Opinion
CIV-20-916-PRW
07-23-2021
ALLEN SMITH, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of the Social Security Administration denying Plaintiff's applications for benefits under the Social Security Act. The Commissioner has answered and filed a transcript of the administrative record (hereinafter TR. __). This matter has been referred to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). The parties have briefed their positions, and the matter is now at issue. It is recommended that the Commissioner's decision be AFFIRMED.
I. PROCEDURAL BACKGROUND
Initially and on reconsideration, the Social Security Administration denied Plaintiff's applications for benefits. Following an administrative hearing, an Administrative Law Judge (ALJ) issued an unfavorable decision. (TR. 20-35). The Appeals Council denied Plaintiff's request for review, rendering the decision of the ALJ the final decision of the Commissioner.
(TR. 1-3).
II. THE ADMINISTRATIVE DECISION
The ALJ followed the five-step sequential evaluation process required by agency regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R. §§ 404.1520 & 416.920. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since October 9, 2017, the alleged onset date. (TR. 22). At step two, the ALJ determined that Mr. Smith suffered from the following “severe” impairments: hyperkinetic movement disorder and degenerative disc disease affecting the cervical spine, causing upper extremity radiculopathy. (TR. 23). At step three, the ALJ found that Plaintiff's impairments did not meet or medically equal any of the presumptively disabling impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1 (TR. 24-25).
At step four, the ALJ concluded that Mr. Smith retained the residual functional capacity (RFC) to:
perform light work as defined in 20 CFR 404.1567(b) and 20 CFR 416.967(b) except the claimant is able to frequently grip, handle, feel, or finger bilaterally.(TR. 25).
With this RFC, the ALJ concluded that Plaintiff could not perform any past relevant work. (TR. 33). Thus, at the administrative hearing, the ALJ presented the RFC limitations to a vocational expert (VE) to determine whether there were other jobs in the national economy that Plaintiff could perform. (TR. 66). Given the limitations, the VE identified three jobs from the Dictionary of Occupational Titles. (TR. 67). The ALJ adopted the VE's testimony and concluded that Mr. Smith was not disabled at step five based on his ability to perform the identified jobs. (TR. 34-35).
III. ISSUE PRESENTED
On appeal, Plaintiff alleges error in the RFC. (ECF No. 20:3-9).
IV. STANDARD OF REVIEW
This Court reviews the Commissioner's final decision “to determin[e] whether the Commissioner applied the correct legal standards and whether the agency's factual findings are supported by substantial evidence.” Noreja v. Commissioner, SSA, 952 F.3d. 1172, 1177 (10th Cir. 2020) (citation omitted). Under the “substantial evidence” standard, a court looks to an existing administrative record and asks whether it contains “sufficien[t] evidence” to support the agency's factual determinations. Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). “Substantial evidence . . . is more than a mere scintilla . . . and means only-such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. at 1154 (internal citations and quotation marks omitted).
While the court considers whether the ALJ followed the applicable rules of law in weighing particular types of evidence in disability cases, the court will “neither reweigh the evidence nor substitute [its] judgment for that of the agency.” Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (internal quotation marks omitted).
V. NO ERROR IN THE RFC DETERMINATION
At step two, the ALJ found that Plaintiff suffered from a severe hyperkinetic movement disorder affecting his head and neck, as well as degenerative disc disease affecting Plaintiff's cervical spine, causing upper extremity radiculopathy. (TR. 23). As his sole proposition of error, Mr. Smith alleges that the ALJ erred in failing to include limitations in the RFC pertaining to the hyperkinetic disorder, as well as limitations related to a hand tremor. (ECF No. 20:3-10). The Court should disagree and affirm the Commissioner's decision.
A. Relevant Medical Evidence
The medical record contains evidence pertaining to Plaintiff's complaints of his hyperkinetic disorder and hand issues from 2014-2019. See TR. 394-723. Beginning in August 2014, Plaintiff complained of arm weakness, weak grip, and “dropping things, ” and his treating physician prescribed Flexeril and Prednisone. (TR. 394-395, 397). A cervical spine x-ray at that time showed degenerative changes and disc space narrowing at ¶ 6-C7. (TR. 399). In December 2014, Plaintiff received an epidural steroid injection for neck pain. (TR. 403-404). On July 28, 2016, Plaintiff's treating physician noted complaints of cervical pain/spasms and finger locking. (TR. 413). In June 2016, Plaintiff complained of neck and finger pain. (TR. 499). In December 2016, Plaintiff complained of neck spasms and head bobbing. (TR. 439). On January 5, 2017, the treating physician noted “no improvement” in the neck spasms/head bobbing. (TR. 413). At a September 2017 emergency room visit, an MRI of Plaintiff's thoracic and cervical spines was performed which revealed “no acute findings.” (TR. 537-540). An October 2017 office visit noted that Plaintiff's neck and head shaking had been occurring for the past four years. (TR. 440). At that time: (1) Plaintiff was given an “aspirin collar” “as a more rigid support device to help control his abnormal head shaking . . . [and] to keep his head stable while working” and (2) Plaintiff was limited to “sedentary work only” with no bending, squatting, or twisting. (TR. 442, 488). Mr. Smith also underwent an MRI of his brain for tremors which showed “normal” findings. (TR. 510, 512). On November 9, 2017, Plaintiff was referred to a neurologist for his abnormal head movements and neck pain. (TR. 514).
On January 2, 2018, neurologist Joseph Knapik examined Mr. Smith and noted his complaints of “head movements” and arm spasms which began approximately 4-5 years prior. (TR. 628). According to Mr. Smith, the head movements had caused a loss of vision on occasion and lightheadedness. (TR. 628). On examination, Dr. Knapik assessed hyperkinetic movement disorder to be treated with Haldol. (TR. 629). On April 5, 2018, Plaintiff reported that the Haldol had improved his symptoms “40%-50%.” (TR. 636). At this time, Dr. Knapik released Plaintiff to “half time” work, working up to full time work, without restrictions. (TR. 635). On October 17, 2018, neurologists Sergio Ramirez and Nidhiben Anadani examined Plaintiff, who complained of a head and hand tremor and neck pain. (TR. 651-654). According to Drs. Ramirez and Anadani, Plaintiff reported weakness, stiffness, “locking up” in his hands, and dropping things. (TR. 651, 654). Examination by Drs. Ramirez and Anadani noted “[p]ersistent head bobbing and tremor” and “midline tongue protrusion” as well as Plaintiff being “very fidgety.” (TR. 652, 654). Ultimately, Plaintiff was assessed with an “essential tremor affecting head and hands” and “cervical stenosis.” (TR. 653, 654). The Haldol was tapered down to stopping and Propranolol was prescribed. (TR. 653, 654).
On December 17, 2018, Mr. Smith presented to the emergency room complaining of chronic neck pain. (TR. 664). A CT of Plaintiff's cervical spine showed degenerative disc disease at ¶ 4-C5 through C6-C7. (TR. 667). A February 13, 2019 MRI of Plaintiff's cervical spine showed multilevel degenerative changes and mild C5/C6 canal stenosis and severe left foraminal stenosis. (TR. 712). At that time, Plaintiff was examined by Drs. Ramirez and Anadani, who noted that Plaintiff suffered from “orofacial dyskinesia (sticks his tongue out, smacks his lips).” (TR. 719). Plaintiff was officially diagnosed with tardive dyskinesia and an “essential tremor affecting head and hands.” (TR. 718-719).
At the March 28, 2019 hearing, Mr. Smith testified that he suffered neck pain and deterioration in his hand muscles which cause them to “lock up.” (TR. 51, 54, 65). Plaintiff stated that he had treated both conditions with injections, which provided some relief, but was currently only treating the neck pain with Tramadol. (TR. 52, 55, 64). Plaintiff also stated that he suffered from head bobbing which affected his vision and ability to concentrate. (TR. 55-56). According to Plaintiff, the head bobbing caused neck pain which limited him to lifting no more than 15 pounds. (TR. 57). Regarding his hand limitations, Mr. Smith stated that he had no difficulty in holding on to things, or gripping objects so long as he was not suffering numbness and tingling. (TR. 57-58). However, Plaintiff gave conflicting testimony regarding the frequency of the hand numbness, at one time testifying that it occurred once a week, and at another time, stating that it occurred approximately once a month. (TR. 57-58, 63-64).
B. The ALJ's Analysis/Plaintiff's Argument
At step four, the ALJ concluded that Mr. Smith could perform a full range of light work, with additional limitations involving the ability to only frequently grip, handle, feel, or finger bilaterally. (TR. 25). Following a thorough recitation of the medical evidence and articulation of weight given to various medical opinions, the ALJ supported the RFC by noting:
• treatment and improvement of symptoms through the use of epidural steroid injections, narcotic pain relievers, a soft cervical collar, a rigid neck collar, Haldol, Propranolol and muscle relaxants;
• evidence which showed intact muscle strength in all extremities and normal reflexes;
• normal MRI findings;
• a finding from Plaintiff's treating neurologist that Plaintiff had “no contraindications from a neurological standpoint to returning to work activities;”
• a release to Plaintiff to return to work with no limitations or restrictions;
• no records of pain management;
• a lack of hyperkinetic motion in Plaintiff's head, neck, shoulders or hands noted during a February 2019 ER visit; and
• inconsistencies between Plaintiff's testimony and reported activities and record evidence.(TR. 28-33). Ultimately, the ALJ stated: “in terms of the claimant's degree of impairment, reducing the occupational base to the residual functional capacity described above accounts for any symptoms reasonably arising from this impairment. Further erosion of the base is not warranted by the record.” (TR. 33).
Mr. Smith alleges that the ALJ erred by failing to include certain limitations in the RFC to account for his: (1) uncontrollable head bobbing, (2) a neck brace, (3) “fidgety behavior, ” (4) uncontrollable mouth smacking, (5) sticking his tongue out, and (6) a right-hand tremor. (ECF No. 20:7-10). For three reasons, the Court should disagree.
First, according to the Social Security regulations, “[a person's] impairment(s), and any related symptoms, . . . may cause physical and mental limitations that affect what [the person] can do in a work setting. [A person's] residual functional capacity is what [the person] can still do despite [his or her] limitations.” 20 C.F.R. §§ 404.1545(a) & 416.945(a). “Head bobbing, ” “fidgety behavior, ” “mouth smacking, ” “sticking his tongue out, ” and a hand tremor are all symptoms, which, to be sure, could cause limitations affecting the RFC, but the symptoms, by themselves, do not constitute actual limitations.
Second, as discussed above, the ALJ explained his reasons in support of the RFC and was under no obligation to include additional limitations not supported by the evidence. See Adams v. Colvin, 553 Fed.Appx. 811, 815 (10th Cir. 2014) (“An ALJ does not need to account for a limitation belied by the record when setting a claimant's RFC.”); Bean v. Chater, 77 F.3d 1210, 1214 (10th Cir. 1995) (noting that an ALJ need not include in the RFC limitations “claimed by plaintiff but not accepted by the ALJ as supported by the record.”). The ALJ acknowledged the Plaintiff's symptoms, weighed the evidence, and assessed the RFC. Plaintiff's attempt to re-weigh the evidence to reach a different RFC with additional limitations is simply impermissible. See Vigil v. Colvin, 805 F.3d at 1201 (noting that the court will “neither reweigh the evidence nor substitute [its] judgment for that of the agency.”) (internal quotation marks omitted).
Finally, Plaintiff does not cite any evidence that any medical professional had imposed limitations related to any of the symptoms on which Plaintiff relies. See ECF No. 20. Accordingly, the Court should find no error in the RFC which did not account for additional limitations based on such symptoms. See McAnally v. Astrue, 241 Fed.Appx. 515, 518 (10th Cir. 2007) (noting no error by the ALJ because the plaintiff failed to “discuss any evidence that would support the inclusion of any limitations”) (citation and internal brackets omitted); Meeks v. Berryhill, No. CIV-18-675-BMJ, 2019 WL 1519310, at *2 (W.D. Okla. Apr. 8, 2019) (rejecting plaintiff's argument alleging error through the failure to include additional limitations in the RFC because “[p]laintiff [did] not allege, or point to substantial evidence to prove, she ha[d] [the] [alleged] limitations.”).
In sum, the Court should find that the ALJ weighed the entirety of the medical evidence, including Plaintiff's subjective symptoms, and provided adequate rationales supported by substantial evidence of record in support of the RFC. Indeed, Plaintiff does not contest the adequacy of the ALJ's findings in regard to his review of the evidence. Instead, Mr. Smith argues only that additional limitations should have been incorporated in the RFC. But the ALJ himself did not believe that additional limitations were warranted, and a review of the evidence should lead the Court to conclude that the ALJ's reasoning was sound. As a result, the Court should affirm the Commissioner's decision.
VI. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Having reviewed the medical evidence of record, the transcript of the administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties, the undersigned magistrate judge finds that the decision of the Commissioner should be AFFIRMED.
The parties are advised of their right to file specific written objections to this Report and Recommendation. See 28 U.S.C. §636 and Fed.R.Civ.P. 72. Any such objections should be filed with the Clerk of the District Court by August 6, 2021. The parties are further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VII. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.