Opinion
CIV-23-111-PRW
08-28-2023
JACQUELINE DENNY, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
GARY M. PURCELL UNITED STATES MAGISTRATE JUDGE
Plaintiff seeks judicial review pursuant to 42 U.S.C. § 405(g) of the final decision of Defendant denying her application for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 423, 1352. Defendant has answered the Complaint and filed the administrative record (hereinafter AR), and the parties have briefed the issues. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended Defendant's decision be affirmed.
I. Administrative History and Final Agency Decision
Plaintiff filed applications for DIB and SSI on January 28, 2021, alleging disability beginning on May 1, 2018. AR 10. The Social Security Administration (”SSA”) denied her applications initially and on reconsideration. Id. An Administrative Law Judge (“ALJ”) then held a telephonic administrative hearing during which Plaintiff, appearing with counsel, and a vocational expert (“VE”) testified. AR 31-70. On July 28, 2022, the ALJ issued a decision finding Plaintiff was not disabled within the meaning of the Social Security Act. AR 7-19.
Following the agency's well-established sequential evaluation procedure, the ALJ found Plaintiff had not engaged in substantial gainful activity since May 1, 2018, the alleged disability onset date. AR 12. At the second step, the ALJ found Plaintiff had severe impairments of diabetes with neuropathy, coronary artery disease, edema, and hypertension. Id. Relevant to this appeal, the ALJ also determined Plaintiff had non-severe impairments of anxiety and depression. AR 14. At the third step, the ALJ found these impairments were not per se disabling as Plaintiff did not have an impairment or combination of impairments meeting or medically equaling the requirements of a listed impairment. AR 16.
At step four, the ALJ found Plaintiff's residual functional capacity (“RFC”) did not include any limitations related to her non-severe mental impairments. AR 16. Based on the RFC finding and the VE testimony, the ALJ determined Plaintiff could perform her past relevant work as a case worker for child welfare and families. AR 18-19. As a result, the ALJ concluded Plaintiff had not been under a disability, as defined by the Social Security Act, from May 1, 2018 through the date of the decision. AR 19.
The Appeals Council denied Plaintiff's request for review, and therefore the ALJ's decision is the final decision of the Commissioner. Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009); 20 C.F.R. § 416.1472.
II. Issue Raised
On appeal, Plaintiff asserts the ALJ erred at step four in his consideration of her mental limitations. Doc. No. 9 at 7-21.
III. General Legal Standards Guiding Judicial Review
The Act authorizes payment of benefits to an individual with disabilities. 42 U.S.C. § 401, et seq. A disability is an “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); see 20 C.F.R. § 416.909 (duration requirement). Both the “impairment” and the “inability” must be expected to last not less than twelve months. Barnhart v. Walton, 535 U.S. 212 (2002).
The Court must determine whether Defendant's decision is supported by substantial evidence in the record and whether the correct legal standards were applied. Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). “[W]hatever the meaning of ‘substantial' in other contexts, the threshold for such evidentiary sufficiency is not high.” Biestek v. Berryhill, __U.S.__, 139 S.Ct. 1148, 1154 (2019). Substantial evidence “means-and means only-such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quotations omitted).
The “determination of whether the ALJ's ruling is supported by substantial evidence must be based upon the record taken as a whole. Consequently, [the Court must] remain mindful that evidence is not substantial if it is overwhelmed by other evidence in the record.” Wall, 561 F.3d at 1052 (citation, quotations, and alteration omitted). The Court must also be mindful that reviewing courts may not create post-hoc rationalizations to explain Defendant's treatment of evidence when that treatment is not apparent from the decision itself. Grogan v. Barnhart, 399 F.3d 1257, 1263 (10th Cir. 2005) (citing, e.g., Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004); SEC v. Chenery Corp., 318 U.S. 80, 87 (1943)).
IV. Analysis
When an ALJ assesses the RFC, he must account for all functional limitations resulting from the plaintiff's severe and non-severe impairments. See 20 C.F.R. § 404.1545(a)(2) (providing that the ALJ must “consider all of [a plaintiff's] medically determinable impairments . . ., including [the plaintiff's] medically determinable impairments that are not ‘severe,'” when assessing the claimant's RFC); see also Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *5 (“In assessing RFC, the adjudicator must consider limitations and restrictions imposed by all of an individual's impairments, even those that are not ‘severe.'”). Thus, in determining the RFC, the ALJ cannot rely upon a finding of non-severity at step two as a substitute for a more thorough RFC analysis. Wells v. Colvin, 727 F.3d 1061, 1068-69, 1071 (10th Cir. 2013). Consequently, when an ALJ finds non-severe mental impairments at step two, the ALJ must still consider those mental impairments when assessing the RFC. Id.
Here, the ALJ found Plaintiff's depression and anxiety were medically determinable impairments, but concluded these impairments were not severe. AR 14. To reach this finding, the ALJ considered each of the four broad functional areas of mental functioning found in the disability regulations used to evaluate mental disorders. 20 C.F.R. §§ 404.1520a(c)(3); 416.920a(c)(3). These four areas are commonly known as the “paragraph B” criteria. Stephanie G. v. Kijakazi, No. 20-2623-EFM, 2022 WL 266801, at *4 (D. Kan. Jan. 28, 2022). The “paragraph B” criteria evaluate a plaintiff's ability to “[(1)] [u]nderstand, remember, or apply information; [(2)] interact with others; [(3)] concentrate, persist, or maintain pace; and [(4)] adapt or manage oneself.” 20 C.F.R. §§ 404.1520a(c)(3); 416.920a(c)(3). The applicable regulations direct ALJs to rate a plaintiff's degree of limitation in each of these four areas by using a “five-point scale: [n]one, mild, moderate, marked, and extreme.” 20 C.F.R. §§ 404.1520a(c)(4); 416.920a(c)(4). If the ALJ finds “none” or a “mild” limitation, the ALJ generally concludes the impairment is not severe. 20 C.F.R. §§ 404.1520a(d)(1); 416.920a(d)(1).
In this case, the ALJ determined at step-two that Plaintiff had “no more than mild limitations” in each of the four paragraph B categories. AR 14. In so finding, the ALJ discussed Plaintiff's subjective reports both to the SSA and her health care providers in detail. The ALJ concluded Plaintiff had no more than mild limitations in her ability to understand, remember, or apply information based on her own subjective reports. AR 14 (citing AR 310-17, 351, 1228, 1318). With regard to interacting with others, the ALJ noted Plaintiff's report that she got along with others, engaged in social activities, and that her health records showed cooperative behavior and no evidence of inappropriate behavior around others. AR 14 (AR 31017, 1053).
The ALJ accurately noted that Plaintiff's mental health records are limited because “[t]he record shows the claimant [did not] start[] therapy [until] after the death of a family member [in December 2021]. Prior to 2022, there is no record she had difficulty with a mental impairment, nor did she have any mental health treatment.” AR 14, 1316.
The ALJ determined Plaintiff had no more than mild limitations in her ability to concentrate, persist, or maintain pace based on her own reports and her medical records indicating good concentration. AR 14 (citing 310-17). Finally, the ALJ determined Plaintiff had no more than mild limitations in her ability to adapt or manage herself following a review of Plaintiff's subjective reports, as well as the medical record showing no evidence of inappropriate behavior around others, or that emergency intervention or psychiatric hospitalization had ever been necessary. AR 14 (citing AR 310-17). The ALJ went on to conclude that “[b]ecause [Plaintiff]'s medically determinable mental impairment causes no more than ‘mild' limitation in any of the functional areas and the evidence does not otherwise indicate that there is more than a minimal limitation in [Plaintiff]'s ability to do basic work activities, they are nonsevere.” AR 14-15.
Notably, SSR 96-8p, 1996 WL 374184, specifically cautions against any requirement that a noted paragraph B limitation equates to a corresponding RFC limitation. Id. at *4 (“The adjudicator must remember that the limitations identified in the ‘paragraph B' and ‘paragraph C' criteria are not an RFC assessment but are used to rate the severity of mental impairment(s) at steps 2 and 3 of the sequential evaluation process.”); see also Bales v. Colvin, 576 Fed.Appx. 792, 798 (10th Cir. 2014) (“[W]e conclude that the ALJ's finding of a moderate limitation in concentration, persistence, or pace at step three does not necessarily translate to a work-related functional limitation for the purposes of the RFC assessment in this case.”); Beasley v. Colvin, 520 Fed.Appx. 748, 754 (10th Cir. 2013) (“The ALJ was under no obligation to include limitations in social functioning in Ms. Beasley's RFC based solely on his finding that she had ‘moderate difficulties' in social functioning as part of the distinct step-three analysis”).
Plaintiff does not challenge the ALJ's finding of no more than mild limitations. Instead, she argues the ALJ erred by failing to discuss the “no more than mild” mental limitations during step four in determining the RFC. As support, Plaintiff relies on Wells v. Colvin, supra. Therein, the Tenth Circuit held that an ALJ's finding that a plaintiff's “mental impairments are non-severe at step two does not permit the ALJ simply to disregard those impairments when assessing a claimant's RFC and making conclusions at steps four and five.” Wells, 727 F.3d at 1068-69. Instead, the “ALJ's ‘RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts . . . and nonmedical evidence.'” Id. at 1065 (quoting SSR 96-8p, 1996 WL 374184, at *7).
In Wells, similar to the present case, the ALJ found the plaintiff's mental impairments were not 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 (quotations and alterations omitted). The Tenth Circuit expressed concern that this language suggested “that the ALJ may have relied on his step-two findings to conclude that [the plaintiff] had no limitation based on her mental impairments[,]” which would amount to error “under the regulations and the Commissioner's procedures.” Id. The court noted, however, that “to some degree[,]” the ALJ “separately discuss[ed] [the claimant's] mental impairments” when developing the RFC, but ultimately, the ALJ's conclusions about the mental RFC assessment were not supported by substantial evidence. Id. at 1069-71. Thus, the problem in Wells was two-fold: (1) it was questionable whether the ALJ had improperly “relied on his finding of non-severity as a substitute for [an] adequate RFC analysis[;]” and (2) in any event, the ALJ's RFC finding was not supported by substantial evidence. Id.
Here, unlike in Wells, Plaintiff does not assert that the ALJ's findings regarding Plaintiff's mild mental limitations are not supported by substantial evidence. Moreover, the ALJ's decision does not reflect the type of conflation of the steps two and four determinations criticized in Wells. Indeed, in the present case, the ALJ explicitly recognized in his decision the distinction between steps two and four:
The limitations identified in the “paragraph B” criteria are not a residual functional capacity assessment but are used to rate the severity of mental impairments at steps 2 and 3 of the sequential evaluation process. The mental residual functional capacity assessment used at steps 4 and 5 of the sequential evaluation process requires a more detailed assessment. The following residual functional capacity assessment reflects the degree of limitation the undersigned has found in the “paragraph B” mental function analysis.
AR 15. As stated in the final sentence, in assessing the RFC at step four, the ALJ obviously believed Plaintiff suffered no functional limitations relating to any mental impairment, as is reflected by the absence of the same in the RFC.
Thus, the ALJ explicitly recognized the proper legal standard in considering non-severe impairments in determining the RFC and provided a comprehensive analysis of Plaintiff's mental impairments. AR 14-15, supra. However, Plaintiff asserts the ALJ failed to consider and evaluate Plaintiff's mental impairments in determining the RFC. See supra. The Court disagrees, instead finding that the ALJ's discussion on page 15 of his decision, directly after noting the proper legal standard for evaluating Plaintiff's mental impairments in determining her RFC, was sufficient to discharge his duty at step four.
It is true that the ALJ did not replicate this discussion or conclusion in the section of his decision describing Plaintiff's RFC; however, this omission was not error. In the RFC section of his decision, after listing Plaintiff's symptoms, the ALJ concluded that the “claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” AR 16 (emphasis added). The Court is not prevented from following the ALJ's reasoning merely because he did not repeat his prior statement that the RFC reflected the degree of limitation that arose from Plaintiff's “no more than mild” mental limitations. See Giles v. Kijakazi, No. CIV-22-1075-STE, 2023 WL 4188204, at *4 (W.D. Okla. June 26, 2023) (affirming the ALJ's decision where at step four, the ALJ concluded that the plaintiff's mild mental limitations did not warrant limitations in the RFC, although included this conclusion within his step two discussion); see also, cf., Kathy v. Saul, No. 2:19-cv-00527-JCB, 2020 WL 6135790, at *4 (D. Utah Oct. 19, 2020) (“There was no need for the ALJ to repeat [at step four] why he thought the Plaintiff's shoulder impairments did not cause any functional limitations.” (citing Bradley v. Colvin, 643 Fed.Appx. 674, 676 (10th Cir. 2016) (finding that the ALJ sufficiently considered the plaintiff's impairment in determining his RFC when the ALJ discussed impairment in detail at step two but did not repeat the discussion at step four); Fischer-Ross v. Barnhart, 431 F.3d 729, 730, 733-34 (10th Cir. 2005) (holding that an ALJ's factually-substantiated findings at other steps of the sequential-evaluation process provides a proper basis for upholding a step-three decision); Fisher v. Colvin, No. 2:16-CV-00054-DS, 2017 WL 448590, at *2 (D. Utah Feb. 2, 2017) (holding remand was unnecessary when the ALJ made sufficient factual findings at step two to support his RFC determination)). Accordingly, the Court finds the ALJ's RFC determination with respect to Plaintiff's mental limitations is proper and supported by substantial evidence, and, therefore, Plaintiff's allegation of error should fail.
See Administrative Record, Giles v. Kijakazi, No. CIV-22-1075 (W.D. Okla. Feb. 16, 2023), Doc. No. 8-2 at ¶ 26-27.
RECOMMENDATION
In view of the foregoing findings, it is recommended that judgment enter affirming the decision of Defendant. Plaintiff is advised of her right to file an objection to this Report and Recommendation with the Clerk of this Court on or before August 15th, 2023, in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf., Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter.