Opinion
Case No. CIV-19-15-SLP
08-30-2019
ANGELA JEWETT, Plaintiff, v. ANDREW M. SAUL, Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff seeks judicial review pursuant to 42 U.S.C. § 405(g) of the final decision of Defendant Commissioner denying her application for supplemental security income benefits under Title XVI of the Social Security Act, 42 U.S.C. § 1382. Defendant has answered the Complaint and filed the administrative record (hereinafter AR___), and the parties have briefed the issues. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended the Commissioner's decision be affirmed.
I. Administrative History and Final Agency Decision
Plaintiff protectively filed her application for supplemental security income benefits in May 2015. AR 232-36. Plaintiff initially alleged she became disabled on June 1, 2011, and later amended the onset date to May 4, 2015, due to degenerative disc, heart problems, Epstein Barr, anxiety, arthritis, hernia, strokes, and "HB." AR 232, 259, 274. The Social Security Administration denied Plaintiff's application on November 23, 2015, see id. at 105, 106-17, and on reconsideration on July 20, 2016. AR 118, 119-35.
Plaintiff appeared with counsel and testified at an administrative hearing conducted before an Administrative Law Judge ("ALJ") on October 13, 2017. AR 34-95. A vocational expert ("VE") testified at the hearing. AR 83-92. The ALJ issued a decision in which she found Plaintiff was not disabled within the meaning of the Social Security Act. AR 14-27. Following the agency's well-established sequential evaluation procedure, the ALJ found at the first step that Plaintiff had not engaged in substantial gainful activity since May 4, 2015. AR 19. At the second step, the ALJ found Plaintiff had severe impairments of disorder of the spine (degenerative disc disease of the lumbar spine, moderate), an affective disorder, an anxiety disorder, a history of a cerebrovascular accident (multiple foci of acute ischemia white matter consistent with remote and/or chronic insult), and arthropathy. Id. At the third step, the ALJ found these impairments were not per se disabling as Plaintiff did not have an impairment or combination of impairments that met or medically equaled the requirements of a listed impairment. AR 20.
At step four, the ALJ found Plaintiff had the residual functional capacity ("RFC") to perform a limited range of light work. AR 22. Specifically, Plaintiff can only occasionally stoop and is limited to simple and routine tasks consistent with unskilled work and involving no interaction with the general public. Id.
The ALJ noted Plaintiff has no past relevant work. AR 25. Relying on the VE's testimony as to the ability of a hypothetical individual with Plaintiff's work history, age, education, and determined RFC, the ALJ concluded Plaintiff could perform the jobs of mail clerk, laundry worker, bakery worker, final assembler/optical goods, laminator I, and patcher. AR 26. Based on these findings, the ALJ concluded Plaintiff had not been under a disability, as defined by the Social Security Act, from May 4, 2015 through the date of the decision. AR 27.
The Appeals Council denied Plaintiff's request for review, and therefore the ALJ's decision is the final decision of the Commissioner. See 20 C.F.R. § 404.981; Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009).
II. Issue Raised
Plaintiff raises one issue on appeal. Plaintiff argues the ALJ failed to properly consider the opinion of consultative examiner, Dr. Kara Rodgers. Plaintiff's Opening Brief (Doc. No. 15) at 3-8.
III. General Legal Standards Guiding Judicial Review
The Court must determine whether the Commissioner's decision is supported by substantial evidence in the record and whether the correct legal standards were applied. Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citations and quotations omitted). The "determination of whether the ALJ's ruling is supported by substantial evidence must be based upon the record taken as a whole. Consequently, [the Court must] remain mindful that evidence is not substantial if it is overwhelmed by other evidence in the record." Wall, 561 F.3d at 1052 (citations, quotations, and brackets omitted).
The Social Security Act authorizes payment of benefits to an individual with disabilities. 42 U.S.C. § 401 et seq. A disability is an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); accord 42 U.S.C. § 1382c(a)(3)(A); see 20 C.F.R. §404.1509 (duration requirement). Both the "impairment" and the "inability" must be expected to last not less than twelve months. Barnhart v. Walton, 535 U.S. 212 (2002).
The agency follows a five-step sequential evaluation procedure in resolving the claims of disability applicants. See 20 C.F.R. § 404.1520(a)(4), (b)-(g). "If the claimant is not considered disabled at step three, but has satisfied her burden of establishing a prima facie case of disability under steps one, two, and four, the burden shifts to the Commissioner to show the claimant has the [RFC] to perform other work in the national economy in view of her age, education, and work experience." Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005). "The claimant is entitled to disability benefits only if he is not able to perform other work." Bowen v. Yuckert, 482 U.S. 137, 142 (1987).
IV. Consultative Examiner Opinion
Plaintiff contends the ALJ failed to properly weigh the opinion of consultative examiner, Dr. Rodgers, by cherry-picking the portions to discuss in her decision that did not contradict the determined RFC. Doc. No. 15 at 3-8. In her decision, the ALJ stated the following regarding Dr. Rodgers' consultative examination and findings:
Upon consultative mental status examination conducted on November 5, 2015, eye contact was good and she ambulated with no difficulties. She evidenced no psychomotor agitation or retardation. Her grooming and hygiene were average. She denied any current suicidal or homicidal ideation, plan or intent. She was cooperative and her speech evidenced no problems. She had no difficulty expressing her thoughts clearly. She denied any history of experiencing auditory or visual hallucinations and did not evidence any signs of a thought disorder or psychotic process. She denied any symptoms of bipolar disorder. She was fully oriented, identified common objects, accurately added three single digits, followed a 3-stage command, was able to abstractly reason and had good social judgment. She demonstrated average working memory. She
evidenced the ability to tract the course and flow of the exam, concentrate, and focus; and displayed an adequate fund of knowledge. In concluding, the examiner characterized the claimant's mental status exam as unremarkable (Exhibit 9F).AR 24.
As noted, in the RFC, the ALJ limited Plaintiff to unskilled work involving only simple and routine tasks. AR 22. In arguing the ALJ failed to properly consider Dr. Rodgers' opinion, Plaintiff relies on the following excerpt from Dr. Rodgers' report:
In summary, Ms. Jewett endorsed several symptoms of depression, which appears to be moderate in nature at this time, but has been severe several times in the past. She also struggles with anxiety related to worry and stress. She also has panic attacks on occasion. She seems to have poor coping abilities to manage her symptoms at this time and it is likely that stress and pressure would exacerbate her symptoms. She may experience some cognitive difficulties at times, likely due to stress and/or pressure rather than a cognitive disorder.AR 663-64. Plaintiff asserts this portion of the opinion contradicts the RFC. Doc. No. 5-6. Although the ALJ limited Plaintiff to simple and routine tasks, relying on Chapo v. Astrue, 682 F.3d 1285 (10th Cir. 2012), Plaintiff argues said limitation does not sufficiently account for Dr. Rodgers' finding that Plaintiff has poor coping abilities and that stress or pressure will exacerbate her symptoms of depression, anxiety, and possible cognitive difficulties. Doc. No. 15 at 5-6. However, Chapo is clearly distinguishable from the present case.
In Chapo, the consultative examiner specifically found that the plaintiff suffered from "moderate to extreme limitations in all categories of mental functioning. He concluded that in her present condition and in the foreseeable future, she is not psychologically stable to where she would be able to function in a competitive job market. She requires continued psychiatric care and treatment." Id. at 1289 (brackets, quotations, and footnote omitted). As the court in Chapo noted, while this overall description was relevant, the consultative examiner's "findings with respect to specific functional areas [we]re crucial for purposes of the mental RFC assessment." Id. The examiner found that the plaintiff suffered from marked to extreme limitations within almost every subcategory listed under the ability to follow instructions and work procedures, attention and concentration, reliability, independent decision-making/need for supervision, interaction with supervisors and co-workers, social interaction, and adaptation and orientation to work setting. Id. at 1289-90. Considering the extreme nature of the consultative examiner's opinion, the court concluded that the restriction to "simple" work was not "sufficient to capture the various functionally distinct mental limitations recognized by [the consultative examiner]." Id. at 1290 n.3.
Clearly, Chapo is highly distinguishable from the present case. The consultative examiner in Chapo concluded the plaintiff experienced extreme limitations in nearly every aspect related to her ability to work. By contrast, in the present case, Dr. Rodgers did not identify any specific functional limitation but merely stated generally that Plaintiff's depression symptoms are exacerbated by stress and pressure and that she may experience cognitive difficulties due to the same. AR 663-64.
Unskilled work generally requires only the following: (1) "[u]nderstanding, remembering, and carrying out simple instructions"; (2) "[m]aking judgments that are commensurate with the functions of unskilled work—i.e., simple work-related decisions"; (3) "[r]esponding appropriately to supervision, co-workers and usual work situations"; and (4) "[d]ealing with changes in a routine work setting." Social Security Ruling 96-9p, 1996 WL 374185, at *9. Plaintiff has not presented any evidence beyond her own speculation that a limitation to unskilled work, and specifically simple and routine tasks, with no interaction with the public is not sufficient to accommodate Dr. Rodgers' findings. Doc. No. 15 at 5-7; see, cf., Vigil v. Colvin, 805 F.3d 1199, 1203-04 (10th Cir. 2015) (suggesting that there may be some cases, such as Chapo, where a limitation to unskilled work does not adequately address a plaintiff's mental limitations but it can be adequate in cases where the mental limitations are more general, such as moderate limitations in concentration, persistence, or pace).
The ALJ specifically noted Dr. Rodgers' examination and report. There is nothing in the record to suggest the ALJ's resulting RFC limitation to unskilled work that involves only simple and routine tasks does not sufficiently account for the same. Indeed, as the Commissioner points out, two state agency psychologists performed a consultative review of the record, including Dr. Rodgers' report, and concluded Plaintiff was not significantly limited in her ability to understand and remember and carry out very short and simple instructions, perform simple tasks with routine supervision, perform activities within a schedule, sustain an ordinary routine without supervision, make simple work-related decisions, ask simple questions, request assistance, and accept instructions. AR 113-15, 131-33. The ALJ gave great weight to these opinions and Plaintiff did not challenge her decision in this regard. AR 25.
RECOMMENDATION
In view of the foregoing findings, it is recommended that judgment enter affirming the decision of the Commissioner. Plaintiff is advised of her right to file an objection to this Report and Recommendation with the Clerk of this Court on or before September 19 , 2019 in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter.
Dated this 30 day of August, 2019.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE