Opinion
CIV-20-1312-G
10-29-2021
LORRAINE HARMON Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of the Social Security Administration, [1]
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. 10-24). The Appeals Council denied Plaintiff's request for review. (TR. 1-3). Thus, the decision of the ALJ became the final decision of the Commissioner.
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 December 1, 2017, the alleged onset date. (TR. 12). At step two, the ALJ determined Ms. Harmon suffered from the following severe impairments: degenerative disc disease status post ACDF; rheumatoid arthritis; hypertension; bipolar disorder; intermittent explosive disorder; borderline personality disorder; anxiety; and depression. (TR. 12). 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. 13).
At step four, the ALJ concluded that Ms. Harmon retained the residual functional capacity (RFC) to:
[L]ift and carry 20 pounds occasionally and 10 pounds frequently. The claimant can sit for about 6 hours during an eight-hour workday and can stand and walk for about 6 hours during an eight-hour workday. The claimant can occasionally climb, balance, stoop, kneel, crouch, and crawl. The claimant can frequently handle and finger. The claimant can understand, remember, and carry out simple, routine, and repetitive tasks. The claimant can relate to others on a superficial work basis. The claimant can adapt to a work situation.(TR. 16).
With this RFC, the ALJ concluded that Ms. Harmon could not perform her past relevant work. (TR. 23). Thus, 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. 50-51). Given the limitations, the VE identified three jobs from the Dictionary of Occupational Titles. (TR. 51). At step five, the ALJ adopted the VE's testimony and concluded that Ms. Harmon was not disabled based on her ability to perform the identified jobs. (TR. 24).
III. ISSUES PRESENTED
On appeal, Plaintiff alleges error in the RFC. (ECF No. 20:3-8).
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
Mr. Harmon alleges error in the RFC based on the ALJ's failure to include limitations stemming from her intermittent explosive disorder (IED). (ECF No. 20:3-8). The Court should disagree and affirm the Commissioner's decision.
At step two, the ALJ determined that Ms. Harmon suffered from “severe” IED. (TR. 12). Based on this finding, Ms. Harmon argues that the ALJ should have incorporated limitations relating to the disorder into the RFC. (ECF No. 20:3-8). In support of this argument, Plaintiff cites:
• A record from 2007 where Plaintiff reported that she had gotten angry with her daughter and threw things in her face;
• A record from 2008 where Plaintiff reported daily anger outbursts characterized by yelling, throwing things, and biting people;
• A 2008 diagnosis of IED;
• A 2019 report from Plaintiff that she suffered mood swings and got “real mean” with her boyfriend who thought she was crazy;
• A 2019 report that Plaintiff had rambling speech, fair judgment, limited insight, and a “distractible” listening ability;
• A 2019 treatment note which reflected a two-day inpatient stay at St. Anthony Hospital following Plaintiff's suicide attempt; and
• A note from a mental health practitioner that the suicide attempt was due to Plaintiff's inability to control her anger.(TR. 432, 436, 437, 448, 449, 507, 512). Based on these records, Plaintiff contends that she “has episodes where she explodes with anger” which should have been considered in the RFC. (ECF No. 20:7). According to Ms. Harmon, her explosive anger “will be projected in front of (or directly at) supervisors, employees, and/or the general public and “would most likely result in her immediate termination[.]” (ECF No. 20:7).
At step four, in assessing the RFC, the ALJ was required to consider the effect of all of the claimant's medically determinable impairments, including the “severe” IED. See 20 C.F.R. §§ 404.1545(a)(2) & 416.945(a)(2). With respect to Plaintiff's mental health, the ALJ complied with this directive, discussing:
• Plaintiff's diagnosis of IED;
• Plaintiff's reports of moodiness, agitation, and hospitalization for suicide attempts;
• A psychological report from psychologist Miracle Goetz, stating that Plaintiff's prognosis was “fair-to-good with re-evaluating her medication management an [sic] introduction to a therapist for individual therapy;”
• The suicide attempt which was fueled by Plaintiff fighting with her boyfriend and a lack of impulse control; and
• Plaintiff's inpatient stay at St. Anthony's Hospital.(TR. 17-21).
Plaintiff repeatedly refers to her diagnosis of IED, but “[t]he mere diagnosis of a condition does not establish its severity or any resulting work limitations.” Paulsen v. Colvin, 665 Fed.Appx. 660, 666 (10th Cir. 2016); see Baker v. Berryhill, No. CIV-17-500-STE, 2017 WL 6420763, at *4 (W.D. Okla. Dec. 15, 2017) (finding the plaintiff was wrong believing even “a ‘severe' impairment should necessarily result in related limitations in the RFC”). As to additional RFC limitations, Plaintiff speculates that the ALJ limit her to “no interaction whatsoever with anyone . . .” (ECF No. 20:8). The ALJ included mental functional limitations in the RFC, limiting Plaintiff to only “simple, routine, and repetitive tasks, ” with an ability to only “relate to others on a superficial work basis.” (TR. 16). Plaintiff does not explain how these restrictions fail to account for her IED. See Kirkpatrick v. Colvin, 663 Fed.Appx. 646, 649 (10th Cir. 2016) (rejecting plaintiff's argument regarding the alleged omission of certain limitations in an RFC because “[plaintiff] doesn't explain how the[ ] restrictions [that were included in the RFC] fail to account for his [limitations]”).
Additionally, an ALJ is not required to include any limitations in the RFC unless the record supports those imitations. See Id. at 650 (“Clearly, an ALJ doesn't commit error by omitting limitations not supported by the record.”). Here, Ms. Harmon fails to identify any additional functional limitations that the ALJ should have included, but instead states only that the ALJ “failed to show consideration of any functionally distinct limitations from Ms. Harmon's [IED].” (ECF No. 20:6). The Court should deem this argument insufficient. See, e.g., McAnally v. Astrue, 241 Fed.Appx. 515, 518 (10th Cir. 2007) (affirming in part, holding “the claimant has shown no error by the ALJ because she does not identify any functional limitations that should have been included in the RFC [assessment]”); Perez v. Saul, No. CIV-19-1100-SM, 2021 WL 1177587, at *5 (W.D. Okla. Mar. 26, 2021) (finding plaintiff's failure to identify any functional limitations which he thought should be included in the RFC “fatal to his claim.”); Nelson v. Commissioner of Social Security Administration, No. CIV-17-275-F, 2018 WL 1937113, at *5 (W.D. Okla. Mar. 30, 2018) (finding no error based on ALJ's failure to include limitations in the RFC when “Plaintiff fails to suggest just what RFC limitations the ALJ should have included and to explain why, based on the evidence she cites, he should have done so. . . leav[ing] the court to speculate[.]”).
In addition to Plaintiff's failure to identify particular functional limitations stemming from the IED, Ms. Harmon failed to testify regarding the same at the administrative hearing. There, Plaintiff testified that she suffers from anxiety, depression, and bipolar disorder, which makes it hard for her to “sit down and talk to somebody, but “as long as [she] take[s] [her] Zoloft, [she] act[s] pretty normal” and she “does fine” “out in the public.” (TR. 46-47). Plaintiff did not testify regarding any anger issues or limitations stemming from her IED. See TR. 37-52.
In sum, the Court should: (1) conclude that the ALJ did not err by failing to include limitations relating to Plaintiff's IED in the RFC and (2) 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 November 12, 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.
ENTERED .