REPORT AND RECOMMENDATION
SUZANNE MITCHELL, Magistrate Judge.
Dorothy Motley (Plaintiff) brings this action for judicial review of the Defendant Commissioner of Social Security's final decision that she 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 David L. Russell 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. 13. Following a careful review of the parties' briefs, the administrative record (AR)1 and the relevant authority, the undersigned recommends the court affirm the Commissioner's decision.
I. Administrative determination.
A. Disability standard.
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)).
B. Burden of proof.
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.
C. Relevant findings.
1. Administrative Law Judge findings.
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 17-31; see 20 C.F.R. § 404.1520(a)(4), see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (describing the five-step process). Specifically, the ALJ found Plaintiff:
(1) had not engaged in substantial gainful activity since her alleged onset date of May 30, 2015;
(2) had the severe impairments of degenerative disc disease, degenerative joint disease, and irritable bowel syndrome;
(3) had no impairment or combination of impairments that met or medically equaled the severity of a listed impairment;
(4) had the residual functional capacity2 to perform light work as defined in 20 CFR § 404.1567(b) except [Plaintiff] could occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs, but could never climb ladders, ropes, or scaffolds;
(5) could perform her past relevant work as video rental clerk, a small business owner, and a casino cashier, and therefore;
(6) was not disabled from May 30, 2015 through January 13, 2017.
AR 17-31.
2. Appeals Council findings.
The SSA's Appeals Council denied Plaintiff's request for review, so the ALJ's unfavorable decision is the Commissioner's final decision in this case. Id. at 3-10; see Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011).
II. Judicial review of the Commissioner's final decision.
A. Review standard.
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).
B. Issues for judicial review.
Plaintiff contends that the ALJ (1) failed to include functional limitations related to Plaintiff's migraines in the RFC assessment, and (2) erred in her evaluation of Plaintiff's irritable bowel syndrome. Doc. 19, at 3-15.
1. ALJ's evaluation of migraines.
Plaintiff argues that the ALJ "understates" the evidence related to Plaintiff's migraines, and that it is error for the ALJ to "mischaracterize or downplay evidence to support her findings." Id. at 3.
Plaintiff contends that the ALJ erred by finding Plaintiff's migraines non-severe, and that even if her migraines were non-severe, the ALJ should have incorporated the limitations stemming from this condition when assessing the RFC. Id. at 3 (citing SSR 96-8p), 9.
She also contends "it was wrong to disregard [Plaintiff's migraines] wholesale when the MER shows longitudinal consistency of [Plaintiff] seeking treatment for the impairments and limitations from migraines." Id. at 9. Plaintiff argues the treatment record indicates that she received "fairly consistent treatment" for her headaches, and that her treating physician classified them as "migraines, not just regular headaches." Id. at 5. Plaintiff cites her migraine symptoms, and further argues that the medications prescribed to treat her migraines—Fioricet and Demerol—are "not the correct drugs for non-severe limitations, that is called aspirin." Id.
The ALJ considered the Plaintiff's testimony concerning her migraines, as well as the effects of her medication. AR 25. In evaluating Plaintiff's migraines, along with her other non-severe impairments, the ALJ found:
Other than palliative medications with generally good control, the claimant has obtained minimal follow-up treatment for these conditions, suggesting that her medical treatment largely was for temporary impairments or for those imposing no or slight limitations. Examinations have been largely normal.
Id. at 19.
In evaluating the opinion of Plaintiff's treating physician, Merle Davis, MD, the ALJ also found that the treatment record was inconsistent with both Plaintiff's subjective allegations concerning her migraines and Dr. Davis' extreme limitations, and that Dr. Davis' treatment records failed to substantiate either a need for "ongoing chronic pain management or intractable migraine." Id. at 27.
The ALJ's evaluation of Plaintiff's migraines does not indicate, as Plaintiff suggests, a failure to consider the impact of this impairment, but instead represents a difference of perspective regarding what, if any, functional limitations stem from this condition. Substantial evidence may support an administrative agency's findings even if one may draw two different conclusions from the same facts. See Lax, 489 F.3d at 1084. (The Court may not "displace the agenc[y'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.") Accepting Plaintiff's interpretation of the record would amount to re-weighing the evidence and substituting the court's judgment for that of the Commissioner. See Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008).
Plaintiff also contends that the ALJ's use of the term "temporary" is unclear, and that any effort on the part of the Court to "divine" its meaning would constitute an attempt by the Court to "supply new reasons that it believes would support the ALJ's errant RFC finding in absence of the ALJ's actual written word." Doc. 19, at 6. Determining the precise meaning of the word "temporary" is not necessary to resolve this case, as the ALJ has provided several other reasons for finding Plaintiff's migraines non-severe.
Plaintiff raises an additional semantic argument, citing Dr. Davis' notation characterizing Plaintiff's condition as a "chronic non-intractable headache." Id. at 7 (citing AR 375). Plaintiff argues that in this context, the word "intractable" means that her headaches have not been relieved by treatment, and contrasts this with the ALJ's classification of Plaintiff's nonsevere impairments as being temporary or "imposing no or slight limitations." Id.; see AR 19
Plaintiff contends that an "intractable" migraine is "doctor speak" for a headache "that just doesn't seem to go away, no matter what you and your doctor do" and that such a headache is "relentless" and "seemingly untreatable."3 Doc. 19, at 8. Plaintiff argues that even if medication could control Plaintiff's migraines, this would not happen "instantaneously," and Plaintiff would experience "excessive absenteeism" until her headache-related symptoms subsided. Id. Plaintiff also reasons that the term "nonintractable" indicates that Plaintiff's physician has had "some success" with the treatment regimen, but this "does not mean [Plaintiff's headaches] are gone." Id. This argument is insufficient—substantial evidence supports the ALJ's findings.
2. ALJ's evaluation of irritable bowel syndrome.
Plaintiff argues that the ALJ failed to include all of Plaintiff's "functionally distinct symptoms and limitations" stemming from her irritable bowel syndrome in the RFC, alleging step-five error. Id. at 9 (emphasis omitted). Given that the ALJ did not make step-five findings, but rather determined at step four that Plaintiff could return to her past relevant work as a video rental clerk, small business owner, and casino cashier, AR 29, Plaintiff appears to challenge the step-four analysis.
Plaintiff cites the medical evidence concerning her IBS and argues that the ALJ "ignored the VE's testimony" by failing to include a restriction in the RFC involving unscheduled breaks that would have prevented Plaintiff from performing her past work. Doc. 19, at 10; see id. at 10-13. Plaintiff argues her testimony warranted such a restriction. Plaintiff testified she had numerous bowel movements per day and needed to keep a change of clothes ready in case she had an accident. Id. at 13 (citing AR 45, 48).
The ALJ evaluated Plaintiff's IBS symptoms differently, concluding "nothing in the record support[ed] such severe [IBS-related] limitations." AR 27. The ALJ concluded such limitations were "inconsistent with diagnostic" findings that were "generally within normal limits with at most mild abnormalities." Id. at 24, 27-28.
An ALJ need not accept a VE's answer to hypothetical questioning that includes limitations "claimed by plaintiff but not accepted by the ALJ as supported by the record." See Bean v. Chater, 77 F.3d 1210, 1214 (10th Cir. 1995); see also Smith v. Colvin, 821 F.3d 1264, 1270 (10th Cir. 2016) ("The administrative law judge had to ask only about the effect of those limitations ultimately assessed; the judge did not need to ask about the effect of limitations that he didn't believe applied."). The ALJ found an inconsistency between Plaintiff's subjective allegations concerning her IBS and the medical record and was therefore not obligated to include limitations in the RFC inconsistent with her findings. AR 26-28.
The ALJ also discredited Plaintiff's credibility, a finding Plaintiff does not challenge. See id. at 26. The ALJ also concluded Plaintiff's activities of daily living did not comport with Plaintiff's alleged disabling symptoms. Id. Substantial evidence supports the ALJ's decision.
III. Recommendation and notice of right to object.
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 August 2, 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.
