Opinion
Case No. CIV-19-251-SLP
11-19-2019
HEATHER MARIE ROBUSH, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff, Heather Marie Robush, seeks judicial review of the Social Security Administration's denial of her application for disability insurance benefits (DIB). United States District Judge Scott L. Palk 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.
Citations to the parties' briefs reference the Court's CM/ECF pagination.
I. Procedural Background
On May 8, 2018, an Administrative Law Judge (ALJ) issued an unfavorable decision finding Plaintiff was not disabled and, therefore, not entitled to DIB. AR 13-24. 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. The ALJ first determined Plaintiff meets the insured status requirement through December 31, 2021 and has not engaged in substantial gainful activity since September 15, 2016, her alleged onset date. AR 15.
At steps two and three, the ALJ determined Plaintiff suffers from severe "anxiety, depression, and idiopathic neuropathy right shoulder" but her 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 15-16.
The ALJ next determined Plaintiff's residual functional capacity (RFC), concluding that:
[she has] the residual functional capacity to perform the full range of light work . . . with exertional limitations as follows. [Her] lifting and carrying with her right arm is limited to 10 pounds and [her] reaching, pushing and pulling with her right arm is limited to 4 hours per 8 hour day. In addition, [she] would have nonexertional limitations in that [she] would be limited to work that is of SVP level 2 or less as defined in the [Dictionary of Occupational Titles]. [She] would have the ability to understand, remember, and carry out ordinary and/or routine written or oral instructions and tasks and to set realistic goals and plans independently of others. [She] would have the ability to interact appropriately with supervisor, co-workers and occasionally with the public.Id. at 18.
Finally, at steps four and five, the ALJ determined Plaintiff cannot perform her past relevant work but can perform other work existing in significant numbers in the national economy and is therefore not disabled for purposes of the Social Security Act. See id. at 22-24.
III. Claim Presented for Judicial Review
According to Plaintiff, the ALJ erred in weighing two medical opinions. See Pl.'s Br. at 8-11.
IV. Standard of Review
Judicial review of the Commissioner's final decision is limited to determining whether substantial evidence supports the factual findings and whether the correct legal standards were applied. See Poppa v. Astrue, 569 F.3d 1167, 1169 (10th Cir. 2009). The burden to show prejudicial error on appeal rests with Plaintiff. See Shinseki v. Sanders, 556 U.S. 396, 409 (2009) ("[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination.").
V. Analysis
The Court finds no reversible error in the ALJ's assessment of the medical opinions.
A. Standard for Weighing Medical Opinions
An ALJ is required to consider all the medical opinions of record. See 20 C.F.R. § 404.1257(c). For a treating physician, the ALJ must first decide whether the opinion is entitled to "controlling weight," i.e., if it is "well-supported by medically acceptable clinical or laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the record." Krauser, 638 F.3d at 1330. If the opinion is not entitled to controlling weight, "the ALJ must make clear how much weight the opinion is being given (including whether it is being rejected outright) and give good reasons, tied to the factors specified in the cited regulations for this particular purpose, for the weight assigned." Id.
A consultative examiner's opinion is generally entitled to less weight than a treating physician's opinion. See Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004). Nevertheless, an ALJ is required to properly consider such opinions and provide legitimate reasons for discounting them. See 20 C.F.R. § 404.1527(c).
For both treating and consultative opinions, some factors the ALJ should consider 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.Krause, 638 F.3d at 1331 (citation omitted). However, the ALJ need not explicitly discuss every factor - so long as the decision is "'sufficiently specific to make clear to any subsequent reviewers the weight the [ALJ] gave to the . . . medical opinion and the reasons for that weight.'" Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007) (citation omitted).
B. Dr. Alejandra Pacheco, M.D.
Plaintiff first alleges the ALJ erred in rejecting treating physician Dr. Pacheco's opinions in a "Return to Work/School" document and letter dated November 16, 2017. Pl.'s Br. at 10. The ALJ did not refer to Dr. Pacheco by name but reviewed, as relevant here, Exhibits 10F and 11F. AR 21. Exhibit 10F is a document entitled "Return to Work/School" and it states Plaintiff is "unable to return at this time." Id. at 354. In an addendum, it says:
The Commissioner suggests that Dr. Pacheco was not a treating physician. See Def.'s Br. at 10. However, because the Court finds the ALJ properly rejected Dr. Pacheco's opinion under the treating physician standard, it need not address the issue.
Plaintiff does not challenge the ALJ's weighing of Dr. Pacheco's "Medical Source Statement" (referenced in the record as "Exhibit 13F," AR 22) and the Court does not address that opinion. See Chambers v. Barnhart, 389 F.3d 1139, 1142 (10th Cir. 2004) ("The scope of our review . . . is limited to the issues the claimant . . . adequately presents . . . ." (internal quotation marks and citation omitted)). --------
If at all possible, [Plaintiff] needs temporary insurance coverage. She has a right arm and hand limiting condition. Physical therapy, neurology and neuro-surgery evaluation is needed. At this point and education and economic status she cannot perform any meaningful work to sustain herself. Please contact us with any questions or requests to ensure this full evaluation happens.Id.
Exhibit 11 is Dr. Pacheco's letter stating:
[Plaintiff] has a chronic condition that has rendered her unable to work for over one year. As is, she needs specialist evaluation and work up prior to being able to better her condition. In the meantime, she is unable to perform meaningful manual labor. She has trained as EMT-B in the past.Id. at 355.
The ALJ gave no weight to Exhibit 10, finding: (1) the author is "unknown," (2) the document "does not present any objective medical diagnosis nor treatment records in support," and (3) "the obtuse reference to 'meaningful work' is vague" and constitutes "a conclusory opinion on the ultimate issue of disability . . . [which is a question] reserved to the Commissioner . . . ." Id. at 21. Likewise, the ALJ gave no weight to Exhibit 11 because it: (1) "provides no objective definition or diagnosis of . . . this 'chronic condition,'" (2) does not "present or reference any diagnostic or treatment records in support," (3) relies on "the obtuse reference to 'meaningful manual labor,'" and (4) constitutes a "conclusory opinion on the ultimate issue of disability" which is an opinion "reserved to the Commissioner." Id.
Plaintiff challenges the ALJ's assessments, arguing that it should have been clear from Exhibit 11 that the signature in Exhibit 10 belonged to Dr. Pacheco and that "[w]hile opinions about whether a claimant is disabled are . . . reserved to the Commissioner, those opinions cannot be ignored." Pl.'s Br. at 10. But even if Plaintiff's arguments were persuasive, the ALJ also relied on the lack of any supporting diagnostic or treatment records and on the overall vagueness of the physician's statements. See supra; see also, e.g., Martinez v. Commissioner, SSA, 777 F. App'x 930, 936 (10th Cir. 2019) (finding no grounds for reversal where ALJ improperly applied one factor because "the ALJ gave several other legitimate reasons to discount [the physician's] report"). Indeed, the vagueness of Dr. Pacheco's statements alone is determinative, as the ALJ had no actual medical opinion to weigh. See Moua v. Colvin, 541 F. App'x 794, 797 (10th Cir. 2013) ("Dr. Bhakta's treatment notes do not offer any medical opinions concerning [the plaintiff's] abilities or limitations. . . . Thus, there was no pertinent medical opinion for the ALJ to weigh."); see also Larsen v. Comm'r of Soc. Sec., No. CIV-18-328-R, 2018 WL 4997916, at *6 (W.D. Okla. Sept. 21, 2018) (finding "none of the[] [physician's] observations constitute a 'medical opinion'" and the examiner "did not identify any functional limitations that would result from [the] physical impairments"), adopted, 2018 WL 4976814 (W.D. Okla. Oct. 15, 2018); see also Giroux v. Berryhill, No. CIV-17-139-STE, 2017 WL 5473730, at *3 (W.D. Okla. Nov. 14, 2017) (rejecting allegation that the ALJ ignored the physician's opinion because the physician did not articulate any functional limitations). Accordingly, the Court finds no grounds for reversal in the ALJ's assessment of Dr. Pacheco's statements.
C. Dr. Timothy J. Doenges, Ph.D.
Plaintiff next alleges the ALJ improperly discounted Dr. Doenges' opinion. See Pl.'s Br. at 10-11. Dr. Doenges examined Plaintiff once, at the SSA's request, and found in relevant part:
[Plaintiff] is able to understand and respond appropriately to simple information that is given to her, but is likely to experience anxiety, irritability, and dysphoria in even mildly to moderately stressful situations. . . . She is likely to be able to follow simple instructions, but may require repetition of instructions, extra time to complete tasks, frequent support and guidance in completing tasks, and/or repeated practice with supervision in order to master a new task, especially at times when her pain distracts her from attending to instructions or when her anxiety impacts her focus/concentration. She interacts in a somewhat abrasive/contentious manner interpersonally. Her ability to interact with co-workers, supervisors and the public is likely to be marked by anxiety, dysphoria, and general irritability based on her presentation today. She may experience problems processing complex information and following instructions without clarification or repetition at times when her pain
and/or anxiety/dysphoria are prominent. In a stressful or fast paced environment, these limitations are likely to be more pronounced, as her PTSD symptoms are likely to be triggered by high stimulus environments.AR 350.
The ALJ gave this opinion "partial weight as to its opinion that [Plaintiff] could perform simple tasks with social contact as provided in the [RFC] herein." Id. at 22. However, the ALJ discounted the opinion in part because it was: (1) "based almost entirely on subjective complaints by [Plaintiff] only and not any diagnostic findings," (2) inconsistent with Plaintiff's testimony that she was not engaged with any mental health therapy, and (3) inconsistent with Dr. Doenges' own findings that Plaintiff "presented no signs of psychotic symptoms, no auditory or visual hallucinations, only mild impairment of concentration/attention, oriented thought content, no evidence of panic, mania, thought disorder/psychotic symptoms, average intelligence, mild impairment of insight, mild impairment of judgment and no suicidal homicidal ideations, intent or plan." Id.
According to Plaintiff, the ALJ's assessment was based on a misunderstanding of psychology and "[n]othing requires a psychological opinion to be based exclusively on objective tests." Pl.'s Br. at 10-11. But while Plaintiff is correct that an ALJ should not reject a consultative opinion "solely for the reason that it was based on [the claimant's] responses," Thomas v. Barnhart, 147 F. App'x 755, 760 (10th Cir. 2005), here, the ALJ also gave other valid reasons for assigning the opinion only partial weight - namely inconsistencies between the opinion, Dr. Doenges' findings, and Plaintiff's testimony. Plaintiff does not challenge those reasons and the Court therefore finds no grounds for reversal on this issue. See Houston v. Colvin, 180 F. Supp. 3d 877, 889 (D.N.M. 2016) (holding the ALJ did not reject psychologist's opinion solely because it relied on subjective complaints but also listed several other factors and therefore did not run afoul of Thomas); Ramirez v. Berryhill, No. CIV 17-0781 KBM, 2018 WL 4915830, at *5 (D.N.M. Oct. 10, 2018) ("The Court finds no error where the ALJ discounted [the psychologist's] opinion only in part because it was based on self-reports, and where the ALJ sufficiently explained why Plaintiff's self-reports are not entirely consistent with the objective record evidence.").
D. Summary
In sum, the Court finds no reversible error in the ALJ's assessment of Drs. Pacheco and Doenges' opinions.
RECOMMENDATION
For the reasons set forth above, the Court should affirm the Commissioner's decision.
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 December 3, 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 District Judge in this matter.
ENTERED this 19th day of November, 2019.
/s/_________
BERNARD M. JONES
UNITED STATES MAGISTRATE JUDGE