LAURA FASHING, Magistrate Judge.
THIS MATTER comes before the Court on plaintiff Teresa Poppino's Motion to Reverse and Remand for Rehearing, with Supporting Memorandum (Doc. 23), which was fully briefed on July 3, 2017. See Docs. 25, 26, 27. The parties consented to my entering final judgment in this case. Doc. 28. Having meticulously reviewed the entire record and being fully advised in the premises, I find that Ms. Poppino's motion is not well-taken, and I will DENY it.
The standard of review in a Social Security appeal is whether the Commissioner's final decision is supported by substantial evidence and whether the correct legal standards were applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008). If substantial evidence supports the Commissioner's findings and the correct legal standards were applied, the Commissioner's decision stands, and the plaintiff is not entitled to relief. Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004). "The failure to apply the correct legal standard or to provide this court with a sufficient basis to determine that appropriate legal principles have been followed is grounds for reversal." Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (internal quotation marks and brackets omitted). The Court must meticulously review the entire record, but may neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007).
"Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Langley, 373 F.3d at 1118. A decision "is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting it." Id. While the Court may not reweigh the evidence or try the issues de novo, its examination of the record as a whole must include "anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met." Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005). "`The possibility of drawing two inconsistent conclusions from the evidence does not prevent [the] findings from being supported by substantial evidence.'" Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).
To qualify for disability benefits, a claimant must establish that he or she is unable "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); 20 C.F.R. § 404.1505(a).
When considering a disability application, the Commissioner is required to use a five-step sequential evaluation process. 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At the first four steps of the evaluation process, the claimant must show: (1) the claimant is not engaged in "substantial gainful activity;" (2) the claimant has a "severe medically determinable . . . impairment . . . or a combination of impairments" that has lasted or is expected to last for at least one year; and (3) the impairment(s) either meet or equal one of the Listings
Ms. Poppino was born in 1956 and completed two years of college. AR 185, 189.
The ALJ found that Ms. Poppino met the insured status requirements of the Social Security Act through June 30, 2013. AR 20. At step one, the ALJ found that Ms. Poppino had not engaged in substantial, gainful activity since August 19, 2012, her alleged onset date. Id. At step two, the ALJ found that Ms. Poppino suffered from the severe impairments of fibromyalgia and degenerative disc disease. Id. The ALJ found that her diabetes mellitus, rheumatoid arthritis, hyperlipidemia, asthma, migraines, esophageal obstruction were nonsevere. Id. At step three, the ALJ found that none of Ms. Poppino's impairments, alone or in combination, met or medically equaled a Listing. AR 24. Because the ALJ found that none of the impairments met a Listing, the ALJ assessed Ms. Poppino's RFC. AR 24-29. The ALJ found Ms. Poppino had the RFC to "perform light work as defined in 20 CFR 404.1567(b) except for the following: the claimant is limited to occasional exposure to extreme cold and vibrations; she can never be exposed to hazards; she can frequently handle and finger; and she can never climb ladders, ropes, and scaffolds." AR 24. At step four, the ALJ concluded that Ms. Poppino was able to perform her past relevant work as an ad copywriter and as a casino dealer, and was therefore not disabled. AR 29.
On September 2, 2015, Ms. Poppino requested review of the ALJ's unfavorable decision by the Appeals Council. AR 12-13. Ms. Poppino submitted additional opinion evidence from one of her treating providers: a medical assessment of ability to do work-related activities (physical and non-physical) signed and dated by Melinda O'Neil, CANP,
Ms. Poppino raises three arguments for reversing and remanding this case: (1) the Appeals Council committed legal error in determining that the evidence she submitted did not constitute new, material, and chronologically pertinent evidence; (2) the ALJ failed to adequately account for the limitations assessed by treating nurse practitioners Heidi Dillenbeck, FNP-C
Ms. Poppino argues that the Appeals Council erred in finding that the opinions dated September 10, 2015 from Melinda O'Neil, CANP were not temporally relevant. Doc. 23 at 13. She argues that the Appeals Council erred in finding the evidence did not qualify for consideration, and urges the Court to remand on this basis. Id. at 12-16. The Commissioner argues that the ALJ already considered Ms. O'Neil's March 2015 opinion about the relevant time period, and that Ms. O'Neil's September 2015 opinion therefore was not "new, material, or chronologically relevant." Doc. 25 at 17. I find that the additional evidence Ms. Poppino submitted to the Appeals Council was not "new." The Appeals Council therefore did not err in rejecting it.
The Appeals Council will grant review of a case if, inter alia, "the claimant submits additional evidence that is new, material, and related to the period on or before the date of the ALJ decision." 20 C.F.R. § 404.970(b) (effective through Jan. 16, 2017)
Commissioner's Hearings, Appeals and Litigation Manual ("HALLEX") I-3-3-6(B)(2); see also Threet v. Barnhart, 353 F.3d 1185, 1191 (10th Cir. 2003) (affirming that evidence is new if it is not duplicative or cumulative, and is material if there is a reasonable possibility it could change the outcome).
The Tenth Circuit repeatedly has held that whether evidence is "new, material and chronologically pertinent is a question of law subject to our de novo review." Krauser v. Astrue, 638 F.3d 1324, 1328 (10th Cir. 2011) (internal citations and quotation omitted). Thus, the question before the Court; i.e., whether the Appeals Council should have considered the medical source statements in Ms. Poppino's request for review, is a question of law subject to the Court's de novo review. Threet, 353 F.3d at 1191. Although the Appeals Council rejected the newly submitted evidence on the ground that it was not related to the relevant time period, the Court does not analyze this element. Instead, the Court finds that the evidence was not "new"; therefore, the Appeals Council did not err in rejecting the evidence.
In this case, Ms. Poppino had a date last insured of June 30, 2013. AR 20. The ALJ issued her decision on June 29, 2015. AR 15-35. Ms. Poppino requested review by the Appeals Council, and submitted two additional opinions from her treating nurse practitioner Melinda O'Neil, CANP:
AR 10-11. The Appeals Council did not err in rejecting either of Ms. O'Neil's September, 2015 assessments.
Ms. O'Neil's September 10, 2015 physical assessment is not "new," and the Appeals Council did not err in rejecting it. "Evidence is new within the meaning of 404.970(b) if it is not duplicative or cumulative." Threet, 353 F.3d at 1191 (internal citation, bracket and quotation omitted). Ms. O'Neil's September 10, 2015 physical assessment is duplicative of her Medical Assessment of Ability to Do Work Related Physical Activities dated March 24, 2015, AR 439-41, which the ALJ considered. Ms. O'Neil's March 24, 2015 physical assessment stated that Ms. Poppino had the opined limitations "on or before June 30, 2013"—her date last insured. AR 441. In the March 24, 2015 opinion, Ms. O'Neil stated that Ms. Poppino could do occasional handling, fine manipulation (fingering), and reaching with her right hand; and could do occasional handling, no fine manipulation (fingering), and no reaching with her left hand. AR 440. The September 10, 2015 physical assessment form asked Ms. O'Neil to assess whether Ms. Poppino could "do [the] repetitive actions" of handling (gross manipulation) and fingering (fine manipulation). AR 11. Ms. O'Neil marked the "No" check boxes on the form indicating that Ms. Poppino could not do repetitive handling or fingering with either her right or left hand. Id. While the forms Ms. O'Neil used for the March 24, 2015 and September 10, 2015 physical assessments phrase the questions about Ms. Poppino's ability to handle and finger differently, the two forms capture the same information. Ms. O'Neil's March 24, 2015 physical assessment expressed her opinion about Ms. Poppino's ability to handle and finger through June 30, 2013— Ms. Poppino's date last insured, which is the relevant time period at issue in this case. In addition, the March 24, 2015 physical assessment is more nuanced, in that it allowed Ms. O'Neil to assess whether Ms. Poppino could handle and finger occasionally, frequently, continuously, or never. AR 440.
Ms. Poppino's argues that Ms. O'Neil opined in her September 10, 2015 physical assessment that she "cannot handle or finger with either hand." Doc. 23 at 15. This is not a fair reading of the assessment, which merely indicates that Ms. Poppino cannot do "repetitive" handling and fingering—not that she could not handle and finger at all. See AR 11. The Court finds that Ms. O'Neil's September 10, 2015 physical assessment is not "new," but instead is duplicative and cumulative. The Appeals Council therefore did not err in rejecting it.
Ms. O'Neil's September 10, 2015 non-physical assessment also is not "new," and the Appeals Council did not err in rejecting it. In this opinion, Ms. O'Neil stated that Ms. Poppino had severe pain, which caused sleep disturbances and fatigue, and required her to rest or lie down at regular intervals. AR 10. Ms. O'Neil further opined that Ms. Poppino had the following limitations:
AR 10. Ms. Poppino asserts that there are "no other medical opinions in the record concerning [her] non-exertional limitations." Doc. 26 at 2 (emphasis omitted). This is not true. Ms. O'Neil completed a Pain Functional Capacity (RFC) Questionnaire on March 24, 2015, which stated that Ms. Poppino's "moderately severe" pain would "frequently to constantly" interfere with her concentration, persistence, and pace. AR 442-43.
Ms. Poppino argues that the ALJ failed to adequately address the limitations found by Heidi Dillenbeck, FNP-C, and Melinda O'Neil, CANP, in violation of SSR 06-3p. Doc. 23 at 18. She argues that the ALJ failed to give "adequate reasons" for rejecting their opinions. Id. at 19. The Commissioner argues that the ALJ "gave good reasons for discounting the nurses' opinions [by] explaining that the nurses were not acceptable medical sources and highlighting record evidence that contradicted the opinions." Doc. 25 at 10. For the reasons discussed below, I agree with the Commissioner.
Ms. Dillenbeck and Ms. O'Neil are not considered "acceptable medical sources," but are instead considered "other sources" under the regulations. See SSR 06-03p (Aug. 9, 2006), 2006 WL 2329939, at *1-*2. Only "acceptable medical sources" can establish the existence of a medically determinable impairment, give medical opinions, or be considered "treating sources. . . whose opinions may be entitled to controlling weight." Id. at *2. However, opinions from "other sources" "are important and should be evaluated on key issues such as impairment severity and functional effects, along with the other relevant evidence in the file." Id. at *3. Opinions from "other sources" are weighed using the same factors for weighing opinions from acceptable medical sources. Id. at *4-*5; Frantz v. Astrue, 509 F.3d 1299, 1302 (10th Cir. 2007). These factors include:
SSR 06-03p, 2006 WL 2329939, at *4-*5. "Not every factor for weighing opinion evidence will apply in every case. The evaluation of an opinion from a medical source who is not an `acceptable medical source' depends on the particular facts in each case." Id. at *5. The ALJ "should explain the weight given to opinions from these `other sources,' or otherwise ensure that the discussion of the evidence in the determination or decision 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." Id. at *6.
The ALJ evaluated the opinions of Ms. O'Neil and Ms. Dillenbeck on the issues of impairment severity and functional effects, as required by SSR 06-03p:
AR 26-27.
The Court does not find error in the ALJ's assessment of Ms. O'Neil's and Ms. Dillenbeck's opinions. The ALJ gave their opinions less weight in part because they were "non-acceptable medical sources." SSR 06-03p permits this. See SSR 06-03p, 2006 WL 2329939, at *5. The ALJ also gave their opinions less weight because their opinions were inconsistent with other evidence of record. See SSR 06-03p, 2006 WL 2329939, at *4 (in assessing an "other source opinion, an ALJ should consider "[h]ow consistent the opinion is with other evidence"). The ALJ gave valid reasons for finding Ms. Poppino less limited than Ms. O'Neil and Ms. Dillenbeck thought she was: Ms. Poppino had normal sensory/motor strength in in her upper and lower extremities, normal hand grip, and decent activities of daily living. Although Ms. Poppino attacks each of these reasons offered by the ALJ, the Court is not persuaded that the ALJ erred.
Ms. Poppino first faults the ALJ for discounting Ms. O'Neil's and Ms. Dillenbeck's opinions based on just two pages of treatments records showing normal grip strength. Doc. 23 at 20 (referring to ALJ's reliance on 15F/5 and 16F/7). The Court finds no error here. The ALJ discussed in detail why she did not find Ms. Poppino as limited as she alleged, based on a detailed review of the objective medical findings. See AR 26. As part of this discussion, the ALJ stated that "[d]uring a January 2015 examination, the claimant appeared to be in no acute distress. (Exhibit 15F/4). She moved all extremities equally with full range of motion and showed normal motor strength (Exhibit 15F/5)." AR 26. The ALJ referenced these objective medical findings again in explaining why she found Ms. Poppino less limited in her ability to handle and finger, and why she found fewer postural limitations than Ms. O'Neil and Ms. Dillenbeck opined. AR 27. The ALJ found that Ms. O'Neil's and Ms. Dillenbeck's opined limitations in these areas were not consistent with the objective medical evidence.
Ms. Poppino asserts that the ALJ's reliance on two pages of treatment records "hardly exhausts the available treatment records," and she directs the Court to Ms. O'Neil's December 14, 2012 treatment note, AR 293, and Sun Pain Management's November 25, 2014 Review of Symptoms, AR 403. Doc. 23 at 20. These records do not detract from the ALJ's analysis. While "[t]he record must demonstrate that the ALJ considered all of the evidence, . . . an ALJ is not required to discuss every piece of evidence." Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). Granted, an ALJ "must discuss the uncontroverted evidence he [or she] chooses not to rely upon, as well as significantly probative evidence he [or she] rejects." Id. However, the evidence Ms. Poppino points to is neither uncontroverted nor significantly probative, and the ALJ's failure to discuss it does not require remand. The first piece of evidence Ms. Poppino points to is the December 14, 2012 notation by Ms. O'Neil that Ms. Poppino's hands were swollen at the joints, and her grips were "weak and painful." AR 293. In her discussion of the objective medical findings, however, the ALJ discussed Ms. Poppino's symptoms from fibromyalgia chronologically. See AR 26. The ALJ's reliance on the January 23, 2014 finding of normal hand grip and the January 2015 finding of "full range of motion and . . . normal motor strength" is logical, given that the ALJ discussed how Ms. Poppino's fibromyalgia was well-managed with medications, at least beginning in July 2013. AR 26 (citing Exhibit 12F/3 and 16F/13). The ALJ also noted that Ms. Poppino was diagnosed with rheumatoid arthritis in November of 2012, but by July 2013 her rheumatoid arthritis was in remission. AR 21. Given that Ms. Poppino was suffering from rheumatoid arthritis at the time of Ms. O'Neil's December 14, 2012 assessment of her grip strength, it was logical for the ALJ to rely on the later assessment of Ms. Poppino's grip strength and hand pain.
The second piece of evidence Ms. Poppino points to is her November 25, 2014 report to Sun Pain Management that she was experiencing muscle and joint pain. AR 403. The objective physical exam on that date, however, found that Ms. Poppino had adequate range of motion, no muscle pain, adequate strength, adequate grip, intact sensation, no edema, and no joint pain or swelling in either upper extremity, only stiffness in the hands. AR 404. In addition, the objective physical exam of the lower extremities noted normal strength and sensation, no edema, normal range of motion, no joint pain or swelling on the right, and an "achy pain in the knee" on the left. AR 404. The left knee pain appears to have been triggered by a fall in October 2014. AR 459. The ALJ noted that in December 2014, Ms. Poppino reported that she had been doing home exercises with "good relief of her discomfort." AR 26 (citing AR 458). Thus, neither piece of evidence Ms. Poppino points to is uncontroverted or significantly probative, and the Court will not remand based on the ALJ's failure to specifically discuss either one.
Ms. Poppino next challenges the ALJ's reliance on the fact that Ms. Poppino "reported decent activities of daily living despite her impairments" in finding her less limited that Ms. O'Neil and Ms. Dillenbeck thought she was. Doc. 23 at 20. In her Adult Function Report, Ms. Poppino stated that she goes outside daily, walks, and drives a car. AR 232. She also stated that she shops for one to two hours bi-weekly. Id. An ALJ is free to consider a claimant's "[r]eports of daily activities" in determining a claimant's RFC. SSR 96-8p, 1996 WL 374184, at *5. Ms. Poppino does not specifically challenge the activities of daily living the ALJ cited, but instead complains that the ALJ did not adopt her reported postural limitations. See Doc. 23 at 20-21. The ALJ, however, gave adequate reasons supported by substantial evidence for rejecting the postural limitations in the opinions of Ms. O'Neil, Ms. Dillenbeck, and in Ms. Poppino's function report, as explained elsewhere in this opinion.
Finally, Ms. Poppino argues that the ALJ failed to adequately address Ms. O'Neil's opinion that she must periodically sit and stand to relieve pain and discomfort. Doc. 23 at 22 (citing AR 439).
Ms. Poppino argues that the ALJ violated SSR 16-3p by evaluating her character instead of her description of her symptoms. Doc. 23 at 22. She argues that SSR 16-3p—which was effective as of March 28, 2016, and clarified "that subjective symptom evaluation is not an examination of an individual's character"—applies retroactively. Id. at 22-23. Ms. Poppino specifically objects to the ALJ's statement that
AR 28-29. Ms. Poppino argues that "this segment of ALJ Zamora's decision inappropriately adjudicates [her] disability claim through an impermissible evaluation of [her] character . . . rather than upon an analysis of [her] symptoms," in violation of SSR 16-3p. Doc 23 at 26.
Ms. Poppino's assertion that SSR 16-3p applies retroactively is without merit. On October 25, 2017, the SSA republished SSR 16-3p. See SSR 16-3p (Oct. 25, 2017), 2017 WL 5180304. The republished SSR "includes a revision to clarify that our adjudicators will apply SSR 16-3p when we make determinations and decisions on or after March 28, 2016. When a Federal court reviews our final decision in a claim, we also explain that we expect the court to review the final decision using the
In determining the credibility of a claimant's statements, SSR 96-7p requires the ALJ to consider the entire case record, including the objective medical evidence, the individual's own statements about symptoms, statements and other information provided by treating or examining physicians or psychologists and other persons about the symptoms and how they affect the individual, and any other relevant evidence in the case record. An individual's statements about the intensity and persistence of pain or other symptoms or about the effect the symptoms have on his or her ability to work may not be disregarded solely because they are not substantiated by objective medical evidence.
SSR 96-7p (July 2, 1996), 1996 WL 374186, at *1. The ALJ complied with these guidelines in assessing Ms. Poppino's credibility. The ALJ discussed Ms. Poppino's reported symptoms. AR 25. The ALJ then discussed in detail how the objective medical findings did not support the degree of limitation Ms. Poppino alleged. AR 26; see SSR 96-7p, 1996 WL 374186, at *2 ("[A]n individual's symptoms, including pain, will be determined to diminish the individual's capacity for basic work activities to the extent that the individual's alleged functional limitations and restrictions due to symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence in the case record."). The ALJ also discussed the degree of limitation noted in the medical opinions in the record, as well as the third-party function report from Ms. Poppino's husband. AR 26-28. Finally, the ALJ gave valid reasons for finding that Ms. Poppino's testimony regarding her symptoms was inconsistent with her treatment records. AR 28. First, the ALJ noted that Ms. Poppino received little treatment for her impairments during the relevant time period, and did not seek pain management until 2014—which was after her June 2013 date last insured, and at least a year after Ms. O'Neil told Ms. Poppino that she did not provide chronic pain management. AR 28. "Lack of treatment . . . [is a] proper consideration[] as part of a credibility determination." Welch v. Colvin, 566 F. App'x 691, 694 (10th Cir. 2014) (unpublished) (citing Barnett v. Apfel, 231 F.3d 687, 690 (10th Cir. 2000) and Wilson v. Astrue, 602 F.3d 1136, 1146 (10th Cir. 2010)); see also 20 C.F.R. § 404.1529(a) (effective June 13, 2011 to March 26, 2017) (the ALJ will consider "extent to which [claimant's] symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence."). Second, the ALJ found Ms. Poppino less limited than alleged because the record showed that her medications and physical therapy provided relief for her impairments. AR 28 (citing 12F/3 (noting that Ms. Poppino's fibromyalgia was managed with Cymbalta and hydrocodone); 16F/13 (noting that topiramate works well to control Ms. Poppino's migraines); 23F/1 (noting that home physical therapy provided "good relief of her discomfort"); and the hearing testimony). Under 20 CFR § 404.1529(c)(3) (effective June 13, 2011 to March 26, 2017), the ALJ properly considered "what medications, treatments or other methods" Ms. Poppino used to alleviate her symptoms. See also White v. Barnhart, 287 F.3d 903, 909 (10th Cir. 2014) (finding that ALJ reasonably discounted a claimant's subjective complaints based in part on claimant's "admission that medication relieved some of her pain").
Given the numerous valid reasons supported by substantial evidence that the ALJ gave for finding Ms. Poppino less limited that she alleged, the Court will not disturb the ALJ's credibility findings. The ALJ conducted an adequate analysis of Ms. Poppino's credibility. The ALJ did not discredit Ms. Poppino's reported symptoms based on an impermissible reason.
The Appeals Council did not err in rejecting the new evidence Ms. Poppino submitted, as the evidence was duplicative and cumulative rather than new. The ALJ adequately addressed the "other source" opinions of Ms. Dillenbeck and Ms. O'Neil. Also, the ALJ did not err in assessing Ms. Poppino's credibility.
IT IS THEREFORE ORDERED that Plaintiff's Motion to Reverse and Remand for a Rehearing (Doc. 23) is DENIED.
IT IS FURTHER ORDERED that the Commissioner's final decision is AFFIRMED.
