Opinion
Civil Case No. 22-cv-003359-LTB
2023-12-18
T.T., Plaintiff, v. Kilolo KIJAKAZI, Acting Commissioner of Social Security, Defendant.
David Fallon Chermol, Chermol & Fishman, LLC, Philadelphia, PA, for Plaintiff. Richard W. Pruett, Social Security Administration, Baltimore, MD, for Defendant.
David Fallon Chermol, Chermol & Fishman, LLC, Philadelphia, PA, for Plaintiff.
Richard W. Pruett, Social Security Administration, Baltimore, MD, for Defendant.
ORDER
LEWIS T. BABCOCK, JUDGE.
Plaintiff, T.T., appeals from the final decision of the Social Security Administration ("SSA") Commissioner denying her application for disability insurance benefits, filed pursuant to Title II of the Social Security Act 42 U.S.C. § 401, et. seq., and her application for supplemental security income, filed pursuant to Title XVI of the Social Security Act 42 U.S.C. § 1381, et. seq. Jurisdiction is proper pursuant to 42 U.S.C. § 405(g). Oral argument would not materially assist me in the determination of this appeal. After consideration of the parties' briefs, as well as the administrative record, I REVERSE and REMAND the Commissioner's order as follows.
I. STATEMENT OF THE CASE
Plaintiff seeks judicial review of the Commissioner's decision denying her application for disability insurance benefits and her application for supplemental security income, filed on June 24, 2019 and October 9, 2019. [Administrative Record at Doc #9, "AR" 238-39, 240-45] After her applications were initially denied on January 11, 2021 [AR 107-09] and again denied on reconsideration on September 15, 2021 [AR 151-52], an Administrative Law Judge ("ALJ") held an evidentiary hearing via telephone on February 28, 2022. [AR 50-78] The ALJ subsequently issued a written ruling denying Plaintiff's applications on June 1, 2022, on the basis that she was not disabled because she was capable of performing her past relevant work as a telemarketer and as a telephone sales supervisor (Step Four). [AR 15-36] The SSA Appeals Council subsequently denied Plaintiffs administrative request for review of the ALJ's determination making the Commissioner's decision final. [AR 1-6] Plaintiff timely filed her complaint with this court seeking review of the Commissioner's decision on December 30, 2022. [Doc #1]
II. FACTS
Plaintiffs date of birth is February 16, 1963. [AR 238] She was fifty-five years old
on March 1, 2018, her alleged onset date, and was fifty-nine at the time of the ALJ's decision in this case. [AR 15, 238] Plaintiff has a high school education, and she communicates in English. [AR 35, 71-72, 367, 529] Her prior employment history includes work as a telemarketer, door-todoor salesperson, and telephone sales supervisor. [AR 35, 71-72, 267]
As to Plaintiffs physical impairments, the ALJ found that Plaintiff suffered from the severe impairments of: degenerative disc disease, facet arthritis, and disc bulge of the lumbar spine; degenerative disc disease of the cervical spine; minimal degenerative disc disease of the thoracic spine; mild osteoarthritis and tendonitis of the right hip; and trochanteric bursitis of the left hip. [AR 19] The ALJ also identified numerous other diagnoses that he deemed to be non-severe impairments such as: bilateral cataracts, methamphetamine intoxication, acute colitis, hiatal hernia, hyperglycemia, gastroenteritis, Covid-19, essential hypertension, pure hypercholesterolemia, etc. [AR 19]
When assessing her mental impairments, the ALJ found that Plaintiffs medically determinable mental impairments of depressive disorder, major depressive disorder, anxiety, and other anxiety disorder did not cause more than minimal limitation on Plaintiffs ability to perform basic mental work activities. [AR 20] The evidence of record related to Plaintiff's mental impairments is limited. The treatment records generally reveal only occasional anxious affect, but otherwise normal mental status examinations, with the exception of emergency room visits in December 2019 and December 2020 related to paranoia and decreased need for sleep as the result of methamphetamine use [AR 20, 492-500], as well as a hospitalization for suicide attempt by overdose on prescription pain medication in December 2021, when Plaintiff reported "prior methamphetamine and heroin abuse." [AR 552-56]
On September 15, 2020, Joy Kelley, Ph. D., a state agency psychologist, reviewed Plaintiffs records at the initial determination and concluded that Plaintiff had no medically determinable mental impairments. [AR 86]
On August 16, 2021, on reconsideration, Plaintiff underwent a psychological consultative examination with Frederick V. Malmstrom, Ph.D., who found Plaintiff to be alert, fully oriented and cooperative with normal limits of cognition. [AR 528-533]. Dr. Malmstrom's examination also revealed overactive and restless behavior, organized and spontaneous but rambling and pressured speech, confused thought processes, and reported visual hallucinations and paranoid thoughts. [AR 20-21] Dr. Malmstrom diagnosed depressive disorder, moderate to severe, with psychotic features and anxious distress. [AR 532] He noted "no indications of past or present drug or alcohol abuse" despite numerous notations of Plaintiffs illicit drug use in her medical records. [AR 21, 530-32]
On August 18, 2021, Paula Kresser, Ph. D., a state agency psychologist reviewed Plaintiffs medical records. [AR 122-125] Dr. Kresser's report initially indicated a medically determinable impairment that did not precisely satisfy the diagnostic criteria for depressive, bipolar and related disorders. [AR 123] And she found that there was insufficient evidence to find any limitation in Plaintiff's functional abilities in understanding information, interacting with others, concentration, or adaptation. [AR 123] Finally, Dr. Kresser opined "Overall no MDI [medically determinable impairments]." [AR 124-25]
III. LAW
A five-step sequential evaluation process is used to determine whether a claimant is
disabled under the Social Security Act, which is generally defined 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. § 1382c(a)(3)(B); see also Bowen v. Yuckert, 482 U.S. 137, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987).
The sequential evaluation process used to determine whether a claimant is disabled starts with Step One, which is a determination of whether the claimant is presently engaged in substantial gainful activity. If she is, disability benefits are denied. See 20 C.F.R. §§ 404.1520, 416.920. Step Two is a determination of whether the claimant has a medically severe impairment or combination of impairments as governed by 20 C.F.R. § 404.1520(c) and § 416.920(c). If the claimant is unable to show that her impairment(s) would have more than a minimal effect on her ability to do basic work activities, she is not eligible for disability benefits. Step Three determines whether the impairment is equivalent to one of a number of listed impairments deemed to be so severe as to preclude substantial gainful employment. See 20 C.F.R. §§ 404.1520(d), 416.920(d). If the impairment is not listed, she is not presumed to be conclusively disabled. Step Four then requires the claimant to show that her impairment(s) and assessed residual functional capacity ("RFC") prevent her from performing work that she has performed in the past. If the claimant is able to perform her previous work, the claimant is not disabled. See 20 C.F.R. §§ 404.1520 (e)&(f), 416.920(e)&(f)
Finally, if the claimant establishes a prima facie case of disability based on the four steps as discussed, the analysis proceeds to Step Five where the SSA Commissioner has the burden to demonstrate that the claimant has the RFC to perform other work in the national economy in view of her age, education, and work experience. See 20 C.F.R. §§ 404.1520(g), 416.920(g).
IV. ALJ's RULING
The ALJ here found that Plaintiff had not engaged in substantial gainful activity since her alleged onset date of March 10, 2018 (Step One). [AR 19] The ALJ ruled that Plaintiff had the severe physical impairments of: degenerative disc disease, facet arthritis, and disc bulge of the lumbar spine; degenerative disc disease of the cervical spine; minimal degenerative disc disease of the thoracic spine; mild osteoarthritis and tendonitis of the right hip; and trochanteric bursitis of the left hip. [AR 19] The ALJ further found that Plaintiff had the following diagnoses he deemed to be non-severe impairments: bilateral cataracts; myopia; astigmatism; presbyopia; methamphetamine intoxication; acute colitis; acute dehydration; liver mass; hiatal hernia; medication overdose; hyperglycemia; colon polyp; internal hemorrhoids; gastroenteritis; Covid-19; acute upper respiratory infection; essential hypertension; vitamin D deficiency; Raynaud's syndrome; pure hyperglyceridemia; acute sinusitis; nicotine dependence; pure hypercholesterolemia; thyrotoxicosis; mixed hyperlipidemia; depressive disorder; major depressive disorder; anxiety; and other anxiety disorder. [AR 19] The ALJ concluded that "these impairments are non-severe as there is no evidence [Plaintiff] has ongoing functional limitations from these impairments due to the limited nature of the complaints, the good response to treatment, or the lack of any evidence of any functional limitations for any 12-month period of time." [AR 19] Thus, "[g]iven the lack of any associated functional limitations,"
the ALJ determined these impairments were "not severe." [AR 19]
As to her mental impairments, the ALJ ruled that Plaintiff suffered from the medically determinable impairments of depressive disorder, major depressive disorder, anxiety, and other anxiety disorder. [AR 20] After reviewing the evidence related to these mental impairments, the ALJ determined that Plaintiff had "mild" limitations in her ability to: understand, remember, or apply information; concentrate, persist, and maintain pace; and adapt and manage oneself. [AR 20] The ALJ further found that the evidence did not otherwise indicate that these impairments caused "more than minimal limitation in [her] ability to perform basic mental work activities" and, therefore, they were "nonsevere." [AR 20] The ALJ concluded that Plaintiff did "not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments" deemed to be so severe as to preclude substantial gainful employment (Step Three). [AR 25]
The ALJ then determined that Plaintiff retained the residual functional capacity (RFC) to perform light work — in that she could occasionally lift/carry twenty pounds and frequently lift/carry ten pounds; stand and/or walk four hours and sit six hours of an eight-hour workday — but that she was limited to occasional stooping, kneeling, crouching, crawling, or climbing, and to frequent handling, fingering, feeling, or operating hand controls with her bilateral upper extremities. [AR 25] The ALJ did not assign any mental limitations to Plaintiff's RFC and her ability to work.
Based on this assessed RFC, and the testimony of the vocational expert, the ALJ found that Plaintiff was able to perform her past relevant work as a telemarketer, DOT § 299.357-014, as both actually and generally performed, and as a telephone sales supervisor, DOT § 235.137-010, as generally performed (Step Four). [AR 35] As a result, the ALJ concluded that Plaintiff was not disabled at Step Four of the sequential process. [AR 35-36]
V. STANDARD OF REVIEW
This court's review is limited to whether the final decision is supported by substantial evidence in the record as a whole and whether the correct legal standards were applied. Williamson v. Barnhart, 350 F.3d 1097, 1098 (10th Cir. 2003); White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001); Qualls v. Apfel, 206 F.3d 1368, 1371 (10th Cir. 2000). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance." Kidd v. Comm'r, SSA, No. 21-1363, 2022 WL 3041097 (10th Cir. Aug. 2, 2022)(unpublished)(quoting Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)). "[T]he threshold for such evidentiary sufficiency is not high." Biestek v. Berryhill, 587 U.S. 97, 139 S. Ct. 1148, 1154, 203 L.Ed.2d 504 (2019). Reviewing courts "consider whether the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases, but we will not reweigh the evidence or substitute our judgment for the Commissioner's." Lax v. Astrue, supra, 489 F.3d at 1084; see also Casias v. Secretary of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991). "The failure to apply proper legal standards may, under the appropriate circumstances, be sufficient grounds for reversal independent of the substantial evidence analysis." Kidd v. Comm'r, supra (quoting Hendron v. Colvin, 767 F.3d 951, 954 (10th Cir. 2014)); Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996)(ruling that reversal may be appropriate when the SSA Commissioner
either applies an incorrect legal standard or fails to demonstrate reliance on the correct legal standards).
VI. ANALYSIS
As an initial matter, to the extent that Plaintiff argues that the ALJ erred when finding that her mental impairments were not severe at Step Two, such determination is supported by substantial evidence in the record and analysis in the ALJ's order. More importantly, any error in this determination does not affect the ALJ's sequential evaluation process in that he found that Plaintiff did have other severe impairments at Step Two and then considered all her impairments (both severe and non-severe) when subsequently assessing her RFC. [AR 20 — indicating that "I considered all the [Plaintiff's] medically determinable impairments, including those that are not severe, when assessing [her] residual functional capacity."] Thus, any failure to find that Plaintiffs mental impairments were severe is irrelevant and does not constitute error justifying remand. See Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016)(ruling that "the failure to find a particular impairment severe at step two is not reversible error when the ALJ finds that at least one other impairment is severe"); Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008)(indicating that "any error here became harmless when the ALJ reached the proper conclusion that [the claimant] could not be denied benefits conclusively at step two and proceeded to the next step of the evaluation sequence").
Plaintiff next asserts that the ALJ failed to consider the "interactive or cumulative" effects of her thirty non-severe impairments, in combination with her severe impairments, when determining her RFC. She argues that such failure is contrary to SSA policy, which requires the ALJ to consider the effect of a claimant's assessed non-severe impairments on their functional ability to work. See Social Security Ruling (SSR) 95-28, 1985 WL 56856 (noting that "[a]lthough an impairment is not severe if it has no more than minimal effect on an individual's mental or physical ability to do basic work activities, the possibility of several such impairments combining to produce a severe impairment must be considered" when formulating a claimant's RFC).
Plaintiff concedes, however, that the order states, numerous times, that the ALJ considered all of Plaintiff impairments, including those deemed to be non-severe, when determining her RFC. [AR 20] For example, after finding that her non-severe impairments lacked any associated functional limitations at Step Two, the ALJ indicated that "[n]onetheless, in accordance with our Regulations, I did consider any potential effects these impairments might cause or contribute to in the residual functional capacity below." [AR 20] The ALJ's order further indicated, when he was determining Plaintiffs RFC, that:
As discussed above, the claimant has nonsevere impairments. In accordance with SSR 96-8p, I note that a residual functional capacity is not the least an individual can do despite his or her limitations or restrictions, but the most. I 'must consider all allegations of physical and mental limitations or restrictions imposed by all of an individual's impairments, even those that are not severe,' While I considered all of the claimant's medically determinable impairments in formulating the residual functional capacity, these nonsevere impairments do not cause any additional limitations. [AR 33]
I reject Plaintiff's argument that because the ALJ did not specifically address each impairment, or address how they each interact
in combination, that the ALJ erred when assessing Plaintiff's RFC. The ALJ's order specifically indicates, several times, that he considered all Plaintiffs impairments, both severe and nonsevere, when determining her ability to work.
Plaintiff also asserts, however, that the ALJ erred when assessing her RFC by failing to consider or address his previous findings (made at Step Two of the sequential evaluation process) that Plaintiff had "mild" limitations in mental functioning. At Step Two the ALJ applied the broad functional areas of mental functioning set out in the disability regulations, known as "paragraph B" criteria, as part of the two-step psychiatric review technique to be used for evaluating the severity of a claimant's mental disorders. [AR 22-25] In so doing, the ALJ found that Plaintiff had "mild" mental limitations in her ability to: 1) understand, remember, or apply information; 2) concentrate, persist, and maintain pace; and 3) adapt and manage one-self. [AR 22]
When subsequently determining Plaintiffs RFC, the ALJ assessed no mental limitation on Plaintiffs ability to work. [AR 25] The ALJ's order only indicates that "[w]hile I considered all of the claimant's medically determinable impairments in formulating the residual functional capacity, these nonsevere impairments do not cause any additional limitations" [AR 33], and that "[t]he following residual functional capacity assessment reflects the degree of limitation I have found in the "paragraph B" mental function analysis." [AR 24] The order provides no further examination of Plaintiffs mental limitations, and the ALJ did not include Plaintiffs previously found "mild" limitations, assessed as Step Two, when determining her RFC. Plaintiff argues that this failure to include or address her previously assessed mental impairments when determining her RFC constitutes error.
In support of her argument Plaintiff cites to Wells v. Colvin, 727 F.3d 1061 (10th Cir. 2013), for the proposition that an ALJ's findings upon applying the paragraph B criteria, even if only of mild limitations, must be incorporated or explained why they were not included in a Plaintiff's assessed RFC. The Court in Wells v. Colvin ruled that, under the SSA regulations, "a finding of non-severity alone [at Step Two] would not support a decision to prepare an RFC assessment omitting any mental restrictions." Id. at 1065. The ALJ in Wells v. Colvin found that the claimant's mental impairments weren't severe, and then stated that "these findings do not result in further limitations in work-related functions in the RFC assessment below." Id. at 1069. The Tenth Circuit determined this language suggested "that the ALJ may have relied on his step-two findings to conclude that [the claimant] had no limitation based on her mental impairments[,]" which would amount to error. Id. (reversing because it was questionable whether the ALJ improperly relied on his finding of non-severity as a substitute for an adequate RFC analysis and, in any event, the ALJ's RFC finding wasn't supported by substantial evidence). In Farrill v. Astrue, 486 F. App'x 711, 713 (10th Cir. 2012)(unpublished), the Tenth Circuit reversed for various errors, including that the ALJ failed to explain "why he chose not to include any mental limitations in the RFC, despite his previous assessment of mild limitations."
The Commissioner argues that the ALJ's finding of mild limitations when assessing the severity of Plaintiffs mental impairments at Step Two does not mandate corresponding workplace restrictions as part of Plaintiffs RFC. See Beasley v. Colvin, 520 F. App'x 748, 754 & n.3 (10th
Cir. 2013)(unpublished)(noting that the ALJ's finding of "moderate difficulties" in social functioning in the paragraph B criteria "does not necessarily translate to a work-related functional limitation for the purposes of the RFC assessment"); Stephanie G. v. Kijakazi, No. 20-2623-EFM, 2022 WL 266801, at *5 (D. Kan. Jan. 28, 2022)(unpublished)(noting that "inclusion of some functional limitation in the RFC on the basis of a finding of mild paragraph B limitations is not mandated").
In this case, the ALJ's order only indicates that Plaintiff's RFC "assessment reflects the degree of limitation I have found in the 'paragraph B' mental function analysis." [AR 24] There is no other relevant analysis, despite that the ALJ acknowledged that the mental RFC assessment "requires a more detailed assessment" than the paragraph B limitations identified at Step Two. [AR 24] Thus, the error here is not the ALJ's failure to include his Step Two findings regarding Plaintiffs mental limitations in her assessed RFC, it is his failure to "address or consider Plaintiff's mental impairments during the RFC assessment at all." Mary E. K. v. Kijakazi, No. 21-CV-02373-TC, 2023 WL 4105155, at *4 (D. Kan. June 21, 2023)(unpublished); compare D.R.B. v. Kijakazi, No. 21-2143-DDC, 2022 WL 4465044 (D. Kan. Sept. 26, 2022)(unpublished)(finding that the ALJ's language — that the "following [RFC] assessment reflects the degree of limitation the undersigned has found in the 'paragraph B' mental function analysis" — comes close to the problematic language used by the ALJ in Wells" v. Colvin, supra — but further found no error because the ALJ "adequately addressed Plaintiff's mental limitations in his RFC discussion and explained why those limitations didn't affect the RFC"). "The ALJ was not required to include the mild limitations determined from the paragraph B criteria in Plaintiff's RFC, but the ALJ still needed to address the underlying non-severe medically determinable mental impairments in the RFC assessment in combination with the physical impairment." Mary E. K. v. Kijakazi, supra, 2023 WL 4105155, at *4 (citing Stephanie G. v. Kijakazi, supra, 2022 WL 266801, at *5); Wells v. Colvin, supra , 727 F.3d at n. 3 (noting that when the ALJ found "mild" functional restrictions at Step Two, further analysis was required at Step Four).
As such, this case is remanded for the ALJ to consider and specifically address Plaintiffs mental limitations, as found at Step Two, on her RFC and her ability to work, before proceeding with the sequential evaluation process.
ACCORDINGLY, for the foregoing reasons, the Commissioner's final decision is REVERSED and the case is REMANDED for further proceedings consistent with the reasoning above.