MARCO A. HERNANDEZ, District Judge.
Plaintiff Kia Lee Luther brings this action seeking judicial review of the Commissioner's final decision to deny supplemental security income (SSI). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1383(c)(3)). I affirm the Commissioner's decision.
Plaintiff applied for SSI on December 15, 2011, alleging an onset date of May 1, 2003. Tr. 204-09. Her application was denied initially and on reconsideration. Tr. 71-87, 115-18 (initial); Tr. 88-104, 122-23 (reconsideration). On January 13, 2014, Plaintiff appeared, with counsel, for a hearing before an Administrative Law Judge (ALJ). Tr. 34-66. On February 18, 2014, the ALJ found Plaintiff not disabled. Tr. 13-33. The Appeals Council denied review. Tr. 1-4.
Plaintiff alleges disability based on having bursitis, bipolar disorder, depression, anxiety, and migraines. Tr. 272. At the time of the hearing, she was thirty-four years old. Tr. 40. She has a high school diploma and has past relevant work experience as a kitchen worker/dishwasher and as a line sorter/conveyor belt sorter. Tr. 40, 56.
A claimant is disabled if unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment 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), 1382c(3)(a).
Disability claims are evaluated according to a five-step procedure.
In the first step, the Commissioner determines whether a claimant is engaged in "substantial gainful activity." If so, the claimant is not disabled.
In step three, the Commissioner determines whether plaintiff's impairments, singly or in combination, meet or equal "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity."
In step four, the Commissioner determines whether the claimant, despite any impairment(s), has the residual functional capacity (RFC) to perform "past relevant work." 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can, the claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to the Commissioner. In step five, the Commissioner must establish that the claimant can perform other work.
At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since her date of application. Tr. 18.
At step four, the ALJ concluded that Plaintiff has the RFC to:
Tr. 20. With this RFC, the ALJ determined that Plaintiff is unable to perform any of her past relevant work. Tr. 26. However, at step five, the ALJ determined that Plaintiff is able to perform jobs that exist in significant numbers in the economy such as pricer-tagger, laundry sorter, and small parts assembler. Tr. 27. Thus, the ALJ determined that Plaintiff is not disabled. Tr. 28.
A court may set aside the Commissioner's denial of benefits only when the Commissioner's findings are based on legal error or are not supported by substantial evidence in the record as a whole.
Plaintiff argues that the ALJ erred by improperly rejecting the opinion of examining psychologist Keli Dean, Psy.D., and by failing to find Plaintiff's chronic headaches a severe impairment at step two.
The ALJ considers the severity of the claimant's impairment(s) at step two. 20 C.F.R. § 416.920(a)(4)(ii). A severe impairment is one that significantly limits the claimant's physical or mental ability to do basic work activities. 20 C.F.R. § 416.920(c). "Basic work activities" are the abilities and aptitudes necessary to do most jobs, including physical functions such as walking, standing, sitting, and lifting, and mental functions such as understanding, carrying out, and remembering simple instructions. 20 C.F.R. § 416.921(b). In Social Security Ruling (SSR) 85-28 (available at 1985 WL 56856, at *3), the Commissioner has explained that "an impairment is not severe if it has no more than a minimal effect on an individual's physical or mental ability(ies) to do basic work activities[;]"
In concluding that Plaintiff's headaches are not a severe impairment, the ALJ explained that the headaches, along with several other alleged impairments, appeared in the records "from time to time," but they were "mild or transient conditions[,] were of short duration, controllable, and without significant effect on the claimant's ability to perform work activities." Tr. 19.
Plaintiff argues that the record does not support the ALJ's finding. She cites to three medical records from 2009 and two from 2010 showing that she received treatment for migraine headaches. In April 2009, she received Vicodin for a migraine headache. Tr. 778-79. The next month, neurologist Dr. H. Leonard, M.D. indicated that she suffered from chronic daily headaches with "suggestion of atypical migraine." Tr. 692. In December 2009, Plaintiff was prescribed Depakote for her bipolar disorder and to prevent headaches. Tr. 747. In February 2010, she reported a migraine headache, but could not recall the last time she experienced one. Tr. 714. She thought it might have been two months earlier.
Other evidence in the record indicates that medication has been helpful in controlling her headaches or that Plaintiff's headaches were attributable to non-migraine causes.
Plaintiff alleges disability beginning in May 2003. The record contains over 1,300 pages of medical records. Tr. 330-1676. Yet Plaintiff cites to only five chart entries to argue that her headaches were a severe impairment. The records she cites are limited to a period in 2009-10, before the relevant adjudicatory period beginning December 15, 2011. Additionally, the ALJ found Plaintiff's subjective testimony not credible. She does not challenge that finding in this appeal. Absent a challenge to the credibility finding, the ALJ properly gave little weight to her description of her headaches and their effects on her. The record supports the ALJ's conclusion that Plaintiff's headaches produced transient symptoms of short duration and were controlled by medication. As a result, they did not significantly impact her ability to perform basic work activities. The ALJ did not err in finding her headaches non-severe at step two.
Alternatively, even if the ALJ did err, the error was harmless. Where the ALJ fails to list a medically determinable impairment at step two, but nonetheless considers the limitations posed by the impairment in the RFC, any error at step two is harmless.
Here, the ALJ took Plaintiff's pain symptoms into consideration in the RFC by limiting her to light work with several postural limitations. He also limited her exposure to vibration, irritants, and hazards. Other than asserting, without citing to the record, that her headaches "significantly limit her ability to function," Pl.'s Reply 6, Plaintiff points to no specific functional limitations caused by her headaches. The only limitations evidence is from her discredited hearing testimony. Accordingly, any error by the ALJ is harmless.
Between 2006 and 2011, Plaintiff underwent four psychological evaluations at the request of the Department of Human Services (DHS). Tr. 558-97, 627-34. Three of those were conducted by psychologist Dr. Keli Dean, Psy.D. Tr. 558-79, 627-34. The first, in April 2006, was an assessment for learning disabilities. Tr. 558-66. The second occurred in May 2007 and the third in December 2011. Tr. 567-79, 627-34. Another, conducted by psychologist Jill Spendal, Psy.D., was in July 2009. Tr. 580-97. Plaintiff argues that the ALJ improperly rejected Dr. Dean's December 1, 2011 opinion. She does not challenge the ALJ's rejection of Dr. Dean's previous opinions or Dr. Spendal's opinion, all of which were rendered before the relevant adjudicatory period.
In the December 1, 2011 evaluation, Dr. Dean personally interviewed Plaintiff, administered the Personalty Assessment Inventory (PAI), and reviewed her own and Dr. Spendal's prior evaluations. Tr. 627. Dr. Dean wrote an eight-page report, the first several pages of which chronicle Plaintiff's subjective reporting of symptoms to Dr. Dean. Tr. 627-30. As to mental status exam and testing, Dr. Dean noted that Plaintiff presented as upbeat and personable, which was consistent with her previous presentations, but which displayed an affect incompatible with her reported content. Tr. 630. She noted Plaintiff's inconsistencies and difficulties describing her symptoms.
Dr. Dean noted that Plaintiff's psychological testing from 2006, 2007, and 2009 showed borderline intellectual functioning and significant impairment in her attention function.
Based on her interview, the review of previous evaluations, and the CAARS, Dr. Dean diagnosed Plaintiff as having (1) dysthymic disorder; (2) generalized anxiety disorder, provisional; (3) major depression, recurrent, by history; (4) amphetamine dependence with full sustained remission per client report; and (5) rule out ADHD, "combined type."
Dr. Dean noted that Plaintiff "seem[ed] to struggle with issues of anxiety, dysphoria and low energy, which negatively impacts her ability to complete tasks of daily living."
As to the possibility of ADHD, Dr. Dean explained that in 2006 and 2009, Plaintiff was given a diagnosis of cognitive disorder, NOS due to her poor performance on the "IVA,"
Next, Dr. Dean noted that in all three previous assessments, mental health treatment had been recommended for Plaintiff but she failed to follow through each time.
Dr. Dean opined that Plaintiff's ability to find and participate in employment was "likely quite limited by the combination of her low level of intellectual functioning, mental health symptoms, poor attention, and low level of motivation."
Dr. Dean completed a two-page Mental Residual Functional Capacity Report (MRFC). Tr. 635-36.
The ALJ rejected Dr. Dean's opinion for the following reasons: (1) there was no rational given for any ratings or limitations given; (2) she did not review any other medical reports, suggesting she relied on Plaintiff's subjective symptom reporting: (3) the limitations assessed were out of proportion to the longitudinal treatment record, which I understand to be stating that the limitations were not supported by objective medical evidence in the record; (4) no functionby-function analysis was provided; (5) the 2006, 2007, and 2009 evaluations were completed before the relevant adjudicatory period; (6) the 2006, 2007, and 2009 evaluations contained recommendations for how Plaintiff could be successful in educational and employment settings and such recommendations are inconsistent with disability and imply Plaintiff can work; and (7) the 2011 evaluation acknowledged that Plaintiff's ongoing use of marijuana could negatively impact her mood and motivation. Tr.25.
"If a treating or examining doctor's opinion is contradicted by another doctor's opinion," which Plaintiff concedes is the case here, "an ALJ may only reject it by providing specific and legitimate reasons that are supported by substantial evidence."
Plaintiff argues that the ALJ erred because Dr. Dean's opinion is supported by her several-page narrative report, she did in fact review her own prior medical reports, and she completed a function-by-function analysis. Additionally, Plaintiff argues that the ALJ failed to specifically note what part of the longitudinal treatment record did not support Dr. Dean's limitations. She also contends that Plaintiff's marijuana use does not support a rejection of Dr. Dean's opinion because Dr. Dean did not opine that stopping marijuana would restore Plaintiff's ability to work and because the record does not indicate that Plaintiff's complex, longstanding psychological impairments are caused by marijuana use.
While I agree with Plaintiff in some respects, I conclude that the ALJ's rejection of Dr. Dean's 2011 opinion was not error. First, it is apparent from reading the December 1, 2011 report that Dr. Dean relied heavily on Plaintiff's reported subjective symptoms. For example, in discussing Plaintiff's education and employment, Dr. Dean expressly referred to the fact that Plaintiff previously reported not having had problems with attention in school, but "however, in this interview she said she daydreamed, was distracted easily, didn't listen to her teachers, could not concentrate, and fidgeted in her seat." Tr. 628. "She continues to struggle with maintaining attention as well as having problems with her memory."
Next, I agree with Plaintiff that the ALJ erred when he found that Dr. Dean did not provide a function-by-function report. Defendant is correct that the two-page functional report signed by Dr. Dean bears the date of "1-2-11" which precedes the December 1, 2011 evaluation by eleven months. But, I agree with Plaintiff that this appears to be an obvious date error. Based on my review of hundreds of social security administrative records, a functional report such as the one completed by Dr. Dean is typically completed by the practitioner contemporaneously with or shortly following an evaluation. Given that Dr. Dean had not evaluated Plaintiff since 2007, it is highly unlikely that Dr. Dean would have completed the MRFC out of the blue three and one-half years later. More likely than not, Dr. Dean completed the MRFC on January 2, 2012, and like many of us simply put the previous year of "11" instead of "12" because it was only the second day of January. This conclusion is supported by the fact that both the December 1, 2011 report and the "1-2-11" MRFC were faxed together on January 20, 2012. Tr. 626-36.
But, the problem for Plaintiff remains that the functional report is supported by Plaintiff's subjective reports or by objective testing that is out-of-date and not probative of disability after December 15, 2011, the application date. The only current testing done by Dr. Dean in 2011 was the invalid PAI and the CAARS. The CAARS resulted in a rule-out ADHD diagnosis. Dr. Dean noted that individuals with CAARS results similar to Plaintiff's showed a tendency to learn more slowly, have problems organizing and completing tasks, and have trouble concentrating. Tr. 632. Plaintiff also "endorsed" items in CAARS testing suggesting she is more impulsive than others, her moods change quickly, and she is more easily irritated by others.
Although Dr. Dean's MRFC does not expressly cite the basis for each rated activity, she did clearly note that for three of them, she was relying on old test scores. Tr. 635-36. Next to the "ability to understand and remember detailed instructions," the "ability to carry out detailed instructions," and the "ability to maintain attention and concentration for extended periods," she put an asterisk which she explained, at the bottom of the second page, meant that these "[r]esponses [are] based on previous test scores from 06 + 09 cognitive evaluation." Tr. 635-36.
The only marked limitation assessed by Dr. Dean, and the only one expressly addressed by the vocational expert at the hearing, is not probative of Plaintiff's functioning at the time of her application because it was based on test scores from two and four years earlier. Presumably, the other limitations without asterisks were based on Plaintiff's subjective information given to Dr. Dean at her evaluation or perhaps based on the CAARS testing. Even if based on the CAARS testing, however, the record does not support that those limitations establish disability when they were assessed by Dr. Dean as only moderate limitations, not marked ones.
The record shows that Dr. Dean completed a function-by-function report soon after her December 2011 evaluation of Plaintiff and to the extent the ALJ rejected her opinion for failing to assess function-by-function limitations, the ALJ erred. But, the error is harmless because when the MRFC is considered, it is based on subjective reporting by Plaintiff, out-of-date testing not probative of disability during the relevant time period, or does not establish marked limitations sufficient to support disability. Thus, while Dr. Dean supported her ratings and limitations with her narrative report, the ALJ's failure to credit it was harmless error.
Finally, the ALJ's suggestion that Dr. Dean's opinion is undermined by Plaintiff's marijuana use was not error. Dr. Dean stated that if Plaintiff used more marijuana than she reported to Dr. Dean, it could negatively impact her mood and motivation. Tr. 633. One of the four reasons Dr. Dean cited in support of her statement that Plaintiff's ability to find and participate in employment is likely "quite limited," was Plaintiff's low level of motivation.
The ALJ did not err in giving little or no weight to Dr. Dean's December 2011 evaluation and opinion which were based on non-credible subjective reports by Plaintiff or non-probative out-of-date testing, or were not indicative of disability. And, Dr. Dean's employability opinion was based in part on a lack of motivation which was influenced by Plaintiff's marijuana use. These are specific and legitimate reasons supported by substantial evidence in the record.
The Commissioner's decision is affirmed.
IT IS SO ORDERED.