Opinion
Case No. CIV-18-1141-D
07-18-2019
DIANA POSEY, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff, Diana Posey, seeks judicial review of the Social Security Administration's (SSA) denial of her applications for disability insurance benefits (DIB) and supplemental security income (SSI). Chief United States District Judge Tim DeGiusti has referred the matter for proposed findings and recommendations. See 28 U.S.C. § 636(b)(1)(B) and (C). The Commissioner has filed the Administrative Record (AR), [Doc. No. 13], and both parties have briefed their positions. For the reasons set forth below, it is recommended that the Commissioner's decision be affirmed.
Plaintiff's brief refers only to her application for DIB, but as addressed below, the Commissioner denied her applications for DIB and SSI.
Citations to the parties' briefs reference the Court's CM/ECF pagination.
I. Procedural Background
On November 24, 2017, an Administrative Law Judge (ALJ) issued an unfavorable decision finding Plaintiff was not disabled and, therefore, not entitled to DIB or SSI. AR 15-30. The Appeals Council denied Plaintiff's request for review. Id. at 1-6. Accordingly, the ALJ's decision constitutes the Commissioner's final decision. See Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011). Plaintiff timely commenced this action for judicial review.
II. The ALJ's Decision
The ALJ followed the five-step sequential evaluation process required by agency regulations. See Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009) (explaining process); see also 20 C.F.R. §§ 404.1520, 416.920. The ALJ first determined Plaintiff met the insured status requirement through March 31, 2018 and has not engaged in substantial gainful activity since November 20, 2015, her alleged onset date. AR 17.
At step two, the ALJ determined Plaintiff suffers from the following severe impairments: "COPD, history of hip surgery, ovarian cysts, degenerative disc disease, status post multiple injury sustained in a remote motor vehicle accident by history, arthritis, obesity, [post-traumatic stress disorder], generalized anxiety disorder, and panic disorder without agoraphobia." Id. Then, at step three, the ALJ found Plaintiff's impairments do not meet or medically equal any of the impairments listed at 20 C.F.R. Part 404, Subpart P, App. 1. Id. at 18-19.
The ALJ next determined Plaintiff's residual functional capacity (RFC), concluding that:
[she can] lift and carry 20 pounds occasionally and 10 pounds frequently. [She] can sit for about 6 hours during an eight-hour workday and can stand and walk for about 6 hours during an eight-hour workday. [She] can occasionally climb, balance, stoop, kneel, crouch, and crawl. [She] is to avoid concentrated exposure to dusts, fumes, gases, odors, and poor ventilation. [She] can understand, remember, and carry out simple and some, but not all more complex tasks involving objects and/or non-complex data with routine supervision with the capacity to perform 1-4 step instructions for two-hour periods over the course of a normal workday/workweek. [She] can respond appropriately to supervisors and co-workers on a superficial work basis and can perform work where interaction with others is incidental to the work performed. [She] can have no contact with the general public. [She] can respond to usual work situations.Id. at 20.
Finally, at step four, the ALJ determined Plaintiff can perform her past work as a can line operator, both as she performed it and as performed in the national economy and is therefore not disabled for purposes of the Social Security Act. Id. at 29-30.
III. Claims Presented for Judicial Review
Plaintiff alleges that the ALJ: (1) erred in finding Plaintiff can perform her past work as a can line operator, and (2) gave a consultative examiner's opinion only partial weight without identifying any evidence to support his decision. See Pl.'s Br. at 3-8. The Court examines these allegations below in reverse order.
IV. Standard of Review
Judicial review of the Commissioner's final decision is limited to determining whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied. See Poppa v. Astrue, 569 F.3d 1167, 1169 (10th Cir. 2009). While the Court considers whether the ALJ followed the applicable rules of law in weighing evidence in disability cases, it does not reweigh the evidence or substitute its own judgment for that of the Commissioner. See Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quotations and citations omitted). Under such review, "common sense, not technical perfection, is [the Court's] guide." Keyes-Zachary v. Astrue, 695 F.3d 1156, 1167 (10th Cir. 2012). Moreover, "it . . . may be appropriate to supply a missing dispositive finding under the rubric of harmless error in the right exceptional circumstance, i.e., where based on the material the administrative law judge did at least consider (just not properly), we could [nevertheless] confidently say that no reasonable administrative factfinder, following the correct analysis, could have resolved the factual matter in any other way." Allen v. Barnhart, 357 F.3d 1140, 1144 (10th Cir. 2004).
V. Analysis
A. The ALJ's Treatment of a Consultative Examiner's Opinion
Dr. Stephanie C. Crall, Ph.D. examined Plaintiff once at the SSA's request. In relevant part, she opined that Plaintiff's "ability to engage in work-related mental activities, such as sustaining attention, understanding, and remembering and to persist at such activities was likely adequate for simple and some complex tasks" but her "anxiety likely interfered with her ability to adapt to a competitive work environment." AR 459, 461. The ALJ gave Dr. Crall's opinion only "partial weight because the evidence supports she is able to adapt to a work situation." Id. at 27. Plaintiff alleges reversible error because the ALJ failed to discuss the relevant factors or identify what evidence supported his conclusion. See Pl.'s Br. at 5-8. The Court finds no reversible error.
As an examining consultant, Dr. Crall's opinion was generally entitled to less weight than a treating physician's opinion. See Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004). Nevertheless, the ALJ was required to properly consider Dr. Crall's opinion and provide legitimate reasons for discounting it. See 20 C.F.R. §§ 404.1527(c), 416.927(c). Some factors the ALJ should have considered include:
(1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship, including the treatment provided and the kind of examination or testing performed; (3) the degree to which the physician's opinion is supported by relevant evidence; (4) consistency between the opinion and the record as a whole; (5) whether or not the physician is a specialist in the area upon which an opinion is rendered; and (6) other factors brought to the ALJ's attention which tend to support or contradict the opinion.Krauser, 638 F.3d at 1331 (quotation omitted). However, so long as the ALJ provides a well-reasoned discussion, the failure to "explicitly discuss" all the factors "does not prevent [the] court from according his decision meaningful review." Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007).
The Court first rejects Plaintiff's request for reversal based on the ALJ's failure to address all the relevant factors. See Pl.'s Br. at 7. The ALJ discussed the medical treatment evidence, recognized that Dr. Crall was a consultative examiner, and then found Dr. Crall's opinion (in relevant part) was inconsistent with the evidence of record. AR 22-28. These are legitimate factors to consider, see supra, citing Krauser's factors (1), (2), (4), and the fact that the ALJ did not discuss every factor is not grounds for reversal. See Oldham, 509 F.3d at 1258.
As for the ALJ's failure to pinpoint the evidence which he believed contradicted Dr. Crall's opinion, he had already noted that Plaintiff: (1) was taking medication for her anxiety and response to the treatment "was good"; (2) was not receiving counseling; and (3) had not had any hospitalizations. AR 23. He thereafter noted the State agency psychologist's opinion that Plaintiff could adapt to a work situation. Id. at 27, 94. Finally, in sum, the ALJ reiterated that Plaintiff "has anxiety-related mental impairments that are controlled well with medication" and "has not had counseling or inpatient hospitalization for mental health problems." Id. at 29.
Ideally, the ALJ would have re-cited this evidence in conjunction with his decision to give Dr. Crall's opinion only partial weight, but courts need not reverse for opinions that are not ideally written. See Oldham, 509 F.3d at 1258 (an ALJ's opinion need only be "sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the . . . medical opinion and the reasons for that weight") (quotations omitted)); see also Keyes-Zachary, 695 F.3d at 1166 ("The more comprehensive the ALJ's explanation, the easier our task; but we cannot insist on technical perfection."). Moreover, the Court can "follow the adjudicator's reasoning . . . and can determine that correct legal standards have been applied." Keyes-Zachary, 695 F.3d at 1166; see also, e.g., Armijo v. Astrue, 385 F. App'x 789, 795 (10th Cir. 2010) (finding the ALJ's treatment of the physician's opinion, though not "explicitly" stated, was "implicit in his decision"). Accordingly, the Court finds no grounds for reversal. See Carpenter v. Berryhill, No. CIV-17-256-CG, 2018 WL 3812252, at *4 (W.D. Okla. Aug. 10, 2018) (finding no error despite plaintiff's allegation that the ALJ failed to identify reasons for rejecting the consultant's opinion because the ALJ's reasoning could be found "elsewhere in his decision" and "the ALJ's statement, viewed in light of his decision as a whole, addresses the consistency of the consulting psychologists' opinions with the record").
B. The ALJ's Finding that Plaintiff Can Perform Her Past Work
In a Work History Report, Plaintiff described her work as a "line operator" as emptying cans and putting them in the trash when they were damaged. AR 282, 284. Doing this job, Plaintiff frequently lifted less than ten pounds. Id. at 284. At the hearing, the vocational expert (VE) testified this job fell into the category of can line operator, DOT 920.687-042, and then asked Plaintiff to clarify how much she lifted. Id. at 57. Plaintiff testified:
I don't know how much one of them cans of sodas weigh [but] when the lines break down we shut one lane down and we help with the bottle line. Those are two and a half liters, two liter bottles. I don't know how much those weigh. We would have to carry them in the hand, stack them.Id. Plaintiff estimated that when that occurred, she might have lifted "roughly" thirty pounds. Id. The ALJ then mentioned Plaintiff's lifting as described in her Work History Report (citing Ex. 7E) and the VE agreed that her past work as a can line operator was "performed at the light level[.]" Id. at 58-59. In his decision, the ALJ found Plaintiff could perform her past work as a can line operator as she performed it or as it is performed generally. Id. at 29.
Plaintiff argues that because she sometimes had to perform heavier lifting when the can line broke down, she actually described a "composite job." Pl.'s Br. at 3-4. Thus, Plaintiff alleges the ALJ erred because he appeared to "structure the job hypothetical for the VE using only the can line job, not the composite job where she lifted up to 35 pounds, preventing the VE from formulating the composite job of both the can job and the two-liter job." Id. at 4. The flaw in Plaintiff's argument is that she did not describe a "composite job." That is, "composite jobs" "have significant elements of two or more occupations and, as such, have no counterpart in the DOT." SSR 82-61. Here, Plaintiff did not describe elements of two or more occupations; instead, she described one occupation with varying degrees of lifting requirements. AR 57-58; see also DOT 920.687-042 (describing a bottling-line attendant's duties as, in relevant part, examining bottles and packing bottles). Thus, her testimony fell "short of meeting [her] burden to show that the [can line operator] job was a composite job." Wilson v. Berryhill, 269 F. Supp. 3d 1164, 1170 (N.D. Okla. 2017) (finding no error in the ALJ's failure to consider plaintiff's past work as a "composite job" where plaintiff failed to provide testimony to establish her job required her to perform duties sufficient to show it was a composite job). Finally, the ALJ was within his purview to accept the VE's testimony that Plaintiff's job, as she described it, was classified as a can line operator, DOT 920.687-042. See York v. Berryhill, No. CIV-17-835-BMJ, 2018 WL 1884823, at *7 (W.D. Okla. Apr. 19, 2018) (finding no error in the ALJ's failure to consider plaintiff's past work a "composite job" where he sufficiently "relied on the VE's testimony that Plaintiff's work amounted to [one job] as classified in the DOT").
If Plaintiff's past relevant work had been classified as a composite job, the ALJ could not have relied on the VE's finding regarding Plaintiff's ability to perform her past relevant work as it is performed in the national economy. See POMS DI 25005.020(B) https://secure.ssa.gov/poms.NSF/lnx/0425005020.12 ("A composite job does not have a DOT counterpart, so do not evaluate it at the part of step 4 considering work 'as generally performed in the national economy.'"). --------
In sum, the ALJ did not err in failing to consider Plaintiff's past work as a "composite job." Moreover, the question is whether a plaintiff can perform her past work either as she performed it or as it is generally performed in the national economy. See Hill v. Astrue, 289 F. App'x 289, 295 (10th Cir. 2008) ("Therefore, if Ms. Hill could perform the job as it is generally performed throughout the national economy, even though she could not perform her prior job, she is not disabled . . ."). So, even if the ALJ erred in finding Plaintiff could still perform as a can line operator as she performed it, any error is harmless as he additionally found she could perform it as it is done generally in the national economy. See Dumas v. Colvin, 585 F. App'x 958, 960 (10th Cir. 2014) (affirming the district court's finding "that even if the ALJ erred in determining Mr. Dumas retained the RFC for the line attendant job as he had actually performed it, any error was harmless because the ALJ also determined that Mr. Dumas could return to the line attendant job as the job is generally performed in the national economy").
RECOMMENDATION
Based on the foregoing, the Court should affirm the Commissioner's decision. When reading the ALJ's opinion as a whole, and with common sense, it is clear he sufficiently identified evidence in support of his decision to give Dr. Crall's opinion only partial weight. Additionally, the ALJ did not error in failing to find Plaintiff's past work was a "composite job" and any alleged error in finding Plaintiff could perform her past work as she performed it is harmless, as the ALJ alternatively found she could perform it as it is generally performed in the national economy.
NOTICE OF RIGHT TO OBJECT
The parties are advised of their right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by August 1, 2019. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. See Moore v. United States, 950 F.2d 656 (10th Cir. 1991).
STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the Chief District Judge in this matter.
ENTERED this 18th day of July, 2019.
/s/_________
BERNARD M. JONES
UNITED STATES MAGISTRATE JUDGE