SUZANNE MITCHELL, Magistrate Judge.
Tracy Meeks (Plaintiff) brings this action for judicial review of the Commissioner of Social Security's final decision that he was not "disabled" under the terms of the Social Security Act. See 42 U.S.C. §§ 405(g), 1382c. United States District Judge David L. Russell has referred the 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. 12.
After a careful review of the record (AR), the parties' briefs, and the relevant authority, the undersigned recommends the entry of judgment affirming the Commissioner's final decision. See 42 U.S.C. § 405(g).
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 20-21;
AR 22-33.
The Social Security Administration's Appeals Council found no reason to review that decision, so the ALJ's decision is the Commissioner's final decision in this case. Id. at 1-5; 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). Substantial evidence is "more than a scintilla, but less than a preponderance." Lax, 489 F.3d at 1084. A decision is not based on substantial evidence "if it is overwhelmed by other evidence in the record." Wall, 561 F.3d at 1052 (internal quotation marks omitted). 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 argues substantial evidence does not support the ALJ's RFC determination because the ALJ did not properly consider several medical opinions. Specifically, Plaintiff argues that the ALJ: (1) failed to consider treating source evidence that proved a closed period of disability; (2) improperly weighed the "other source" opinion; and (3) failed to reconcile inconsistencies among the medical opinions. Doc. 13, at 3-12.
Plaintiff references the ALJ's discussion of Plaintiff's two back surgeries in 2009 and additional surgeries in 2012 and 2013. Doc. 13, at 5 (citing AR 26-28). Plaintiff also references the ALJ's statement that Plaintiff's treating physician assessed him as "temporarily totally disabled" through March of 2013, sent him to a physical therapist in December of 2013, and released him to sedentary work with additional restrictions in January of 2014. Id. (citing AR 26-28). Relying on this summary of the medical evidence, Plaintiff argues that he was "at or near [a] Listing level for four years," and the ALJ should have considered a closed period of disability rather than "only focus[ing] on the very last treatment document which related only to being released from care at the very end." Id. Though Plaintiff does not cite to the record, it appears that "the very last treatment document" he references is the January 9, 2014 work release from the surgeon who performed his surgeries. See AR 362.
On January 23, 2015, Plaintiff applied for supplemental security income (SSI), alleging disability began on March 1, 2009. AR 20, 168-70. SSI benefits cannot be awarded for any period prior to the date of application. See 20 C.F.R. § 416.335. As such, to be entitled to SSI benefits, Plaintiff must show that he was disabled between January 23, 2015, the application date, and January 13, 2017, the date of the ALJ's decision. See 20 C.F.R. §§ 416.330, 416.335. In addition, under the controlling regulations, SSI benefits cannot be awarded retroactively. 20 C.F.R. § 416.335; SSR 83-20, 1983 WL 31249, at *1, *7 (1983); Kepler v. Chater, 68 F.3d 387, 389 (10th Cir. 1995). Consequently, January 23, 2015 was the earliest date that Plaintiff could have been eligible to receive SSI benefits. See Baldwin v. Barnhart, 167 F. App'x 49, 51 (10th Cir. 2006) (explaining date of eligibility for SSI benefits).
Plaintiff, however, argues that the ALJ should have considered a closed period of disability between his surgery in 2009 and work release on January 9, 2014. Doc. 13, at 4-6. Plaintiff presents no argument that the ALJ failed to consider evidence of a closed period of disability that extended beyond the application date of January 23, 2015. See id. Plaintiff's first argument is without merit.
Plaintiff's second and third arguments contend that the RFC is not supported by substantial evidence—specifically the medical evidence of record.
As discussed by the ALJ, Plaintiff suffered a work injury in 2008, followed by spinal surgeries in 2009, 2012, and 2013, which were performed by Brent Hisey, M.D. AR 27 (citing id. at 312, 420-21, 424-45, 430-31). Following the 2013 surgery, Dr. Hisey sent Plaintiff to physical therapist Denna Jantzen for 30 days. Id. at 27-28 (citing id. at 363). On December 16, 2013, Ms. Jantzen completed a Functional Capacity Evaluation (FCE) opining that Plaintiff had limitations in several functional areas. Id. at 28 (citing id. at 388-89). The ALJ declined to give the FCE controlling weight. Id. On January 9, 2014, Dr. Hisey released Plaintiff from his care, citing "maximum medical improvement" and recommending "a permanent ten-pound lifting limit with a pushing/pulling limit of ten pounds." Id. (citing id. at 362). The ALJ did give Dr. Hisey's opinion controlling weight. Id.
During this time period, Plaintiff also saw David Shepherd, Jr., M.D., who treated Plaintiff for sleep apnea, hypothyroidism, hypertension, and hyperlipidemia. Id. at 436-63, 506-74. As the ALJ noted, on June 5, 2014, Plaintiff reported to Dr. Shepherd that his pain was "pretty well controlled except after walking or prolonged standing," and Plaintiff sought assistance with pain management. Id. at 30 (citing id. at 445). Plaintiff reported continued back pain on September 8, 2014, and December 16, 2014. Id. at 453, 460.
On January 23, 2015, Plaintiff applied for SSI. As discussed by the ALJ, Jim Burke, D.O., performed a physical consultative examination on March 16, 2015 in which he found that Plaintiff's range of motion in his extremities was normal but Plaintiff had reduced range of motion and tenderness in his back. Id. at 29 (citing id. at 470, 473). The remainder of Dr. Burke's exam was normal or noncontributory. Id. at 29.
When Plaintiff saw Dr. Shepherd on March 20, 2015, and May 1, 2015, he did not assess Plaintiff's back pain. Id. at 562 ("As I understand it his disability is determined by his back injury and subsequent surgery. None of that was reevaluated today."), 571-72. Plaintiff continued to see Dr. Shepherd for hypertension, hyperlipidemia, and hypothyroidism, but Dr. Shepherd noted that "his low back pain remains his primary problem." Id. at 583, 581-95, 645-55. In reviewing the medical records from Dr. Shepherd, the ALJ determined that "even with the presence of low back pain, medications have controlled his other medical conditions, and the [ALJ] finds that the combination of impairments does not limit [Plaintiff] further than the reduced range of sedentary work [as set forth in the RFC]." Id. at 29.
The ALJ also discussed the determinations of the state agency medical consultants. Id. At the initial level, the consultant found that Plaintiff was "able to perform an eroded range of light work with standing and/or walking four hours in an eight-hour work day." Id. (citing id. at 71-73). Upon reconsideration, the consultant found the same exertional limits but found that Plaintiff "is unable to climb ladders, ropes, or scaffolds, is frequently able to climb ramps or stairs, balance, stoop, kneel and crouch, and is occasionally able to crawl." Id. (citing id. at 87-90). The ALJ gave limited weight to these opinions, agreeing "for the most part" with the postural limitations, but finding that the sedentary "exertional restrictions in [Ms. Jantzen's FCE] and Dr. Hisey's medical opinion appear more consistent with the history of multiple surgeries, [Plaintiff's] obesity, and the back pain [Plaintiff] still experiences." Id.
It is well settled that it is the ALJ's responsibility, not a physician's, to assess an RFC. See 20 C.F.R § 416.946; SSR 96-5p, 1996 WL 374183, at *2, 4 (July 2, 1996). Moreover, "there is no requirement in the regulations for a direct correspondence between an RFC finding and a specific medical opinion on the functional capacity in question" and the ALJ need not match each aspect of the RFC determination to a specific medical condition or a specific item of medical evidence. Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012). The RFC determination need only include such limitations as the medical record substantially supports. See Young v. Barnhart, 146 F. App'x 952, 955 (10th Cir. 2005) ("The final responsibility for determining RFC rests with the Commissioner, based upon all the evidence in the record, not only the relevant medical evidence.").
Plaintiff argues that the ALJ erred in his consideration of the FCE completed by Ms. Jantzen. Doc. 13, at 6-9. In the FCE, Ms. Jantzen opined that Plaintiff could sit continuously four to six hours a day with no deficits. AR 389. Ms. Jantzen further opined that Plaintiff had some deficits in standing, walking, bending, climbing, reaching, squatting, stooping, crawling, and kneeling, but could perform all of those activities intermittently for up to two hours a day. Id. In the narrative portion of her evaluation, Ms. Jantzen stated that "Job duties that include standing for more than 10 minutes, stooping and bending are not recommended. Table top activities in which [Plaintiff] can sit at an ergonomically correct height and activities that involve using his hands are recommended at this time. He has good mental, visual and communicative skills." Id.
The ALJ discussed Ms. Jantzen's FCE and determined to "not accord [it] controlling weight." Id. at 28. However, the ALJ did rely on the FCE to find that Plaintiff's ability to stoop or bend was not precluded and specified that Plaintiff "should be able to function at a sedentary job with postural restrictions, where allowed to alternate sitting/standing such that he is able to sit for 50-55 minutes and then stand for 5 minutes while staying on task. This conclusion is consistent with the treating source medical evidence, and the medical opinion of the State agency medical consultants in this case shows [Plaintiff] less limited." Id.
Plaintiff asserts that the ALJ erred in (1) not specifying the exact amount of weight he afforded Ms. Jantzen's FCE; and (2) adopting some portions of the FCE while rejecting others. Doc. 13, at 6-9.
An ALJ must consider all the medical source evidence and discuss the weight he gives to each opinion. 20 C.F.R. § 416.927(c); Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012). But the regulations distinguish between "acceptable medical sources" and "other sources." SSR 06-03p, 2006 WL 2329939, at *1-2 (Aug. 9, 2006). "Other sources" include both "medical sources who are not `acceptable medical sources'" and "non-medical sources." Id. at 2. "Only acceptable medical sources can provide evidence to establish the existence of a medically determinable impairment, only they can provide medical opinions, and only they can be considered treating sources." Frantz v. Astrue, 509 F.3d 1299, 1301 (10th Cir. 2007) (citations and internal quotation marks omitted). An ALJ should still explain the weight given to opinions from other sources, but an ALJ's evaluation of an opinion from another source "is sufficient if it permits us to `follow the adjudicator's reasoning.'" Keyes-Zachary, 695 F.3d at 1163-64 (quoting SSR 06-03p, 2006 WL 2329939, at *6); accord Carr v. Comm'r, No. 17-7077, 2018 WL 2410879, at *2 (10th Cir. May 29, 2018); see also SSR 06-03p, 2006 WL 2329939, at *6 ("[T]he adjudicator generally 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 . . ." (emphasis added)).
Ms. Jantzen is a therapist, which is an "other source." See AR 389; SSR 06-03p, 2006 WL 2329939, at *2 (designating therapists as medical sources who are not acceptable medical sources). As such, the ALJ's analysis was sufficient so long as we are able to follow his reasoning. And here, we are able to do so. As set forth above, the ALJ specified that he was not giving Ms. Jantzen's FCE controlling weight. See id. at 28. While the ALJ did not specifically state what weight he was giving the FCE, it is obvious that he gave the FCE's postural limitations little or no weight. See id.; see also Keyes-Zachary, 695 F.3d at 1164 (recognizing that, although the ALJ did not specify the weight he was giving an opinion of a nonacceptable medical source, "it is obvious that the ALJ gave [it] little or no weight" because the RFC conflicted with the opinion).
The ALJ specified that he found the FCE consistent with an ability to stoop or bend, noting that "Ms. Jantzen did not recommend job duties that include standing for more than ten minutes, stooping, and bending. However, the [FCE] also stated that [Plaintiff] could perform bending, stooping, and standing, intermittently (0 to 2 hours per day)." AR 28. The ALJ further specified that the FCE indicated that Plaintiff could also climb, reach, squat, crawl, and kneel, but only intermittently. Id. The ALJ declined to adopt those limitations. Compare id. at 25 (finding Plaintiff can frequently climb ramps or stairs, as well as frequently balance, stoop, kneel, crouch, and crawl), with id. at 389. With respect to postural limitations, the ALJ made clear that he agreed with the findings of the state agency medical consultant on reconsideration, whose findings are reflected in the RFC and who determined that Plaintiff can frequently climb ramps or stairs, as well as frequently balance, stoop, kneel, crouch, and occasionally crawl. See id. at 29 (citing id. at 87-90) ("The undersigned does find postural limitations for the most part consistent with the State agency medical opinion upon reconsideration").
Finally, in considering the FCE, the ALJ reviewed Ms. Jantzen's findings that Plaintiff "demonstrated the ability to sit for 4 to 6 hours provided he could adjust his posture hourly," and then determined that Plaintiff "should be able to function at a sedentary job with postural restrictions, where allowed to alternate sitting/standing such that he is able to sit for 50-55 minutes and then stand for 5 minutes while staying on task." Id. at 28. The undersigned finds that the ALJ's analysis of Ms. Jantzen's FCE was sufficient to follow his reasoning. See Keyes-Zachary, 695 F.3d at 1164.
Plaintiff next argues that the ALJ "cherry-pick[ed]" the findings in the
FCE and offered "no valid explanation . . . as to why he failed to adopt all of Ms. Jan[t]zen's findings." Doc. 13, at 7. As discussed above, the ALJ offered a sufficient explanation of his consideration of the FCE. Moreover, the ALJ also explained that he considered the opinion of Dr. Hisey, Plaintiff's treating physician. AR 27-28. The ALJ gave Dr. Hisey's opinion "controlling weight" and provided appropriate reasons for that decision. Id. at 28; see Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (explaining how an ALJ is to consider an opinion from a treating physician).
Finally, the ALJ explained that he determined Plaintiff's RFC after "careful consideration of the entire record," including specifically "the treating source medical evidence, and the medical opinion of the State agency medical consultants in this chase [which show] [Plaintiff is] less limited," all of which the ALJ discussed in detail. See AR 27-29. As such, the ALJ sufficiently explained why he accepted the sit/stand limitations in Ms. Jantzen's FCE, while declining to accept the other postural limitations she noted, and the undersigned finds no error in the ALJ's consideration of the FCE.
Plaintiff titles the third section of his brief "The Conclusion of `Totally Temporarily Disabled' is Not Consistent with the Treating Source or State Agency." Doc. 13, at 9. Some of these are simply restatements of Plaintiff's assertion that the ALJ improperly weighed Ms. Jantzen's FCE. See id. at 9-12. First, Plaintiff argues that Dr. Hisey stated that Plaintiff was "temporarily and totally disabled from 2009 until release in 2014," and then states that "[t]he ALJ seems to miss the fact that [Plaintiff] was referred to Ms. Jantzen by Dr. Hisey." Id. at 9. As noted above, Plaintiff is not eligible for SSI benefits prior to his application date of January 23, 2015. And, the ALJ was clearly aware that Dr. Hisey referred Plaintiff to Ms. Jantzen. See AR 27-28 (stating that Dr. Hisey "placed [Plaintiff] in physical therapy" with Ms. Jantzen, who performed an FCE). The crux of this portion of Plaintiff's argument, which he makes without support, is that "[b]ecause the ALJ granted controlling weight to Dr. Hisey, and because Dr. Hisey formed his opinion based upon [Ms. Jantzen's] FCE, it was error not to properly weigh it." Doc. 13, at 10; id. at 9-11. As set forth above, however, the ALJ sufficiently explained his consideration of the FCE.
Second, Plaintiff contends that the ALJ erred in evaluating Ms. Jantzen's FCE vis-à-vis other opinions in the record. Id. at 11-12. Plaintiff argues that the ALJ erred in finding that Dr. Hisey's opinion was "not inconsistent with the other substantial medical and nonmedical evidence in the case record." Id. at 11 (citing AR 28). Dr. Hisey permanently restricted Plaintiff to a lifting limit of ten pounds and pushing/pulling limit of ten pounds. AR 28, 362. The ALJ gave this opinion controlling weight, finding that it was both well supported by medically acceptable clinical and laboratory diagnostic techniques and that it was not inconsistent with the evidence of record. Id. at 28. Plaintiff asserts that this was error because "Ms. Jantzen's opinion does not match Dr. Hisey's." Doc. 13, at 11. However, despite the fact that they do not "match," there is nothing in Ms. Jantzen's FCE that contradicts or is inconsistent with Dr. Hisey's lifting and pushing/pulling restrictions. Compare AR 362 (recommending a permanent ten-pound limit on lifting and pushing/pulling), with AR 388-89 (agreeing with "physician's prescribed limit of not lifting over 10 pounds"). Plaintiff has not shown that the ALJ's statement was erroneous.
Finally, Plaintiff argues that "Ms. Jantzen's opinion does not match the state agency opinions," asserting that a statement by the ALJ is erroneous. Doc. 13, at 12. As set forth above, after discussing the inconsistencies in the FCE, the ALJ concluded that Plaintiff "should be able to function at a sedentary job with postural restrictions, where allowed to alternate sitting/standing such that he is able to sit for 50-55 minutes and then stand for 5 minutes while staying to task." AR 28. The ALJ then stated "[t]his conclusion is consistent with the treating source medical evidence, and the medical opinion of the State agency medical consultants in this case shows [Plaintiff] less limited." Id. As such, the ALJ found that his RFC determination for sedentary work with a sit/stand option was consistent with the medical evidence, but more favorable to Plaintiff than the medical opinions of the state agency consultants, which found Plaintiff capable of light work and standing up to 4 hours a day. See id. at 28-29. Plaintiff has not shown that the ALJ's statement was erroneous in substance or that the ALJ erred in referencing less restrictive medical opinions that he rejected. Cf. Chapo, 682 F.3d at 1288 (holding ALJ does not commit reversible error when evidence adverse to claimant is tempered in claimant's favor).
Plaintiff references the ALJ's consideration of his workers' compensation disability finding. Doc. 13, at 4. To the extent Plaintiff intended to argue error regarding such consideration, Plaintiff does not develop any sufficient legal or factual bases for reversal, and the undersigned will not speculate or develop arguments on his behalf. See Threet v. Barnhart, 353 F.3d 1185, 1190 (10th Cir. 2003).
Plaintiff also argues that the ALJ should have recontacted Ms. Jantzen for further explanation on her FCE, asserting that it was unclear what she meant when she said Plaintiff could stand no more than 10 minutes, with a duration of zero to two hours a day. Doc. 13, at 7-8; see AR 389. In support of this argument, Plaintiff cites to the 2008 version of 20 C.F.R. § 416.912(e)(1), which, when it was in effect, required an ALJ to recontact a treating source if additional evidence or clarification was needed due to a conflict or ambiguity. Doc. 13, at 7-8 (citing 20 C.F.R. § 416.912(e)(1) (2008)). However, this section was amended in 2012—almost five years before the administrative hearing at issue here—and thus not in effect at the relevant time. See 77 Fed. Reg. 10651-01, 2011 WL 7404303 (final rules, effective March 26, 2012); see also Hahn v. Berryhill, No. 17-CV-00663-NYW, 2018 WL 1046796, at *8 (D. Colo. Feb. 26, 2018) (recognizing amendment). The regulation governing the ALJ's decision here advises that "if the evidence in your case record is insufficient or inconsistent, we may need to take additional actions," including the option— but not requirement—of recontacting medical sources. 20 C.F.R. § 416.920b. This regulation provides the ALJ with greater flexibility and discretion in deciding whether to recontact a treating source than Plaintiff alleges. But, in any event, the undersigned finds no conflict or ambiguity in this matter; thus, Plaintiff's argument is unavailing. See id.
Plaintiff further asserts that the ALJ's discussion of Plaintiff's obesity was "woefully lacking." Doc. 13, at 9. The undersigned disagrees. In addition to finding that Plaintiff had the severe impairment of obesity and stating that he considered all of Plaintiff's impairments and symptoms in determining the RFC, the ALJ specifically stated that he considered "the combined effects of obesity with the musculoskeletal impairments, and any additional and cumulative effects of the obesity on [Plaintiff's] impairments." AR 22-23, 25-26; see also SSR 02-1p, 2002 WL 34686281, at *1 (Sept. 12, 2002) (requiring an ALJ to consider the effects of obesity through the sequential evaluation process). The ALJ included discussion of Plaintiff's obesity throughout his RFC determination. See AR 27-29 (citing evidence of Plaintiff's obesity at id. at 261, 470-71, 593). The ALJ also discussed Ms. Jantzen's findings that Plaintiff's "lumbar spine would not let him lift more than 10 pounds," and his morbid obesity "increased the load on his lumbar spine and limited his ability to perform tasks during the evaluation." Id. at 28 (citing id. at 388). Finally, the ALJ concluded that Ms. Jantzen's and Dr. Hisey's findings that Plaintiff should not lift more than 10 pounds were "consistent with the history of multiple surgeries, [Plaintiff's] obesity, and the back pain [Plaintiff] still experiences." Id. at 29. Plaintiff has not cited to any functional limitations caused by his obesity that the ALJ failed to discuss or consider. Plaintiff has not shown that the ALJ's consideration of his obesity was inadequate.
Based on the foregoing, 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 the 25th day of September, 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 timely objection to this Report and Recommendation waives their right to appellate review of both factual and legal issues 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.
