Opinion
Case No. CIV-18-120-D
11-28-2018
LAMORRIS RAINE, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
Lamorris Raine (Plaintiff) brings this action for judicial review of the Commissioner of Social Security's final decision that he was not "disabled" under the terms of the Social Security Act. See 42 U.S.C. §§ 405(g), 1382c. United States District Judge Timothy D. DeGiusti 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.
After a careful review of the record (AR), the parties' briefs, and the relevant authority, the undersigned recommends affirming the Commissioner's final decision. 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 (ALJ) 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 17-25, see 20 C.F.R. § 404.1520(a)(2); 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) did not engage in substantial gainful activity during the period from his alleged onset date of January 15, 2009 through his date last insured of June 30, 2014;AR 18-25.
(2) had the "severe impairments" of "coronary artery disease (CAD) with cardiomyopathy; congestive heart failure (CHF); hypertension; diabetes mellitus (DM) with peripheral neuropathy; and cervical degenerative disc disease (DDD)";
(3) had no impairment or combination of impairments that met or medically equaled the severity of a listed impairment;
(3) had the residual functional capacity (RFC) to perform light work except that he "could perform no work overhead";
(4) was capable of performing past relevant work as a Lot Attendant; and thus
(5) had not been under a disability as defined by the Social Security Act at any time from January 15, 2009 through June 30, 2014.
Residual functional capacity "is the most [a claimant] can still do despite [a claimant's] limitations." 20 C.F.R. § 404.1545(a)(1).
The ALJ noted the record included evidence from 2007 or earlier, and from 2015 and after. AR 18. The ALJ considered this evidence along with the rest, and found it was "too remote in time to be of significant probative value as to the period running from the alleged onset date through the date last insured . . . ." Id. Therefore, the ALJ accorded evidence outside of this time little weight. Id. Plaintiff does not challenge this.
2. Appeals Council findings.
The Social Security Administration's Appeals Council found no reason to review that decision, so the ALJ's 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). 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) (internal quotation marks omitted).
B. Issues for judicial review.
Plaintiff argues substantial evidence does not support the ALJ's RFC determination because the ALJ (1) did not properly consider any nonexertional limitations related to Plaintiff's severe impairments and (2) dismissed Plaintiff's credibility with improper "boilerplate language" and improperly utilized credibility to defeat medical evidence. Doc. 23, at 6-20.
1. Whether the ALJ failed to consider nonexertional limitations related to Plaintiff's severe impairments.
Plaintiff contends that the ALJ erred at step four because although the ALJ found that Plaintiff had certain severe impairments, "[the ALJ] failed to capture the specific, functionally distinct nonexertional limitations related to [Plaintiff's] severe impairments" in the RFC. Id. at 7. Plaintiff argues the ALJ's finding that Plaintiff could perform light work "is not a finding pursuant to or related to a nonexertional impairment," id., that Plaintiff's symptoms "occur without exertion," id. at 12, that the ALJ "failed to include any non-exertional limitations in RFC for any of the severe impairments he did find," id., and that therefore it was "a corrupted RFC," id. at 8.
Plaintiff points to no medical evidence in the record to support the symptoms he claims require nonexertional limitations in his RFC. Rather, he cites his own hearing testimony. Plaintiff states:
[he] has dizziness related either to his CAD or DM, he is not sure. He absolutely cannot handle heat, and that is worse than cold. He gets nauseous. He can have heart/chest pain without any exertion at all—say just lying in bed. He is not steady on his feet, has blurry vision, cannot see pool table balls to shoot and his feet and legs burn. He is up to a significant 20 units of insulin a day for just his base. He also has shortness of breath.Id. at 7 (citing AR 46-56). Plaintiff also points to his testimony stating that the "burning in [his] feet and legs" is the "main thing that [he thinks] keeps [him] from working . . . [.]" Id. at 13, see AR 55. Plaintiff argues he was describing the effects of the "peripheral neuropathy in his feet," and that because the ALJ found Plaintiff's peripheral neuropathy to be severe, "it was error not to express an opinion about why such functionally distinct limitations that [Plaintiff] complained flowed from this condition, burning in feet and legs, was not further explained by the ALJ." Doc. 23, at 13.
Plaintiff's argument that the ALJ "did not engage in any analysis of [Plaintiff's] other mental or physical functions and how they may be impacted (or not)" by Plaintiff's medically determinable impairments fails. See id. at 12. The ALJ considered "the totality of the evidence," AR 24, including evidence outside of the relevant time period, see id. at 18, in making the RFC assessment. Specifically, the ALJ noted Plaintiff's hearing testimony regarding the pain in his legs and feet. See id. at 22. The ALJ provided a thorough summary of Plaintiff's medical records, id. at 23-24, and reasonably concluded that Plaintiff's alleged symptoms "have been found to affect the claimant's ability to work only to the extent they can reasonably be accepted as consistent with the objective medical and other evidence." Id. at 23; see Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996) ("The record must demonstrate that the ALJ considered all of the evidence, but an ALJ is not required to discuss every piece of evidence.").
The ALJ also considered the opinions of the State medical consultants. The ALJ's tempering of these State medical consultants' opinions demonstrates the ALJ was attuned to Plaintiff's severe impairments and considered the resulting limitations. The ALJ explained that he gave only "some weight" to the opinions of the State medical consultants, who opined that Plaintiff was capable of medium work and that he could frequently reach overhead bilaterally. AR 24. The ALJ specifically noted that "these consultants did not properly consider [Plaintiff's] DM and attendant neuropathy," and that therefore they "erred in the opposite direction from [Plaintiff] in their assessment of his functional ability." Id. The ALJ also stated that "[m]edium exertion is in excess of what [Plaintiff] could be reasonably found capable of, given, most especially, the results of the cardiac testing . . . ." Id. Plaintiff does not point to any evidence in the record, besides his testimony, that supports further limitations than what the ALJ included in the RFC, and after careful review the undersigned finds no such evidence in the medical records. The undersigned finds the ALJ considered the medical evidence and other evidence in the record and that his decision to disregard the State medical consultants' opinions and to limit Plaintiff to light work with no overhead work was supported by substantial evidence in the record.
The undersigned also notes that Plaintiff does not challenge the ALJ's conclusion that Plaintiff's "later, far more extreme, allegations"—those contained in his appeals reports—"find no support in the record; indeed they seem to be based on an allegation of pain due to generalized arthritis, which is not even medically determinable . . . ." AR 24. Plaintiff therefore waives any argument as to nonexertional limitations related to his generalized arthritis.
Plaintiff relatedly argues the ALJ's failure to include any nonexertional limitations in the RFC assessment resulted in the wrongful omission of such limitations from the questions to the vocational expert. Doc. 23, at 8. But, as explained, the ALJ adequately considered Plaintiff's alleged symptoms, and was under no obligation to include them in his questions to the vocational expert. See Barnett v. Apfel, 231 F.3d 687, 690 (10th Cir. 2000) (holding that vocational expert hypothetical is sufficient if "it contained all of the limitations found to exist by the ALJ"). Again, Plaintiff fails to demonstrate reversible error. See also Johnson v. Colvin, 640 F. App'x. 770, 776 (10th Cir. 2016) ("The ALJ is required to include in a hypothetical inquiry to the vocational expert all and only those impairments the ALJ properly finds borne out by the evidentiary record.") (citing Decker v. Chater, 86 F.3d 953, 955 (10th Cir. 1996)).
2. Whether ALJ improperly determined Plaintiff's credibility.
Plaintiff alleges the ALJ "failed to perform a proper credibility analysis in rejecting [Plaintiff's] complaints of pain and limitations," by not following Social Security Ruling 16-3p and not providing "specific reasons for a credibility finding." Doc. 23, at 17. The crux of Plaintiff's argument appears to be that the ALJ "recited boilerplate language from the medical evidence by rote." Id. Plaintiff states "the ALJ failed to link or connect any of the factors he recited to any evidence in the record. He simply recited these factors, then concluded [Plaintiff's] allegations were not credible." Id. at 18. Plaintiff argues "[a]s is the risk with boilerplate language, this Court will be unable to determine in this case what specific evidence led the ALJ to reject [Plaintiff's] testimony." Id. at 19 (internal citation omitted).
"Credibility determinations are peculiarly within the province of the finder of fact, and [courts] will not upset such determinations when supported by substantial evidence." Diaz v. Secretary of Health & Human Servs., 898 F.2d 774, 777 (10th Cir. 1990). Credibility findings must, however, "be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings." McGoffin v. Barnhart, 288 F.3d 1248, 1254 (10th Cir. 2002) (quotations and alteration omitted).
Factors relevant to the credibility determination include the claimant's "medication[s] and [their] effectiveness, extensiveness of the attempts (medical or nonmedical) to obtain relief, the frequency of [the claimant's] medical contacts, the nature of [the claimant's] daily activities, subjective measures of credibility that are peculiarly within the judgment of the ALJ, . . . and the consistency or compatibility of nonmedical testimony with objective medical evidence." Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995). See also 20 C.F.R. § 404.1529(c)(3) (listing factors relevant to symptoms that may be considered by ALJ).
As an initial matter, Plaintiff's arguments regarding the alleged use of boilerplate language are without merit. First, the undersigned notes that when arguing the ALJ's decision is a "template," Plaintiff misquotes the ALJ. Second, while Plaintiff's argument as to boilerplate language may be true in other contexts, "boilerplate is problematic only when it appears 'in the absence of a more thorough analysis.'" Keyes-Zachary v. Astrue, 695 F.3d 1156, 1170 (10th Cir. 2012) (citation omitted). Such is not the case here. Plaintiff argues that the ALJ's alleged use of "[s]uch boilerplate language fails to inform us in a meaningful, reviewable way of the specific evidence the ALJ considered in determining that [Plaintiff's] statements were not credible." Id. at 18. However, Plaintiff ignores—and therefore fails to challenge—the multiple paragraphs from the ALJ's decision that provide this Court with the specific evidence that Plaintiff claims is lacking. See AR 23-24.
Plaintiff quotes the ALJ's decision as having said: "[Plaintiff's] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible for the reasons explained in this decision." Doc. 23 at 17 (quoting AR 23). In relevant part, the ALJ stated that "[Plaintiff's] statements concerning the intensity, persistence and limiting effects of those symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision." AR 23 (emphasis added). --------
Contrary to Plaintiff's argument otherwise, the ALJ properly discussed various credibility factors. First, the ALJ reviewed the medical evidence in the record, including physical examinations and treatments related to Plaintiff's severe cardiovascular impairments, his diabetes mellitus with peripheral neuropathy, and his cervical degenerative disc disease. AR 23-24. Among other findings, the ALJ accounted for Plaintiff's abnormal stress tests and related fatigue, elevated systemic pressures, significant decrease in LC systolic function—noting that this was "a significant new development"—with global left ventricular hypokinesia, a dilated aorta, a right ventricular ejection fraction, and sinus bradycardia with occasional premature ventricular complexes. AR 23 (citing id. at 341-66, 367-410, 411-19, 425-27, 431-37). The ALJ noted Plaintiff's cervical x-rays showing "multilevel degenerative changes of the cervical spine," but also that Plaintiff has "exhibited normal cervical range of motion," "no manipulative problems have been noted," and that Plaintiff "has exhibited no cervical tenderness or muscle spasm." AR 23-24 (citing id. at 411-19, 431-37). The ALJ also noted that Plaintiff's "[n]eurological clinical signs have been generally normal." AR 23 (citing id. at 341-66, 411-19). Overall, the ALJ reasonably concluded that Plaintiff's "course of treatment has been an essentially conservative one, without surgeries or periods of exacerbation requiring hospitalization." AR 24.
Second, the ALJ properly considered Plaintiff's usual daily activities. The ALJ noted Plaintiff's differing accounts between January 2013 and December 2013. The ALJ noted that in early 2013, Plaintiff recorded no problem performing tasks of personal care, that he could make simple meals, that he cleans house and that household chores can take him most of the day, that he needs no help doing household chores, that he does food shopping, watched television, attends church, but has limits on his social activities due to his alleged physical limitations. Id. at 22 (citing id. at 273-80). In contrast, the ALJ noted that in May 2013, Plaintiff alleged severe problems with range of motion, "minimal" usage of his hands, that it took him longer to complete simple tasks, that he could "hardly do anything" as to personal care and meal preparation, and that his wife assisted him with all activities of daily living. Id. at 22 (citing id. at 292-97). The ALJ noted that in December 2013, Plaintiff alleged that he cannot walk distances and is not active at all, but that he is able to perform tasks of personal care. Id. at 22 (citing id. at 300-04). The ALJ's conclusion that "for at least most of the period prior to the date last insured, [Plaintiff] reported being able to perform a nearly full complement of activities of daily living," id. at 24, is supported by substantial evidence in the record.
Lastly, the ALJ considered Plaintiff's hearing testimony. The ALJ noted that Plaintiff testified "generally consistently" with his original allegations of fatigue, depression, weakness, numbness and pain in his legs and arms, arthritic pain, chest pain with or without exertion, and dizziness. Id. at 22. The ALJ noted that in addition to his original allegations, Plaintiff complained of constant pain in his legs and feet due to his diabetes, that hot and cold weather exacerbate his symptoms, and that he was limited in sitting. Id.
The undersigned finds the ALJ's conclusion—that Plaintiff's statements concerning his subjective symptoms were not entirely consistent with the medical evidence in the record—is well supported. As discussed, the ALJ set forth relevant medical evidence and compared it with Plaintiff's testimony, Function Report, and Disability Reports. See id. at 22-24. And while the ALJ did not engage in a "formalistic factor-by-factor recitation of the evidence," he was not required to do so. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1167 (10th Cir. 2012) (citation omitted). Because the undersigned can follow the ALJ's reasoning and can determine that he applied the correct legal standards, the undersigned finds no grounds for reversal. See id. at 1166-67; see also Bales v. Colvin, 576 F. App'x 792, 800 (10th Cir. 2014) (holding that the ALJ "closely and affirmatively linked" the credibility determination with substantial evidence when she discussed and considered the claimant's subjective testimony and the medical evidence of record).
Plaintiff also argues the ALJ's credibility determination was flawed because the ALJ "did not point this court to specific damning statements made by [Plaintiff] which were proven false. It is error to recite rote MER, allege loss of credibility and not show this Court exactly where or how [Plaintiff] was deceptive." Doc. 23, at 17. But "subjective symptom evaluation is not an examination of an individual's character," Romo v. Comm'r, No. 17-1354, 2018 WL 4212112, at *4 (10th Cir. 2018) (quoting SSR 16-3p, 2016 WL 1119029, at *1) (Mar. 16, 2016)). And as discussed above, the ALJ formed his conclusions by evaluating Plaintiff's statements in the context of the entire medical evidence and other evidence in the record, not by pointing to "damning statements" made by Plaintiff or stating that Plaintiff was "deceptive." Substantial evidence supports the ALJ's credibility determination.
III. Recommendation and notice of right to object.
Based on the foregoing, 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 the 19th day of December, 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 timely objection to this Report and Recommendation waives their 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 referred to the Magistrate Judge in this matter.
ENTERED this 28th day of November, 2018.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE