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finding "none of the[] [physician's] observations constitute a 'medical opinion'" and the examiner "did not identify any functional limitations that would result from physical impairments"
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Case No. CIV-18-328-R
09-21-2018
MICHAEL LARSEN, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
Michael Larsen (Plaintiff) brings this action for judicial review of the Social Security Commissioner's final decision finding him not "disabled" under the Social Security Act. See 42 U.S.C. §§ 405(g), 1382c. United States District Judge David L. Russell has referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (b)(3) and Fed. R. Civ. P. 72(b). Doc. 13.
After a careful review of the record (AR), the parties' briefs, and the relevant authority, the undersigned recommends the Commissioner's final decision be affirmed. See 42 U.S.C. § 405(g).
I. Administrative determination.
A. Disability standard.
The Social Security Act defines "disability" as the "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). "This twelve-month duration requirement applies to the claimant's inability to engage in any substantial gainful activity, and not just his 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. Administrative Law Judge's findings.
The ALJ assigned to Plaintiff's case applied the standard regulatory analysis in order to decide whether Plaintiff was disabled during the relevant timeframe. AR 14-19; see 20 C.F.R. § 416.920(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (describing the five-step process). Specifically, the ALJ found Plaintiff:
For the parties' briefs, the undersigned's page citations refer to this Court's CM/ECF pagination. Page citations to the AR refer to that record's original pagination.
(1) had these severe impairments: chronic obstructive pulmonary disease, hypertension, a right hip disorder, a back disorder, obesity, bipolar disorder, and a vision disorder;AR 14-19.
(2) had no impairment or combination of impairments that met or medically equaled the severity of a listed impairment;
(3) had the residual functional capacity for sedentary work with some postural, environmental, and mental restrictions;
(4) had no past relevant work;
(5) had the RFC to perform jobs existing in significant numbers in the national economy and had not, therefore, been under a disability as defined by the Social Security Act since September 29, 2015, his application date.
Residual functional capacity "is the most [a claimant] can still do despite [a claimant's] limitations." 20 C.F.R. § 416.945(a)(1).
2. Appeals Council's findings.
The Social Security Administration's Appeals Council found no reason to review the ALJ's decision. Thus, the ALJ's decision is the Commissioner's final decision in this case. Id. at 1-5; see 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). Substantial evidence is "more than a scintilla, but less than a preponderance." Lax, 489 F.3d at 1084. A decision is not based on substantial evidence "if it is overwhelmed by other evidence in the record." Wall, 561 F.3d at 1052 (internal quotation marks omitted). The court will "neither reweigh the evidence nor substitute [its] judgment for that of the agency." Newbold v. Colvin, 718 F.3d 1257, 1262 (10th Cir. 2013) (citation omitted).
B. Issues for judicial review.
Plaintiff argues the ALJ's RFC determination is not supported by substantial evidence because the ALJ failed (1) to consider Plaintiff's alleged PTSD, his symptoms from other mental impairments, and his "sleep disorder," and erred in equating daily activities with the ability to work; (2) to consider the effect of Plaintiff's obesity on the RFC; (3) in finding Plaintiff's use of a cane not to be medically necessary; and (4) to weigh the opinion of a consultative examiner. Doc. 15, at 7-23.
1. Whether the ALJ erred in failing to properly consider symptoms from Plaintiff's mental impairments including post-traumatic stress disorder, and the effects of his "sleep disorder," and whether the ALJ erred in considering Plaintiff's daily activities when determining Plaintiff's RFC.
Plaintiff objects to the ALJ's step-two finding regarding Plaintiff's mental limitations. Specifically, Plaintiff states the ALJ erred in failing to list PTSD as a severe impairment. Id. at 7-8. But Plaintiff acknowledges that an ALJ's omission of an impairment at step two constitutes harmless error if the ALJ finds at least one severe impairment and continues the analysis past step two. Id. at 8-9. Nevertheless, Plaintiff contends the ALJ did not "properly" consider limitations caused by PTSD. Id. at 9-10. Plaintiff also states the ALJ erred when he failed to consider "limitations secondary to obesity, use of an ambulation device or anxiety attacks." Id. at 10. But Plaintiff does not specify what symptoms and resulting limitations are attributable to PTSD (or his other listed impairments) or how those limitations would affect his RFC. In fact, the record does not suggest that there are any symptoms attributable solely to PTSD.
Plaintiff has a history of alcohol and opioid abuse, now in remission, that exacerbated his mood problems. See AR 327. On January 1, 2014, he sought treatment at the Oklahoma Crisis Recovery Unit (OCRU) stating he was depressed and suicidal. Id. at 321. Plaintiff remained in the OCRU for observation, detox, and treatment until the staff determined his condition was stable and he was no longer suicidal. Id. at 339. He was discharged on January 7, 2014. Id.
On January 23, 2014, Plaintiff went to NorthCare seeking mental health services. Id. at 371. His initial diagnosis was possible bipolar disorder, PTSD, alcohol dependence, depression, and anxiety. Id. at 373. Plaintiff stated his mood problems began at age 22 when his father died. Id. at 376. NorthCare initiated a plan for medication and weekly therapy sessions. Id. at 383-387.
At the administrative hearing, Plaintiff testified that he had stopped using alcohol and "illegal drugs" in November 2015. Id. at 33. During the consultative examination, Plaintiff stated his "life has dramatically changed" since he stopped using alcohol. Id. at 358. Moreover, Plaintiff's therapists at NorthCare generally reported normal findings after conducting mental status examinations at each of his therapy appointments. Id. at 449, 455, 461, 467, 474, 480, 493, 501, 515, & 522. The NorthCare therapists often described Plaintiff's mood as "anxious," see, e.g., id. at 449, 455, but the ALJ found Plaintiff's mental impairments, including anxiety, would not preclude him from performing some jobs. Id. at 15, 18-19. In support of this conclusion, the ALJ noted that Plaintiff has "not required recent psychiatric hospitalization." Id. at 15.
Plaintiff states the ALJ failed to address Plaintiff's alleged "sleep disorder." Doc. 15, at 11. Although Plaintiff states he "has been diagnosed with a sleep disorder," id. at 10, his citations to the record in support of this assertion do not include a definitive diagnosis of a "sleep disorder." The first record Plaintiff cites was generated by a doctor at the OCRU upon Plaintiff's admission in January 2014. The record includes the diagnostic code "291.89" for Axis I, followed by the description, "Alcohol-induced mood, anxiety, sleep disorder or sexual dysfunction." AR 327 (emphasis added). The use of the conjunction "or" indicates that Plaintiff might be suffering from only one of these alcohol-induced disorders, but not necessarily all.
Further, it appears the doctor who made this diagnosis was referencing a code from the Diagnostic and Statistical Manual IV. In the DSM-IV, all four of these alcohol-induced disorders were classified as subparts of code 291.89. The revised manual, the "DSM-IV TR," assigned a separate diagnostic code to each of these alcohol-induced disorders. The revised manual assigned diagnostic code "291.82" to "alcohol-induced sleep disorders" while 291.89 was assigned to "alcohol-induced mood or anxiety disorders." Because it appears the doctor making this assessment was using the codes from the DSM-IV, which did not differentiate between the alcohol-induced disorders, this medical record cannot be reliably viewed as a definitive "diagnosis of a sleep disorder."
Corrections to the DSM-IV TR were made on April 9, 2013. These corrections may be reviewed at the website cited at n.5.
A summary of the changes in diagnostic codes from the DSM-IV and the DSM-IV TR may be accessed at the following website (last accessed September 12, 2018): https://www.nimhgenetics.org/interviews/befd/BEFD%20DSM-IV%20Codes%201994%20-2005-updated_09Apr2013.pdf. --------
The same is true of Plaintiff's second reference to the record, a report of Plaintiff's status on January 3, 2014, while Plaintiff was still an in-patient at OCRU. Referring to Plaintiff, the document simply states, "Reports poor sleep last night." AR 333. This notation in the medical record is not a "diagnosis" of a sleep disorder, nor does it establish that Plaintiff regularly suffers from "lack of sleep" that "causes multiple work problems such as: comprehension, pace, speed, efficiency, focus, etc." as Plaintiff suggests. Doc. 15, at 11. Plaintiff has not established that he has been diagnosed with a "sleep disorder," and the ALJ did not commit reversible error by omitting a discussion of the intake report or the report noting a night of poor sleep as an in-patient in OCRU.
The ALJ considered the evidence from non-treating sources regarding Plaintiff's mental impairments. AR 17-18. The ALJ gave little weight to the opinion of the consultative examiner, finding her opinion to be inconsistent with the rest of the evidence of record. Id. at 17. He stated that he gave great weight to the opinions of the State agency sources who reviewed the medical record initially and on reconsideration. Id. at 18, 50-80.
This Court considers "whether the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases, but [the Court] will not reweigh the evidence or substitute [its] judgment for the Commissioner's." Lax, 489 F.3d at 1084 (internal citation and quotation omitted). As Plaintiff notes, James Sturgis, Ph.D., one of the State agency doctors, stated Plaintiff would be "mentally able to handle most or all ADL but very limited socially and for CPP." Doc. 15, at 11 (citing AR 57). Plaintiff ignores the fact, however, that the same source rated both Plaintiff's "difficulties in maintaining social functioning" and his "difficulties maintaining concentration persistence and pace" as "moderate." AR 57. Ultimately, Dr. Sturgis's mental RFC included the following limitations:
Claimant can perform simple and some complex tasks. Claimant can relate to others on a superficial work basis. Claimant can adapt to a work situation.Id. at 62. The RFC contains limitations that are consistent with the opinion of the State agency doctor. The RFC limited Plaintiff to "simple, routine and repetitive tasks," stated Plaintiff could "respond to usual work situations," and could "relate to supervisors and co-workers on a superficial work basis." Id. at 16.
The ALJ properly stated the weight he was affording the opinion evidence from the State agency sources, and this Court should neither reweigh the evidence nor substitute its opinion for that of the ALJ.
At step three of the sequential evaluation, the ALJ considered the "paragraph B" criteria for meeting listing 12.04 but determined that Plaintiff had no more than moderate limitations in the four broad areas of functioning. Id. at 15. The ALJ relied in part on Plaintiff's daily activities as reported in his own Function Report and the Function Report submitted by his mother. Id. at 185-200. But the daily activities upon which the ALJ relied in assessing the paragraph B areas of functioning were relevant to the functional area he was considering. Moreover, there is no indication that the ALJ ignored Plaintiff's testimony in determining the limitations caused by Plaintiff's mental disorders. Finally, as just discussed, the ALJ's assessment of Plaintiff's mental limitations is consistent with the assessment of State agency doctor.
In sum, substantial evidence supports the ALJ's assessment of Plaintiff's mental functioning.
2. Whether the ALJ erred in failing to properly consider Plaintiff's obesity and need to use a cane and the impact on the RFC.
Plaintiff's second and third arguments center on the ALJ's RFC. Plaintiff contends the ALJ's RFC should have included limitations caused by his obesity and his need to use a cane to ambulate. Doc. 15, at 15-22.
The ALJ is responsible for assessing a claimant's RFC—not a physician. See 20 C.F.R § 416.946; SSR 96-5p, 1996 WL 374183, at *2, 4 (July 2, 1996). Moreover, "there is no requirement in the regulations for a direct correspondence between an RFC finding and a specific medical opinion on the functional capacity in question," and the ALJ need not match each aspect of the RFC determination to a specific medical condition or a specific item of medical evidence. Chapo v. Astrue, 682 F.3d 1285, 1288-89 (10th Cir. 2012). The RFC determination needs to include only such limitations as the medical record substantially supports. See Young v. Barnhart, 146 F. App'x 952, 955 (10th Cir. 2005) ("The final responsibility for determining RFC rests with the Commissioner, based upon all the evidence in the record, not only the relevant medical evidence.").
Kunal Joshi, M.D., examined Plaintiff on February 22, 2016, at the request of the Social Security Agency. AR 362. Dr. Joshi assessed Plaintiff with hypertension, asthma, narcotic addition in rehab, and anxiety/psychiatric disorders. Id. Dr. Joshi reported his findings and observations following examination of Plaintiff's back and hip:
Muscle Skeletal: tenderness over palpation directly over the right hip; pain with leg extension; able to extend right leg about 10 degrees from bed; pain with hip flexion as well[.] Gait: Able to ambulate, however visible limp seen when patient walking. Was able to climb onto the exam table with mild difficulty, and get up from sitting position with mild difficulty.Id. Plaintiff weighed 210 pounds on the day of the examination. He is 68 inches tall. Id. Dr. Joshi included this information in his report. Thus, he was aware of Plaintiff's obesity, yet he did not indicate that Plaintiff's obesity exacerbated the hip pain or had any impact on any other functional limitation. Id.
The ALJ included Plaintiff's obesity as one of his severe impairments. Id. at 14, 16. Plaintiff states his BMI is 34.5. Doc. 15, at 15. But a step-two finding requires only de minimis showing of a "severe impairment." Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016). Moreover, "[o]besity in combination with another impairment may or may not increase the severity or functional limitations of the other impairment." Titles II & XVI: Evaluation of Obesity, SSR 00-3p, 2000 WL 33952015, at *6 (May 15, 2000) (emphasis added). The effects of obesity must be evaluated "on the information in the case record." Id.
In this case, there is no evidence in the record to indicate Plaintiff's obesity resulted in functional limitations greater than the limitations the ALJ included in the RFC. Therefore, the ALJ did not err in formulating Plaintiff's RFC.
Plaintiff also contends the ALJ should have determined whether Plaintiff's use of a cane was "medically necessary." Doc. 15, at 18. Plaintiff further asserts the ALJ erred in failing to include Plaintiff's use of a cane in the RFC. Although none of the medical records indicate that Plaintiff cannot ambulate without a cane, the ALJ nevertheless did not reject Plaintiff's testimony to the contrary:
The claimant stated he could walk less than one block without a cane. The claimant stated he must use a cane for activities including boarding a bus and climbing ramps and stairs.AR 16. But the use of one cane to aid ambulation does not preclude a claimant from performing sedentary work. And the ability to ambulate is, after all, the ultimate reason the necessity of using assistive devices is relevant to a determination of a claimant's ability to work:
The regulations explain that "[t]o ambulate effectively, individuals must be capable of sustaining a reasonable walking pace over a sufficient distance to be able to carry out activities of daily living." 20 C.F.R. Part 404, Subpt. P, App. 1 § 1.00(2)(b)(2) (italics omitted). The regulations further provide that "examples of ineffective ambulation include . . . the inability to walk without the use of a walker, two crutches or two canes, [and] the inability to walk a block at a reasonable pace on rough or uneven surfaces." Id.Murdock v. Astrue, 458 F. App'x 702, 704 (10th Cir. 2012) (emphasis added). In Murdock, the ALJ concluded the claimant could perform sedentary work even though she might need to use a walker if she walked more than 100 feet. Id. at 704-05. The Tenth Circuit reversed the ALJ's decision because the regulations specify that the need to use a walker a relatively short distance negates the ability to "ambulate effectively." See id. But in this case, the Plaintiff's need to use "a cane," that is, one cane, does not render him unable to ambulate effectively. The regulation's examples of ineffective ambulation specify the need to use a walker, two crutches or two canes. 20 C.F.R. Part 404, Subpt. P, App. 1 § 1.00(2)(b)(2). The ALJ did not err in failing to include in the RFC the Plaintiff's possible need to use one cane when walking more than one block.
3. Whether the ALJ erred in failing to weigh the "opinion" of the consultative examiner.
Plaintiff contends the ALJ should have specified the weight he was affording the "opinion" of the consultative examiner, Dr. Joshi. Doc. 15, at 22-23. As discussed supra § II.A.2, Dr. Joshi reported his findings regarding Plaintiff's hip pain on palpitation, his limp when he walked, the mild difficulty he had getting onto the examination table and rising from a seated position. But none of these observations constitute a "medical opinion." Dr. Joshi did not identify any functional limitations that would result from Plaintiff's physical impairments. See 20 C.F.R. § 416.927(a)(1) ("Medical opinions are statements from acceptable medical sources that reflect judgments about your impairment(s) including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical and mental restrictions."). Plaintiff, however, would have this Court assume Plaintiff would have difficulty standing and walking "for the required two hours in an eight-hour workday without a reduction in his pace or production." Doc. 15, at 22. But because Dr. Joshi did not opine about functional limitations, the ALJ did not err in failing to assume Plaintiff could not perform sedentary work, based solely on Dr. Joshi's observations concerning Plaintiff's physical impairments.
Plaintiff further contends the ALJ erred in failing to give reasons why he did not give Dr. Joshi's "opinion" the "greatest weight." Id. at 22-23. Plaintiff misapprehends the applicable regulations in this regard. Plaintiff cites Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) for the proposition that an ALJ must first determine whether a treating physician's opinion should be given controlling weight, and, if not, what lesser weight it should be given and why. As noted above, however, Dr. Joshi did not provide a medical opinion about Plaintiff's functional limitations. More importantly, Dr. Joshi is not a "treating physician" to whom the regulations Plaintiff cites are directed. See Krauser, 638 F.3d at 1330 ("The initial determination the ALJ must make with respect to a treating physician's medical opinion is whether it is conclusive, i.e., is to be accorded controlling weight, on the matter to which it relates.") (emphasis added) (internal quotation marks and citation omitted).
III. Recommendation and notice of right to object.
For the reasons discussed above, the undersigned recommends the entry of judgment affirming the Commissioner's final decision.
The undersigned advises the parties of their right to file an objection to this Report and Recommendation with the Clerk of Court by October 12, 2018, as provided in 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises the parties 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 Magistrate Judge in this matter.
ENTERED this 21st day of September, 2018.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE