Opinion
Case No. CIV-15-1092-HE
03-31-2017
ZACHARY MUNOZ, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff Zachary Munoz 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 ("SSA") denying Plaintiff's applications for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-434, and for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. Chief United States District Judge Joe Heaton has referred this matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure. The Commissioner has answered and filed the administrative record (Doc. No. 9, hereinafter "R. ___"). The parties have briefed their positions, and the case is now ready for decision. For the reasons set forth below, the undersigned recommends that the Commissioner's decision be affirmed.
With the exception of the administrative record, references to the parties' filings use the page numbers assigned by the Court's electronic filing system.
PROCEDURAL HISTORY
Plaintiff protectively filed his applications for DIB and SSI on February 14, 2012, with an alleged disability onset date of February 18, 2012, and a recommended disability onset date of January 18, 2012. R. 127-40, 185-93. Following denial of Plaintiff's applications initially and on reconsideration, an Administrative Law Judge ("ALJ") held a hearing. R. 34-56, 63-71, 74-79. The ALJ issued an unfavorable decision on February 25, 2014. R. 20-28. The SSA Appeals Council denied Plaintiff's request for review, making the ALJ's unfavorable decision the final decision of the Commissioner. R. 1-7; see also 20 C.F.R. §§ 404.981, 416.1481. This action for judicial review followed.
ADMINISTRATIVE DECISION
As relevant here, the Commissioner uses a five-step sequential evaluation process to determine eligibility for disability benefits. See Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009); 20 C.F.R. §§ 404.1520, 416.920. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since February 14, 2012. R. 22; see 20 C.F.R. §§ 404.1571, 416.971. At step two, the ALJ determined that Plaintiff had the severe impairments of "major depressive disorder; substance addiction disorder (in alleged remission); post-traumatic stress disorder (PTSD); and anti-social personality disorder." R. 22-23; see 20 C.F.R. §§ 404.1520(c), 416.920(c). At step three, the ALJ determined that Plaintiff's impairments did not meet or equal any of the presumptively disabling impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. 23-24; see 20 C.F.R. §§ 404.1520(d), 416.920(d).
Plaintiff has not claimed error regarding the alleged onset date used by the ALJ. See Pl.'s Br. (Doc. No. 13) at 1-9.
The ALJ next assessed Plaintiff's residual functional capacity ("RFC") based on all of his impairments. R. 24-26; see 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). The ALJ found that Plaintiff had the RFC to perform work at all exertional levels, except that Plaintiff can only "understand, remember and carry out simple, routine, and repetitive tasks" and "have occasional contact with the general public." R. 24; see 20 C.F.R. §§ 404.1567, .1569a(c), 416.967, .969a(c). At step four, the ALJ found that Plaintiff was unable to perform any of his past relevant work. R. 27; see 20 C.F.R. §§ 404.1565, 416.965.
At step five, the ALJ considered whether there are jobs existing in significant numbers in the national economy that Plaintiff—in view of his age, education, work experience, and RFC—could perform. Taking into consideration testimony provided by a vocational expert ("VE") at the hearing, the ALJ concluded that Plaintiff could perform unskilled occupations such as floor waxer, window cleaner, and laundry laborer, all of which offer jobs that exist in significant numbers in the national economy. R. 27-28; see 20 C.F.R. §§ 404.1545(a)(5)(ii), 416.945(a)(5)(ii). On that basis, the ALJ concluded that Plaintiff had not been under a disability, as defined in the Social Security Act, since February 14, 2012. R. 28; see 20 C.F.R. §§ 404.1520(g), 416.920(g).
STANDARD OF REVIEW
Judicial review of the Commissioner's final decision is limited to determining whether factual findings are supported by substantial evidence in the record as a whole and whether correct legal standards were applied. 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) (internal quotation marks 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) (internal quotation marks omitted). The court "meticulously examine[s] the record as a whole," including any evidence "that may undercut or detract from the ALJ's findings," "to determine if the substantiality test has been met." Wall, 561 F.3d at 1052 (internal quotation marks omitted). While a reviewing court considers whether the Commissioner followed 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).
ANALYSIS
Plaintiff argues that the ALJ's RFC determination is not supported by substantial evidence because (1) the ALJ failed to give proper weight to the opinion of Plaintiff's treating physician, Pl.'s Br. (Doc. No. 13) at 2-6; (2) the ALJ improperly evaluated the opinion of an examining consultant, id. at 8-9; and (3) the ALJ disregarded Plaintiff's thumb impairment, id. at 7-8.
A. Whether the ALJ properly considered the opinions of Dr. Horn and Dr. Crall
1. Evaluation of Medical Source Opinions
Specific SSA regulations govern the consideration of opinions by "acceptable medical sources." See 20 C.F.R. §§ 404.1502, 404.1513(a), 416.902, 416.913(a). The Commissioner generally gives the greatest weight to the medical opinions of a "treating source," which includes a physician or psychiatrist who has "provided [the claimant] with medical treatment or evaluation" during a current or past "ongoing treatment relationship" with the claimant. Id. §§ 404.1502, 404.1527(c), 416.902, 416.927(c); Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004).
When considering the medical opinion of a claimant's treating source, the ALJ must first determine whether the opinion should be given "controlling weight" on the matter to which it relates. See Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003); 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); SSR 96-2p, 1996 WL 374188, at *1-4 (July 2, 1996). The opinion of a treating source is given such weight if it is both well-supported by medically acceptable clinical or laboratory diagnostic techniques and not inconsistent with the other substantial evidence in the record. Watkins, 350 F.3d at 1300 (applying SSR 96-2p, 1996 WL 374188, at *2); 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); SSR 96-2p, 1996 WL 374188, at *2 ("[W]hen all of the factors are satisfied, the [ALJ] must adopt a treating source's medical opinion irrespective of any finding he or she would have made in the absence of the medical opinion.").
A treating source opinion not afforded controlling weight is still entitled to deference. See Watkins, 350 F.3d at 1300; SSR 96-2p, 1996 WL 374188, at *4. In deciding what lesser weight should be afforded the opinion, the ALJ uses a prescribed set of regulatory factors:
(1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship, including the treatment provided and the kind of examination or testing performed; (3) the degree to which the physician's opinion is supported by relevant evidence; (4) consistency between the opinion and the record as a whole; (5) whether or not the physician is a specialist in the area upon which an opinion is rendered; and (6) other factors brought to the ALJ's attention which tend to support or contradict the opinion.Watkins, 350 F.3d at 1301 (internal quotation marks omitted); 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6). The ALJ's decision "'must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight.'" Watkins, 350 F.3d at 1300 (quoting SSR 96-2p, 1996 WL 374188, at *5).
For other medical source opinions, the ALJ also must consider and weigh them using the prescribed regulatory factors. 20 C.F.R. §§ 404.1527(c), (e)(2)(ii), 416.927(c), (e)(2)(ii). Relevant here, the ALJ will generally "give more weight to the opinion of a source who has examined you than to the opinion of a source who has not examined you." 20 C.F.R. §§ 404.1527(c)(1), 416.927(c)(1). The ALJ "must explain in the decision the weight given to the opinions of a State agency medical or psychological consultant. . . , as the [ALJ] must do for any opinions from treating sources, nontreating sources, and other nonexamining sources who do not work for us." 20 C.F.R. §§ 404.1527(e)(2)(ii), 416.927(e)(2)(ii); see also SSR 96-6p, 1996 WL 374180, at *2 (July 2, 1996).
2. Treating Psychiatrist Dr. Horn
In 2013, Plaintiff was treated for mental health issues at HOPE Community Services, Inc., including by that facility's medical director, Patrick Horn, MD. See R. 320-21, 322-76. On May 23, 2013, Dr. Horn completed a Medical Source Statement in which he opined that Plaintiff's mental functioning is moderately or markedly limited in some areas and extremely limited in others. See R. 320-21. The ALJ assigned Dr. Horn's opinion "little weight," explaining that it "is not consistent with [Plaintiff's] treatment notes, including [Plaintiff's] statements regarding the effect of his medication." R. 26.
Plaintiff argues that the ALJ failed to weigh and explain his reasons for rejecting Dr. Horn's treating source opinion. See Pl.'s Br. at 2-3, 4. Defendant does not dispute that Dr. Horn was Plaintiff's treating psychiatrist or that the RFC as determined by the ALJ materially conflicts with the limitations observed by Dr. Horn. See Def.'s Br. (Doc. No. 17) at 3 n.1, 5, 10-12, 10 n.7. But Defendant disagrees that the ALJ improperly evaluated Dr. Horn's opinion or that the ALJ's RFC determination is thereby unsupported by substantial evidence. See id. at 10-12.
While the undersigned accepts that Dr. Horn is a treating psychiatrist, Plaintiff has misstated the record in saying that Dr. Horn saw Plaintiff "dozens of times." Pl.'s Br. at 3; see Def.'s Br. at 10 n.7. In the records of Plaintiff's treatment at HOPE Community Services, Dr. Horn's participation is reflected in his signature of five "Medication Management/Review" records, two of which occurred prior to the May 2013 Medical Source Statement on which Plaintiff bases his argument. See R. 331-32 (Apr. 10, 2013), 329-30 (May 8, 2013), 327-28 (July 3, 2013), 325-26 (July 19, 2013), 323-24 (Aug. 20, 2013). It is unclear whether Dr. Horn personally saw Plaintiff during any of these visits. See id. Dr. Horn's participation is not reflected in any of the "progress notes" recording Plaintiff's regular visits and treatment. See R. 320-21, 329-32, 354-76. The undersigned reminds Plaintiff's counsel, once again, that this Court does not "favorably view arguments based on misrepresentations of the record." Kirkpatrick v. Colvin, 663 F. App'x 646, 650 n.2 (10th Cir. 2016) (citing Qualls v. Apfel, 206 F.3d 1368, 1371 (10th Cir. 2000)).
As an initial matter, Plaintiff contends that the ALJ erred by failing to specify whether he was giving Dr. Horn's opinion controlling weight. See Pl.'s Br. at 4-5. Any error in this regard is harmless because the ALJ's statement that Dr. Horn's opinion is only entitled to "little weight" makes it clear that the ALJ did not afford that opinion controlling weight. See Tarpley v. Colvin, 601 F. App'x 641, 643-44 (10th Cir. 2015) (finding "any imaginable oversight" to be "clearly harmless" when ALJ did not expressly say he was not affording treating physicians' opinions controlling weight but explained that they were entitled to no weight because they were inconsistent with the medical records and there was substantial evidence to support that decision).
Plaintiff further contends that the ALJ was required to weigh Dr. Horn's opinion "using all of the [six] factors provided in 20 C.F.R. §[§] 404.1527 and 416.927" and argues that the ALJ erred because "[h]e only got one out of six." Pl.'s Br. at 5. An ALJ is not required to mechanically apply all of the prescribed factors in a given case; rather, it is sufficient if the ALJ "provide[s] good reasons in his decision for the weight he [gives] to the treating sources' opinions." Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007); see SSR 96-3p, 2006 WL 2329939, at *5 (Aug. 9, 2006) ("Not every factor for weighing opinion evidence will apply in every case."). The explanation "must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight." Watkins, 350 F.3d at 1300 (internal quotation marks omitted). Here, although the ALJ's discussion focused on two overlapping factors—"the degree to which the physician's opinion is supported by relevant evidence" and "consistency between the opinion and the record as a whole," id. at 1301; see R. 26—such focus does not establish that the ALJ ignored the other factors. And, as detailed below, the ALJ's decision both made clear the weight he was giving to Dr. Horn's opinions and provided "good" reasons for that weight.
The ALJ noted that "the record contains no evidence of ongoing [mental health] treatment until 201[]3" when, in January, Plaintiff "began to receive mental health treatment, including counseling and psychiatric medications" at HOPE Community Services. R. 25. The ALJ discussed how in April of that year Plaintiff "alleged a hard time concentrating" and one month later "reported mood swings and outbursts of anger." R. 25 (citing Exs. 10F/10 (R. 331), 10F/8 (R. 329)). The ALJ then noted that "by July 3, 2013," Plaintiff "said that his medication helped with anger, irritability and aggression," and on August 20, 2013, Plaintiff "again reported that his medications were working and he denied any side effects." R. 25 (citing Exs. 10F/6 (R. 327), 10F/2 (R. 323)). As further discussed by the ALJ:
[Plaintiff's] treatment history shows that medication and counseling ha[ve] helped control his symptoms. Despite his testimony regarding side effects of his medications, he denied any side effects in August of 2013 (Ex. 10F/2). In addition, [Plaintiff] appeared well groomed at his appointments with his mental health providers and did not display the personal care difficulties he alleged at the hearing (See Ex. 10F/17). [Plaintiff] described problems getting along with others, but he recently reported making more friends and feeling more comfortable around others (Ex. 10F/15). Mental status examinations consistently revealed [Plaintiff] had intact memory along with normal attention and concentration (Ex. 10F/2, 5). In sum, [Plaintiff's] treatment history is not consistent with his testimony regarding his psychological symptoms.R. 25 (citing R. 323, 326, 336, 338); see also R. 26 (ALJ again noting "improvement in [Plaintiff's] symptoms reflected in recent treatment notes (Ex. 10F)").
The ALJ's discussion is supported by the records of Plaintiff's psychotherapy treatment at HOPE Community Services, which do indeed show improvement in Plaintiff's symptoms. After Plaintiff began receiving treatment from HOPE Community Services in early 2013, he indicated on March 6, 2013, that his "medication was helping," he was feeling "normal," and his therapist assessed his response to treatment as "Better Than Expected." R. 369. Over the next few months, Plaintiff reported that his medications were helping and he was continuing to improve, but that he was experiencing some side effects. R. 367 (Mar. 13, 2013 Progress Note), 331 (Apr. 10, 2013 Medication Management/Review), 364 (May 7, 2013 Progress Note), 329 (May 8, 2013 Medication Management/Review), 363 (May 16, 2013 Progress Note), 362 (May 22, 2013 Progress Note). His mental health providers adjusted his dosages and medications and advised him that "it may take a few more weeks . . . to adjust" to the medication. R. 363. During this period, Plaintiff's response to treatment was still routinely assessed as "Adequate" or "Better Than Expected." R. 367, 364-65, 363, 361. On May 16th and 22nd, he reported that his medications had the side effect of making him very sleepy but that they "helped significantly" and were "working well." R. 362-63. In June, Plaintiff reported that he was "feeling better" with minimal depression and no anger or mood lability. R. 361. After continued adjustment of Plaintiff's medications and dosages, records from August 2013-on indicate that Plaintiff's medications were successfully treating his mental health symptoms, he was not experiencing side effects, he did not desire any changes to his medication regiment, and he continued to respond to treatment "Better Than Expected." See R. 327 (July 3, 2013 Medication Management/Review), 325 (July 19, 2013 Medication Management/Review), 357 (Aug. 13, 2013 Progress Note), 323 (Aug. 20, 2013 Medication Management/Review), 335-45 (Aug. 27, 2013 outpatient request for prior authorization), 356 (Aug. 27, 2013 Progress Note), 355 (Sept. 20, 2013 Progress Note). Consistent with the above, treatment providers' assessments of Plaintiff's "Current Symptoms/Severity" generally show an overall decrease in symptoms and their severity. See R. 372 (Feb. 13, 2013 Progress Note), 370 (Feb. 20, 2013 Progress Note), 369 (Mar. 6, 2013 Progress Note), 367 (Mar. 13, 2013 Progress Note), 364 (May 7, 2013 Progress Note), 363 (May 16, 2013 Progress Note), 362 (May 22, 2013 Progress Note), 361 (June 28, 2013 Progress Note), 358 (July 26, 2013 Progress Note), 357 (Aug. 13, 2013 Progress Note), 356 (Aug. 27, 2013 Progress Note), 355 (Sept. 20, 2013 Progress Note). In addition, Plaintiff's Medication Management/Review records—signed by Dr. Horn—consistently show Plaintiff to be Normal in appearance, speech, mood, affect, judgment, cognition, thought, delusions, hallucinations, attitude, and insight, with few exceptions. See R. 331-32 (Apr. 10, 2013; indicates all areas normal except mood was dysphoric and anxious and Plaintiff had trouble with concentration), 329-30 (May 8, 2013; indicates all areas normal except mood was dysphoric and irritable), 327-28 (July 3, 2013; indicates all areas normal except speech was slow and affect was constricted), 325-26 (July 19, 2013; indicates all areas normal except mood was dysphoric and anxious), 323-24 (Aug. 20, 2013; indicates all areas normal).
This August 20, 2013 record reflects a checkmark for "incoherent" speech but also a notation that Plaintiff's speech showed "normal rate and tone, normal prosody." R. 323-24.
The ALJ's resulting determination—that Dr. Horn's assessment of marked and extreme limitations was not consistent with medical records indicating that the medication and treatment provided to Plaintiff were effective and resulted in only occasional, moderate symptoms of mental health impairments—is consistent with the records described above. The undersigned finds no reversible error in the ALJ's evaluation of Dr. Horn's opinion.
In this section of his brief, Plaintiff also states as follows:
The ALJ should also explain how [Plaintiff's] unchallenged evidence related to his problems with depression, PTSD, and anti-social personality disorder translates to the ability to perform simple, routine and repetitive tasks. Further, with the problems [Plaintiff] has with anger, irritability, anger outburst and aggression. This is likely why the treating physician wrote that [Plaintiff] would exhibit socially inappropriate behavior or fail to get along with peers without distracting them or exhibiting behavioral extremes.
3. Examining Consultant Dr. Crall
On July 31, 2012, Stephanie Crall, PhD, conducted a consultative examination of Plaintiff. She recorded the following General Impressions:
In the opinion of this evaluator, [Plaintiff's] ability to engage in work-related mental activities, such as sustaining attention, understanding, and remembering and to persist at such activities was likely adequate for simple and some complex tasks. In the opinion of this evaluator, the presence of depression, as well as an injury to his right thumb likely interfered with his ability to adapt to a competitive work environment. It should be noted that [Plaintiff] was not receiving any treatment for depression at the time of this
examination and his ability to adapt to a competitive work environment if he was receiving appropriate treatment is unknown.R. 294-95. The ALJ assigned this opinion "some weight." R. 26. Plaintiff argues that the ALJ "failed to articulate the reasons for assigning that weight or for rejecting the part of the opinion altogether that [Plaintiff] could not work." Pl.'s Br. at 9.
With respect to Plaintiff's general criticism that the ALJ was obligated to provide greater discussion of the reasons behind the weight assigned to Dr. Crall's opinion, it is important to note that Dr. Crall was not a treating physician but a one-time examining consultant. See R. 26, 292. As such, the ALJ was required to consider her opinion, weigh that opinion using the applicable regulatory factors, and explain the weight given to the opinion. See 20 C.F.R. §§ 404.1527(c), (e)(2)(ii), 416.927(c), (e)(2)(ii); see also Vigil v. Colvin, 805 F.3d 1199, 1201-02 (10th Cir. 2015). This the ALJ did, stating that Dr. Crall's opinion is afforded "some weight" "because it is consistent with [Plaintiff's] medical history, most notably the improvement in his symptoms reflected in recent treatment notes" but that Plaintiff's "treatment records demonstrate that he is more limited than found by Dr. Crall." R. 26 (citing Exs. 3F (R. 292-98) and 10F).
Plaintiff's only specific criticism in this regard is that the ALJ rejected Dr. Crall's opinion that Plaintiff "could not work." Pl.'s Br. at 9. But Dr. Crall's actual statement was that Plaintiff's depression and right-thumb injury "likely interfered with his ability to adapt to a competitive work environment" and Dr. Crall expressly qualified that statement by noting that Plaintiff was not receiving any treatment for his depression and such treatment could affect his ability to so adapt. R. 294-95. The ALJ's discussion of the improvement Plaintiff demonstrated when he did receive treatment for his depression adequately explains and supports the ALJ's consideration of this particular issue. See Mays v. Colvin, 739 F.3d 569, 578 (10th Cir. 2014) ("[T]he need for express analysis [of a medical opinion] is weakened when the ALJ does not need to reject or weigh evidence unfavorably in order to determine a claimant's RFC." (internal quotation marks and alterations omitted)).
Beyond this, Plaintiff does not point to any limitation sponsored by Dr. Crall that, if adopted by the ALJ, would have resulted in a more restrictive RFC. Indeed, the ALJ relied on Plaintiff's treatment records to find that Plaintiff was "more limited than found by Dr. Crall" and included in the RFC limitations over and above those found by Dr. Crall. Compare R. 294-95 (Dr. Crall opining that Plaintiff can perform "simple and some complex tasks" and interact with the public without limit) with R. 24, 26 (ALJ restricting Plaintiff to only "simple, routine, and repetitive tasks" and "occasional contact with the general public"). When an ALJ's RFC is more favorable to a claimant than what is suggested by the findings of a consultative physician, any failure to properly weigh the opinion of the consultative physician is not prejudicial error. See Keyes-Zachary, 695 F.3d 1156 at 1163; Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012).
The undersigned finds no reversible error in the ALJ's evaluation of Dr. Crall's opinion.
B. Whether the ALJ properly considered Plaintiff's thumb impairment
Plaintiff next contends that the ALJ failed to properly consider evidence of Plaintiff's right thumb impairment, arguing that the ALJ "cherry-picked" the record and ignored Plaintiff's "dislocation and pain." Pl.'s Br. at 7-8. The undersigned disagrees.
Plaintiff also states that he "disagrees as to the finding of severity." Pl.'s Br. at 7. Without more, this statement does not reflect an adequately developed argument and the undersigned will not construe it as such. See Keyes-Zachary, 695 F.3d at 1161. --------
Plaintiff alleged disability based in part on the dislocation of his right thumb, claiming that it "affects my ability to do my job." R. 189. At the hearing, the ALJ questioned Plaintiff and his attorney regarding Plaintiff's thumb impairment:
ALJ : Okay . Counsel, I saw in the file some issues with the right thumb. Are you alleging that as a severe physical impairment?R. 39, 43, 44.
ATTY: Yes, since it does show a decreased grip in his right hand. I, I mean I think primarily it, it'll be the mental impairments.
***
Q [ALJ] How'd your physical therapy go?
A [Plaintiff] Okay.
Q How's your thumb now?
A I was released on it.
Q Okay. Does your thumb, your right thumb work okay now?
A It pops, it -- I don't have full usage of it.
Q Okay. When you say you don't have full usage of it, what does that mean?
A It's not as strong as it used to be. I can't twist things, turn things, grab the way I used to.
The medical evidence of record shows no treatment for Plaintiff's thumb and indicates that Plaintiff was taking no pain medication for his thumb. See, e.g., R. 191, 201, 228, 236, 252, 284. At the hearing, the ALJ ordered that the record be kept open so that Plaintiff could submit documentation of treatment for his thumb. R. 42-43. Although Plaintiff submitted additional records after the hearing, none of those records relate to Plaintiff's thumb or show that he sought treatment for his thumb. See R. 32, Exs. 10F-12F.
The only record examination of Plaintiff's thumb by a medical source is from Dr. Gabriel Wade, MD, who performed a consultative examination of Plaintiff on July 13, 2012. Dr. Wade noted that Plaintiff's primary complaint was "[r]ight hand weakness" and found that Plaintiff's "[g]rip strength is decreased 3/5 in his right hand." R. 284, 285. Dr. Wade assessed that Plaintiff had a "right thumb dislocation causing decreased strength and pain" but did not opine to any resulting functional limitations. R. 286, 285-90. Indeed, regarding Plaintiff's right hand, Dr. Wade observed that: "[Plaintiff] had normal hand skills," "[f]inger to thumb opposition is adequate," and "[f]ine tactile manipulation of objects is normal." R. 285. Dr. Wade evaluated Plaintiff's hands and thumbs as capable of normal flexion, specifying that Plaintiff can "effectively oppose the thumb to the fingertips," "manipulate small objects," and "effectively grasp tools such as a hammer." R. 288, 289.
Two physicians, engaged by the state agency as reviewing consultants, considered the evidence of Plaintiff's physical impairments, including Dr. Wade's report. Both noted the assessment of decreased grip strength and pain, grip strength of 3/5 in Plaintiff's right hand, full range of motion in Plaintiff's thumbs, normal hand skills, adequate finger to thumb opposition, and normal fine tactile manipulation of objects. R. 317, 319. Both reviewing consultants determined that Plaintiff's thumb impairment was not severe. R. 317, 319.
Upon consideration of the evidence, the ALJ likewise determined that Plaintiff's right thumb impairment was not severe. The ALJ explained his findings as follows:
In addition to his severe impairments, [Plaintiff] testified that he has limitation in his right thumb, including a decrease in grip strength. Gabriel Wade, M.D., performed consultative examination of the claimant on July 13, 2012. Dr. Wade found that [Plaintiff] had 3/5 grip strength in the right hand, but normal hand skills including normal fine tactile manipulation. The undersigned gives great weight to Dr. Wade's findings because they resulted from an objective examination of [Plaintiff] and are consistent with [Plaintiff's] limited treatment for his thumb. The undersigned also gives great weight to the opinions of the State agency medical consultants, who determined that [Plaintiff's] thumb injury was not severe, because they are consistent with Dr. Wade's findings. Based on the evidence of record, the undersigned finds that [Plaintiff's] thumb is not a medically determinable severe impairment.R. 22-23 (citing Ex. 2F (R. 284-91), Exs. 6F and 8F (R. 317, 319)).
Plaintiff's assertion that the ALJ failed to consider Plaintiff's thumb "dislocation and pain" is without merit. See Pl.'s Br. at 7-8. Although the ALJ did not expressly use the term "dislocation," he discussed Plaintiff's thumb impairment and its consequences on Plaintiff's functioning. This was the correct inquiry. Cf. Paulsen v. Colvin, 665 F. App'x 660, 668 (10th Cir. 2016) ("Diagnosis of a condition does not automatically mean that the claimant is disabled; what matters is whether the condition results in work-related limitations." (citing Bernal v. Bowen, 851 F.2d 297, 301 (10th Cir. 1988)); Walters v. Colvin, 604 F. App'x 643, 648 (10th Cir. 2015); Fulton v. Colvin, 631 F. App'x 498, 501 (10th Cir. 2015).
Plaintiff has identified no limitations caused by his thumb impairment that the ALJ failed to consider. See Pl.'s Br. at 7. Dr. Wade found (and the state agency reviewers considered) that Plaintiff had reduced grip strength in his right hand due to his dislocated thumb but also that Plaintiff had normal hand skills, adequate finger to thumb opposition, and normal fine tactile manipulation of objects. R. 285. Dr. Wade did not assess any functional limitations of Plaintiff's hand, noting that Plaintiff could effectively oppose the thumb to the fingertip, manipulate small objects, and effectively grasp tools such as a hammer. R. 289.
Regarding pain caused by Plaintiff's thumb impairment, Plaintiff points to no evidence, and the undersigned's review has found none, that such pain resulted in functional limitations that the ALJ failed to properly consider or incorporate in the RFC. Cf. Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996) ("The record must demonstrate that the ALJ considered all of the evidence, but an ALJ is not required to discuss every piece of evidence. Rather, in addition to discussing the evidence supporting his decision, the ALJ also must discuss the uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence he rejects." (internal citations omitted)). Though Dr. Wade included "pain" in his assessment, and the state agency reviewers also included "pain" in their summary of Dr. Wade's report, "disability requires more than mere inability to work without pain." Brown v. Bowen, 801 F.2d 361, 362 (10th Cir. 1986). Plaintiff has not shown that the pain resulting from his thumb impairment limited his ability to function.
Accordingly, Plaintiff has not met his burden to establish that the RFC was tainted by legal error or unsupported by substantial evidence.
RECOMMENDATION
Having reviewed the record, the decision of the ALJ, and the pleadings and briefs of the parties, the undersigned Magistrate Judge recommends that the decision of the Commissioner be AFFIRMED.
NOTICE OF RIGHT TO OBJECT
The parties are advised of their right to file written objections to this Report and Recommendation in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. Any such objections must be filed with the Clerk of this Court by April 14, 2017. The parties are further advised that failure to timely object to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
STATUS OF REFERRAL
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in this case.
ENTERED this 31st day of March, 2017.
/s/_________
CHARLES B. GOODWIN
UNITED STATES MAGISTRATE JUDGE
Pl.'s Br. at 6 (citations omitted). To the extent Plaintiff may be raising a proposition of error separate from those discussed above, any such argument is not adequately developed and will not be considered. See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (considering only those contentions that were adequately briefed for review). The undersigned will not speculate or develop appellate arguments on Plaintiff's behalf. See Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994); Threet v. Barnhart, 353 F.3d 1185, 1190 (10th Cir. 2003).