Opinion
CIV-22-1054-SLP
09-27-2024
ANDREW D. LUCAS, 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 his 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 protectively filed applications for DIB and SSI on December 5, 2020, alleging disability since June 30, 2019. AR 16. The Social Security Administration denied Plaintiff's applications initially and on reconsideration. Id.
Plaintiff, appearing with counsel, and a vocational expert (“VE”) testified at a telephonic administrative hearing conducted before an administrative law judge (“ALJ”) on May 19, 2022. AR 33-56. On June 10, 2022, the ALJ issued a decision in which he found Plaintiff had not been disabled within the meaning of the Social Security Act at any time from June 30, 2019, the alleged onset date, through the date of the decision. AR 13-26.
Following the agency's sequential evaluation procedure, the ALJ found at the first step that Plaintiff had not engaged in substantial gainful activity since the alleged disability onset date. AR 19. At the second step, the ALJ found Plaintiff had the following severe impairments: spine disorder and reconstructive surgery or surgical arthrodesis of major weight bearing joint. Id. 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 that met or medically equaled the requirements of a listed impairment. Id.
At step four, the ALJ found Plaintiff had the residual functional capacity (“RFC”) to perform a full range of light work. AR 20. During the administrative hearing, the ALJ presented the RFC limitations to the VE to determine whether there were jobs in the national economy Plaintiff could perform. AR 53-54. Given the limitations, the VE determined Plaintiff could not perform any of his past relevant work, but identified three jobs from the Dictionary of Occupational Titles that
Plaintiff could perform. Id. In his decision, the ALJ explained that based on Plaintiff's age, education, work experience, and RFC, the Medical-Vocational Guidelines directly supported a finding of non-disability. AR 24. The ALJ continued the evaluation process, noting the VE's testimony regarding jobs the Plaintiff could perform and concluded, at step five, that Plaintiff was not disabled. AR 25-26.
II. Issues Raised
On appeal, Plaintiff raises two issues. First, Plaintiff contends the ALJ's RFC is not supported by substantial evidence because he failed to properly consider Plaintiff's subjective reports of pain. Doc. No. 13 (“Op. Br.”) at 5-12. Second, Plaintiff asserts the ALJ failed to properly consider his mental impairments or limitations. Id. at 12-15. In Defendant's Response, she points out that during the administrative hearing, Plaintiff specifically denied that he was seeking disability based on a mental impairment. Doc. No. 17 at 9-10. In his Reply, Plaintiff alters this argument to assert that he is not relying upon mental impairments but is instead asserting the ALJ should have considered Plaintiff's alleged illiteracy. Doc. No. 18 at 3-7.
III. General Legal Standards Guiding Judicial Review
Judicial review of Defendant'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. Poppa v. Astrue, 569 F.3d 1167, 1169 (10th Cir. 2009). Substantial evidence “means-and means only- such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Biestek v. Berryhill, __ U.S. __, 139 S.Ct. 1148, 1154 (2019) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). 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 v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (citations, quotations, and brackets omitted). 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.” Id. (citation omitted). While a court considers whether the ALJ followed the applicable rules of law in weighing particular types of evidence in disability cases, a court does not reweigh the evidence or substitute its own judgment for that of Defendant. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008).
IV. Subjective Reports of Pain
Plaintiff contends the ALJ's RFC is not supported by substantial evidence primarily because he failed to properly consider Plaintiff's subjective reports. Plaintiff challenges the ALJ's conclusion that he could stand and/or walk six hours out of an eight-hour workday and can occasionally lift twenty pounds, as required by a light range of work. 20 C.F.R. § 404.1567(b).
It is well established that “[t]he RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *7. This Court's review of the ALJ's consideration of Plaintiff's subjective reports is guided by two principles. First, such “determinations are peculiarly the province of the finder of fact, and [the court] will not upset such determinations when supported by substantial evidence.” Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995). Second, “findings as to [subjective reports] should be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings.” Id. (alteration omitted). In addition to objective evidence, the ALJ should consider certain factors in evaluating a plaintiff's reports, including daily activities, the location, duration, frequency, and intensity of pain, factors that precipitate and aggravate it, the medication an individual takes or has taken to alleviate pain, additional treatment or other measures an individual receives or has received for relief, and any other factors concerning an individual's functional limitations and restrictions due to pain. SSR 16-3p, 2017 WL 5180304, at *7-8; accord 20 C.F.R. § 404.1529(c)(3). The undersigned concludes that the ALJ's decision illustrates he considered the proper factors in evaluating Plaintiff's reports of pain.
As the ALJ noted, Plaintiff asserts that due to pain, he can only stand for 15 minutes and can walk only 20 feet before stopping or resting. AR 21. Pursuant to SSR 16-3p, the ALJ found that Plaintiff's subjective reports were not supported by the record based on Plaintiff's daily activities, conservative medical treatment, and work history, as well as objective medical evidence contained within the consultative examination. AR 20-25.
Beginning with the objective medical evidence, the ALJ considered Plaintiff's consultative examination performed on March 18, 2021. AR 22 (citing AR 750-55). The ALJ explained that the examination showed:
[N]ormal range of motion, normal gait at a normal speed with no use of any assistive device, the ability to get on and off the exam table easily, blood pressure of 130/86, full strength of 5/5 in all extremities, and no focal neurologic deficit. However, the exam also revealed trouble lying on his back due to back deformity, positive straight leg raise results in the sitting and lying positions on both sides, and pain with lumbar flexion and extension. The consultative physician assessed the claimant with neuromuscular scoliosis, site unspecified.Id. The ALJ also noted that both Plaintiff and his wife had stated that he took only ibuprofen for pain. His wife also reported that at one time, Plaintiff had a prescription for pain medication but quit taking it. AR 21 (citing AR 272).
The ALJ repeatedly refers to the individual, Jennifer Norton, who helped Plaintiff complete his forms as Plaintiff's wife. On the form, Ms. Norton describes herself as Plaintiff's life partner. AR 244. For the sake of consistency, the Court will refer to Ms. Norton as Plaintiff's wife.
In considering Plaintiff's subjective reports, the ALJ also discussed Plaintiff's daily activities. AR 21, 22. The ALJ noted Plaintiff's wife reported:
The claimant cooks a family dinner, such as pork chops and vegetables, every couple of weeks and his step-mother is teaching him to cook more foods. The claimant dusts furniture, does laundry, feeds the dogs, and takes out the trash. He can drive but has no driver's license anymore [as it was suspended due to lack of compliance with insurance requirements]. He goes shopping with his step-mother and helps her put groceries in the car. He can manage his finances. Although he no longer can lift heavy wood for woodworking or use a chainsaw, the claimant still works with wood. He also listens to music, watches TV/movies, and shoots pool with his step-mother. The claimant spends time with his father and step-mother in the evenings and goes out with friends every once [in] a while [].AR 21 (citing 265, 267-72). The ALJ also noted Plaintiff's contrary testimony that he “does no household chores, as a friend helps with grocery shopping and cleaning.” AR 21, 22.
With regard to Plaintiff's work history, the ALJ noted that although Plaintiff alleged a disability onset date of June 30, 2019, he worked only sporadically from 2013 through 2020. AR 22. Indeed, “[t]he claimant [] earned no income in 2014, only $2,653 in 2015, and no income from 2016 through 2019. He earned $464 in 2020.” Id. Plaintiff challenges the ALJ's consideration of his work history, stating, “SSR 96-8p does not state a ‘limited work history' reflects on the consistency of an individual's statement.” Op. Br. at 11. Contrary to Plaintiff's assertion, SSR 96-8p specifically advises an ALJ to consider “nonmedical evidence (e.g., daily activities, observations)” in determining the RFC. SSR 96-8p, 1996 WL 374184, at *7. Moreover, it is well established that an ALJ may consider whether a plaintiff's work history ended well before the alleged disability onset. See Bean v. Chater, 77 F.3d 1210, 1213 (10th Cir. 1995) (noting the plaintiff's prior work record can be considered in evaluating subjective reports and finding ALJ did not err in considering the plaintiff quit working prior to the alleged disability onset); Casey v. Berryhill, No. CIV-18-166-STE, 2018 WL 4658702, at *5 (W.D. Okla. Sept. 27, 2018) (affirming the ALJ's consideration of the plaintiff's work history becoming sporadic three years prior to the alleged disability onset date); Hayes v. Colvin, No. CIV-12-495-SPS, 2014 WL 1331151, at *6 (E.D. Okla. March 31, 2014) (same); Townsend v. Colvin, No. CIV-12-311-SPS, 2013 WL 5417575, at *4 (E.D. Okla. Sept. 26, 2013) (same); 20 C.F.R. § 404.1529(c)(3) (in evaluating symptoms, the ALJ “will consider all of the evidence presented, including information about your prior work record”).
In his Opening Brief, Plaintiff consistently presents arguments citing to a single aspect of his record, such as work history or a daily activity, and asserting that this aspect does not explain the conclusion that he can perform light work. Op. Br. at 8-9, 10, 11. However, the ALJ is required to consider a plaintiff's record as a whole, not simply portions of it. See Castille v. Comm'r, SSA, 817 Fed.Appx. 591, 597 (10th Cir. 2020) (“In assessing RFC the ALJ must consider the record as a whole[.]” (citing 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3))).
The state agency reviewing physicians, upon analyzing Plaintiff's medical records, concluded that Plaintiff could perform a full range of light work with certain postural limitations. AR 69-72, 84-87, 104-06, 119-21. The ALJ concluded these opinions were “persuasive as well [as] supported by and consistent with the medical evidence of record.” AR 23. However, relying primarily on the 2019 consultative examination, supra, which was the only medical examination in the record, the ALJ also explained that he did not “find the postural limitations appropriate or necessary.” Id.
To the extent Plaintiff challenges the ALJ's finding that the physician opinions were persuasive but not adopting all limitations contained therein, it is well established that an ALJ may do so. See Bradford v. Berryhill, No. CIV-18-1008-HE, 2019 WL 2388864, at *1-2 (W.D. Okla. June 6, 2019) (“[T]he ALJ was not bound to adopt every limitation included in the medical opinions to which she gave great weight;” affirming because the ALJ sufficiently explained why she adopted a limitation different from those in the subject medical opinions); cf., Benavidez v. Colvin, 650 Fed.Appx. 619, 621 (10th Cir. 2016) (“[A]n ALJ cannot, without explanation, adopt some restrictions assessed by a physician and reject others that the physician also assessed.”); see also Mitchell v. Kijakazi, No. CIV-21-1087-P, 2022 WL 2764904, at *3 (W.D. Okla. July 15, 2022) (“[A]ccording a medical opinion great weight does not mean the ALJ must adopt every single aspect of the opinion.” (citation omitted)).
In reviewing the decision, the Court concludes Plaintiff's challenge is unpersuasive. There was ample evidence to support the ALJ's decision to not include the postural limitations in the RFC. Further, the ALJ's decision specifically noted the limitations referenced by the state agency physicians (AR 23) and went on to explain why he did not find such limitations necessary, relying primarily on the relatively normal 2019 consultative examination. AR 23-24. Moreover, as established above, the ALJ had previously discussed Plaintiff's medical record, including objective medical evidence, his daily activities, limited work activity, and conservative medical treatment. See Endriss v. Astrue, 506 Fed.Appx. 772, 777 (10th Cir. 2012) (explaining that when an ALJ sets forth a summary of the relevant objective medical evidence earlier in his decision, he is not required to repeat the same summary again when evaluating medical opinions).
The undersigned concludes the ALJ's analysis and explanation were sufficient and allows the reviewer to follow his reasoning and the bases for his conclusions. Plaintiff has failed to cite to any evidence the ALJ either neglected to consider or reported inaccurately. Accepting Plaintiff's challenges to the ALJ's decision would amount to re-weighing the evidence and substituting the Court's judgment for that of Defendant in a manner inconsistent with binding precedent. Bowman, 511 F.3d at 1272; see also Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (“The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence.” (citation omitted)).
V. Illiteracy
In his Opening Brief, Plaintiff asserts the ALJ did not properly consider his mental impairments, referencing an inability to understand forms and/or generally function. Op. Br. at 12-15. In Response, Defendant points out Plaintiff never asserted a mental impairment as a basis for disability, and in fact, during the administrative hearing, expressly denied suffering from the same. Doc. No. 17 at 9-11; AR 40. In his Reply, Plaintiff alters his argument to assert that he is illiterate and that the ALJ should have recognized this circumstance as a vocational factor to be considered at step five. Doc. No. 18 at 4-7.
Generally, the Court will not consider arguments raised for the first time in a Reply. Kientz v. Comm'r, SSA, 954 F.3d 1277, 1286 n.7 (10th Cir. 2020) (citing In re: Motor Fuel Temperature Sales Practices Litig., 872 F.3d 1094, 1112 n.5 (10th Cir. 2017) (observing that “arguments raised for the first time in a reply brief are waived”)). However, interpreting Plaintiff's Opening Brief in an exceedingly liberal manner, the undersigned concludes that, although Plaintiff raised illiteracy in his Opening Brief only indirectly, at best, and certainly in a different context, he did sufficiently raise the issue for the Court to address the same herein.
Considering this issue, however, does not warrant a reversal of the ALJ's decision. Presuming, without deciding, that Plaintiff is illiterate and the ALJ should have considered the same, the Medical-Vocational Guidelines mandate a finding that Plaintiff is not disabled.
At the time of the administrative hearing and decision, Plaintiff was 37 years old. AR 37. Thus, under the Medical-Vocational Guidelines, Plaintiff is categorized as a younger individual, between the ages of 18 and 49. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 202(g). As the ALJ noted, based on Plaintiff's age, education, and ability to perform a full range of light work, the Medical-Vocational Guidelines “directly support[] a finding of ‘not disabled.'” AR 24. Indeed, the Medical-Vocational Guidelines direct that a younger individual, whether literate or illiterate, with a capacity for light work and with unskilled previous work experience is not disabled. 20 C.F.R. Pt. 404, Subpt. P, App. 2, §§ 202.16-17; see also Silva v. Apfel, No. 98651 MV/DJS, 1999 WL 35809575, at *4 (D.N.M. May 4, 1999) (“In reaching his decision [of nondisability], the ALJ considered that Plaintiff was illiterate. He applied Medical Vocational Guidelines Rule 202.16, which pertains to a younger individual who is illiterate or unable to communicate in English.” (citing 20 C.F.R. Part 404, Subpt. P, App. 2, Table NO. 2, Rule 202.16)); Cazares v. Chater, No. CIV6:94-CV-401MV/LCS, 1995 WL 845646, at *2 n.2 (D.N.M. Dec. 8, 1995) (“Rule 202.16 provides that a younger individual who is unskilled, “illiterate or unable to communicate in English,” and who can perform light work is not disabled.” (emphasis omitted) (citing 20 C.F.R. Pt. 404, Subpt. P, App. 2, Table No. 2, Rule 202.16)).
Thus, it is clear the ALJ would have reached the same finding of nondisability under the Medical-Vocational Guidelines had he considered whether Plaintiff was illiterate. Therefore, any failure to do so was harmless as a matter of law. See Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir.2004) (holding that the harmless-error doctrine applies in social security cases where the court can “confidently say that no reasonable administrative factfinder, following the correct analysis, could have resolved the factual matter in any other way”).
RECOMMENDATION
In view of the foregoing findings, it is recommended that judgment enter affirming the decision of Defendant. Plaintiff is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court on or before September 20th , 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.