Opinion
Civ. No. 16-327 GJF
April 12, 2017, Filed
For Debora Kay Evans-Guillen, Plaintiff: Francesca J. MacDowell, LEAD ATTORNEY, MacDowell Law, P.C., Placitas, NM.
For Social Security Administration, Carolyn W. Colvin, Acting Commissioner of Social Security Administration, Defendant: Danielle A. Pedderson, LEAD ATTORNEY, SSA, Denver, CO; Manuel Lucero, LEAD ATTORNEY, US Attorney's Office, District of New Mexico, Albuquerque, NM.
ORDER DENYING PLAINTIFF'S MOTION TO REVERSE AND REMAND
THIS MATTER is before the Court on Plaintiff Debora Kay Evans-Guillen's "Motion to Reverse and Remand for Rehearing, with Supporting Memorandum" ("Motion") [ECF No. 18]. Having meticulously reviewed the entire record, considered the parties' arguments, and being otherwise fully advised, the Court concludes that substantial evidence supports the Commissioner's decision to deny benefits and that the proper legal standards were applied. For the following reasons, the Court will DENY Plaintiff's Motion.
I. PROCEDURAL BACKGROUND
On April 11, 2013, Plaintiff applied for disability insurance benefits, alleging that her disability began on July 18, 2010. Administrative R. ("AR") 180-87. Plaintiff's application was initially denied on September 6, 2013 [AR 118-20], and upon reconsideration on October 24, 2013. AR 127-31. Plaintiff then filed a written request for a hearing, and, on June 30, 2015, Administrative Law Judge ("ALJ") Michelle Lindsay held a hearing in Albuquerque, New Mexico. Plaintiff testified at the hearing and was represented by non-attorney representative John Bishop. The ALJ also heard testimony from Sandra Trost, an impartial vocational expert ("VE"). AR 37-69.
On October 22, 2015, the ALJ issued her decision, concluding that Plaintiff had not been under a disability within the meaning of the Social Security Act ("the Act") since the date her application was filed. AR 20-30. Plaintiff requested the ALJ's decision be reviewed by the Appeals Council, and, on January 30, 2016, the Appeals Council denied her request as untimely. AR 13-15. Consequently, the ALJ's decision became the final decision of the Commissioner. Plaintiff timely appealed the Commissioner's denial of benefits in this Court on April 22, 2016. See Pl.'s Compl., ECF No. 1.
II. APPLICABLE LAW
A. Standard of Review
When the Appeals Council denies a claimant's request for review, the ALJ's decision becomes the final decision of the agency. The Court's review of that final agency decision is both factual and legal. See Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008) (citing Hamilton v. Sec'y of Health & Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992)) ("The standard of review in a social security appeal is whether the correct legal standards were applied and whether the decision is supported by substantial evidence.").
A court's review is limited to the Commissioner's final decision, 42 U.S.C. § 405(g) (2012), which generally is the ALJ's decision, not the Appeals Council's denial of review. 20 C.F.R. § 404.981 (2017); O'Dell v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994).
The factual findings at the administrative level are conclusive "if supported by substantial evidence." 42 U.S.C. § 405(g) (2012). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). An ALJ's 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." Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214. Substantial evidence does not, however, require a preponderance of the evidence. See Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).
"The record must demonstrate that the ALJ considered all of the evidence, but an ALJ is not required to discuss every piece of evidence." Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996) (citation omitted). "Rather, in addition to discussing the evidence supporting his decision, the ALJ also must discuss the uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence he rejects." Id. at 1010. "The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence." Lax, 489 F.3d at 1084. A court should meticulously review the entire record but should neither re-weigh the evidence nor substitute its judgment for that of the Commissioner. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214.
As for the review of the ALJ's legal decisions, the Court examines "whether the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases." Lax, 489 F.3d at 1084. The Court may reverse and remand if the ALJ failed "to apply the correct legal standards, or to show . . . that she has done so." Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996).
Ultimately, if substantial evidence supports the ALJ's findings and the correct legal standards were applied, the Commissioner's decision stands and the plaintiff is not entitled to relief. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214, Doyal, 331 F.3d at 760.
B. Sequential Evaluation Process
The SSA has devised a five-step sequential evaluation process to determine disability. See Barnhart v. Thomas, 540 U.S. 20, 24, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003); 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (2017). At the first three steps, the ALJ considers the claimant's current work activity, the medical severity of the claimant's impairments, and the requirements of the Listing of Impairments. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4), & Pt. 404, Subpt. P, App. 1. If a claimant's impairments are not equal to one of those in the Listing of Impairments, then the ALJ proceeds to the first of three phases of step four and determines the claimant's RFC. See Winfrey, 92 F.3d at 1023; 20 C.F.R. §§ 404.1520(e), 416.920(e). In phase two, the ALJ determines the physical and mental demands of the claimant's past relevant work, and in the third phase, compares the claimant's RFC with the functional requirements of his past relevant work to determine if the claimant is still capable of performing his past work. See Winfrey, 92 F.3d at 1023; 20 C.F.R. §§ 404.1520(f), 416.920(f). If a claimant is not prevented from performing his past work, then he is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). The claimant bears the burden of proof on the question of disability for the first four steps, and then the burden of proof shifts to the Commissioner at step five. See Bowen v. Yuckert, 482 U.S. 137, 146, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Talbot v. Heckler, 814 F.2d 1456, 1460 (10th Cir. 1987).
If the claimant cannot return to his past work, then the Commissioner bears the burden at the fifth step of showing that the claimant is nonetheless capable of performing other jobs existing in significant numbers in the national economy. See Thomas, 540 U.S. at 24-25; see also Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988) (discussing the five-step sequential evaluation process in detail).
III. SUMMARY OF ARGUMENTS
Plaintiff argues that the ALJ committed reversible legal error for three reasons: (i) the ALJ improperly evaluated medical opinion evidence, which resulted in an incorrect residual functional capacity ("RFC") determination, (ii) the ALJ improperly concluded that Plaintiff could return to her past work as a concierge, and (iii) the ALJ failed to develop the record by not ordering a consultative physical or psychological examination. Pl.'s Mot. 4. The Commissioner responds by contending that: (i) substantial evidence supports the ALJ's RFC finding that Plaintiff could perform a range of light work, (ii) the ALJ properly evaluated Plaintiff's statements about her symptoms, (iii) the ALJ reasonably relied on the vocational expert's testimony to find that Plaintiff could return to her past relevant work, and (iv) the ALJ properly exercised her discretion not to order a consultative evaluation. Def.'s Resp. 5-10, ECF No. 22.
IV. ALJ's DECISION
On October 22, 2015, the ALJ issued a decision denying Plaintiff's application for benefits. In doing so, the ALJ conducted the five-step sequential evaluation process. AR 20-30. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since July 18, 2010, the date of her alleged disability onset. AR 22. At step two, the ALJ determined Plaintiff had the following severe impairments: history of osteoarthritis in the right knee, status post total knee replacement, fibromyalgia, obesity, depression, and anxiety. The ALJ found these impairments to be severe because "they more than minimally limited the [Plaintiff's] ability to perform basic work activities." AR 23.
At step three, the ALJ concluded that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. To reach this conclusion, the ALJ evaluated Plaintiff's impairments under Listings 1.03, 12.04, 12.06, 1.00, 3.00, 4.00, and 12.00. AR 23. Focusing first on Plaintiff's knee pain under Listing 1.03 (reconstructive surgery or surgical arthrodesis of a major weight-bearing joint), the ALJ found that "the medical evidence of record does not indicate that [Plaintiff] had the inability to ambulate effectively and that a return to effective ambulation did not occur within 12 months of onset." AR 23.
The specific sections of the Code of Federal Regulations the ALJ referenced include: 20 C.F.R. §§ 404.1520(d) and 404.1525, 404.1526, 416.920(d), 416.925, and 416.926 (2016). Administrative R. ("AR") 23.
Next, the ALJ considered Plaintiff's obesity and fibromyalgia. AR 23-24. The ALJ found that Plaintiff's obesity is an "impairment," but the record did not support that it adversely affects her musculoskeletal system, respiratory system or cardiovascular system. Therefore, the ALJ found that Plaintiff's obesity did not satisfy the criteria for that condition as set forth in Listings 1.00, 3.00, or 4.00. AR 23-24. Turning to Plaintiff's fibromyalgia claim, the ALJ noted that fibromyalgia is not a listed impairment and instead must be analyzed under Social Security Ruling ("SSR") 12-2p, 2012 SSR LEXIS 1. The ALJ observed that, although Plaintiff did not have medical evidence sufficient to support her fibromyalgia claim, the ALJ nonetheless included fibromyalgia as a severe impairment to "give the [Plaintiff] the benefit of the doubt." AR 24.
Moving to Plaintiff's mental impairments, the ALJ found that the severity of Plaintiff's depression and anxiety did not meet or medically equal the criteria of Listing 12.04 (affective disorders) or Listing 12.06 (anxiety and obsessive-compulsive disorders). Specifically, the ALJ found that the paragraph B criteria were not met because Plaintiff's depression or anxiety had not caused the requisite number of marked limitations and/or episodes of decompensation. As to Plaintiff's activities of daily living, the ALJ found that Plaintiff has no restriction. This finding was based on Plaintiff's testimony that she lives alone, works part-time, drives, and does household chores independently. The ALJ further found that Plaintiff has only mild difficulties in social functioning. This finding was based on Plaintiff's testimony that, despite her fatigue, she is able to spend time with others. With regard to Plaintiff's ability to maintain concentration, persistence or pace, the ALJ found that Plaintiff has moderate difficulties. This finding was based on Plaintiff's testimony that she struggles to concentrate due to her pain level. AR 24.
Paragraph B in Listing 12.04 describes impairment-related functional limitations that are incompatible with the ability to do any gainful activity. The functional limitations listed below must be the result of the mental disorder described in the diagnostic description. Paragraph B requires that a severe mental impairment must result in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration;
20 C.F.R. § Pt. 404, Subpt. P, App. 1, Pt. A2.
Paragraph B in Listing 12.06 also describes impairment-related functional limitations that are incompatible with the ability to do any gainful activity. The functional limitations listed below must be the result of the mental disorder described in the diagnostic description. Paragraph B requires that a severe mental impairment must result in:
Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning:
1. Understand, remember, or apply information.
2. Interact with others.
3. Concentrate, persist, or maintain pace.
4. Adapt or manage oneself.
Id.
The ALJ also evaluated whether the evidence of Plaintiff's mental impairments satisfied the criteria for Paragraph C of Listing 12.04 or 12.06. After reviewing that evidence, however, the ALJ determined that the paragraph C criteria were also not met. AR 25.
Paragraph C in Listing 12.04 describes impairment-related functional limitations that are incompatible with the ability to do any gainful activity. The functional limitations listed below must be the result of the mental disorder described in the diagnostic description. Paragraph C requires:
Medically documented history of a chronic affective disorder of at least 2 years' duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support, and one of the following:
1. Repeated episodes of decompensation, each of extended duration; or
2. A residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate; or
3. Current history of 1 or more years' inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement.
20 C.F.R. § Pt. 404, Subpt. P, App. 1, Pt. A2.
Paragraph C in Listing 12.06 also describes impairment-related functional limitations that are incompatible with the ability to do any gainful activity. The functional limitations listed below must be the result of the mental disorder described in the diagnostic description. Paragraph C requires:
Your mental disorder in this listing category is "serious and persistent," that is, you have a medically documented history of the existence of the disorder over a period of at least 2 years, and there is evidence of both:
1. Medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that diminishes the symptoms and signs of your mental disorder and
2. Marginal adjustment, that is, you have minimal capacity to adapt to changes in your environment or to demands that are not already part of your daily life.
Id.
Before step four, the ALJ determined Plaintiff had the following RFC:
[T]o perform light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b) as follows: she can lift and carry 20 pounds occasionally and 10 pounds frequently. She can stand and/or walk for six hours out of an eight-hour workday with regular breaks. She is unlimited with respect to pushing and pulling, other than as indicated for lifting and carrying. She can only occasionally kneel, crawl, and climb stairs and ramps. She can never climb ladders, ropes, or scaffolds. She is able to understand, remember and carry out detailed but not complex instructions. She is able to maintain attention and concentration to perform detailed but not complex tasks for two hours at a time without requiring redirection to task.
AR 25. In support of this RFC assessment, the ALJ found that "[Plaintiff's] medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the [Plaintiff's] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible . . . ." AR 26-27. To reach this determination, the ALJ gave great weight to medical opinions by Dr. Junick, Plaintiff's treating orthopedic surgeon, Dr. Eisberg, Plaintiff's family medicine doctor, and Dr. Newman, a clinical psychologist. Additionally, the ALJ gave some weight to the State agency medical examiners and partial weight to two other providers — Ms. Freyer, physician assistant, and Ms. Righettini, certified family nurse practitioner. Alongside the objective medical evidence, the ALJ also considered the Plaintiff's testimony and her reports of her daily activities. AR 29.
At step four, the ALJ determined that Plaintiff was capable of performing her past relevant work as a concierge. AR 29. The vocational expert testified that the position of concierge is considered a sedentary job and the Plaintiff would be able to perform the job requirements consistent with her RFC. Subsequently, the ALJ concluded that Plaintiff was not disabled under the meaning of the Act from July 18, 2010, through the date of the decision. AR 30.
II. ANALYSIS
A. The ALJ's RFC Determination is Supported by Substantial Evidence
Plaintiff begins her challenge to the ALJ's determination that she was not legally disabled by taking aim at the ALJ's RFC, arguing that the RFC omitted several non-exertional limitations. Pl.'s Mot. 11. To support this argument, she advances three points.
1. Fibromyalgia Analysis
First, Plaintiff asserts that, even though the ALJ recognized that one of her severe impairments was fibromyalgia, the ALJ did not properly comply with Social Security Ruling ("SSR") 12-2P, 2012 SSR LEXIS 1, which governs the evaluation of fibromyalgia. Id. The ALJ determined Plaintiff's fibromyalgia was a severe impairment, writing:
[w]hile it is questionable the evidence of record in this case is adequate to support the requirements of SSR 12-2p, 2012 SSR LEXIS 1 given that the record lacks an opinion from a physician that the [Plaintiff] has fibromyalgia, to give the [Plaintiff] the benefit of the doubt, I have included fibromyalgia as a severe impairment.
AR 24.
SSR 12-2P, 2012 SSR LEXIS 1 provides that fibromyalgia is a medically determinable impairment when established by appropriate medical evidence. SSR 12-2P, 2012 SSR LEXIS 1, 2012 WL 3104869 at *2 (July 25, 2012). In order to establish the existence of fibromyalgia, an individual must meet both general and specific criteria. Id. To satisfy the general criteria, an individual must provide evidence from an acceptable medical source in the form of a diagnosis. Id. A licensed physician is the only acceptable medical source who can provide the evidence. Id. Additionally, "[t]he evidence must document that the physician reviewed the person's medical history and conducted a physical exam." Id. Next, to satisfy the specific criteria, a claimant must demonstrate that she meets either of two sets of conditions, known as Section A or Section B. 2012 SSR LEXIS 1 [WL] at *2-3. Ruling 12-2P, 2012 SSR LEXIS 1 provides that objective medical evidence is needed in order to establish the presence of fibromyalgia. 2012 SSR LEXIS 1 [WL] at *3. Generally, evidence from the twelve-month period preceding an individual's application for disability benefits is preferred. 2012 SSR LEXIS 1 [WL] at *4. Additionally, the Social Security Administration may request evidence from other medical sources and nonmedical sources. Id.
To fulfill Section A, an individual must meet all of the following requirements:
1. A history of widespread pain—that is, pain in all quadrants of the body (the right and left sides of the body, both above and below the waist) and axial skeletal pain (the cervical spine, anterior chest, thoracic spine, or low back)—that has persisted (or that persisted) for at least 3 months.
2. At least 11 positive tender points on physical examination. The positive tender points must be found bilaterally and both above and below the waist.
a. The 18 tender point sites are located on each side of the body at the: occiput, low cervical spine, trapezius muscle, supraspinatus muscle, second rib, lateral epicondyle, gluteal, greater trochanter, and inner aspect of the knee.
b. In testing the tender point sites, the physician should perform digital palpation with an approximate force of 9 pounds.
3. Evidence that other disorders that could cause the symptoms or signs were excluded.
SSR 12-2P, 2012 SSR LEXIS 1, 2012 WL 3104869 at *2-3 (July 25, 2012).
To fulfill Section B, an individual must meet all of the following requirements:
1. A history of widespread pain—that is, pain in all quadrants of the body (the right and left sides of the body, both above and below the waist) and axial skeletal pain (the cervical spine, anterior chest, thoracic spine, or low back)—that has persisted (or that persisted) for at least 3 months.
2. Repeated manifestations of six or more FM symptoms, signs, or co-occurring conditions, especially manifestations of fatigue, cognitive or memory problems ("fibro fog"), waking unrefreshed, depression, anxiety disorder, or irritable bowel syndrome; and
3. Evidence that other disorders that could cause the symptoms or signs were excluded.
Id.
In her Motion, Plaintiff contends that there was "ample evidence" in the administrative record demonstrating that she has pain sufficient to support her debilitating fibromyalgia pain. See Pl.'s Mot. 11-12. This Court disagrees. In an apparent attempt to satisfy SSR 12-2P's, 2012 SSR LEXIS 1 requirement that there must be evidence from a licensed physician, Plaintiff cites a medical record from Dr. Daniel W. Junick. Id. at 11. The medical record cited, found at AR 279, detailed a follow-up examination by Dr. Junick concerning Plaintiff's right knee replacement, which occurred two years prior to this record being created. Dr. Junick noted that Plaintiff had "fallen about three times in the last several months and feels like she may have injured the knee in the falls." He ordered physical therapy to strengthen Plaintiff's knee and improve her instability issues. AR 279. Not once in Dr. Junick's May 19, 2011, record, which Plaintiff relies heavily upon, does the term "fibromyalgia" appear, much less an assessment that Plaintiff's knee pain is attributable to fibromyalgia. In fact, in the thirty-two pages of medical records provided by Dr. Junick's office [AR 279-310], there are but three mentions of fibromyalgia, and each mention is listed as "other diagnosis" or "past medical history" in the greater context of Plaintiff's knee replacement procedure. See AR 284, 291, 294. Importantly, Plaintiff has not referred the Court to, and the Court has not located, any record of a formal diagnosis of fibromyalgia by Dr. Junick.
In the Court's view, Plaintiff is seeking to stretch Dr. Junick's opinions well past their intended purpose. It appears that Dr. Junick never diagnosed Plaintiff with fibromyalgia and the Court will not construe his records as having done so. Therefore, Plaintiff's attempt to use this medical evidence fails to satisfy the first pertinent requirement of SSR 12-2P, 2012 SSR LEXIS 1 — a diagnosis from a licensed physician, records documenting the physician's review of medical records, and evidence that the physician conducted a physical exam. See SSR 12-2P, 2012 SSR LEXIS 1, 2012 WL 3104869 at *2.
As further evidence of her pain stemming from fibromyalgia, Plaintiff cites a medical record from Dr. George Eisberg. Pl.'s Mot. 11. Dr. Eisberg treated Plaintiff for a wound infection in October 2012. AR 318. In addition to documenting his treatment, Dr. Eisberg's record does note "pain in joint, lower leg," but again there is no mention of the term "fibromyalgia" or an assessment by Dr. Eisberg that Plaintiff's lower leg pain is attributable to that condition. AR 318-20. As with Dr. Junick's records, the records from Dr. Eisberg do not fulfill the requirement of SSR 12-2P, 2012 SSR LEXIS 1 that Plaintiff provide a formal diagnosis of fibromyalgia by a licensed physician.
Plaintiff also directs the Court to three additional medical records from sources that are not considered "acceptable medical sources" for purposes of SSR 12-2P, 2012 SSR LEXIS 1. Pl.'s Mot. 12. One record from Shari Freyer, a physician assistant, details the purpose of Plaintiff's visit as continuing illness from a virus, right leg pain, anxiety, and depression. AR 332. While detailing Plaintiff's "laundry list" of medical complaints, Ms. Freyer noted Plaintiff's fibromyalgia, writing that Plaintiff was reporting that the condition had been "bothering her more." AR 332. Ms. Freyer, however, discusses little more concerning Plaintiff's fibromyalgia, nor do her notes indicate that Plaintiff's fibromyalgia was her primary source of pain and discomfort. The same applies to the records from Plaintiff's chiropractor, which note Plaintiff was experiencing right groin pain. AR 356-57.
Plaintiff's efforts to attack the ALJ's analysis of her fibromyalgia claim by selectively highlighting areas in the record where Plaintiff presented with pain of any kind fall short of the level of objective proof that SSR 12-2P, 2012 SSR LEXIS 1 requires. First, the record only notes a fibromyalgia diagnosis in passing — there is not a medical record showing a formal diagnosis from a licensed physician. Furthermore, there are no medical records showing evidence that fulfills either Section A or Section B criteria.
Woven into her argument about how the ALJ evaluated Plaintiff's fibromyalgia pain is Plaintiff's contention that the ALJ improperly relied on Dr. John Pataki, a state agency consultative examiner, to determine Plaintiff could perform light work. Pl.'s Mot. 12. The administrative record indicates that Dr. Pataki reviewed Plaintiff's claim on reconsideration and offered an assessment on her physical residual functional capacity. AR 102-103. He expressed opinions on Plaintiff's exertional, postural, manipulative, visual, communicative, and environmental limitations. AR 102.
The ALJ mentioned Dr. Pataki once in her written findings, taking note of his opinions on the following: Plaintiff could occasionally lift and/or carry 20 pounds, frequently lift and/or carry 10 pounds, stand and/or walk 6 hours in an 8-hour work day, and sit for 6 hours in an 8-hour work day. He also opined that Plaintiff's ability to push and pull was limited only by her ability to lift and carry. AR 27. While she was concluding her discussion of the medical evidence, the ALJ explained that she afforded "some weight" to the state agency medical examiners due to their familiarity with agency policy, but she limited Plaintiff to "light work" instead of the "medium work" that the consultative examiners had recommended. AR 29.
Regardless of its source, every medical opinion received must be evaluated. 20 C.F.R. § 404.1527(c) (2016); Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) ("It is the ALJ's duty to give consideration to all the medical opinions in the record. He must also discuss the weight he assigns to such opinions."). An ALJ is not bound by any findings made by state agency medical consultants; however, state agency medical consultants are considered highly qualified physicians who are experts in Social Security disability evaluation. 20 C.F.R. § 404.1527(e)(2)(i). The Tenth Circuit has recognized that such consultants' opinions are often fully relied on as the dispositive basis for RFC findings. See Chapo v. Astrue, 682 F.3d 1285, 1291 (10th Cir. 2012). When an ALJ considers the opinions of state agency medical consultants, the ALJ will consider the consultant's medical specialty, the supporting evidence in the case record, supporting explanations, and any other relevant factors. 20 C.F.R. § 404.1527(e)(2)(ii).
The Court does not find error with how the ALJ evaluated Dr. Pataki's opinion. Contrary to Plaintiff's assertion, it does not appear the ALJ solely relied on Dr. Pataki to determine that Plaintiff could perform light work in accordance with 20 C.F.R. § 404.1567(b) and § 416.967(b). The ALJ did include some of Dr. Pataki's findings in Plaintiff's RFC, which was within her authority to do. See Howard v. Barnhart, 379 F.3d 945, 949 (10th Cir. 2004) ("But the ALJ, not a physician, is charged with determining a claimant's RFC from the medical record."). Here, it was the ALJ, and not Dr. Pataki, who found that Plaintiff could perform light work. The ALJ made this determination after a review of the medical evidence as a whole.
As to Plaintiff's objection that Dr. Pataki did not thoroughly review the evidence of Plaintiff's fibromyalgia, the record appears to prove otherwise. Though Dr. Pataki did not provide the ALJ with a long narrative about each piece of evidence he reviewed, his notes indicate that he did review Plaintiff's complaints as they related to her fibromyalgia pain before making his findings. Furthermore, as the Court thoroughly discussed above, Plaintiff's fibromyalgia complaints do not meet the requirements of SSR 12-2P, 2012 SSR LEXIS 1. Consequently, the ALJ's RFC determination is supported by substantial evidence on this point.
2. Evaluation of Dr. Smith's Opinions
Next, Plaintiff contends that the ALJ did not properly consider Dr. Alvin Smith's opinion regarding moderate limitations and wrongly left these limitations out of her RFC, thereby rendering the RFC unsupported by substantial evidence. Pl.'s Mot. 14-16. Doctor Smith is a state agency medical examiner who reviewed Plaintiff's claim on reconsideration and offered an assessment on her mental residual functional capacity. AR 103-104. Doctor Smith assessed Plaintiff's limitations with regard to understanding and memory, sustained concentration and persistence, social interaction, and adaptation. AR 103-104. Of those four categories, Dr. Smith opined that Plaintiff only had limitations in the areas of sustained concentration and persistence. AR 103-104. He noted that Plaintiff was moderately limited in her ability to carry out detailed instructions, to complete a normal workday and workweek without interruptions from psychologically based symptoms, and to perform at a consistent pace without an unreasonable number and length of rest periods. AR 104.
In her written findings, the ALJ discussed Dr. Smith's opinions at length. AR 24-25. In discussing Dr. Smith's opinion that Plaintiff had moderate difficulties in maintaining concentration, persistence and pace, the ALJ stated that she agreed with him. AR 25. It seems that Plaintiff believes that Dr. Smith's moderate limitations must have been included verbatim in Plaintiff's RFC and anything short of doing so constituted reversible error on the ALJ's part. This belief, however, runs contrary to the Tenth Circuit's recent ruling in Smith v. Colvin, 821 F.3d 1264 (10th Cir. 2016). Faced with a similar challenge in Smith, the Tenth Circuit endorsed the approach that "an administrative law judge can account for moderate limitations by limiting the claimant to particular kinds of work activity." Smith, 821 F.3d at 1269.
Contrary to Plaintiff's assertion, the ALJ did not omit any reference to Dr. Smith's limitations in her RFC. Instead, she included the following: "She is able to understand, remember and carry out detailed but not complex instructions. She is able to maintain attention and concentration [and] to perform detailed but not complex tasks for two hours at a time without requiring redirection to task." AR 25. These findings incorporated and accommodated the moderate limitations Dr. Smith identified. Consistent with Smith v. Colvin, an ALJ need not repeat verbatim the moderate limitations assessed by a doctor so long as the ALJ stated how the claimant was limited in the ability to perform work-related activities. See Smith, 821 F.3d at 1269. Because the ALJ's RFC determination concerning Plaintiff's moderate limitations comported with the approach articulated in Smith, the Court concludes that the RFC is supported by substantial evidence on this point.
3. Plaintiff's Credibility
Plaintiff's final argument that the ALJ's RFC determination is not supported by substantial evidence attacks the ALJ's evaluation of Plaintiff's credibility. She argues that none of the reasons the ALJ cited for discounting Plaintiff's credibility withstand scrutiny. Pl.'s Mot. 16. For her part, the Commissioner asserts that the ALJ properly evaluated Plaintiff's statements about her symptoms and made an appropriate credibility finding. Def.'s Resp. 7.
In support of her attack on the ALJ's credibility determination, Plaintiff cites to Kepler v. Chater for the proposition that "'specific facts behind the generalities . . . paint a very different picture' than the one painted by the ALJ." Pl.'s Mot. 18 (citing Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995)). Although this quote seems fitting for Plaintiff's argument, it must be viewed in the greater context of the legal standard articulated by the Tenth Circuit in Kepler and explained more fully in later cases.
For example, in Qualls v. Apfel, the Tenth Circuit emphasized that its ruling in Kepler dealt with a situation in which it had:
found the ALJ's credibility determination inadequate because the ALJ simply recited the general factors he considered and then said the claimant was not credible based on those factors. The ALJ did not refer to any specific evidence relevant to the factors, so we, as a reviewing court, could only guess what evidence the ALJ relied on in evaluating the claimant's credibility.
Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000). The Court explained that Kepler did not require a formalistic factor-by-factor recitation of the evidence. Instead, "[s]o long as the ALJ sets forth the specific evidence he relies on in evaluating the claimant's credibility, the dictates of Kepler are satisfied." Id. Therefore, this Court must review the ALJ's credibility determination in light of this clearly articulated legal standard. Additionally, the Court is mindful that "[c]redibility determinations are peculiarly the province of the finder of fact, and we will not upset such determinations when supported by substantial evidence." Diaz v. Secretary of Health & Human Servs., 898 F.2d 774, 777 (10th Cir. 1990).
Guided by this principle, the Court finds that the ALJ did not simply recite general factors she considered. Instead, the ALJ articulated specific evidence she considered to reach the determination that Plaintiff's "statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible . . . ." AR 27. Her findings illustrate that she considered Plaintiff's statements in the context of other evidence in the record, including: objective medical evidence, the types of medications Plaintiff was taking, the types and frequency of her medical treatment, Plaintiff's management of symptoms partially through the natural/holistic method, her lapse in healthcare coverage, and her ability to work/volunteer at her church. See AR 25-29. Therefore, the ALJ's analysis was sufficient to permit this Court and any other reviewing court to adequately review her considerations. Though Plaintiff attempts to provide an explanation for each of the ALJ's reasons for discounting her credibility, the Court remains mindful that the ALJ's task is to evaluate and make sense of all of the varying types of evidence presented in the record. The ALJ considered all of the various factors, along with Plaintiff's testimony, and identified those areas where Plaintiff's claims did not match the objective evidence.
Whether the Court would have evaluated Plaintiff's credibility differently if it were hearing her testimony live or reviewing the evidence de novo is not the question. The Court is constrained to reviewing whether the ALJ erred as a matter of law in her treatment of Plaintiff's credibility. It is not the proper role of this Court to substitute its judgment for that of the ALJ. "In reviewing the ALJ's decision, 'we neither reweigh the evidence nor substitute our judgment for that of the agency.'" See Bowman, 511 F.3d at 1272 (quoting Casias, 933 F.2d at 800). It is the Court's role, however, only to determine if the ALJ properly explained her reasoning for discounting Plaintiff's credibility.
The Court finds that the ALJ's credibility determination of Plaintiff conforms to the appropriate legal standard and is supported by substantial evidence. Therefore, and in conert with the Court's findings above, Plaintiff's greater argument that the ALJ's RFC determination is not supported by substantial evidence fails.
B. The ALJ Did Not Err at Step Four
Plaintiff's second challenge to the ALJ's decision takes aim at the ALJ's step four analysis. Here, Plaintiff advances two arguments.
1. Winfrey v. Chater
First, Plaintiff asserts that the ALJ did not follow the proper analysis as required by Winfrey v. Chater, 92 F.3d 1017 (10th Cir. 1996), when determining that Plaintiff could return to her past job as a concierge. Pl.'s Mot. 19. Specifically, Plaintiff contends that the ALJ did not properly compare Plaintiff's RFC with the physical and mental demands of a concierge, and "if the ALJ did compare the two, she did so in her head, which is impossible for [Plaintiff] to challenge, and impossible for this Court to review." Id. The Commissioner responds that the ALJ did compare the requirements of Plaintiff's past relevant work to her RFC. Def.'s Resp. 10.
Winfrey details the three phases of step four of the sequential evaluation process and the legal standard which an ALJ must follow at each phase. See Winfrey, 92 F.3d at 1023. At the first phase, an ALJ must evaluate the individual's RFC. Id.At the second phase, an ALJ must "determine the physical and mental demands of the [individual's] past relevant work." Id. At the final phase, an ALJ must determine whether the individual can meet the job demands of her past relevant work despite the limitations found in her RFC. Id.
The Court concludes that the ALJ complied with the proper legal standard, as articulated in Winfrey, at step four of her analysis. First, she crafted Plaintiff's RFC only after taking into account all of the evidence available to her in the record. The ALJ specified that Plaintiff would be limited to light work as defined in 20 C.F.R. §§ 404.1567(b), 416.967(b) [AR 25], and as discussed above, the Court has found this determination to be supported by substantial evidence. Second, the ALJ did make appropriate findings about the demands of Plaintiff's past work as a concierge. She relied on the VE's testimony and the descriptions found in the Dictionary of Occupational Titles ("DOT") to determine the demands of a concierge and related past occupations, including: office manager, customer service representative — financial, telemarketer supervisor, collections supervisor, bookkeeper, and, administrative assistance. AR 29-30. At the third phase, the ALJ wrote "in comparing the [Plaintiff's] residual functional capacity with the physical and mental demands of her work as a concierge, I find that the [Plaintiff] is able to perform it as normally performed." AR 30. The Court is satisfied that the ALJ properly considered the demands of a concierge and properly compared them to the limitations in Plaintiff's RFC. Therefore, the Court will deny Plaintiff's claim to the contrary.
2. VE Testimony
The second component of Plaintiff's step four argument is that the ALJ improperly relied on the VE's testimony regarding sedentary work. Plaintiff claims that there is an unresolved evidentiary dispute over how much weight a person doing sedentary work can carry. Plaintiff asserts that the VE's testimony on this point is in conflict with the guidance provided by the DOT. Plaintiff claims a remand is warranted to resolve this dispute. Pl.'s Mot. 20. This Court disagrees and instead concludes that the ALJ's RFC determination is supported by substantial evidence. Incorporated into her RFC determination was the finding that Plaintiff "can lift and carry 20 pounds occasionally and 10 pounds frequently." AR 25. Therefore, any dispute as to how much a person assigned to sedentary work can lift as compared to how much a person assigned to light work can lift is moot because the greater issue — whether the ALJ's RFC determination was supported by substantial evidence — has already been addressed.
For these reasons, Plaintiff's arguments that the ALJ erred at step four must fail.
C. The ALJ Did Not Fail to Develop the Record
Plaintiff's final argument is that the ALJ failed to properly develop the record because she did not order any evaluations of Plaintiff before denying disability benefits. Pl.'s Mot. 21. The Commissioner argues that it was within the ALJ's discretion to determine if consultative examinations were necessary, and, in any event, Plaintiff is unable to show any harmful legal error occurred by the decision not to order such an evaluation. Def.'s Resp. 6.
The Commissioner bears an affirmative duty to develop the record. Lamb v. Barnhart, 85 F. App'x 52, 57 (10th Cir. 2003) (unpublished) ("The ALJ must ensure that a sufficient record exists to evaluate [the claimant's] exertional and nonexertional limitations.") (citing SSR 96-8P, 1996 SSR LEXIS 5, 1996 WL 374184, at *5 (July 2, 1996)). Nevertheless, this duty is not triggered where sufficient evidence exists in the record to make a disability determination. Cowan v. Astrue, 552 F.3d 1182, 1187 (10th Cir. 2008). A claimant establishes the presence of an issue requiring further investigation by submitting "some objective evidence . . . suggesting the existence of a condition which could have a material impact on the disability decision requiring further investigation." Hawkins v. Chater, 113 F.3d 1162, 1167 (10th Cir. 1997).
In addition, SSR 12-2P, 2012 SSR LEXIS 1 provides that when there is insufficient evidence for the Commissioner to determine whether the individual has a medically determinable impairment of fibromyalgia or is disabled, the Social Security Agency may take one of a number of steps, including purchasing a consultative examination. SSR 12-2P, 2012 SSR LEXIS 1, 2012 WL 3104869 at *4. A consultative examination may be purchased to help the Commissioner assess the severity and functional effects of medically determined fibromyalgia or any other impairment. Id.
There is no mandate that the Commissioner order a consultative examination in every case, a point that Plaintiff concedes. See Pl.'s Mot. 21. Here, sufficient evidence existed in the record for the ALJ to make a disability determination, see Cowan, 552 F.3d at 1187, and it was an appropriate exercise of the ALJ's discretion not to order an additional consultative exam. Consequently, the Court will deny Plaintiff's claim that the ALJ committed reversible legal error in deciding not to order such an exam.
III. CONCLUSION
For these reasons, the Court holds that the ALJ's decision applied the correct legal standards and was supported by substantial evidence. IT IS THEREFORE ORDERED that Plaintiff's Motion is DENIED, the Commissioner's final decision is AFFIRMED, and this action is DISMISSED.
/s/ Gregory J. Fouratt
THE HONORABLE GREGORY J. FOURATT
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent
FINAL JUDGMENT
Pursuant to the Order entered concurrently herewith, the Court enters this Final Order under Federal Rule of Civil Procedure 58, entering judgment for Defendant.
.
/s/ Gregory J. Fouratt
THE HONORABLE GREGORY J. FOURATT
UNITED STATES MAGISTRATE JUDGE