Opinion
Case No. CIV-18-1213-C
10-10-2019
DAVID BROU, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff, David Brou, seeks judicial review of the Social Security Administration's denial of supplemental security income (SSI) benefits. This matter has been referred by United States District Judge Robin J. Cauthron for proposed findings and recommendations. See 28 U.S.C. §§ 636(b)(1)(B), 636(b)(3). The Commissioner filed the Administrative Record (AR), [Doc. No. 11], and both parties briefed their respective positions. For the reasons set forth below, it is recommended that the Commissioner's decision be affirmed.
Citations to the parties' briefs reference the Court's CM/ECF pagination.
I. Procedural Background
On September 2, 2016, Plaintiff protectively filed an application for SSI. See AR 12. The Social Security Administration (SSA) denied the application initially and on reconsideration. AR 128, 139. Following a hearing, an Administrative Law Judge (ALJ) issued an unfavorable decision dated February 2, 2018. AR 12-26. The Appeals Council denied Plaintiff's request for review. AR 1-6. Thus, the decision of the ALJ became the final decision of the Commissioner. Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011). Plaintiff seeks judicial review of this final agency decision.
II. The ALJ's Decision
The ALJ followed the sequential evaluation process required by agency regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005) (explaining five-step sequential evaluation process); see also 20 C.F.R. §§ 404.1520, 416.920. The ALJ first determined Plaintiff had not engaged in substantial gainful activity since September 2, 2016, the application date. AR 14.
At step two, the ALJ determined Plaintiff suffers from the severe impairment of an affective disorder. Id. At step three, the ALJ found Plaintiff's impairment does not meet or medically equal any of the impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 15-16.
The ALJ next determined Plaintiff's residual functional capacity (RFC), concluding:
[Plaintiff] has the residual functional capacity to perform a full range of work at all exertional levels but with the following non-exertional limitations: [Plaintiff] is limited to performing simple, routine tasks; [Plaintiff] can have occasional contact with supervisors; occasional contact with coworkers and never have contact with the public.AR 16-20. The ALJ then found Plaintiff could perform past relevant work as a stocker and mail clerk. AR 20. The ALJ made alternative findings at Step Five. Id. First, the ALJ found that the Medical-Vocational Rules supported finding that Plaintiff was not disabled whether or not Plaintiff had transferable job skills. Id. Alternatively, and relying on the testimony of a vocational expert, the ALJ found there were other jobs that existed in significant numbers in the national economy that Plaintiff could perform—packager-hand, laborer-salvager, and industrial sweeper. AR 20-21. The ALJ concluded, therefore, that Plaintiff was not disabled for purposes of the Social Security Act. AR 21-22.
III. Standard of Review
Judicial review of the Commissioner's final decision is limited to determining whether the factual findings are supported by substantial evidence in the record as a whole and whether the correct legal standards were applied. See Poppa v. Astrue, 569 F.3d 1167, 1169 (10th Cir. 2009). Substantial evidence "means—and means only—such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). 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. Branum v. Barnhart, 385 F.3d 1268, 1270 (10th Cir. 2004). The court "meticulously examine[s] the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met." Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (citations omitted). While the court considers whether the ALJ followed the applicable rules of law in weighing particular types of evidence in disability cases, the court does not reweigh the evidence or substitute its own judgment for that of the Commissioner. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quotations and citations omitted).
IV. Claims Presented for Judicial Review
Plaintiff contends the ALJ did not properly consider all of his mental impairments and limitations. Plaintiff also argues the ALJ failed to conduct a function-by-function analysis. Neither argument requires reversal.
V. Analysis
A. Mental Impairments and Limitations
Plaintiff contends the ALJ failed to consider all of his diagnosed mental impairments. Pl.'s Br. 3. An ALJ must "consider all evidence" in the record when making a decision and may not pick-and-choose among medical reports. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012). However, where the court "can follow the adjudicator's reasoning in conducting our review, and can determine that correct legal standards have been applied, merely technical omissions in the ALJ's reasoning do not dictate reversal." Id. The Tenth Circuit has cautioned that courts cannot insist on technical perfection. Id. The Court analyzes Plaintiff's arguments under this framework.
In support of his argument that the ALJ failed to consider his impairments, Plaintiff notes that "testing revealed significant deficits in visual-motor-perception, spatial reception, visual-motor-integration and revisualization processes" when he was six and eight years old. Id. (citing AR 342, 348). Plaintiff continues that by age ten, he had a "severe learning disability, poor impulse control, and low tolerance for frustration." Id. at 4 (citing AR 351). Plaintiff testified that he has trouble seeing things on a board and taking notes. AR 39. But the ALJ considered these deficits in the decision. The ALJ noted that "the medical record reflects the existence of a significant learning difference that began during [Plaintiff's] childhood" and that the learning difference "pertained to motor-visual skills." AR 17. The ALJ ultimately found that although "the psychological record pertinent to the current adjudicative period acknowledges the learning difference." Id. He also noted that "well-qualified psychologists with DDS reviewed medical information . . . and did not find specific limitations posed by the learning difference" who instead noted that the condition was part of Plaintiff's depressive disorder and "established a more restrictive mental [RFC]." Id. Thus, Plaintiff's contention that the ALJ ignored these conditions is without merit.
Later in his brief, Plaintiff addresses the ALJ's discussion of the state-agency psychologists' opinions. Pl.'s Br. 8. It is unclear if Plaintiff is trying to advance a separate argument. Plaintiff notes that the ALJ did not do anything "close to a function by function" analysis—that argument is addressed below. To the extent Plaintiff makes any other argument, it is not developed and the Court will not speculate or develop arguments on his behalf. See Threet v. Barnhart, 353 F.3d 1185, 1190 (10th Cir. 2003).
In his brief, Plaintiff asserts "various additional diagnostic impressions were available to the ALJ," including: aggression; agitation/paranoia; explosive anger/rage; schizophrenia; poor impulse control; severe major depression with psychotic features; pattern of escalating behavior to rage; altered thought processes, nonreality-based thinking; major depressive disorder; intellectual disabilities; anxiety; autism spectrum disorder; and poor impulse control/coping/insight/judgment. Pl.'s Br. 4. Plaintiff contends "the ALJ should have explained why he accepted only the diagnosis of Affective Disorder, but rejected the diagnoses of other mental impairments, and their corresponding limitations such as those listed above." Id. But the ALJ referenced Plaintiff's hospitalization for major depressive disorder as well as admitting diagnoses of intellectual disabilities and recurrent depression. AR 17. The ALJ also stated that Plaintiff was noted for anxiety. Id. It is not error for the ALJ to consider various mental impairments in the decision that are affective disorders such as depression and anxiety, but only list "affective disorder" as a severe impairment. See, e.g. Haile v. Berryhill, No. CIV-18-706-SLP, 2019 WL 2847424, at *4 (W.D. Okla. June 10, 2019), report and recommendation adopted, No. CIV-18-706-SLP, 2019 WL 2814651 (W.D. Okla. July 2, 2019). Furthermore, the ALJ considered Plaintiff's intellectual disabilities when formulating the RFC. Thus, any error in not including intellectual disabilities as a severe impairment at step two is harmless. See Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008) ("[A]ny error [at step two] became harmless when the ALJ reached the proper conclusion that [the claimant] could not be denied benefits conclusively at step two and proceeded to the next step of the evaluation sequence."). And although Plaintiff asserts the ALJ did not reject "corresponding limitations," he listed only symptoms—not functional limitations. Furthermore, the ALJ considered the symptoms in the decision. See AR 17 (referencing symptoms of aggression, anger, rage, impulsive thinking, aggressive behavior toward his parents, and non-reality based thinking).
The portion of the record cited by Plaintiff did not include a diagnosis of schizophrenia. AR 525. But the record from the cited visit notes that Plaintiff had "no evidence of delusions." AR 524. Autism Spectrum Disorder was only referenced as a "previous diagnosis." AR 364. It is unclear when Plaintiff may have been affected by Autism Spectrum Disorder, and Plaintiff does not claim any particular functional limitations based on the condition.
Although the ALJ did not specifically reference agitation or paranoia, the medical record indicates that they were evidence of Plaintiff's altered thought process. AR 360. The ALJ referenced various examples of an altered thought process, such as non-reality based thinking, delusions, and impulsive thinking. AR 17.
Plaintiff also speculates that the ALJ was "biased against the case and failed to carefully review the actual disabilities" because Plaintiff had a college education and had the ability to live independently. Pl.'s Br. 5. This argument is a veiled attempt to have the court reweigh the evidence, as Plaintiff's suggestion of bias is made without any support. The ALJ considered Plaintiff's ability to pursue a college education and live independently as evidence suggesting that Plaintiff's symptoms were not as limiting as alleged. Plaintiff notes that he came home every weekend to get help from his mother when he went to St. Gregory's University and failed his classes at Oklahoma State University. Pl.'s Br. 5 (citing AR 36-37). But the ALJ considered these factors, stating that "much of [Plaintiff's] academic work was assisted with help from his mother" and that he stopped attending college at Oklahoma State University "in part due to academic difficulty." AR 17. Although Plaintiff may believe the ALJ came to the wrong decision after analyzing the facts, the court may not reweigh the evidence to reach a different conclusion. See Bowman, 511 F.3d at 1272 (10th Cir. 2008).
Plaintiff also makes arguments regarding being limited to performing simple, routine tasks—which he routinely refers to as "simple work." Further, he contends that he has not worked in over nine years and insinuates that if he could perform "simple work," he would have been able to work in the past. Pl.'s Br. 5. Although Plaintiff asks rhetorical questions and employs sarcasm, he does not cite any case law in support of the argument. Id. ("[C]ertainly if making work simple is the ticket like the ALJ says, it should have worked before, right?; if he had a simple job in the past? That is why the ALJ made that finding, right? Because only the complexity of work keeps this mentally affected man from working, right? Wrong. . . . Simple work; that will do it."). The ALJ analyzed the evidence and determined Plaintiff could perform work involving simple, routine tasks. AR 16-20. Plaintiff points to certain evidence and argues otherwise. The Court will not reweigh the evidence as Plaintiff tacitly requests. See Bowman, 511 F.3d at 1272 (10th Cir. 2008).
Plaintiff further contends that he cannot perform "simple" work because he previously performed a "simple job working in the mail room" and was terminated for arguing with a supervisor. Pl.'s Br. 5. He also alleges that there "is a strong component of anger/rage that will be reflected in the workplace for any job." Id. at 9. Plaintiff's argument appears premised on the idea that the only limitation in the RFC is to "simple work." But that is not the case, as the RFC limited Plaintiff to occasional contact with supervisors and co-workers while having no contact with the public. AR 16.
Additionally, Plaintiff argues that a limitation to "simple work" or "unskilled jobs" is not sufficient to address a claimant's mental impairments. Pl.'s Br. 10-12. But the RFC did not contain a limitation to "simple work" or "unskilled jobs." AR 16. And despite Plaintiff's argument to the contrary, the RFC and supporting analysis indicates the ALJ considered limitations to Plaintiff's work-related mental functions. AR 16-20. Indeed, Plaintiff was limited to "simple, routine tasks" as well as only occasional contact with supervisors and co-workers while having no contact with the public. AR 16. Id.
B. Function-by-Function Analysis
Plaintiff contends "the ALJ did not conduct the required function-by-function assessment of [his] impairments or address the maximum amount of work-related activity he could perform." Pl.'s Br. 14. He asserts the ALJ failed to separately consider Plaintiff's ability to sit, stand, walk, lift, carry, push, and pull. Id. The Court initially notes that the ALJ addressed the maximum amount of work-related activity Plaintiff could perform, noting that he had the RFC "to perform a full range of work at all exertional levels." AR 16. Furthermore, the ALJ did not find Plaintiff had any medically determinable physical limitations and Plaintiff did not testify regarding any exertional limitations or physical impairments and he does not argue he has any in his brief. AR 14, 29-47.
Plaintiff makes a passing reference to "headache impairments" in his brief. Pl.'s Br. 11. Plaintiff does not cite any portion of the record suggesting he had a headache impairment or any limitations resulting from headaches. It is Plaintiff's responsibility to direct the Court to such evidence. See Kirkpatrick v. Colvin, 663 F. App'x 646, 649 (10th Cir. 2016) (unpublished) ("[I]t isn't [the Court's] obligation to search the record and construct a party's arguments.").
To the extent Plaintiff contends the ALJ failed to conduct a function-by-function assessment with regard to his mental limitations, see Pl.'s Br. 8, "an explicit function-by-function evaluation was not required because the ALJ considered the work restrictions necessary to accommodate [Plaintiff's] mental limitations." Patterson v. Colvin, 662 F. App'x 634, 639 (10th Cir. 2016) (unpublished). As such, there is no reversible error.
RECOMMENDATION
For the reasons set forth above, it is recommended that the Court affirm Commissioner's decision.
NOTICE OF RIGHT TO OBJECT
The parties are advised of their right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by October 24, 2019. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. Moore v. United States, 950 F.2d 656 (10th Cir. 1991).
STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.
ENTERED this 10th day of October, 2019.
/s/_________
BERNARD M. JONES
UNITED STATES MAGISTRATE JUDGE