Opinion
Case No. CIV-18-662-F
04-03-2019
CORRIE WADE, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff, Corrie Wade, seeks judicial review of the Social Security Administration's denial of supplemental security income (SSI). This matter has been referred by United States District Judge Stephen P. Friot for proposed findings and recommendations. See 28 U.S.C. §§ 636(b)(1)(B), 636(b)(3). The Commissioner filed the Administrative Record (AR) [Doc. No. 11], and both parties briefed their respective positions. For the reasons set forth below, it is recommended that the Commissioner's decision be affirmed.
Citations to the parties' submissions reference the Court's CM/ECF pagination.
I. Procedural Background
On October 2, 2015, Plaintiff protectively filed an application for SSI. See AR 15. The Social Security Administration denied the application initially and on reconsideration. AR 72, 103. Following a hearing, an Administrative Law Judge (ALJ) issued an unfavorable decision dated August 4, 2017. AR 12-30. The Appeals Council denied Plaintiff's request for review. AR 1-6. Thus, the decision of the ALJ became the final decision of the Commissioner. Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011). Plaintiff seeks judicial review of this final agency decision.
II. The ALJ's Decision
The ALJ followed the sequential evaluation process required by agency regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005) (explaining five-step sequential evaluation process); see also 20 C.F.R. § 416.920. The ALJ first determined Plaintiff had not engaged in substantial gainful activity since October 2, 2015, the application date. AR 17.
At step two, the ALJ determined Plaintiff suffers from the following severe impairments: "schizoaffective disorder, unspecified 7/1/2013; affective disorder; anxiety disorder; BMI 32.48 and BMI 29.69; disorder of the spine (scoliosis); vision loss (Right eye)." AR 18 (internal citations omitted). 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, Appendix 1. AR 20-22.
The ALJ also found Plaintiff's allegation of hearing loss did not amount to a medically determinable impairment. AR 20.
The ALJ next determined Plaintiff's residual functional capacity (RFC), concluding:
[Plaintiff] had the residual functional capacity to perform medium work as defined in 20 CFR 416.967(c) except with nonexertional limitations. [Plaintiff] can: lift/carry 50 pounds occasionally and 25 pounds frequently; walk/stand up to 6 of 8 hours with normal breaks; and sit up to 6 of 8 hours. [Plaintiff] can occasionally climb ramps and stairs, and ladders, ropes or scaffolds. [Plaintiff] can frequently balance (no cane is seen). [Plaintiff] can frequently stoop, kneel, crouch and crawl; should avoid workplace hazards such as unprotected heights, hazardous machinery, open water and open flame. [Plaintiff] can perform tasks involving no vision in the right eye; and tasks involving no fine print when seeing with the left eye. [Plaintiff] can perform simple and routine tasks consistent with unskilled work, with relatively few changes in workplace task and processes. [Plaintiff] can have no more than occasional, superficial interaction with the general public (considered interaction that is brief, succinct, and task oriented). This person will do best working with things and data rather than with people.AR 22-25. The ALJ then found Plaintiff could not perform any past relevant work. AR 25. Relying on the testimony of a vocational expert, the ALJ found there were other jobs that existed in significant numbers in the national economy that Plaintiff could perform—hospital cleaner, hand packager, dishwasher, mail sorter, hand packer, and laundry worker. AR 25-26. The ALJ concluded, therefore, that Plaintiff was not disabled for purposes of the Social Security Act. AR 26.
III. 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 as a whole and whether the correct legal standards were applied. See Poppa v. Astrue, 569 F.3d 1167, 1169 (10th Cir. 2009). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003) (quotation omitted). A decision is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting it. Branum v. Barnhart, 385 F.3d 1268, 1270 (10th Cir. 2004). The court "meticulously examine[s] the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met." Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (citations 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 does not reweigh the evidence or substitute its own judgment for that of the Commissioner. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quotations and citations omitted).
IV. Claim Presented for Judicial Review
Plaintiff asserts the administrative record is not complete and the matter should be remanded. Specifically, the administrative record does not include an October 14, 2008 consultative examination, a record which is not directly referenced in the decision but was referenced in the state agency Disability Determination Explanations. AR 79, 94. Further, Plaintiff argues the ALJ erroneously gave the state agency psychological consultants' opinions great weight because those opinions were based, in part, on evidence not in the record. Plaintiff also contends the missing record amounts to a violation of his due process rights. The Court finds these arguments to be unavailing and recommends the decision be affirmed.
Plaintiff briefly insinuates the unfavorable determination was due to his status as a sex offender. Pl.'s Br. 3-4. Plaintiff's speculative argument is undeveloped and unsupported by evidence, and the Court will not consider it. See Wall, 561 F.3d at 1066. Plaintiff also claims the ALJ overlooked his symptoms from when he tried to perform work-like activity. Pl.'s Br. 3-4. In support, Plaintiff directs the Court to his hearing testimony in which he stated he quit his gatekeeper position due to hearing voices and hallucinations and also that he goes to a mental health facility once per week for group sessions. Id. at 4 (citing AR 43, 53). The ALJ, however, specifically referenced Plaintiff's testimony that he "is not managing the gate any longer because he was having hallucinations" and he attends group meetings weekly for support. AR 23. Thus, this argument has no merit.
V. Analysis
1. Adequacy of the Record
An ALJ "bears responsibility for ensuring that an adequate record is developed during the disability hearing consistent with the issues raised." Branum, 385 F.3d at 1271 (internal quotation omitted). The Commissioner develops a claimant's "complete medical history for at least the [twelve] months preceding the month in which [a claimant] files [his or her] application unless there is a reason to believe that development of an earlier period is necessary" or a claimant asserts a disability that began less than twelve months before filing the application. 20 C.F.R. § 416.912(d).
In this matter, Plaintiff asserted he became disabled on July 31, 2015, and he filed his application on October 2, 2015. AR 15. The medical history was therefore complete without the 2008 medical record—which was completed many years prior to Plaintiff's asserted disability date and application—unless there was reason to believe the development of an earlier period was necessary. Here, the ALJ did not determine earlier evidence was necessary. The ALJ reviewed some evidence prior to his alleged date of disability, but did so "solely in the context of understanding [Plaintiff's] impairments and functional capacities as of that date through the present and should not be construed as a reopening or reconsideration by implication." Id. In other words, by not including the 2008 consultative examination, the ALJ determined the development of the record from nearly seven years prior to the application date was unnecessary.
Further, in a case "where the claimant was represented by counsel at the hearing before the ALJ, the ALJ should ordinarily be entitled to rely on the claimant's counsel to structure and present claimant's case in a way that the claimant's claims are adequately explored, and the ALJ may ordinarily require counsel to identify the issue or issues requiring further development." Branum, 385 F.3d at 1271 (internal quotation omitted). In this matter, Plaintiff was represented at the hearing. Plaintiff's counsel advised the ALJ that he had an opportunity to read the electronic file and did not object to the exhibits contained therein. AR 37-39. Thus, Plaintiff's counsel was aware the state agency psychological consultant referenced the 2008 consultative examination, and he did not object or seek to include the document in the transcript.
For the reasons stated above, the record is adequate pursuant to agency regulations.
2. Weight Given to Consultative Examiners
Plaintiff also argues because the 2008 consultative examination is not part of the record, it "renders the great weight agency opinions subject to attack because they are without foundation." Pl.'s Br. 4. The state agency psychologists found Plaintiff retained: 1) the capacity to understand and remember one-to-two step instructions; 2) the capacity for concentration, persistence, and pace for one-to-two step instructions for two hours periods over an eight hour day; 3) the social interaction capacity for routine interactions with coworkers and supervisors, but limited interaction capacity with the general public; and 4) the adaptive capacity to deal with routine changes and safety issues. AR 84-85, 100.
An ALJ considers the following factors when evaluating a medical opinion: 1) the examining relationship; 2) the treatment relationship; 3) supportability; 4) consistency; 5) specialization; and 6) other factors which tend to support or contradict the opinion. 20 C.F.R. § 416.927(c). Here, the ALJ considered those factors and noted the state agency opinions were "consistent with the serial mental status findings, treating medical records, function reports, objective medical evidence, and the overall longitudinal record in its entirety." AR 24. Further, the ALJ observed the opinions were "accompanied by a detailed narrative of evidence and is consistent with that evidence; the psychologists are specialists in mental health and have program knowledge." Id. Earlier in the decision, the ALJ summarized treating medical records regarding his mental health, including information regarding the duration of his conditions, his reported symptoms, medications, and GAF scores. AR 19-20.
To the extent the ALJ should not have considered that the state agency opinions were consistent with the accompanying narrative of evidence because the 2008 consultative examination was included in the narrative, the ALJ gave other good reasons for the weight given to the opinions. As such, reversal is not warranted. See Bainbridge v. Colvin, 618 F. App'x 384, 390 (10th Cir. 2015) ("But even if this reason was improper, the other reasons the ALJ gave were more than sufficient for rejecting [the treating physician's] opinion."); Milson v. Berryhill, No. CIV-17-684-G, 2018 WL 4521220, at *4 (W.D. Okla. Sept. 21, 2018) ("These deficiencies, however, are insufficient to invalidate the ALJ's analysis of Dr. Chaudry's opinion, as the weight ascribed is supported by the other reasons the ALJ articulates."); LeFevre v. Colvin, No. 2:13-CV-602-PMW, 2014 WL 2967472, at *4 (D. Utah July 1, 2014) ("Furthermore, even if the court were to agree with Plaintiff's two arguments, the court would nevertheless conclude that the other reasons cited by the ALJ are sufficient to uphold his determination that Dr. McCune's opinions were entitled to little weight."). Thus, there is no reversable error with regard to the weight given to the state agency consultative examiners.
3. Due Process
Finally, Plaintiff argues his due process rights were affected because the ALJ made her decision based on evidence not in the record, which means Plaintiff had "no opportunity to review, refute, or respond to that evidence." Pl.'s Br. 5-6. Plaintiff cites two cases in support of his argument—one Tenth Circuit case and another from a district court. Id. (citing Allison v. Heckler, 711 F.2d 145, 147 (10th Cir. 1983); Hinck v. Colvin, 90 F. Supp. 3d 1217, 1220 (D. Kan. 2015)). Each case is factually distinct from this matter. In Allison, the ALJ sent a pro se claimant's record to a doctor after the hearing to obtain a report and referred to the post-hearing report in the decision. Allison, 711 F.2d at 146. The Tenth Circuit determined the use of the "post-hearing medical report constitutes a denial of due process because the applicant is not given the opportunity to cross-examine the physician or to rebut the report." Id. at 147. In Hinck, the ALJ relied on a post-hearing investigative report into the claimant's hunting activities and denied benefits. Hinck, 90 F. Supp. at 1219. The district court determined the Commissioner violated the claimant's due process by making "a decision based upon information of which [the claimant] was not informed and to which [the claimant] was not permitted to object, refute, correct, or otherwise respond." Id. at 1220. Both of these cases involved an ALJ who obtained information that was created after the hearing and utilized that information in the decision to deny benefits. In this case, on the other hand, the medical record at issue existed for eight years prior to the hearing and nearly nine years prior to the decision. As noted above, Plaintiff's counsel attended the hearing, was aware the state agency psychologists' opinions were included in the record, and did not object to their admission. Unlike the cases Plaintiff cites, the pertinent information was available to Plaintiff at the hearing. Therefore, the Court does not find a due process violation.
RECOMMENDATION
For the reasons set forth above, it is recommended that the Commissioner's decision be affirmed.
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 April 17, 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. 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 3rd day of April, 2019.
/s/_________
BERNARD M. JONES
UNITED STATES MAGISTRATE JUDGE