GARY M. PURCELL, Magistrate Judge.
Plaintiff seeks judicial review pursuant to 42 U.S.C. § 405(g) of the final decision of Defendant Commissioner denying her application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 423. Defendant has answered the Complaint and filed the administrative record (hereinafter AR___), and the parties have briefed the issues. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. §636(b)(1)(B). For the following reasons, it is recommended Defendant's decision be affirmed.
Plaintiff filed her application for disability insurance benefits on January 27, 2017. AR 165-66. Plaintiff alleged she became disabled on December 30, 2016, due to multiple sclerosis. AR 165, 205. The Social Security Administration denied Plaintiff's application on March 2, 2017, see id. at 70, 71-78, and on reconsideration on April 19, 2017. AR 79, 80-88.
Plaintiff appeared with counsel and testified at an administrative hearing before an Administrative Law Judge ("ALJ") on November 9, 2017. AR 39-69. A vocational expert ("VE") also testified at the hearing. AR 64-66. The ALJ issued a decision in which he found Plaintiff was not disabled within the meaning of the Social Security Act. AR 21-34. Following the agency's well-established sequential evaluation procedure, the ALJ found at the first step that Plaintiff had not engaged in substantial gainful activity since December 30, 2016. AR 26. At the second step, the ALJ found Plaintiff had the severe impairment of relapsing and remitting multiple sclerosis. Id. At the third step, the ALJ found this impairment was not per se disabling as Plaintiff did not have an impairment or combination of impairments that met or medically equaled the requirements of a listed impairment. Id.
At step four, the ALJ found Plaintiff had the residual functional capacity ("RFC") to perform a limited range of sedentary work. AR 27. Specifically, Plaintiff can lift and/or carry 10 pounds occasionally and less than 10 pounds frequently. Id. Additionally, Plaintiff can stand and/or walk up to two hours total and sit approximately six hours in an eight-hour workday. Id.
Relying on the VE's testimony as to the ability of a hypothetical individual with Plaintiff's work history, age, education, and determined RFC, the ALJ determined Plaintiff could perform her past relevant work as a claims processor. AR 34. Based on this finding, the ALJ concluded Plaintiff had not been under a disability, as defined by the Social Security Act, from December 30, 2016 through the date of the decision. Id.
The Appeals Council denied Plaintiff's request for review, and therefore the ALJ's decision is the final decision of the Commissioner. See 20 C.F.R. § 404.981; Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009).
On appeal, Plaintiff raises several issues throughout her Opening Brief. First, she contends the ALJ failed to properly consider various medical opinions of record. Plaintiff's Opening Brief (Doc. No. 13) at 3-10. Second, Plaintiff argues the ALJ failed to properly consider Plaintiff's depression as a mental impairment. Id. at 10-13. Third, Plaintiff asserts the ALJ erred in considering her subjective symptoms. Id. at 13-15.
The Court must determine whether the Commissioner's decision is supported by substantial evidence in the record and whether the correct legal standards were applied. Biestek v. Berryhill, ___ U.S. ___, 139 S.Ct. 1148, 1153 (2019); Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010). Substantial evidence "means-and means only-`such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Biestek, 139 S.Ct. at 1154 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The "determination of whether the ALJ's ruling is supported by substantial evidence must be based upon the record taken as a whole. Consequently, [the Court must] remain mindful that evidence is not substantial if it is overwhelmed by other evidence in the record." Wall, 561 F.3d at 1052 (citations, quotations, and brackets omitted).
The Social Security Act authorizes payment of benefits to an individual with disabilities. 42 U.S.C. § 401 et seq. A disability is an "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); accord 42 U.S.C. § 1382c(a)(3)(A); see 20 C.F.R. §404.1509 (duration requirement). Both the "impairment" and the "inability" must be expected to last not less than twelve months. Barnhart v. Walton, 535 U.S. 212 (2002).
The agency follows a five-step sequential evaluation procedure in resolving the claims of disability applicants. See 20 C.F.R. § 404.1520(a)(4), (b)-(g). "If the claimant is not considered disabled at step three, but has satisfied her burden of establishing a prima facie case of disability under steps one, two, and four, the burden shifts to the Commissioner to show the claimant has the [RFC] to perform other work in the national economy in view of her age, education, and work experience." Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005). "The claimant is entitled to disability benefits only if he (or she) is not able to perform other work." Bowen v. Yuckert, 482 U.S. 137, 142 (1987).
On March 6, 2017, Dr. Reyna completed a Medical Source Statement ("MSS") in which she stated that Plaintiff could only sit for 30 minutes at a time and continuously for two hours and stand for 15 minutes at a time and continuously for one hour. AR 313. The MSS indicated Plaintiff would need an ability to shift positions at will, three to four unscheduled breaks per day lasting 15-20 minutes each, can never lift 10 pounds or more, can only occasionally lift less than 10 pounds, can reach 0% of the day, can only use her hands/fingers 25% of the day to grasp, turn/twist objects, or conduct fine manipulations, can never reach overhead, can never bend/twist at the waist, and would need to be absent from work approximately two times per month. AR 313-15.
In his decision, the ALJ gave Dr. Reyna's opinion little weight explaining that it was inconsistent with her own treating notes and the remainder of the medical evidence, as well as Plaintiff's reported daily activities and abilities and her testimony regarding the fact that she does well on medications. AR 33. Plaintiff contends the ALJ's decision in this regard is not supported by substantial evidence.
As an initial matter, the undersigned questions Plaintiff's characterization of Dr. Reyna as a treating physician. This designation is significant because, as Plaintiff notes, a treating physician opinion is entitled to controlling weight if it is well supported by medically acceptable clinical or laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the record. See Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (applying Social Security Ruling 96-2p, 1996 WL 374188, at *2).
However, classifying Dr. Reyna as a treating physician for Plaintiff is dubious at best. The relevant regulation provides,
20 C.F.R. § 416.927(a)(2). "A treating physician's opinion is given particular weight because of his unique perspective to the medical evidence and because a medical professional who has dealt with a claimant and his maladies over a long period of time will have a deeper insight into the medical condition of the claimant than will a person who has examined a claimant but once, or who has only seen the claimant's medical records. Thus, a relationship of both duration and frequency is required for a treating relationship . . . ." Sissom v. Colvin, 512 F. App'x 762, 765 (10th Cir. 2013) (quotations and citations omitted) (emphasis in original).
According to the record, Dr. Reyna saw Plaintiff on one occasion, February 10, 2017. AR 351-55. Although, it does appear Dr. Reyna also reviewed results from Plaintiff's cervical and thoracis spine MRIs performed in early March 2017. AR 365-73. Given the exceedingly limited nature of the physician-patient relationship at issue here, the undersigned is highly skeptical that Dr. Reyna qualifies as a treating physician for Social Security disability purposes. Nevertheless, it is unnecessary to resolve this question because presuming, without deciding, Dr. Reyna is a treating physician, the ALJ's decision to grant her opinion little weight is supported by substantial evidence of record.
During Dr. Reyna's single examination of Plaintiff, they discussed previous medications Plaintiff had tried, including Provigil, the only medication Plaintiff was taking at that time and that she indicated was helpful regarding fatigue with no side effects. AR 352. With regard to Plaintiff's motor skills, Dr. Reyna noted no pronator drift and normal tone, bulk, and fine motor movements bilaterally, with no atrophy or fasciculations. AR 353. Dr. Reyna measured Plaintiff's strength at 5/5 in her right and left deltoid, biceps, triceps, and dorsal interossei, as well as left iliopsoas, quadriceps, hamstring, and tibialis anterior. AR 353-54. She measured Plaintiff's strength at 4+/5 in her right iliopsoas, quadriceps, hamstring, and tibialis anterior. AR 354. Plaintiff's reflexes in her right and left biceps, triceps, and brachioradialis were 2+ and 3+ at both knees and ankles. Id.
With regard to sensation and coordination, Dr. Reyna noted a decreased sensation to pain and temperature on the right arm but otherwise intact to all modalities, as well as mild ataxia on finger-to-nose testing and heel-to-shin testing on the left with no abnormal movements observed. Id. In observing Plaintiff's gait, Dr. Reyna noted "[h]emiparetic and antalgic gait, some difficulty with toe and heel walking; unable to tandem. Romberg sign negative." Id. She also noted Plaintiff did not use assistive devices. Id. Dr. Reyna recommended, inter alia, reinstituting immunomodulatory therapy and/or available alternatives for disease modification, physical therapy, IV steroids for five days, obtaining cervical and thoracic spine MRIs, and medications including Amprya for abnormal gait and Provigil and Melatonin for fatigue. AR 354-55.
In comparing Dr. Reyna's single examination of Plaintiff with her MSS, the undersigned finds the ALJ's reasoning that the MSS is inconsistent with her treatment record is well-supported. Dr. Reyna noted Plaintiff retained full muscle strength in her upper and lower extremities except for only a slight decrease in her right leg, decreased sensation in her right arm but otherwise normal sensory responses, and normal, tone, bulk, and fine motor movements. AR 353-54. Unfavorable findings in Dr. Reyna's examination were primarily limited to an antalgic gait and a slight decrease in right arm sensation and right leg strength. Id. The ALJ's conclusion that this record was inconsistent with a relatively extreme MSS in which Dr. Reyna stated, inter alia, that Plaintiff could never reach, could only use her hands and fingers 25% of the day, only occasionally lift less than 10 pounds, sit for 30 minutes, and stand for 15 minutes is reasonable. AR 313-15, 352-55.
Moreover, the ALJ's conclusion that the remainder of the medical evidence is inconsistent with Dr. Reyna's opinion also finds support in the record. As Defendant notes, the record contains many objective examinations that support the RFC and are inconsistent with Dr. Reyna's MSS. In January and July 2016 and January 2017, Dr. Michael Tribbey noted, "Sensory examination revealed no abnormalities for pain, thermal, or vibratory testing. RAMs (rapid alternating movements) and arm roll maneuvers were slightly slower on the right. Her gait was mildly spastic but independent, worse on right. Her speech was normal. She had no cerebellar findings. Mental status examination was unremarkable." AR 260-61, 262-63, 268-69, 284, 291, 300. In July 2016, Dr. Tribbey's plan of treatment was to "[r]esume Copaxone 40 mg 3 times weekly," "I d[o] not recommend further steroids or acute intervention at this point," and "[r]eturn in six months." AR 263, 269, 284, 291.
In March 2017, Plaintiff received a right ankle foot orthosis. AR 324. The record from the visit provides, "Gait: Patient ambulated well in parallel bars and in hallway without assistive device. She was very pleased with overall fit and function. Patient [is an] experienced user from the trial period she had with demo. She reports increase in walking speed and improved confidence on uneven ground plus increased walking distance with device." Id. She reported that with the device during the trial period, she was able to engage in significant walking, though with some soreness in her right knee, during her daughter's volleyball tournament the previous weekend, including walking from hotel to sporting complex. Id.
The ALJ also stated that Dr. Reyna's opinion was inconsistent with Plaintiff's reported daily activities and the fact that Plaintiff indicated her condition improved with medication. AR 33. As the ALJ states in his decision, Plaintiff takes care of her husband and children, including getting the children "up and off to school" and helping them with their homework. AR 28. She does laundry and some cleaning, though she has to sit during those chores due to pain in her knee and legs. Id. She takes care of her own personal needs, including showers, grooming, and taking her medicine. Id. She prepares daily meals, usually slow cooker or casseroles, sandwiches, and frozen foods. Id. She walks outside daily, drives, goes out alone, shops for groceries once per week for approximately 30 minutes, and spends time with others including watching her children's sporting events twice per month. Id. She can use her hands, though not as much as she used to due to numbness. Id.
In reviewing the record, the undersigned finds the ALJ's conclusion that the overall record is inconsistent with the extreme limitations set forth in Dr. Reyna's MSS is supported by substantial evidence. See Arterberry v. Berryhill, 743 F. App'x 227, 229 (10th Cir. 2018) ("An ALJ must either give controlling weight to a treating physician's opinion or articulate[] specific, legitimate reasons for his decision, finding, for example, the opinion unsupported by medically acceptable clinical and laboratory diagnostic techniques or inconsistent with other substantial evidence in the record." (quotations omitted)); Webb v. Comm'r, Soc. Sec. Admin., 750 F. App'x 718, 721 (10th Cir. 2018) ("An ALJ may discount a treating physician's opinion because it is inconsistent with the weight of the evidence . . . ."). Plaintiff relies on portions of the record that are less favorable, though those portions primarily relate to Plaintiff's difficulties walking prior to obtaining the right ankle foot orthosis, MRI results of her brain indicating the presence of multiple sclerosis, and/or Dr. Reyna's examination, which, as already discussed, is inconsistent with Dr. Reyna's MSS. Doc. No. 13 at 3-5, 269, 305, 324, 329, 343-44, 345, 347, 348-49, 351-55, 369-70.
In any event, the ALJ gave little weight to Dr. Reyna's opinion for the reasons that it was unsupported by her own treatment notes, as well as the overall medical record, Plaintiff's reported daily activities and abilities, and the benefits of medication. These reasons are sufficiently specific and legitimate pursuant to the Social Security regulations. Boss v. Barnhart, 67 F. App'x 539, 542-43 (10th Cir. 2003); Castellano v. Sec'y of Health & Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994). To the limited extent this case presents conflicting medical evidence, the record reveals the ALJ acted within his province to determine the appropriate weight to be attributed to the evidence in order to resolve the conflict. Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 801 (10th Cir. 1991). Accordingly, Plaintiff's argument is without merit.
Plaintiff also complains the ALJ did not consider the opinion of her physical therapist, Amy S. Thiessen. Doc. No. 13 at 7 ("[T]he physical therapist's (PT) opinion was also not weighed, which was improper."). As an initial matter, as a physical therapist, Ms. Thiessen is not an "`[a]cceptable medical source.'" Kellams v. Berryhill, 696 F. App'x 909, 918 (10th Cir. 2017) (quoting 20 C.F.R. §§ 404.1502(a), 416.902(a)). Nevertheless, the Tenth Circuit has recognized that "`[o]pinions from these medical sources . . . are important and should be evaluated on key issues such as impairment severity and functional effects.'" Kellams, 696 F. App'x at 918 (quoting Bowman v. Astrue, 511 F.3d 1270, 1274-75 (10th Cir. 2008)) (additional quotations omitted); see also Endriss v. Astrue, 506 F. App'x 772, 777 (10th Cir. 2012) ("Evidence from other sources like chiropractors and physical therapists, however, may be used `to show the severity of the individual's impairment(s) and how it affects the individual's ability to function.'" (quoting Social Security Ruling 06-03p, 2006 WL 2263437)).
Plaintiff fails, however, to describe how her treatment records from Ms. Thiessen, even assuming they are contradictory to the ALJ's RFC, constitute error based on an improper weighing of medical evidence and/or medical opinion. Plaintiff does not point to any medical opinions of Ms. Thiessen regarding functional limitations and/or any specific work-related impairments and, indeed, Ms. Thiessen offered no such insight. AR 345, 347, 348-50. Thus, the ALJ was not required to assess the weight afforded her "opinion." See Duncan v. Colvin, 608 F. App'x 566, 574 (10th Cir. 2015) ("Given that the ALJ did not reject the medical impairments found by [the doctor] and there were no medical opinions regarding [the plaintiff's] work-related functional limitations, there was no opinion on such matters by [the doctor] for the ALJ to weigh."); see also Wyatt v. Barnhart, 190 F. App'x 730, 734 (10th Cir. 2006) (rejecting the plaintiff's contention that "the medical records from her treating physician . . . corroborate her testimony of disabling pain and reveal greater limitations than those reflected in the RFC" where the plaintiff "concede[d]. . . that none of the treatment records express an opinion concerning her physical limitations."); Wright v. Saul, No. CIV-19-144-R, 2019 WL 5699620, at *3 (W.D. Okla. Oct. 18, 2019) (finding that a physician's treatment notes and recommendations "do not qualify as either functional limitations or a medical opinion"); Hawkins v. Saul, No. CIV-18-1177-D, 2019 WL 5090008, at *4 (W.D. Okla. Sept. 23, 2019) ("Where a physician has not specified any functional limitations, there are no opinions which the ALJ is required to discuss."); Hart v. Berryhill, No. 17-cv-00590-PAB, 2019 WL 1434619, at *6 (D. Colo. March 31, 2019) ("[P]laintiff fails to explain how these opinions, which summarized plaintiff's diagnoses and treatment and did not specify any functional limitations arising from plaintiff's impairments, could have altered the ALJ's RFC assessment."). For this reason, the undersigned finds the ALJ's failure to explicitly analyze the weight assigned to Ms. Thiessen's "opinion" is not a basis for error.
Plaintiff contends the ALJ erred by giving the state agency physician opinions great weight "without showing this Court why their non-examining, non-treating opinions outweighed the preferred treating opinions of Drs. Tribbey and Reyna." Doc. No. 13 at 10. However, the ALJ explicitly explained why the opinions of non-examining physicians, Dr. Larry Ressler and Dr. Matheen Khan, were entitled to great weight. Specifically, the ALJ set forth the opinions of Dr. Ressler and Dr. Khan and explained that their opinions were entitled to great weight because they were consistent with the medical record as a whole, which the ALJ had already discussed thoroughly throughout his decision. AR 33.
Drs. Ressler and Khan found Plaintiff retained the RFC to perform sedentary work with frequently lifting or carrying less than 10 pounds and occasionally lifting or carrying 10 pounds, standing or walking for two hours in an eight-hour workday, and sitting for six hours in an eight-hour workday. AR 33, 75-77, 85-87. These opinions are consistent with the RFC and the undersigned determined above that the medical record provides substantial evidence in support of the same. As there is sufficient evidence in the medical records to support the state agency physician opinions, the Court must defer to the ALJ's evaluation of the evidence and may not reweigh it in his place. See Salazar v. Barnhart, 468 F.3d 615, 621 (10th Cir. 2006); see also Gonzales v. Colvin, 515 F. App'x 716, 719 (10th Cir. 2013) (affirming the ALJ's finding that the same record evidence undermining the treating physician's opinion supported the non-examining physician's opinion, and therefore giving greater weight to the latter was appropriate); Wells v. Colvin, No. 13-cv-2077-WJM, 2014 WL 4627449, at *6 (D. Colo. Sept. 16, 2014) ("The simple fact that the ALJ chose to credit a non-examining medical opinion over Plaintiff's treating physicians does not warrant reversal."). Thus, Plaintiff's argument with regard to the ALJ's consideration of the state agency physicians' opinions is without merit.
Plaintiff contends the ALJ erred by not finding her depression was a severe impairment at step two and that he failed to otherwise properly consider the same. Doc. No. 13 at 10. As an initial matter, the regulations require an ALJ to consider at step two "the combined effect of all of [a plaintiff's] impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity." 20 C.F.R. § 416.923. The Tenth Circuit has held, however, that the failure to identify an impairment as a severe impairment at step two is harmless error if the ALJ proceeds to the next step in the sequential evaluation. Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008); Hill v. Astrue, 289 F. App'x 289, 292 (10th Cir. 2008); Oldham v. Astrue, 509 F.3d 1254, 1256 (10th Cir. 2007). Accordingly, even if Plaintiff's depression met the requirements for a severe impairment at step two, because the ALJ found Plaintiff had at least one severe impairment and then proceeded to step three, the error is harmless.
The regulations also require an ALJ to "consider all of [a plaintiff's] medically determinable impairments . . . including [] medically determinable impairments that are not `severe'" in assessing the RFC. 20 C.F.R. § 416.945(a)(2). The Social Security Administration requires this analysis because "[w]hile a `not severe' impairment(s) standing alone may not significantly limit an individual's ability to do basic work activities, it may-when considered with limitations or restrictions due to other impairments-be critical to the outcome of a claim." Social Security Ruling 96-8p, 1996 WL 374184, at *5. Reviewing the ALJ's decision, it is clear he considered Plaintiff's depression in making his disability determination.
Plaintiff testified that depression keeps her from "get[ting] around to do anything" and that it disrupts her sleep. AR 50, 58. The ALJ noted that Plaintiff "did not allege depression or mental illness" when she applied for disability benefits and was "only recently [] assessed with depression and anxiety." AR 32. The ALJ explained, "She was prescribed psychotropic medication. She did not seek any mental health counseling. She had normal mental status examinations throughout the record." Id. The ALJ's assessment of Plaintiff's depression is supported by substantial evidence in the record.
The record does not establish precisely when Plaintiff was first assessed with depression, but in May 2017 she informed the physician assistant, Anthony Sharp, that she had experienced an upset stomach since starting Lexapro (an antidepressant), which was prescribed by her primary care provider. AR 340.
Finally, Plaintiff contends the ALJ erred in considering her subjective symptoms in determining the RFC. Doc. No. 13 at 13-15. In this regard, Plaintiff complains the ALJ did not include any limitations related to urinary incontinence in the RFC. Id. at 13-14. Plaintiff also argues the ALJ erred by failing to include limitations in the RFC related to gait disturbances, falling, weakness, balance deficits, frequent falls, right foot drop that Plaintiff concedes is better now, an "inability to complete activities of daily living," as well as failing to consider the accommodations Plaintiff was provided at her last job. Id. at 14-15.
Plaintiff relies on the treatment notes from her single visit with Dr. Reyna to argue urinary incontinence should have been included in the RFC. Id. at 13. When Plaintiff saw Dr. Reyna on February 10, 2017, Plaintiff reported the she experienced "urinary urgency, frequency, and occasional incontinence." AR 351. Dr. Reyna recommended pelvic floor therapy and discussed behavioral modifications with Plaintiff. AR 355. The ALJ noted in his decision that Plaintiff specifically denied bowel or bladder disturbance in January 2016. AR 32, 282. The ALJ also thoroughly reviewed Plaintiff's reported daily activities and abilities and found that Plaintiff's reported symptoms were inconsistent with the reported degree of her symptoms/limitations. AR 32-33.
Additionally, the ALJ included in his decision, "The claimant testified that her office was shut down in Oklahoma City, otherwise she would still be there working." AR 33. Plaintiff contends the ALJ took this statement out of context by failing to consider the accommodations Plaintiff received at her last job. However, again, the ALJ thoroughly discussed the medical evidence as well as Plaintiff's reported daily activities and abilities in finding that her reported limitations were not fully supported by the evidence of record. AR 32-33. The ALJ's decision in this regard was by no means limited to a single statement that she would still be working at her prior job if the office had not been shut down.
With regard to Plaintiff's general complaint that the ALJ should have included additional limitations in the RFC related to Plaintiff's alleged lack of stability and inability to ambulate well, the undersigned has previously discussed herein that the ALJ's reliance on a lack of objective medical evidence and Plaintiff's reported activities of daily living provide substantial evidence to support the ALJ's RFC. This includes his determination that the Plaintiff's reported limitations were not supported by the evidence of record. See Adams v. Colvin, 553 F. App'x 811, 815 (10th Cir. 2014) ("An ALJ does not need to account for a limitation belied by the record when setting a claimant's RFC."). Accordingly, the ALJ's decision should be affirmed.
In view of the foregoing findings, it is recommended that judgment enter affirming the decision of the Commissioner. Plaintiff is advised of her right to file an objection to this Report and Recommendation with the Clerk of this Court on or before
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter.
