Opinion
CIV-23-669-PRW
01-26-2024
HANNAH ELIZABETH OWENS, Plaintiff, v. MARTIN O'MALLEY, COMMISSIONER OF SOCIAL, SECURITY ADMINISTRATION,[1]Defendant.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
Hannah Elizabeth Owens (Plaintiff) brings this action for judicial review of the Commissioner of Social Security's final decision that she was not “disabled” under the Social Security Act. See 42 U.S.C. §§ 405(g), 1383(c)(3). The case was referred to the undersigned Magistrate Judge for submission of findings and recommendations consistent with 28 U.S.C. § 636(b)(1)(B), (C), and Federal Rule of Civil Procedure 72(b). Doc. 12.
Citations to the parties' pleadings and attached exhibits will refer to this Court's CM/ECF pagination. Citations to the Administrative Record (AR) will refer to its original pagination.
Plaintiff asks this Court to reverse the Commissioner's decision and remand the case for further proceedings, arguing the Administrative Law Judge (ALJ) failed to properly evaluate the residual functional capacity (RFC) and so posed faulty hypothetical questions to the vocational expert (VE) who testified at Plaintiff's administrative hearing. Doc. 9, at 9-13. After careful review of the record, the parties' briefs, and the relevant authority, the undersigned recommends the Court affirm the Commissioner's decision. See 42 U.S.C. §§ 405(g), 1383(c)(3).
Residual functional capacity “is the most [a claimant] can still do despite [a claimant's] limitations.” 20 C.F.R. §§ 404.1545(a)(1); 416.945(a)(1).
I. Administrative determination.
A. Disability standard.
The Social Security Act defines a disabled individual as a person who is unable “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 [twelve] 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 [the claimant's] underlying 3 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 [s]he can no longer engage in h[er] 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 an alternative work activity and that this specific type of job exists in the national economy.” Id. (quoting Channel v. Heckler, 747 F.2d 577, 579 (10th Cir. 1984)).
C. Relevant findings.
1. ALJ's findings.
The ALJ assigned to Plaintiff's case applied the standard regulatory analysis to decide whether Plaintiff was disabled during the relevant timeframe. AR 20-29; see 20 C.F.R. § 404.1520(a)(4), 416.920(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (describing the five-step process). The ALJ found that Plaintiff:
Although Plaintiff applied for child disability insurance benefits, see AR 17, she reached age eighteen before filing her applications. So the ALJ applied the five-step disability evaluation process generally applicable to adults. See 20 C.F.R. § 416.924(f) (“For the period starting with the day you attain age 18, we will use the disability rules we use for adults who file new claims, in § 416.920.”).
(1) had not engaged in substantial gainful activity since February 13, 2014, the alleged onset date;
(2) had the following severe physical impairments: posttraumatic stress disorder, bipolar disorder, and anxiety disorder;
(3) had no impairment or combination of impairments that met or medically equaled the severity of a listed impairment;
(4) had the RFC to perform work at all exertional levels with the following non-exertional limitations: understand, remember, and carry out only simple, routine, and repetitive tasks in job settings that do not require a high production rate, such as assembly line work, or work that requires high hourly quotas; only occasional interaction with supervisors and co-workers, and no contact with the public;
(5) had no past relevant work;
(6) could perform jobs that exist in significant numbers in the national economy, including Laundry Worker, Dictionary of Occupational Titles (DICOT) 553.585-018, Cleaner, DICOT 709.687-014, and Warehouse Worker, DICOT 732.687-030; and so,
(7) had not been under a disability from February 13, 2014 through December 13, 2022, the date of the decision.See AR 20-29.
2. Appeals Council's findings.
The Social Security Administration's Appeals Council denied Plaintiff's request for review, see id. at 1-6, making the ALJ's decision “the Commissioner's final decision for [judicial] review.” Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011).
II. Judicial review of the Commissioner's 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; see Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (“It means-and means only-such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The Court “remain[s] mindful that ‘[e]vidence is not substantial if it is overwhelmed by other evidence in the record.'” Wall, 561 F.3d at 1052 (alteration in original) (quoting Grogan v. Barnhart, 399 F.3d 1257, 1261-62 (10th Cir. 2005)).
The Court “consider[s] whether the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases, but [it] will not reweigh the evidence or substitute [its] judgment for the Commissioner's.” Lax, 489 F.3d at 1084 (quoting Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005)). Thus, “[t]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence.” Id. (quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).
“[T]he failure to apply proper legal standards may, under the appropriate circumstances, be sufficient grounds for reversal independent of the substantial evidence analysis.” Hendron v. Colvin, 767 F.3d 951, 954 (10th Cir. 2014) (quoting Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994)). But the failure to apply the proper legal standard requires reversal only where the error was harmful. Cf. Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (placing the burden to show harmful error on the party challenging an agency's determination).
B. Analysis.
1. The ALJ's RFC is supported by substantial evidence.
Plaintiff contends the ALJ erred in his consideration of her mental impairments in constructing the RFC. Plaintiff argues he disregarded the moderate limitation he found at step three of the sequential evaluation process in Plaintiff's ability to adapt and manage herself. Doc. 9, at 10-12. The Commissioner responds that the ALJ adequately accounted for this limitation in the RFC and therefore, the Court should affirm the ALJ's decision. Doc. 11, at 4-7.
At steps two and three of the sequential analysis, the ALJ determines whether the claimant has a severe impairment and whether the impairment meets or equals an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1. Notably, an “ALJ's finding of moderate limitations at step three ‘does not necessarily translate to a work-related functional limitation for the purposes of the RFC assessment.”' Patterson v. Colvin, 662 Fed.Appx. 634, 638 (10th Cir. 2016) (quoting Vigil v. Colvin, 805 F.3d 1199, 1203 (10th Cir. 2015)). An ALJ may account for a plaintiff's limitations by limiting that plaintiff to particular types of work activity. Smith v. Colvin, 821 F.3d 1264, 1269 (10th Cir. 2016); see also Evans v. Colvin, 640 Fed.Appx. 731, 738 (10th Cir. 2016) (noting that a “restriction to unskilled work can account for a mental impairment in an appropriate case, for example, when the relationship between skill level and mental capacity is obvious ....”). Applying a case-specific analysis, the Court can determine whether the ALJ's RFC assessment adequately accounts for step three limitations found by the ALJ and supported by the record.
When evaluating a claimant's mental impairments, the ALJ uses a psychiatric review technique that “requires adjudicators to assess an individual's limitations and restrictions from a mental impairment(s) in categories identified in the ‘paragraph B' criteria . . . of the adult mental disorders listings.” SSR 96-8p, 1996 WL 374184, at *4 (July 2, 1996); see also Beasley v. Colvin, 520 Fed.Appx. 748, 754 (10th Cir. 2013). These criteria are, “[u]nderstand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(A)(2)(b). But “the limitations identified in the ‘paragraph B' . . . criteria are not an RFC assessment.” SSR 96-8p, 1996 WL 374184, at *4. Rather, they “are used to rate the severity of mental impairment(s) at steps 2 and 3 of the sequential evaluation process.” Id. Here, the ALJ found Plaintiff had moderate limitations in each of the “paragraph B” functional areas. AR 22.
Plaintiff argues the ALJ erred by not including a specific adaptability limitation in the RFC. Doc. 9, at 11-12. Alternatively, Plaintiff contends the ALJ failed to explain how the RFC accounts for this particular limitation. Id. at 11. The Commissioner contends the ALJ considered this limitation in formulating the RFC by limiting Plaintiff to only simple, routine, and repetitive tasks that require neither high production rates nor high hourly quotas, and no contact with the public. Doc. 11, at 7; AR 23.
Plaintiff relies mainly on Gunning v. Kijakazi, No. CIV-21-195-P, 2021 WL 5496080 (W.D. Okla. Nov. 23, 2021), to support her position. There, the ALJ determined at step two that the plaintiff suffered from the severe mental impairment of depression. Id. at *1. At step three, the ALJ relied solely on the plaintiff's ability to maintain self-hygiene and take care of pets to find that he had a moderate limitation in the ability to adapt or manage oneself. Id. at *3. Yet the ALJ also found persuasive a physician's opinion that the plaintiff had “two separate impairments-impaired social interaction and impaired ability to adapt to a work setting.” Id. This Court reversed and remanded the ALJ's decision because he failed to address whether or how the RFC accounted for a moderate limitation in the ability to adapt to a work setting. Id. at *3-4.
By contrast, here, the ALJ addressed relevant bases for Plaintiff's moderate adaptability limitation at step three and considered Plaintiff's limitation in assessing the RFC. In first finding the limitation, the ALJ explained:
Evidence suggests that the claimant resides with family, and navigates the community independently, demonstrating an ability to adapt to changes and difficult, unpredictable situations. Treatment records do not indicate any deficits in the claimant's ability to avoid obvious hazards or care for her personal needs. In deference to repeated mentions of difficulty when faced with public or stressful situations, as well as her documented history of self-injurious behaviors, I have limited the claimant to work settings without fast pace or high production quotas and precluded her from public-facing positions.AR 22 (citations omitted). Thus, unlike Gunning, the ALJ's bases for this limitation directly relate to the ultimate RFC restrictions.
Additionally, at the more detailed step-four assessment, the ALJ thoroughly reviewed Plaintiff's medical history, noting that when Plaintiff was compliant with her treatment and medication, her symptoms consistently improved. AR 25-28 (citing 444, 451-54, 456, 458, 476, 481, 486, 491, 509, 515, 520, 526, 532, 537, 543, 615, 617, 633, 677, 681, 756, 759, 761, 764). Further, in explaining the RFC, the ALJ stated:
I have [] accommodated the claimant's posttraumatic stress symptoms, especially hypervigilance and panic reactions, by restricting her from work environments with fast pace or high production quotas....
I have accommodated the claimant's longstanding anxiety and affective disorders, despite relative stability when compliant with treatment, by limiting her to unskilled work in low-stress environments with limited supervisory and coworker contact, and no contact with the public.Id. at 28 (citations omitted).
Thus, contrary to Plaintiff's assertions, not only did the ALJ account for her moderate limitation, he also specifically explained the connection between the moderate limitation and the RFC. And the restrictions in the RFC adequately accounted for the limitations the ALJ found. See Lager v. Comm'r, SSA, 2023 WL 6307490, at *2 (10th Cir. Sept. 28, 2023) (finding the ALJ's RFC limiting the plaintiff to “simple work-related judgments and decisions” and “only short and simple instructions” accounted for moderate limitations in concentration, persistence, and pace); Smith, 821 F.3d at 1269 (affirming ALJ's decision to incorporate into the RFC the plaintiff's moderate limitations, including inability to accept criticism from supervisors and respond appropriately to changes in the workplace, by prohibiting “face to face contact” with the public and limiting her to “simple, repetitive, and routine tasks”); cf. Beasley, 520 Fed.Appx. at 754 n.3 (rejecting plaintiff's argument that prior case law requires “an ALJ's RFC assessment to mirror his step three-findings”). So the ALJ committed no legal error here and substantial evidence supports the ALJ's RFC.
Plaintiff does not expound on her claim that the “ALJ's hypothetical question . . . was deficient.” Doc. 9, at 9. Rather, she argues only that it should have been “precise” so as to include “all of the impairments of record.” Id. But, as Defendant points out, “the ALJ posed a hypothetical to the VE that incorporated all the limitations included in the ultimate RFC.” Doc. 11, at 9 (citing AR 23, 56-57). Nothing more was required. See, e.g., Qualls v. Apfel, 206 F.3d 1368, 1373 (10th Cir. 2000) (The ALJ propounded a hypothetical question to the VE that included all the limitations the ALJ ultimately included in his RFC assessment. Therefore, the VE's answer to that question provided a proper basis for the ALJ's disability decision.”).
2. The ALJ properly considered the agency medical opinions.
In her second issue, Plaintiff contends the ALJ erred by failing to include in the RFC one portion of the state agency medical consultants' opinions. Doc. 9, at 12-13. During the initial consideration of Plaintiff's applications for benefits, Dr. Jason Gunter completed a Mental Residual Functional Capacity Assessment (MRFCA) following a review of Plaintiff's medical records. AR 7477, 91-94. The MRFCA form explains that the initial questions “help determine the individual's ability to perform sustained work activities. However, the actual mental residual functional capacity assessment is recorded in the narrative discussion(s), which describes how the evidence supports each conclusion.” Id. at 74, 91, 114, 132. Under the initial questions, Dr. Gunter conveyed Plaintiff was moderately limited in her ability to accept instructions and respond appropriately to criticism from supervisors. Id. at 77, 94. On reconsideration, Dr. Joy Kelley reached the same conclusion. Id. at 116, 134.
In the narrative portion of the MRFCAs, both physicians translated their findings into work-related limitations and stated that Plaintiff could interact appropriately with coworkers and supervisors for incidental work purposes but should avoid contact with the public. Id. at 77, 94, 117, 135. The ALJ discussed the narrative portion of each physician's MRFCA and concluded the opinions in them were generally persuasive. Id. at 27. In determining the RFC, the ALJ incorporated their opinions by limiting Plaintiff to only occasional interaction with supervisors and coworkers and no contact with the public. Id. at 23.
Plaintiff contends the ALJ erred by failing to “incorporate the moderate limitation relating to supervisors, or at least explain why that limitation was rejected.” Doc. 9, at 12 (quotations omitted). But an ALJ need not include the “moderate” findings from the initial portion of the MRFCA in the RFC assessment. Smith, 821 F.3d at 1269 n.2.
In Smith, a consultative physician had completed a form much like the MRFCA. The physician rated the plaintiff's abilities in particular areas of function and opined that the plaintiff was “moderately limited” in her ability to:
• Maintain concentration, persistence, and pace,
• Remain attentive and keep concentration for extended periods,
• Work with others without getting distracted,
• Complete a normal workday and workweek without interruption for psychologically based symptoms,
• Perform at a consistent pace without excessive rest periods,
• Accept instructions and respond appropriately to criticism by supervisors,
• Get along with coworkers or peers without distracting them or engaging in behavioral extremes,
• Respond appropriately to changes in the workplace, and
• Set realistic goals or independently plan.Id. at 1268. The form had explained that the questions, which had yielded these findings, “provided only an aid” to assess the plaintiff's RFC. Id. at 1268 n.1. The form also instructed the psychologist to assess the actual RFC in a narrative. Id. In the narrative, the psychologist stated that the plaintiff could: (1) engage in work that was limited in complexity, and (2) manage social interactions that were not frequent or prolonged. Id. at 1268.
On appeal, the plaintiff questioned how the ALJ's RFC had incorporated all the moderate limitations that the psychologist had listed. Id. at 1269 n.2. In response, the court held, “This is the wrong question.” Id. According to the court, “[The psychologist's] notations of moderate limitations served only as an aid to her assessment of residual functional capacity. We compare the [ALJ's] findings to [the psychologist's] opinion on [RFC], not her notations of moderate limitations.” Id.; see Lee v. Colvin, 631 Fed.Appx. 538, 541 (10th Cir. 2015) (rejecting a similar challenge, and relying on the SSA's Program Operations Manual Systems, stating that “adjudicators are to use the . . . narrative as the RFC assessment” rather than the portions of the form that rated the degree of limitation in particular areas (emphasis added)).
Here, the reviewing physicians rated Plaintiff's degree of limitation in several areas, and found she was “moderately” limited in her ability to accept instructions and respond appropriately to criticism from a supervisor. But, as in Smith and Lee, the narrative discussion, not the specifically rated limitations, served as the actual mental RFC. So the ALJ's RFC assessment reflected the physicians' narrative opinions. Thus, the ALJ committed no error.
III. Recommendation and notice of right to object.
For the above reasons, the undersigned recommends that the Court affirm the Commissioner's final decision.
The undersigned advises the parties that they may object to this Report and Recommendation with the Clerk of Court on or before February 9, 2024, under 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b)(2). The undersigned also advises the parties that failure to timely object to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge in this matter.