SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE

REPORT AND RECOMMENDATION

Leonard Laurel (Plaintiff) brings this action for judicial review of the Defendant Commissioner of Social Security's final decision that Plaintiff was not "disabled" under the terms of the Social Security Act. See 42 U.S.C. §§ 405(g), 423(d)(1)(A). United States District Judge Robin J. Cauthron 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. 16. Following a careful review of the parties' briefs, the administrative record (AR), and the relevant authority, the undersigned recommends the court affirm the Commissioner's decision.

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 that 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 (ALJ) findings.

The ALJ assigned to Plaintiff's case applied the standard regulatory analysis to decide whether Plaintiff was disabled during the relevant timeframe. See AR 13-21; see also 20 C.F.R. § 404.1520(a)(4); Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (describing the five-step process). Specifically, the ALJ found Plaintiff:

(1) had not engaged in substantial gainful activity since his alleged onset date of February 15, 2014;

(2) had the severe impairments of obesity, status post cervical spine fusion, degenerative disc disease, degenerative joint disease, carpal tunnel syndrome, obstructive sleep apnea, asthma, and bipolar disorder;

(3) had no impairment or combination of impairments that met or medically equaled the severity of a listed impairment;

(4) had the residual functional capacity to perform sedentary work as defined in 20 C.F.R. § 404.1567(a) except no ladders, ropes or scaffolds, occasional climbing ramps or stairs, balancing, stooping, crouching, crawling or kneeling, frequent handling and finger1ing, frequent exposure to extreme temperatures, humidity, environmental and respiratory irritants, sit/stand option on an hourly basis, simple routine and repetitive tasks, no strict production requirements, simple work related decisions, occasional changes in the work setting, no public contact, occasional contact with supervisors and co-workers;

(5) could not perform his past relevant work;

(6) could perform jobs that exist in significant numbers in the national economy, such as addresser, tube operator, and document preparer; and therefore

(7) was not disabled.

2. Appeals Council findings.

The SSA's Appeals Council denied Plaintiff's request for review on February 14, 2018, so the ALJ's unfavorable decision is the Commissioner's final decision in this case. Id. at 1-6; 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). In applying that standard, 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 contends that the ALJ (1) erred by including in the RFC a sit/stand limitation that was "not sufficiently specific" with the respect to the amount of time Plaintiff could spend in each position; (2) failed to properly assess whether Plaintiff's severe cervical impairment met or equaled Listing 1.04; (3) did not adequately consider whether Plaintiff had the severe impairment of intermittent explosive disorder; and (4) failed to assign weight to the opinion of consultative psychological examiner Cynthia Repanshek, Psy.D. Doc. 17, at 3-10.

1. ALJ's evaluation of sit/stand option.

Plaintiff argues that the ALJ erred by including an insufficiently specific sit/stand option in the hypothetical posed to the vocational expert and in the RFC. Id. at 3-6. Citing SSR 96-9p, Plaintiff contends that the ALJ must, "with specificity," identify not only the frequency at which Plaintiff would need to change positions but also "how much time would be spent in each position or the length of time needed to stand." Id., at 3-4. Plaintiff argues that the RFC, which assesses Plaintiff as being able to sit and stand on "an hourly basis," AR 16, is "silent regarding how much time each position . . . ." Doc. 17, at 5. Plaintiff argues that the sit/stand limitation assessed by the ALJ suffered from a "lack of specificity" with respect to how often Plaintiff would need to change positions and the time spent in each position. Id.

When including a sit/stand limitation in an RFC, adjudicators must be specific about how often an individual would need to alternate sitting and standing. See, e.g., Vail v. Barnhart, 84 F. App'x 1, 4-5 (10th Cir. 2003) ("[A]ccording to [SSR 96-9p], the description of an RFC in cases in which a claimant can perform less than the full range of work 'must be specific as to the frequency of the individual's need to alternate sitting and standing.'"); Verstraete v. Astrue, No. 11-1404-SAC, 2013 WL 238193, at *3-5 (D. Kan. Jan. 22, 2013) (discussing the application of SSR 96-9p, SSR 83-12, and the relevant case law and noting that courts in the Tenth Circuit "have clearly and consistently indicated since 2000 that the RFC assessment must be specific as to the frequency of the individual's need to alternate sitting and standing when plaintiff is limited to light or sedentary work"). Moreover, this Court has repeatedly found, for example, that a restriction to "occasional" sitting and standing was insufficiently specific to form the basis for an RFC. See, e.g., Mettler v. Comm'r of Soc. Sec. Admin., No. CIV-16-1345-SM, 2017 WL 3392785, at *4 (W.D. Okla. Aug. 7, 2017); Edwards v. Comm'r of Soc. Sec. Admin., No. CIV-16-599-SM, 2017 WL 1628978, at *1 (W.D. Okla. May 1, 2017).

Here, the question is not whether the ALJ was specific about the frequency with which Plaintiff would need to alternate between sitting and standing, but whether the meaning of the phrase "on an hourly basis" was sufficiently clear for the vocational expert to evaluate the hypotheticals posed by the ALJ. Plaintiff argues that this phrase means Plaintiff "needs to get up every hour" but that the phrase is functionally ambiguous. Doc. 17, at 5. Consequently, Plaintiff argues, the lack of specificity as to how long he should spend in each position is a "critical" omission, which makes it difficult for the VE to determine what impact the sit/stand restriction would have on Plaintiff's productivity. See id. The Commissioner offers a different interpretation, arguing that the plain meaning of the phrase "on an hourly basis" would allow Plaintiff to change positions "at least every hour, i.e., alternate one hour standing with one hour sitting." Doc. 24, at 11.

Plaintiff is correct that the ALJ could have been more precise in assessing the sit/stand limitation—for example, by noting that Plaintiff could "alternate sitting and standing" on an hourly basis—which would have made it clear that Plaintiff could spend one hour at a time in each position. However, the meaning of the ALJ's RFC "on an hourly basis" restriction is clear, and the vocational expert had no difficulty understanding this phrase when evaluating the hypotheticals posed by the ALJ. AR 78-83; see Wahpekeche v. Colvin, No. CIV-14-83-L, 2015 WL 1384370, at *7 (W.D. Okla. Mar. 25, 2015) ("Employing a common sense analysis of the decision, the ALJ clearly stated that the Plaintiff would need to alternate positions between standing/walking and sitting at least once every hour. . . . Therefore, the record provides substantial evidence to support the ALJ's step four determination."), aff'd, 640 F. App'x 781 (10th Cir. 2016). Substantial evidence supports this portion of the RFC.

2. ALJ's evaluation of Listing 1.04.

Plaintiff argues that his musculoskeletal impairment meets Listing 1.04(A). See Doc. 17, at 6-7. Plaintiff contends that his most recent CT scan shows that his fusion has not healed, which meets the requirements for disability under the listing. Id. Plaintiff contends that most fusions consolidate "within 6-12 months" and that since Plaintiff's cervical spine has not completely fused, he "cannot be expected to work and met the Listing." Id. at 7.

Listing 1.04(A) requires the existence of a spinal disorder (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord, accompanied either by evidence of nerve root compression, spinal arachnoiditis, or lumbar spinal stenosis resulting in pseudoclaudication. Evidence of nerve root compression is:

characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine).

Plaintiff's claim that his cervical spine did not properly fuse following surgery is questionable. In support of this claim, Plaintiff cites a CT scan of his cervical spine conducted on June 19, 2015. Doc. 17, at 6-7. The physician interpreting this scan, Shon Cook, MD, found:

excellent instrumentation placement and what looks like a sliver of continuous bone growth through the anterior C6-C7 disc space, but there is not much bone through the spacer. There is no lucency around the screws. The fusion appears to be solid, but I can't be sure just with this CT. Nothing needs to be done, but if the plate ever needs to be removed, fusion should be confirmed with flexion and extension x-rays.

The relevant question here is not whether Plaintiff's condition is such that he "cannot be expected to work" but whether Plaintiff's condition meets or equals the relevant listing. In evaluating Plaintiff's cervical impairment, the ALJ noted that physical examinations conducted during the relevant period "generally showed benign findings including normal gait and normal strength" and that Plaintiff's reports of pain and other symptoms were "offset by generally benign presentations noted elsewhere in the record and by evidence of effective treatment." AR 17. As a result, the ALJ found that Plaintiff's condition did not meet Listing 1.04. Id. at 14. Furthermore, neither of the physicians who reviewed the record and offered medical opinions in this case—State agency consultants Nabeel Uwaydah, MD, and Ronald Painton, MD—found that Plaintiff's condition met or equaled any listings. Id. at 94-95, 108-10. Therefore, substantial evidence supports the ALJ's finding.

3. ALJ's evaluation of intermittent explosive disorder.

Plaintiff argues that the ALJ erred by failing to include intermittent explosive disorder (IED) among Plaintiff's severe impairments. Doc. 17, at 7. Plaintiff contends that the ALJ improperly found that he has only moderate limitations in interacting with others and argues—by citing the observations of consultative psychological examiner Cynthia Repanshek, Psy.D.—that the existing RFC is a "bad idea" and that Plaintiff actually has marked limitations in getting along with others. Id. at 7-8.

RFC determinations hinge on the functional limitations stemming from Plaintiff's impairments, rather than how Plaintiff's impairments are classified. See Scull v. Apfel, 2000 WL 1028250, at *1 (10th Cir. July 26, 2000) (stating disability "determinations turn on the functional consequences, not the causes, of a claimant's condition"). In assessing Plaintiff's mental impairments, the ALJ discussed at length the results of Dr. Repanshek's examination, including the diagnosis of IED. The ALJ found that Dr. Repanshek's examination was consistent with the medical record, which showed "normal speech, anxious moods or normal moods and goal-directed thought process," AR 18, even though Dr. Repanshek was the only expert to diagnose Plaintiff with this condition. As a result, the ALJ performed an adequate evaluation of Plaintiff's mental impairments and assessed an RFC consistent with his findings. See id. at 16-19. Thus, the exclusion of IED as an impairment has no impact on the case since the ALJ considered all the relevant medical and opinion evidence when assessing the RFC and based his final determination on the functional consequences of Plaintiff's mental impairments.

Accepting Plaintiff's interpretation of the record would amount to reweighing the evidence and substituting the court's judgment for that of the Commissioner in a manner inconsistent with Tenth Circuit case law. See Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008); see also Lax, 489 F.3d at 1084 ("The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence. We may not displace the agency's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.") (internal quotation marks and citations omitted). Accordingly, substantial evidence supports the ALJ's findings concerning Plaintiff's mental impairments.

4. ALJ's evaluation of the consultative examination.

Lastly, Plaintiff argues that the ALJ erred by not assigning weight to the opinion of consultative psychological examiner Cynthia Repanshek, Psy.D. Doc. 17, at 9. Plaintiff contends that the "Court will not be able to ascertain what weight" the ALJ assigned Dr. Repanshek's opinion because "the decision does not say." Id. at 10.

Plaintiff's argument is predicated upon a misunderstanding about what constitutes an "opinion" under Social Security regulations. Plaintiff's argument that the ALJ erred by not weighing Dr. Repanshek's opinion is incorrect because the record contains no such opinion. Social Security regulations define "medical opinions" as "statements from acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions." 20 C.F.R. § 404.1527(a)(1). For an ALJ to evaluate and assign weight to a medical opinion, a physician must provide information "about the nature and severity of [a claimant's] physical limitations, or any information about what activities [he] could still perform" despite these limitations. Cowan v. Astrue, 552 F.3d 1182, 1189 (10th Cir. 2008); see 20 C.F.R. § 404.1527(a)(2).

Dr. Repanshek performed an in-person examination of Plaintiff on November 19, 2015. AR 822-26. The ALJ discussed the results of this examination in the hearing decision but did not need to assign weight to it because Dr. Repanshek did not offer an opinion concerning Plaintiff's functional limitations. Id. at 18.

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 November 13, 2018, under 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 22d day of October, 2018.

/s/_________

SUZANNE MITCHELL

UNITED STATES MAGISTRATE JUDGE