Opinion
CIV-22-1000-JD
10-16-2023
KENDALL PAT CHRISTIAN, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
REPORT & RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE
Plaintiff Kendall Pat Christian seeks judicial review of the Commissioner of Social Security's final decision that he was not “disabled” under the Social Security Act. See 42 U.S.C. § 405(g).United States District Judge Jodi W. Dishman referred this matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (b)(3). Doc. 16.
Citations to the parties' pleadings and attached exhibits will refer to this Court's CM/ECF pagination. Citations to the AR will refer to its original pagination.
Plaintiff asks this Court to reverse the Commissioner's decision and remand the case for further proceedings because the Administrative Law Judge (ALJ) did not treat Plaintiff's past relevant work as a composite job at step four of the sequential evaluation process and because she omitted Plaintiff's mild mental health limitations from her residual functional capacity(RFC) assessment. Doc. 15, at 2. After careful review of the administrative record (AR), the parties' briefs, and the relevant authority, the Court affirms the Commissioner's decision. See 42 U.S.C. § 405(g).
Residual functional capacity “is the most [a claimant] can still do despite [a claimant's] limitations.” 20 C.F.R. § 404.1545(a)(1).
I. Administrative determination.
A. Disability standard.
The Social Security Act defines a disabled individual as a person who is unable “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 [twelve] 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 [the claimant's] 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. ALJ's findings.
The ALJ assigned to Plaintiff's case applied the standard regulatory analysis to decide whether Plaintiff was disabled during the relevant timeframe. AR 17-26; 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). The ALJ found Plaintiff:
(1) had not engaged in substantial gainful activity since September 1, 2019, the alleged onset date;
(2) had the severe medically determinable impairments of ischemic heart disease, chronic pulmonary disease, degenerative disc disease with history of cervical spine laminectomy, bilateral shoulder arthralgia, and obesity;
(3) had no impairment or combination of impairments that met or medically equaled the severity of a listed impairment;
(4) had the RFC to perform light work except: he could frequently balance and stoop; could occasionally kneel, crouch, and climb stairs; could never crawl or climb ladders, ropes, or scaffolds; could occasionally reach overhead bilaterally but could reach frequently in other directions; and must avoid concentrated exposure to pulmonary irritants such as dust, fumes, or chemicals;
(5) was able to perform his past relevant work as a bar manager, DICOT # 187.167-126; and so,
(6) had not been under disability from September 1, 2019, through March 31, 2022;AR 17-26.
2. Appeals Council's findings.
The Social Security Administration's Appeals Council denied Plaintiff's request for review, id. at 1-6, making the ALJ's decision “the Commissioner's final decision for [judicial] review.” 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) (citing Lax, 489 F.3d at 1084). Substantial evidence is “more than a scintilla, but less than a preponderance.” Lax, 489 F.3d at 1084; see also Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (“It means-and means only-such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”) (internal quotation marks omitted). Further, substantial evidence “must be based upon the record taken as a whole.” Wall, 561 F.3d at 1052. “Evidence is not substantial if it is overwhelmed by other evidence in the record.” Id.
This Court “consider[s] whether the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases, but we will not reweigh the evidence or substitute our judgment for the Commissioner's.” Lax, 489 F.3d at 1084 (internal quotation marks omitted). Thus, “[t]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence.” Id.
“[T]he failure to apply proper legal standards may, under the appropriate circumstances, be sufficient grounds for reversal independent of the substantial evidence analysis.” Hendron v. Colvin, 767 F.3d 951, 954 (10th Cir. 2014). But the failure to apply the proper legal standard requires reversal only where the error was harmful. Cf. Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (placing the burden to show harmful error on the party challenging an agency's determination).
B. The ALJ did not err in her step-four determination because Plaintiff's past relevant work experience was not a composite job.
1. Relevant background.
Plaintiff testified that in the course of his past relevant work as a bar manager, he “had to do everything to . . . keep the bar functioning,” including “some of the . . . bar back work.” AR 49. This included lifting up to fifty pounds, “sometimes kegs of beer, cases of beer, things like that.” Id. Based on the hearing testimony, the vocational expert testified that Plaintiff could perform his bar manager job as generally performed, but not as actually performed by Plaintiff. Id. at 51. At step four of the sequential evaluation process, the ALJ found Plaintiff could perform his past relevant work as a bar manager, a skilled position, “but only as the position is generally performed in the national economy.” Id. at 25-26.
2. Analysis.
To be found not disabled at step four, Plaintiff must be able to perform his past relevant work, either as generally performed in the national economy or as actually performed by Plaintiff. 20 C.F.R. § 404.1560(b)(2). If Plaintiffs past relevant work is a composite job, though, he may be found not disabled at step four only if he has the RFC to do that job as actually performed-not just as generally performed. York v. Berryhill, No. CIV-17-835-BMJ, 2018 WL 1884823, at *6 (W.D. Okla. Apr. 19, 2018) (citing Program Operations Manual Systems (POMS): DI 25005.020(B), https://secure.ssa.gov/poms.NSF/lnx/0425005020 (“A composite job does not have a DOT counterpart, so do not evaluate it at the part of step 4 considering work ‘as generally performed in the national economy.'”) (last visited Oct. 6, 2023)).
Plaintiff claims the ALJ erred by basing her step-four determination of non-disability on the finding that Plaintiff could perform his past relevant work as generally performed. Plaintiff argues the ALJ could only base that determination on a finding that he could perform his past relevant work as actually performed because it was in fact a composite job comprised of “the duties of a bartender and bar helper.” Doc. 15, at 9 (citing Dictionary of Occupational Titles (DICOT) §§ 187.167-126, 312.474-010, 312.687-010). The undersigned disagrees that Plaintiff's bar manager position was a composite job.
“[C]omposite jobs have significant elements of two or more occupations and, as such, have no counterpart in the [DICOT].” SSR 82-61, 1982 WL 31387, at *2. But “a statement by a claimant that he performed activities does not render those duties ‘significant elements' of his job.” York, 2018 WL 1884823, at *7. Plaintiff's testimony fails to establish that his bar back duties were significant elements of his job.
Along with his testimony that he lifted up to fifty pounds, Plaintiff showed on his work history report that he frequently lifted twenty-five pounds. AR 235. But he also attested on that report that his supervisory duties accounted for three-quarters of his time. Id. at 236. As well, he attested that he reached and handled large objects for one hour each in a twelve-hour work day. Id. Plaintiff's description of the physical demands of his bar manager job is consistent with the vocational expert's testimony that a bar manager would not be “preclude[d ] from having to do the things that a bartender would do” but that he would only have to perform such tasks occasionally. Id. at 53; Doc. 22, at 8; see also Bartender, DICOT § 312.474-010, 1991 WL 672698.
Plaintiffs testimony and other evidence describe one job-that of bar manager with additional other duties. See Posey v. Saul, No. CIV-18-1141-D, 2019 WL 3558488, at *4 (W.D. Okla. July 18, 2019) (“Plaintiff argues that because she sometimes had to perform heavier lifting when the can line broke down, she actually described a ‘composite job.' . . . Plaintiff did not describe elements of two or more occupations; instead, she described one occupation with varying degrees of lifting requirements.”), adopted, 2019 WL 3557882 (W.D. Okla. Aug. 5, 2019); Wilson v. Berryhill, 269 F.Supp.3d 1164, 1170 (N.D. Okla. 2017) (quoting Green v. Comm'r, 2017 WL 1160580, at *2 (W.D. Ky. Mar. 28, 2017) (“[Plaintiffs] testimony about his three years as a human resource specialist did little to illuminate how that position could be a composite job. He described the job as ‘desk work' where he processed orders for service members. Later, he clarified that the job involved lifting heavy boxes. His testimony fell short of meeting his burden that the human resources job was a composite job because it had ‘significant elements of two or more occupations.'” (internal citations omitted)).
As well, the ALJ was “within [her] purview to accept the [vocational expert's] testimony that Plaintiff's job, as []he described it” was that of a bar manager. Posey, 2019 WL 3558488, at *4 (citing York, 2018 WL 1884823, at *7). When presented with the standard hypothetical about the capabilities of an individual with Plaintiff's characteristics, the vocational expert said he could do the job of bar manager as generally performed. AR 50-51 (“[H]e could perform the job as bar manager, as it's performed in the national economy, but not as he performed it.”). Even when asked whether and how often a bar manager would be tasked with a bartender's duties, the vocational expert still did not describe Plaintiff's past relevant bar manager work as a composite job. Compare AR 52-53, with Armstrong v. Colvin, No. CIV-16-114-SM, 2016 WL 6581343, at *3 (W.D. Okla. Nov. 4, 2016) (holding the ALJ erred by “split[ting] the ‘two job titles for the one job' and, relying on the VE's testimony, conclud[ing] she could perform both as generally performed” where “[t]he vocational expert [ ] testified that Plaintiff ‘actually has two job titles for the one job'” and “a fair reading of the evidence of record supports the conclusion that Plaintiff's past job, one she held for 28 years, was a composite one”).
The undersigned therefore concludes that Plaintiff's past relevant work as a bar manager was not a composite job, so the ALJ did not err by finding Plaintiff not disabled at step four because he could do his past relevant work as generally performed.
C. Substantial evidence supports the ALJ's RFC determination.
When evaluating a claimant's mental impairments, the ALJ uses a psychiatric review technique that “requires adjudicators to assess an individual's limitations and restrictions from a mental impairment(s) in categories identified in the ‘paragraph B' criteria . . . of the adult mental disorders listings.” SSR 96-8p, 1996 WL 374184, at *4; see also Beasley v. Colvin, 520 Fed.Appx. 748, 754 (10th Cir. 2013). These criteria are, “Understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(A)(2)(b). But “the limitations identified in the ‘paragraph B' . . . criteria are not an RFC assessment.” SSR 96-8p, 1996 WL 374184, at *4. Rather, they “are used to rate the severity of mental impairment(s) at steps 2 and 3 of the sequential evaluation process.” Id.
At step two of the sequential analysis, the ALJ found Plaintiff had mild limitations in the “paragraph B” functional areas of interacting with others; concentrating, persisting, or maintaining pace; and adapting and managing oneself. AR 18. Plaintiff argues the ALJ failed to account for any of these mild limitations in her subsequent RFC assessment. Doc. 15, at 15-17 (citing Wells v. Colvin, 727 F.3d 1061, 1071 (10th Cir. 2013) (“To sum up, to the extent the ALJ relied on his finding of non-severity as a substitute for adequate RFC analysis, the Commissioner's regulations demand a more thorough analysis.”)). The undersigned disagrees.
In assessing Plaintiff's RFC, the ALJ found “that the evidence of the claimant's daily activities along with the objective medical evidence discussed above establishes that he has a greater sustained capacity than he alleges.” AR 25. In the area of concentrating, persisting, or maintaining pace, the ALJ discounted Plaintiff's consistency based on his ability to drive:
“[T]he undersigned finds that the evidence of the claimant's daily activities . . . establishes that he has a greater sustained capacity than he alleges. . . . [T]he claimant's ability to drive supports his residual functional capacity from both a physical and mental perspective. The ability to drive demonstrates concentration and persistence, as well as an ability to deal with the stress inherent in the operation of a motor vehicle. The ability to drive also shows a good degree of concentration and persistence-attributes necessary to work effectively.Id.; see also SSR 16-3p, 2017 WL 5180304 (listing “[d]aily activities” as a factor to consider in evaluating intensity, persistence, and limiting effects of an individual's symptoms”). Substantial evidence supports the ALJ's RFC assessment with respect to this functional area. Cf. Wilson v. Astrue, 602 F.3d 1136, 1146 (10th Cir. 2010) (upholding ALJ's finding that claimant's activities of daily living did not indicate significant limitations where “she was able to drive, shop, and handle finances” in addition to gardening, visiting friends, and eating out); see also Doc. 22, at 12. Although “sporadic performance” of daily household tasks “does not establish that a person is capable of engaging in substantial gainful activity,” Frey v. Bowen, 816 F.2d 508, 516-17 (10th Cir. 1987), “the Tenth Circuit has consistently held that an ALJ may reasonably consider such activities when they are inconsistent with a claimant's reported limitations,” Brown o/b/o Brown v. Kijakazi, No. CIV-20-692-STE, 2021 WL 4135208, at *6 (W.D. Okla. Sept. 10, 2021) (collecting cases). That is what the ALJ did here in finding that Plaintiff's ability to drive was inconsistent with his reported limitations.
And as for Plaintiff's mild limitations in the areas of functional areas of interacting with others and adapting and managing oneself, the ALJ relied on objective medical evidence in omitting these from Plaintiff's RFC. AR 25 (“[T]he objective medical evidence discussed above establishes that he has a greater sustained capacity than he alleges.”); see SSR 16-3p, 2017 WL 5180304 (“[O]bjective medical evidence is a useful indicator to help make reasonable conclusions about the intensity and persistence of symptoms ....”). Relevant to the “paragraph B” functional areas, the ALJ extensively discussed Dana Foley, Ph.D.'s, consultative evaluation at step two of the sequential evaluation process, finding it to be persuasive:
He underwent a psychiatric consultative examination in October 2020, performed by Dana Foley, Ph.D. Despite his subjective complaints regarding lack of motivation and depressive symptoms, he demonstrated generally unremarkable objective
findings on mental status examination, including normal orientation and good attention. His appearance was appropriate in dress, grooming and presentation. The claimant showed adequate concentration and memory functioning, and he appeared to have adequate fund of information and intelligence. Thought content was appropriate, and thought process was clear, coherent, linear and goal directed. Insight was adequate, his judgment appeared logical, practical, and reason based, and he reported no difficulty with impulse control, although he presented with down mood and depressed affect with little range of affect during the evaluation. Dr. Foley opined that the claimant had only minor impairment in social and occupational functioning as a result of his major depressive disorder. This opinion is supported because it is consistent with the doctor's evaluation of the claimant revealing generally unremarkable objective mental status examination findings. It is also consistent with the claimant's lack of mental health treatment, and his assertion that his primary limitations are due to his physical condition. Because it is supported and consistent with the overall record, the opinion of the psychiatric consultative examiner is persuasive.AR 18-19 (emphasis added) (internal citation omitted). The ALJ's “paragraph B” functional areas findings tracked those of Dr. Foley. Id. at 18, 25.
The ALJ also found the State psychiatric consultants' findings of mild limitations in the “paragraph B” functional areas to be persuasive. Id. at 19. The consultants' findings, the ALJ explained, are consistent with the record, particularly Plaintiff's “independence with his activities of daily living” and “lack of mental health treatment.” Id.; see also 20 C.F.R. § 404.1513a(b)(1) (“State agency medical or psychological consultants are highly qualified and experts in Social Security disability evaluation.”).
An ALJ may not conflate the step-two “paragraph B” analysis with the step-four RFC assessment. But here the ALJ here stated that the subsequent RFC determination “reflect[ed] the degree of limitation the [ALJ] ha[d] found in the ‘paragraph B' mental function analysis,” along with the state agency consultants' opinions and Plaintiffs activities of daily living. See Allison Rena S. v. Kijakazi, 2023 WL 2374807, at *4 (D. Kan. Mar. 6, 2023) (rejecting plaintiffs argument that ALJ's finding of “no more than minimal limitation in her ‘ability to perform basic mental work activities'” was “insufficient to explain how [her mild impairments] impacted her ability to return to past relevant semi-skilled work”) (alteration in original); see also Higgins v. Saul, 2021 WL 3076845, at *2 (D. Colo. July 21, 2021) (rejecting plaintiffs argument that “the ALJ should have more thoroughly considered these mild limitations in the RFC analysis” and upholding ALJ's finding that plaintiff could perform her prior semi-skilled work). The ALJ's analysis is sufficient. See Mattocks v. Colvin, No. CIV-15-276-M, 2016 WL 2600464, at *5 (W.D. Okla. Apr. 15, 2016) (“The ALJ stated that he considered the entire record when assessing Plaintiffs RFC and the practice in the Tenth Circuit is to take the ALJ at his word.” (citing Wells, 561 F.3d at 1070, and Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005))), adopted, 2016 WL 2343906 (W.D. Okla. May 3, 2016).
Substantial evidence supports the Plaintiff's RFC assessment.
III. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court affirm the Commissioner's final decision.
The undersigned advises Plaintiff of his right to file an objection to this report and recommendation with the Clerk of this Court on or before October 30, 2023, in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Plaintiff 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 undersigned Magistrate Judge in this matter.