 14-24.
Plaintiff asserts that ALJ erred in formulating her RFC because (1) he gave significant weight to Dr. Blum's opinion but did not explain why he excluded some of Dr. Blum's mental functioning limitations; (2) he did not provide an adequate narrative statement describing how he formulated plaintiff's physical RFC and (3) he did not weigh an employer's questionnaire.
The record contains three opinions concerning plaintiff's mental functioning. Dr. Blum, a psychological consultant, opined that plaintiff was moderately limited in her ability to (1) carry out detailed instructions, (2) maintain attention and concentration for extended periods and (3) interact appropriately with the general public. Tr. 102. The consultative examiner, Dr. Mintz, opined that plaintiff's psychological symptoms would make it hard for her to concentrate and focus on work and that she would have difficulty doing full-time sustained work. Tr. 427. Annette Norris, LCSW, opined that plaintiff had moderate to marked limitations in sustained concentration and persistence, moderate to extreme limitations in social interaction and moderate to marked limitations in the ability to adapt. Tr. 489-490.
The ALJ gave significant weight to the opinion of Dr. Blum, the non-examining State agency doctor. Tr. 23. The ALJ gave no weight to Dr. Mintz's opinion that plaintiff would have difficulty doing full-time, sustained work, but gave significant weight to Dr. Mintz's opinion that plaintiff was capable of understanding simple and intermediate instructions. The ALJ gave no weight to the Norris opinion because she had only counseled plaintiff a short time.
Plaintiff argues that the Court must remand for further findings because although the ALJ gave Dr. Blum's opinion significant weight, he did not explain why he did not include all of Dr. Blum's limitations in the RFC.
The Tenth Circuit addressed a similar situation in
The ALJ concluded that plaintiff retained the ability to perform light work despite a severe impairment of fibromyalgia. Tr. 14, 17. Plaintiff asserts that the ALJ failed to provide a narrative statement describing how he formulated her physical RFC.
In concluding that plaintiff could perform light work, the ALJ gave significant weight to Dr. Rupp's objective examination, which found no functional limitations.
The Court's review of the entire record, however, supports the ALJ findings as to plaintiff's physical RFC. Specifically, none of plaintiff's treating doctors assigned or recommended any physical restrictions or limitations on her ability to work. Moreover, the ALJ explicitly considered plaintiff's reports that medication helped her symptoms. Tr. 19,
Plaintiff asserts that the ALJ erred by not considering an employer questionnaire which indicated that she had difficulty accepting instructions and criticism, had some difficulty working with co-workers and had great difficulty with acceptable attendance.
Plaintiff responds that an ALJ cannot ignore moderate Section I limitations, citing
