Opinion
CIV-23-775-HE
05-20-2024
DONNA M. GRAY, Plaintiff, v. MARTIN O'MALLEY, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
Donna M. Gray (Plaintiff) seeks judicial review of the Commissioner of Social Security's final decision that she was not “disabled” under the Social Security Act. See 42 U.S.C. § 1383(c)(3); see also id. § 405(g). United States District Judge Joe Heaton referred this matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 9.
Citations to the parties' pleadings and attached exhibits will refer to this Court's CM/ECF pagination. Citations to the administrative record (AR) will refer to its original pagination.
Plaintiff asks this Court to reverse the Commissioner's decision and remand the case for further proceedings, arguing, first, that the ALJ should have made a Listing 12.05 determination regarding Plaintiff's cognitive abilities at step three of the sequential analysis and, second, that the ALJ erred in evaluating Plaintiff's back pain symptoms in assessing her RFC. See Doc. 12, at 4. After careful review of the AR, the parties' briefs, and the relevant authority, the undersigned recommends the Court affirm the Commissioner's decision.
I. Administrative determination.
A. Disability standard.
The Social Security Act defines a disabled individual as a person who is “unable 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 twelve months.” 42 U.S.C. § 1382c(a)(3)(A). “This twelve-month duration requirement applies to the claimant's inability to engage in any substantial gainful activity, and not just [the claimant's] underlying impairment.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Barnhart v. Walton, 535 U.S. 212, 218-19 (2002)).
B. Burden of proof.
Plaintiff “bears the burden of establishing a disability” and of “ma[king] a prima facie showing that [s]he can no longer engage in h[er] prior work activity.” Turner v. Heckler, 754 F.2d 326, 328 (10th Cir. 1985). If Plaintiff makes that prima facie showing, the burden of proof then shifts to the Commissioner to show Plaintiff retains the capacity to perform a different type of work and that such a specific type of job exists in the national economy. Id.
C. Relevant findings.
1. Administrative Law Judge's findings.
The ALJ assigned to Plaintiff's case applied the standard regulatory analysis to decide whether Plaintiff was disabled during the relevant timeframe. AR 17-27; see 20 C.F.R. § 416.920(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (describing the five-step process). The ALJ found Plaintiff:
(1) had not engaged in substantial gainful activity since her application date of April 16, 2020;
(2) had the following severe impairments: degenerative disc disease and osteoarthritis of the lumbar spine; scoliosis; plantar fasciitis disorder; neuropathy; obesity; depression; anxiety;
(3) had no impairment or combination of impairments that met or medically equaled the severity of a listed impairment;
(4) had the residual functional capacity(RFC) to perform light work as defined in 20 CFR § 416.967(b), except that she
could lift or carry up to twenty pounds occasionally and ten pounds frequently; she could only stand or walk about six hours in an eight-hour day; she could sit for about six hours in an eight-hour day, with no more than frequent balancing, stooping, kneeling, crouching, crawling, or climbing of ramps or stairs, no more than occasional climbing of ladders, ropes, or scaffolds; and she was limited to understanding, remembering, and carrying out simple tasks and instructions but not detailed or complex tasks and instructions;
(5) was unable to perform any past relevant work;
(6) was able to perform jobs that exist in significant numbers in the national economy; and so,
(7) had not been under a disability from April 16, 2020, through February 1, 2023.AR 13-25.
Residual functional capacity “is the most [a claimant] can still do despite [a claimant's] limitations.” 20 C.F.R. § 416.945(a)(1).
2. Appeals Council's findings.
The Social Security Administration's Appeals Council denied Plaintiff's request for review, see id. at 1-7, making the ALJ's decision “the Commissioner's final decision for [judicial] review.” Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011).
II. Judicial review of the Commissioner's decision.
A. Review standard.
The Court reviews the Commissioner's final decision to determine “whether substantial evidence supports the factual findings and whether the ALJ applied the correct legal standards.” Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016). Substantial evidence is “more than a scintilla, but less than a preponderance.” Lax, 489 F.3d at 1084; see also Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (“It means-and means only-such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”) (internal quotation marks and citation omitted). “Evidence is not substantial if it is overwhelmed by other evidence in the record.” Wall, 561 F.3d at 1052 (internal quotation marks, alteration, and citation omitted). The Court will “neither reweigh the evidence nor substitute [its] judgment for that of the agency.” Newbold v. Colvin, 718 F.3d 1257, 1262 (10th Cir. 2013) (citation omitted).
B. The ALJ was not required to further develop the record.
Plaintiff claims the ALJ erred at step three by failing to make a Listing 12.05 determination regarding Plaintiff's cognitive abilities. Doc. 12, at 6-13; see 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05 (Listing 12.05). The crux of Plaintiff's argument is that the ALJ should have further developed the evidence about her cognitive abilities after her psychiatric evaluators “flagged significant concerns.” Doc. 12, at 6.
“The listings define impairments that would prevent an adult, regardless of his age, education, or work experience, from performing any gainful activity, not just ‘substantial gainful activity.'” Sullivan v. Zebley, 493 U.S. 521, 532 (1990) (quoting 20 CFR § 416.925(a)). “[T]he listings were designed to operate as a presumption of disability that makes further inquiry unnecessary.” Id.; see also Bowen v. Yuckert, 482 U.S. 137, 141 (1987) (“If the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled. If the impairment is not one that is conclusively presumed to be disabling, the evaluation proceeds to the fourth step.”). At the agency level, Plaintiff bears the burden of proving she meets a listing criteria at step three. 20 C.F.R. § 416.912(a). “For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria.” Sullivan, 493 U.S. at 530. “To show that an impairment or combination of impairments meets the requirements of a listing, a claimant must provide specific medical findings that support each of the various requisite criteria for the impairment.” Lax, 489 F.3d at 1085 (citing 20 C.F.R. § 416.925).
To show disability under Listing 12.05, a claimant must show that she meets the criteria under either subsection A or B. To satisfy subsection A, she must show:
1. Significantly subaverage general intellectual functioning evident in [her] cognitive inability to function at a level required to participate in standardized testing of intellectual functioning; and
2. Significant deficits in adaptive functioning currently manifested by [her] dependence upon others for personal needs (for example, toileting, eating, dressing, or bathing); and
3. The evidence about [her] current intellectual and adaptive functioning and about the history of [her] disorder demonstrates or supports the conclusion that the disorder began prior to [her] attainment of age 22.20 C.F.R. Pt. 404, Subpt. P, App. 1, Pt. P, § 12.05(A). To satisfy subsection B, she must show:
1. Significantly subaverage general intellectual functioning evidenced by a or b:
a. A full scale (or comparable) IQ score of 70 or below on an individually administered standardized test of general intelligence; or b. A full scale (or comparable) IQ score of 71-75 accompanied by a verbal or performance IQ score (or comparable part score) of 70 or below on an individually administered standardized test of general intelligence; and
2. Significant deficits in adaptive functioning currently manifested by extreme limitation of one, or marked limitation of two, of the following areas of mental functioning:
a. Understand, remember, or apply information; or
b. Interact with others; or c. Concentrate, persist, or maintain pace; or d. Adapt or manage oneself; and
3. The evidence about your current intellectual and adaptive functioning and about the history of your disorder demonstrates or supports the conclusion that the disorder began prior to your attainment of age 22.Id. § 12.05(B) (internal citations omitted).
Plaintiff has not demonstrated the ALJ's step three finding was unsupported by substantial evidence. See Allman, 813 F.3d at 1330. She has not identified evidence that she met her burden to prove disability under the listing 12.05 criteria under either subsection. See Aslan v. Colvin, 637 Fed.Appx. 509 (10th Cir. 2016) (explaining plaintiff “fail[ed] to direct [the court's] attention to any medical records confirming he suffers from” the listing condition and concluding that because plaintiff “fail[ed] to satisfy all of the criteria in these two listings, he [could ]not prevail at step three as a matter of law”).
Instead, she argues the ALJ had a duty to further develop the record by eliciting more evidence about her intellectual functioning. She points to consultative examination reports from Dr. Janet Kates, Ph.D., and Dr. Jennifer Lancaster, Ph.D. In November 2019, Dr. Kates found Plaintiff's “concrete and abstract reasoning abilities [to be] very limited.” AR 728-29; see also Doc. 12, at 7-8. She also found her “social mores” to be limited. AR 728. Her “immediate and recent memory abilities” were mildly limited, her “longterm memory abilities” displayed “more limitations,” and her “fund of general information was limited.” Id. Dr. Kates observed Plaintiff “laughed a lot, sometimes inappropriately so.” Id. at 729. While Dr. Kates often “had to interrupt her to refocus her or to ask a question,” she noted “no major articulation difficulties.” Id. at 728. In August 2020, Dr. Lancaster found Plaintiff's “intellectual abilities . . . to be well below average (i.e., borderline intellectual functioning) or within an impaired range (i.e., mild intellectual disability).” Id. at 940. Dr. Lancaster concluded that “[m]ore thorough examination of cognitive abilities would be warranted to make this diagnosis.” Id.; see also Doc. 12, at 7.
Plaintiff represents that Dr. Kates could not rule out psychotic perceptual abnormalities. Doc. 12, at 7 (“Of note, Dr. Kates indicated she could not rule out a psychotic perceptual abnormalities [sic].”). Dr. Kates's report actually says that she “would not rule in perceptual abnormalities of a psychotic nature.” AR 729 (emphasis added).
Plaintiff makes much of Dr. Lancaster's conclusion that a more thorough examination would be warranted to confirm her diagnosis:
As Dr. Lancaster specifically stated, here, there is not enough information to make a finding given the specific testing to determine Claimant's precise mental limitations has not been performed. Here, the issue is raised given Dr. Lancaster's examination indicating her intellectual and adaptive functioning struggles existed prior to the age of 22. Further, her verbal and language skills raise a question as to whether her verbal IQ would fall below 70 given her lack of understanding of simple words, antonyms or synonyms, story details, and history in speech therapy. Likewise, Dr. Lancaster noted Claimant's adaptive functioning could also be impaired.Doc. 12, at 9; see also id. at 11 (“Not only does the record demonstrate insufficient evidence exists to determine whether Claimant meets Listing 12.05 requiring further development, but the record never establishes whether Claimant was “well below average” or impaired in her intellectual and adaptive domains.”).
Dr. Lancaster's conclusion that further examination would be warranted to confirm her diagnosis did not impose upon the ALJ a duty to further develop the record. “A social security disability hearing is nonadversarial, [] and the ALJ bears responsibility for ensuring that ‘an adequate record is developed during the disability hearing consistent with the issues raised.'” Branum v. Barnhart, 385 F.3d 1268, 1271 (10th Cir. 2004) (quoting Henrie v. U.S. Dep't of Health & Hum. Servs., 13 F.3d 359, 360-61 (10th Cir. 1993)). However, when a claimant is represented by counsel, “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,” so “the ALJ may ordinarily require counsel to identify the issue or issues requiring further development.” Hawkins v. Chater, 113 F.3d 1162, 1167 (10th Cir. 1997). Plaintiff does not identify any effort by agency counsel to bring any such issues to the ALJ's attention.
Further, the ALJ's decision includes sufficient evidence to decide at step three whether Plaintiff satisfied any listing criteria. Although he did not mention Listing 12.05 specifically, the ALJ did identify evidence showing Plaintiff did not meet criteria for presumptive disability under that listing. See AR 16-17; see also Doc. 19, at 10-11 n.2 (citing Fischer-Ross v. Barnhart, 431 F.3d 729, 733 (10th Cir. 2005) (“[A]n ALJ's findings at other steps of the sequential process may provide a proper basis for upholding a step three conclusion that a claimant's impairments do not meet or equal any listed impairment.”).
Relevant to subsection A, Plaintiff points to no evidence or allegation in the record that Plaintiff was cognitively unable to participate in standardized testing of intellectual functioning. Doc. 19, at 8; see 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05(A)(1). The ALJ noted Plaintiffs activities of daily living, including doing puzzles, cleaning, helping take care of her husband, preparing meals, doing dishes and laundry, paying bills, shopping, and driving. AR 16, 18. He also noted that while Plaintiff “alleged she cannot follow instructions,” “she completed her own Function Report.” Doc. 19, at 16. Plaintiff showed no “[significant deficits in adaptive functioning currently manifested by [her] dependence upon others for personal needs (for example, toileting, eating, dressing, or bathing).” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05(A)(2); AR 16, 18. The ALJ found “[t]he objective evidence in the record indicates the claimant has appropriate grooming and hygiene and she told [Dr. Kates] she has physical but not mental issues with dressing.” AR 16.
Relevant to subsection B, Plaintiff merely speculates that her IQ might meet the Listing 12.05 criteria based on Dr. Lancaster's conclusion that more testing would be warranted to diagnose any mental impairment. Doc. 12, at 9-10; see 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05(B)(1). Subsection B also requires a finding of “[significant deficits in adaptive functioning currently manifested by extreme limitation of one, or marked limitation of two, of [the listed] areas of mental functioning.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05(B)(2). The ALJ found Plaintiff had moderate limitation in the area of understanding; remembering or applying information; mild limitation in interacting with others; mild limitation in concentrating, persisting, or maintaining pace; and mild limitation in adapting or managing herself. AR 16.
These findings were partially based on Plaintiff's capabilities as reported either during her testimony or during consultative psychological examinations. Id. But the ALJ also considered Dr. Kates's and Dr. Lancaster's findings both at step three and later, at step four. The ALJ found Dr. Kates's conclusions partially persuasive, accounting for documentation of “limitations in cognitive skills and in concrete and abstract reasoning skills” with a limitation to simple work and accounting for her documentation of limited social skills with a mild limitation in this area. Id. at 23. As for Dr. Lancaster, the ALJ noted her statement that Plaintiff “is thought to have difficulty understanding and remembering, along with persisting and socially interacting when mood and anxiety concerns are more significant. She is also thought to be in need of assistance in managing her own funds responsibly.” Id. (quoting Id. at 940). He found that statement partially persuasive, explaining that “[b]y contrast, [Plaintiff] goes grocery shopping, goes to church, and occasionally, she goes out to eat”; she “maintained adequate to good eye contact with the consultative psychologists”; and she “gets along with clinicians.” Id.
The ALJ's step three findings that Plaintiff did not meet the criteria of a listed impairment is supported by substantial evidence, and he did not have a duty to further develop the record regarding Listing 12.05.
Plaintiff suggests the ALJ's RFC assessment conflicts with the Dictionary of Occupational Titles descriptions of jobs identified by the ALJ at step five. Doc. 12, at 10-11. Some of those jobs require reasoning levels of two or three. AR 24-25. Any error is harmless, though, because one of the jobs identified by the ALJ (housekeeping cleaner, DICOT 323.687-014) has a reasoning level of one and makes up 131,000 jobs in the economy. Id.; see also Smith v. Kijakazi, No. CIV-20-1035-STE, 2021 WL 6051106, at *8 (W.D. Okla. Dec. 21, 2021) (“Because the ALJ concluded that Plaintiff could perform the job[] of housekeeper[,] . . . which require[s] only reasoning level one, any error in the ALJ's reliance on [a reasoning-level two job] would be considered harmless.”); Jimison ex rel. Sims v. Colvin, 513 Fed.Appx. 789, 794 (10th Cir. 2013) (80,000 jobs nationally “was sufficient to fulfill the Commissioner's step-five burden to show that [claimant] could perform one or more occupations with a significant number of available positions”).
C. The ALJ properly considered Plaintiff's subjective complaints of back pain.
Plaintiff argues the ALJ erred in evaluating her back pain symptoms in assessing her RFC. Doc. 12, at 13-16. An ALJ evaluates complaints of disabling pain as follows:
(1) whether the claimant established a pain-producing impairment by objective medical evidence; (2) if so, whether the impairment is reasonably expected to produce some pain of the sort alleged (what we term a “loose nexus”); and (3) if so, whether, considering all the evidence, both objective and subjective, the claimant's pain was in fact disabling.Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166-67 (10th Cir. 2012) (citing Luna v. Bowen, 834 F.2d 161, 163-64 (10th Cir. 1987)); see SSR 16-3p, 2017 WL 5180304, at *3 (Oct. 25, 2017).
The ALJ resolves any conflict in the evidence. Richardson v. Perales, 402 U.S. 389, 399 (1971) (“We [] are presented with the not uncommon situation of conflicting medical evidence. The trier of fact has the duty to resolve that conflict.”). But the Court does “not require a formalistic factor-by-factor recitation of the evidence.” Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000). Here, the ALJ discussed the objective medical evidence at length, discounting Plaintiff's consistency about “the intensity, persistence, and limiting effects” of her pain. AR 19-23.
Plaintiff argues the ALJ's RFC assessment accounted only for the objective medical evidence related to back pain and omitted subjective evidence of Plaintiffs “repeated attempts to find relief from pain, [] all the medications she was prescribed, their effectiveness,” and Plaintiffs decision to leave “physical therapy both times because it was too painful.” Doc. 12, at 14-15. On the contrary, the ALJ expressly considered this evidence before accounting for Plaintiffs pain by restricting her to a reduced range of light work with postural limitations. See AR 17.
The ALJ discussed Plaintiff's physical therapy after a June 2019 motor vehicle accident. Id. at 19; see 20 C.F.R. § 416.929(c)(3)(iv)(v) (listing medication and non-medication treatment for pain as relevant factors). Plaintiff received lumbar epidural steroid injections and a medial branch block, which “helped with symptoms.” AR 19. “The doctor noted ‘good outcome with residuals' and 2/10 pain severity,” and Plaintiff “was released at maximum medical improvement on September 18, 2019.” Id. She sought physical therapy again from April to May 2021 after another motor vehicle accident but was discharged “due to poor compliance and inability to be contacted to reschedule appointments” after she missed three in a row. Id. at 20. Plaintiff's provider wrote that she “requested to be released from care.” Id. The ALJ also noted Plaintiff received no pain management treatment from August 2021 to March 2022. Id. Finally, the ALJ specifically noted that Plaintiff stopped physical therapy on her doctor's advice because “it made her pain worse.” Id. at 18.
In discounting Plaintiff's consistency, the ALJ also considered the physical findings of consultative examiner Dr. Robert C. Balogh, M.D., finding them to be “somewhat persuasive as somewhat consistent with and supported by the evidence of record.” Id. at 22. The ALJ went on to find “some physical limitations are appropriate based on [Plaintiff's] obesity, degenerative disc disease and osteoarthritis of the lumbar spine, scoliosis, plantar fasciitis disorder, and neuropathy, even though “she uses no assistive device and exams show essentially normal functioning.” Id. He concluded Plaintiff's “obesity and chronic pain contribute to her limitation to light work.” Id.
The ALJ appropriately weighed the subjective evidence of Plaintiff's back pain treatment. She has not demonstrated the ALJ's RFC assessment lacked substantial evidence.
III. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court affirm the Commissioner's decision.
The undersigned advises Plaintiff of her right to file an objection to this report and recommendation with the Clerk of this Court on or before June 3, 2024, in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Plaintiff that failure to make a timely objection to this report and recommendation waives the right to appellate review of both factual and legal questions contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This report and recommendation disposes of all issues referred to the undersigned Magistrate Judge in this matter.