Opinion
No. CIV-18-208-SLP
11-16-2018
PATSY NEWTON, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of 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 disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. The Commissioner 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 Agency Decision
Plaintiff applied for disability benefits on May 20, 2015. AR 160-61. Plaintiff alleged she became disabled beginning on September 16, 2014, due to type II diabetes, neuropathy in hands and feet, hypertension, congestive heart failure, and heart attack. AR 160, 219. The Social Security Administration denied Plaintiff's application on August 12, 2015, see id. at 69, 70-75, and on reconsideration on October 12, 2015. AR 76, 77-83.
Plaintiff appeared with counsel and testified at an administrative hearing conducted on October 4, 2016, before an Administrative Law Judge ("ALJ"). AR 36-68. A vocational expert ("VE"), David Couch, also testified at the hearing. AR 61-66. On January 26, 2017, the ALJ issued a decision in which she found Plaintiff was not disabled through the date of the decision. AR 21-31.
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 September 16, 2014. AR 26. At the second step, the ALJ found Plaintiff had severe impairments of obesity, hypertension, diabetes mellitus, neuropathy, arthritis, and migraines. 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 27. At step four, the ALJ found Plaintiff had the residual functional capacity ("RFC") to perform medium work subject to the limitations that she can do no more than frequent climbing of ladders, ropes, and stairs and no more than frequent performance of postural activities, such as bending, stooping, kneeling, squatting, or crawling. AR 27.
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 her past relevant work as hotel housekeeper. AR 31. Based on this finding, the ALJ concluded Plaintiff had not been under a disability, as defined by the Social Security Act, from September 16, 2014 through January 26, 2017, the date of the decision. Id.
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. Plaintiff's Argument
On appeal, Plaintiff raises four issues. Doc. No. 25. First, Plaintiff argues the ALJ erred by not including non-exertional (mental) limitations in the RFC. Id. at 9-10. Second, Plaintiff asserts the ALJ erred by failing to make findings regarding the physical and mental demands of Plaintiff's past relevant work and instead, delegating that responsibility to the VE. Id. at 10-14. Third, Plaintiff contends the ALJ erred by not incorporating into the RFC the accommodations Plaintiff is provided to perform her current job as a hotel housekeeper. Id. at 14-20. Finally, Plaintiff argues the ALJ failed to properly weigh the opinion of the consultative examiner, Dr. Brian Birdwell. Id. at 20-22.
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) (citation 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, 416.909 (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), 416.920(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 [or she] is not able to perform other work." Bowen v. Yuckert, 482 U.S. 137, 142 (1987).
IV. Analysis
1. Non-exertional limitations
Plaintiff contends the ALJ erred by failing to include non-exertional limitations, specifically alleged difficulties reading, writing, and understanding instructions, in the RFC. Doc. No. 25 at 9-10. However, presuming without deciding that the ALJ erred in this respect, it does not conclude the inquiry. Exercising common sense in reviewing the ALJ's decision requires the Court to conduct a harmless error analysis. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012).
The ALJ found, based on the VE's testimony, that Plaintiff could perform her past relevant work as a hotel housekeeper. AR 31. This job is categorized as unskilled, light work, and has a specific vocational preparation rating of two, requiring "'little or no judgment to do simple duties that can be learned on the job in a short period of time.'" Chavez v. Barnhart, 126 F. App'x 434, 436 (10th Cir. 2005) (quoting 20 C.F.R. § 416.968(a)); see also Dictionary of Occupational Titles ("DOT"), 323.687-014, 1991 WL 672783. Similarly, the DOT indicates that the necessity of "taking instructions-helping" in the housekeeper job is "not significant." DOT, 323.687-014, 1991 WL 672783.
With regard to reading and writing limitations, DOT rates the General Educational Development ("GED") required of the worker for satisfactory job performance. GED addresses reasoning development, mathematical development, and language (reading, writing, speaking) development. DOT Appendix C-Components of the Definition Trailer, 1991 WL 688702. The DOT categorizes reading and writing for the housekeeper job is as Level 1, which is the lowest level in the DOT descrptions. See Turner v. Colvin, No. 15-CV-0040-CVE-FHM, 2016 WL 1169506, at *7 (N.D. Okla. March 22, 2016) ("[L]anguage level one is the lowest level in DOT descriptions and is based upon a combination of reading, writing, and speaking." (citing DOT Appendix C-Components of the Definition Trailer)); Flores v. Colvin, No. CIV 14-1008 JB/KBM, 2016 WL 10592157, at *14 (D.N.M. Feb. 10, 2016) ("Level one is the lowest category for language within the GED scale and is consistent [with] Dr. Arcuri's findings as to Plaintiff's first-grade reading level. . . . A language level of one is also appropriate in cases, like this, where a plaintiff claims total illiteracy." (citing Davison v. Colvin, 596 F. App'x 675, 682 (10th Cir. 2014)).
Consequently, the undersigned concludes that inclusion in the RFC of a limitation related to Plaintiff's ability to read, write, or understand instructions would not negate Plaintiff's ability to perform the job of hotel housekeeper . Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004). Therefore, if the ALJ erred by not including the noted non-exterional limitations in the RFC, any such error was harmless. Id.
Plaintiff also includes a conclusory statement that the ALJ erred by failing to include limitations in the RFC resulting from her obesity, hypertension, diabetes mellitus, neuropathy, arthritis, or migraines. Doc. No. 25 at 9-10. However, Plaintiff never identifies the alleged limitations resulting from these conditions. The Court cannot "address an issue that has been inadequately developed or argued on appeal." Simon v. Berryhill, No. CIV-17-954-C, 2018 WL 2437193, at *6 (W.D. Okla. Apr. 16, 2018) (quotations omitted); see also Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994) (holding that perfunctory complaints of error that fail to develop an issue are insufficient to invoke appellate review); Holland v. Colvin, No. CIV-14-184-R, 2015 WL 1003615, at *6 (W.D. Okla. March 5, 2015) ("The court is unable to address contentions for which a claimant fails to develop the factual and legal bases for his arguments. . . . . On judicial review, 'it is not our role to shore up [Plaintiff's] argument for him . . . .'" (quoting Chrismon v. Colvin, 531 F. App'x 893, 896 (10th Cir. 2013)).
2. Plaintiff's Past Relevant Work
In her second argument on appeal, Plaintiff contends the ALJ failed to make required findings regarding the demands of Plaintiff's past relevant work and instead delegated the task to the VE. During step four of the sequential evaluation process, "the ALJ must make findings regarding the physical and mental demands of the claimant's past relevant work. . . . . To make the necessary findings, the ALJ must obtain adequate 'factual information about those work demands which have a bearing on the medically established limitations.'" Winfrey v. Chater, 92 F.3d 1017, 1024 (10th Cir. 1996) (quoting SSR 82-62, 1982 WL 31386, at *3). While the ALJ may rely upon the plaintiff's own reporting as to the pertinent demands of past relevant work, see 20 C.F.R. §§ 404.1560(b)(2), 404.1565(b); SSR 82-62, 1982 WL 31386, at *3, the ALJ may also rely upon other sources, including the DOT or the testimony of a VE. See 20 C.F.R. § 404.1560(b)(2); Hayden v. Barnhart, 374 F.3d 986, 991 (10th Cir. 2004); Doyal, 331 F.3d at 761; Winfrey, 92 F.3d at 1025.
In Winfrey, the Tenth Circuit reversed the decision of the Commissioner because an ALJ effectively delegated the task of determining the demands of the plaintiff's past relevant work to a VE. Winfrey, 92 F.3d at 1024-25. The Tenth Circuit explained that while an ALJ may rely on vocational information supplied by a VE, the ALJ may not abandon her role as fact-finder to the VE. Id. As part of this obligation, the ALJ must articulate the factual findings underlying her determinations in a way that would allow an appellate court to review whether the findings are supported by substantial evidence. See id. at 1025 ("When . . . the ALJ makes findings only about the claimant's limitations, and [a determination regarding demands of the claimant's past relvant work] takes place in the VE's head, we are left with nothing to review.").
The distinction between improper delegation and proper reliance is one of substance, not form. In Doyal, the Tenth Circuit rejected the plaintiff's argument the ALJ had delegated evaluation of the plaintiff's past relevant work to the VE where the ALJ had "quoted the VE's testimony approvingly, in support of his own findings." See Doyal, 331 F.3d at 761. The appellate court explained: "While the ALJ did not use the phrase 'I find' in connection with his conclusion . . . , the form of words should not obscure the substance of what the ALJ actually did." Id.
The circumstances here are more analogous to Doyal than to Winfrey. As in Doyal, the ALJ made all the necessary findings regarding Plaintiff's RFC and included in that RFC all limitations that were supported by substantial evidence. AR 26-30; see also Section IV(1), supra. Compare Doyal, 331 F.3d at 760 (stating that "the ALJ made the RFC findings required . . . [by the step-four] analysis") with Winfrey, 92 F.3d at 1023-24 (holding that the ALJ's RFC determination did not accurately reflect the plaintiff's physical or mental limitations). Next, the ALJ properly relied on testimony by the VE regarding whether a hypothetical claimant could meet the DOT demands for the occupation of housekeeper, one of Plaintiff's prior jobs. AR 31, 62-65. At the hearing, the ALJ examined the VE on this point, the VE referenced the DOT requirements for the housekeeper job, and the ALJ asked whether, under various sets of functional limitations, the hypothetical claimant could meet the requirements. AR 62-65. In her decision, the ALJ cited the VE's testimony and stated her conclusion that under the RFC as adopted the Plaintiff could perform the job in question. AR 31.
This analysis is consistent with Doyal and in contrast to Winfrey, where the ALJ "made no inquiry into, or any findings specifying" the demands of the plaintiff's past work. Winfrey, 92 F.3d at 1024; see also Best-Willie v. Colvin, 514 F. App'x 728, 738 (10th Cir. 2013) (finding no error where the ALJ relied on VE's testimony in support of the ALJ's findings regarding the plaintiff's past relevant work); Barker v. Astrue, 459 F. App'x 732, 742 (10th Cir. 2012) ("The ALJ based [the conclusion the claimant could perform past relevant work as generally performed] on a [VE's] response to a hypothetical question involving an individual with an RFC matching [the plaintiff's]. [Plaintiff] has not challenged the [VE's] qualifications, nor does she assert that the ALJ improperly interpreted the expert's testimony on this point. Thus, we find no legal error in the ALJ's decision . . . ." (citation omitted)); Westbrook v. Massanari, 26 F. App'x 897, 903 (10th Cir. 2002) ("Our holding in Winfrey [] is not designed to needlessly constrain ALJs by setting up numerous procedural hurdles that block the ultimate goal of determining disability. Rather, its concern is with the development of a record which forms the basis of a decision capable of review. . . . The duty is one of inquiry and factual development." (citation, quotations, and brackets omitted)). Here, the undersigned finds no error in the ALJ's reliance upon the VE's testimony, and such reliance did not render the ALJ's step-four decision unsupported by substantial evidence.
Plaintiff's arguments on appeal are by no means models of clarity. To the extent Plaintiff intended to argue that she had not previously performed the job of hotel housekeeper for a sufficient length of time to constitute past relevant work and/or substantial gainful activity, this argument clearly fails. The VE specifically testified, accurately relying on Plaintiff's past earnings records, that Plaintiff had performed the job of hotel housekeeper in 2006 and 2007 for a sufficient length of time to constitute substantial gainful activity. AR 63, 65, 168, 172-73, 205, 220, 225, 271. See 20 C.F.R. § 404.1560(b)(1) (defining past relevant work as "work that you have done within the past 15 years, that was substantial gainful activity, and that lasted long enough for you to learn to do it."). --------
3. Plaintiff's Current Job Accommodations
In her third basis for appeal, Plaintiff asserts the ALJ erred by not including the accommodations she currently receives in her job as a hotel housekeeper into the RFC. Plaintiff testified that she is supposed to clean 20 rooms during her shift but she is unable to do so. AR 49-52. Instead, Plaintiff generally only cleans ten rooms. Id. Her employer also allows her to take unlimited breaks, and due to daily headaches, she takes 20-40 minute breaks three times per day. AR 56. She also sits down to rest when she feels as if she is going to blackout until the feeling subsides. AR 58-60. Her employer also permits her to go home when her blackout episodes are more severe. AR 59.
Plaintiff does not cite any authority requiring an ALJ to include current job accommodations in a plaintiff's RFC. Moreover, 20 C.F.R. § 404.1560(b)(2), (3) provides that an ALJ may find a plaintiff not disabled at step four of the sequential evaluation process if she determines the plaintiff can perform her past releavnt work as she actually performed it or as it is genearlly performed. See also SSR 82-61, 1982 WL 31387, at *2 ("[W]here the evidence shows that a claimant retains the RFC to perform the functional demands and job duties of a particular past relevant job as he or she actually performed it, the claimant should be found to be 'not disabled.'"). Plaintiff's argument focuses on her ability to perform her past relevant work as a hotel housekeeper as actually performed. Doc. No. 25 at 6, 16-18. However, the ALJ determined Plaintiff could perform the hotel housekeeper job as it is generally performed. AR 31 ("In comparing the claimant's [RFC] with the physical and mental demands of [a hotel housekeeper job], I find that the claimaint is able to perform it as actually and generally performed.") (emphasis provided)). Plaintiff does not present any challenges to the latter finding. Accordingly, this argument does not provide a basis for reversal of the Commissioner's decision.
4. Consultative Examiner's Opinion
Plaintiff contends the ALJ failed to properly consider the opinion of consultative examiner, Dr. Birdwell. She contends Dr. Birdwell found that Plaintiff suffered from chest pain and discomfort two times per month, the pain is sharp, precipitated by stress, and lasts three to four minutes. Doc. No. 21 at 21. Plaintiff also notes Dr. Birdwell's indication that the measure Plaintiff takes for immediate relief when this pain occurs is to lie down and rest. Id. On appeal, Plaintiff contends the ALJ failed to weigh Dr. Birdwell's chest discomfrort assessment and erred by not including a need for unscheduled breaks in the RFC. Id.
When assessing a medical opinion, the ALJ must consider the factors listed in 20 C.F.R. § 404.1527(c) and give good reasons for the weight he assigns to the opinion. See Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003). Those factors include, but are not limited to, the nature and extent of the treatment relationship, including the treatment provided and the kind of examination or testing performed, the degree to which the physician's opinion is supported by relevant evidence, and the consistency between the opinion and the record as a whole. Id. at 1300-01.
The ALJ specifically discussed Dr. Birdwell's examination records in her decision. AR 28. She stated that Dr. Birdwell examined Plaintiff on July 31, 2015, and accurately summarized his findings as follows:
[Plaintiff] demonstrated full grip strength and full manipulation of her hands and arms. She demonstrated full range of motion in all extremities. She had no issues with cardiovascular, respiratory or neurological function. She possessed full range of motion in all extremities. She exhibited negative straight leg raising and ambulated with a steady, safe gait. The examiner noted that the claimant was a poor historian and hence he could not affirmatively make any diagnosis except for morbid obesity based upon height and weight factors.Id.
Reviewing the record, the undersigned concludes Plaintiff's reliance on Dr. Birdwell's opinion appears to be misguided, at best. As the ALJ noted, Dr. Birdwell did not make any affirmative diagnosis beyond morbid obesity. AR 28, 348. Additionally, Dr. Birdwell specifically stated, "I cannot report any deficits on this exam." AR 348. In asserting her argument, Plaintiff is relying on an additional document Dr. Birdwell completed entitled, "Description of Chest Discomfort." AR 353. Upon review, it is clear that in completing this document, Dr. Birdwell was merely recording Plaintiff's subjective complaints/descriptions. Id. Nowhere in his records does Dr. Birdwell indicate Plaintiff requires any limitations based on upon these complaints/descriptions. AR 347-53.
Plaintiff's subjective complaints alone cannot establish disability. Cf., Talley v. Sullivan, 908 F.2d 585, 587 (10th Cir. 1990) (noting that subjective complaints alone insufficient to establish disability). Plaintiff has not presented any medical evidence supporting her assertion that the RFC should have included the need for unscheduled breaks. Moreover, the ALJ found Plaintiff's subjective complaints regarding her symptoms to be less than credible. AR 28, 30. On appeal, Plaintiff has not challenged the ALJ's credibility analysis.
Additionally, the mere fact that there is evidence, solely in the form of Plaintiff's own reports, which might support a finding contrary to the ALJ's conclusion will not establish error in the ALJ's determination. The Tenth Circuit has explained:
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.Lax, 489 F.3d at 1084 (citations, quotations, and brackets omitted). Therefore, Plaintiff's disagreement with the ALJ's decision provides no basis for this Court to reweigh the evidence in the manner she implicitly requests. Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993) ("The appeals court neither reweighs the evidence nor substitutes its judgment for that of the agency.").
RECOMMENDATION
In view of the foregoing findings, it is recommended that judgment enter AFFIRMING the decision of the Commissioner to deny Plaintiff's application for benefits. The parties are advised of their respective right to file an objection to this Report and Recommendation with the Clerk of this Court on or before December 6th , 2018 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.
ENTERED this 16th day of November, 2018.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE