Opinion
CIV-23-643-G
12-19-2023
DEBORAH GAIL PAGE, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
SUZANNE MITHELL, UNITED STATES DISTRICT JUDGE
Deborah Gail Page (Plaintiff) brings this action for 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. § 405(g). United States District Judge Charles Goodwin has referred the matter to the undersigned Magistrate Judge for submission of findings and recommendations consistent with 28 U.S.C. § 636(b)(1)(B), (C), and Federal Rule of Civil Procedure 72(b). 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 the Administrative Law Judge (ALJ) failed to properly evaluate the residual functional capacity(RFC) related to Plaintiff's mental impairments and “failed to properly consider the medical source opinions.” Doc. 10, at 11, 13. After careful review of the record, the parties' briefs, and the relevant authority, the undersigned recommends the Court affirm the Commissioner's decision. See 42 U.S.C. § 405(g).
Residual functional capacity “is the most [a claimant] can still do despite [a claimant's] limitations.” 20 C.F.R. § 404.1545(a)(1).
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. § 423(d)(1)(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 an alternative work activity and that this specific type of job exists in the national economy.” Id. (quoting Channel v. Heckler, 747 F.2d 577, 579 (10th Cir. 1984)).
C. Relevant findings.
1. ALJ'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 13-21; see 20 C.F.R. § 404.1520(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (describing the five-step process). The ALJ found that Plaintiff:
(1) had not engaged in substantial gainful activity since March 21, 2020, the amended alleged onset date;
(2) had the following severe physical impairments: morbid obesity, degenerative disc disease status post-surgical repair, hypertension, and obstructive sleep apnea;
(3) had no impairment or combination of impairments that met or medically equaled the severity of a listed impairment;
(4) had the RFC to perform light work, except that the claimant can only: occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; never climb ropes, ladders, and scaffolds; requires a sit/stand option every three hours for five minutes; and can never be exposed to unprotected heights;
(5) can perform her past relevant work as Bank Teller, Dictionary of Occupational Titles (DICOT) 211.362-018, and
Receptionist, DICOT 237.367-038;
(6) had not been under a disability from March 21, 2020 through December 20, 2022.See AR 13-21.
2. Appeals Council's findings.
The Social Security Administration's Appeals Council denied Plaintiff's request for review, see id. at 1-6, 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 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 omitted). The Court “remain[s] mindful that ‘[e]vidence is not substantial if it is overwhelmed by other evidence in the record.'” Wall, 561 F.3d at 1052 (alteration in original) (quoting Grogan v. Barnhart, 399 F.3d 1257, 1261-62 (10th Cir. 2005)).
The Court “consider[s] whether the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases, but [it] will not reweigh the evidence or substitute [its] judgment for the Commissioner's.” Lax, 489 F.3d at 1084 (quoting Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005)). Thus, “[t]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence.” Id. (quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).
“[T]he failure to apply proper legal standards may, under the appropriate circumstances, be sufficient grounds for reversal independent of the substantial evidence analysis.” Hendron v. Colvin, 767 F.3d 951, 954 (10th Cir. 2014). But the failure to apply the proper legal standard requires reversal only where the error was harmful. Cf. Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (placing the burden to show harmful error on the party challenging an agency's determination).
B. Analysis.
1. The ALJ properly considered Plaintiff's mental impairments.
Plaintiff contends the ALJ erred in his consideration of her mental impairments in constructing the RFC. At step two of the sequential process, the ALJ found Plaintiff suffered from non-severe mental impairments of anxiety and depression. AR 14-15. He further found that these impairments do not cause any limitation in any functional area. Id. Plaintiff does not challenge these findings. Instead, Plaintiff argues that “[t]he ALJ's hypothetical question and RFC [were] incomplete because they contain[ed] no mental limitations” related to her non-severe mental impairments. Doc. 10, at 11-12, 15; see also Doc. 15, at 2-4.
To successfully challenge an RFC determination, a plaintiff must articulate a specific limitation she experienced from her impairments, severe or otherwise, that the ALJ erroneously failed to include in the RFC. See, e.g., McAnally v. Astrue, 241 Fed.Appx. 515, 518 (10th Cir. 2007) (“[W]e agree with the magistrate judge that, with regard to her hypertension, loss of vision or skin problems, 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 or discuss any evidence that would support the inclusion of any limitations.” (quotations and alterations omitted)); Denman v. Saul, No. CIV-18-640-G, 2019 WL 4059185, at *4 (W.D. Okla. Aug. 28, 2019) (affirming the ALJ's RFC where the plaintiff “fail[ed] to identify the specific limitations he believes were . . . [erroneously] omitted from the RFC.”). Plaintiff states she has been diagnosed and treated for depression and, although her depression symptoms had improved prior to the administrative hearing, her anxiety had increased. Doc. 10, at 11. Based on this, Plaintiff appears to assert the ALJ should have included mental limitations in the RFC because her increased anxiety made her unable to concentrate or complete tasks. Id.; Doc. 15, at 2. The Court should reject this argument.
At step two, the ALJ rates the degree of limitation resulting from all medically determinable mental impairments within four broad functional areas. Wells v. Colvin, 727 F.3d 1061, 1068 (10th Cir. 2013) (citing 20 C.F.R. § 404.1520a(c)(3)). Ratings that fall short of specified levels dictate a finding of “not severe.” Id. (quoting 20 C.F.R. § 404.1520a(d)(1)). Generally, “[a] conclusion that the claimant'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.” Id. at 1068-69. Thus, “[i]n h[is] RFC assessment, the ALJ must consider the combined effect of all medically determinable impairments, whether severe or not.” Id. at 1069 (citing 20 C.F.R. § 404.1545(a)(2)). But,
[a]n ALJ could, of course, find at step two that a medically determinable impairment posed no restriction on the claimant's work activities. See 20 C.F.R. §[] 404.1520a(c)(4)[] (permitting ALJ to find that degree of limitation in each of the four relevant functional areas is “none”). Such a finding would obviate the need for further analysis at step four.Id. at 1065 n.3 (emphasis added).
Here, the ALJ concluded that Plaintiff's mental impairments caused “no limitations” in each of the four functional areas. AR 14. Based on this finding he was not required to further consider Plaintiff's mental impairments at step four in determining the RFC. See Welton v. Berryhill, 2018 WL 1940591, at *10 (D. Colo. Apr. 25, 2018) (denying the plaintiff's challenge to the ALJ's RFC determination where ALJ found the plaintiff's mental impairments did not result in any limitations, “obviating any need for further analysis of Plaintiff's anxiety in the RFC determination at step four.” (citing Wells, 727 F.3d at 1065 n.3)); Boyer v. Colvin, 2016 WL 1170950, at *4 (D. Kan. Mar. 23, 2016) (“[T]he ALJ found no limitations in the first three functional areas, and no episodes of decompensation. Thus, as Wells indicates, the ALJ found that plaintiff had no mental limitations, which would obviate any need for further analysis at step four.”). So Plaintiff's assertion that the ALJ erred by disregarding her mental impairments at step four lacks merit.
Relatedly, Plaintiff asserts the ALJ erred by failing to include a mental limitation in the hypothetical he presented to the vocational expert at the administrative hearing. Doc. 10, at 11. But, as explained, the ALJ did not err in not including a mental limitation in the RFC. So the Court should also deny this assertion of error. See Smith v. Colvin, 821 F.3d 1264, 1270 (10th Cir. 2016) (“The administrative law judge had to ask only about the effect of those limitations ultimately assessed; the judge did not need to ask about the effect of limitations that he didn't believe applied.”); cf. Qualls v. Apfel, 206 F.3d 1368, 1373 (10th Cir. 2000) (holding that hypothetical question “provided a proper basis for the ALJ's disability decision” when it “included all the limitations the ALJ ultimately included in his RFC assessment”).
2. The ALJ properly considered the medical opinions.
Next, Plaintiff challenges the ALJ's consideration of the opinions of Dr. John Anigbogu, the medical expert who testified during Plaintiff's administrative hearing, as well as Plaintiff's treating physician, Dr. Wade T. McCoy. Doc. 10, at 13-15. Plaintiff contends the ALJ did not explain his analysis of the supportability and consistency of each opinion and/or that his analysis is not supported by substantial evidence.
The ALJ does “not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion . . . including those from [the claimant's] medical sources.” 20 C.F.R. § 404.1520c(a). Rather, the ALJ evaluates the persuasiveness of medical opinions by the claimant's physician using five factors, the most important of which are supportability and consistency. Id.; see also Zhu v. Comm'r, SSA, 2021 WL 2794533, at *6 (10th Cir. July 6, 2021).
“Supportability” examines how closely connected a medical opinion is to the evidence and the medical source's explanations: “The more
relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s)[,] . . . the more persuasive the medical opinions . . . will be.” “Consistency,” on the other hand, compares a medical opinion to the evidence: “The more consistent a medical opinion(s) . . . is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) . . . will be.”Zhu, 2021 WL 2794533, at *6 (internal citations omitted).
a. The ALJ's consideration of Dr. Anigbogu's opinion.
Plaintiff mainly challenges the ALJ's failure to include the need for an assistive device in the RFC. Doc. 10, at 13-15. During the administrative hearing, Dr. Anigbogu testified that Plaintiff's records did not establish that she required an assistive device to ambulate. AR 45, 48-49, 50-57. Dr. Anigbogu explained that almost all of Plaintiff's examinations with Dr. McCoy were normal. Id. at 45. He noted that Dr. McCoy's October 4, 2022 examination record reflected Plaintiff suffered from ataxia. Id. at 45, 49, 719. Yet as Dr. Anigbogu explained, neither that record nor any other records from Dr. McCoy explained the source of the ataxia and whether it was neurological or neuromuscular. Id. at 45, 49, 718-29. Dr. Anigbogu concluded that such a diagnosis was not supported by Plaintiff's relatively normal examination records. Id.
Dr. Anigbogu noted that Dr. McCoy's records showed Plaintiff frequently used a rolling walker to ambulate. Id. at 48-49. He explained, however, that Dr. McCoy's examination results did not support any need for either a cane or a walker. Id. at 48-57. He concluded that Dr. McCoy's records included no objective findings supporting the need for an assistive device. Id. Further, to the extent Plaintiff's subjective complaints suggested an assistive device was necessary, Dr. Anigbogu found Dr. McCoy's examinations to be inconsistent with Plaintiff's complaints. Id. at 46, 48-49. Dr. Anigbogu noted that if Plaintiff suffered from ataxia, a cane could be necessary for balance, but the record did not support such a diagnosis. Id.
Similarly, Dr. Anigbogu testified that in the “conclusions” portion of Plaintiff's examination records, Dr. McCoy explained that Plaintiff suffered from lower extremity edema but there were no objective findings to support the same. Id. at 55, 721, 727, 729. Additionally, Dr. McCoy did not identify the type of edema nor prescribe any related treatment. Id. at 48-53, 54-56.
Plaintiff also asserts that Dr. Anigbogu was “confused” about the notation of ataxia and argues that he overlooked two scanning studies of Plaintiff's spine revealing degenerative disc disease with spinal stenosis and x-rays indicating facet arthropathy. Doc. 10, at 14 (citing AR 483, 564, 706). But Dr. Anigbogu explained that there is not a “correlation between medical x-ray findings and symptomology because some people can have the same thing and don't have any symptoms whatsoever.” AR 53 (referring to Id. at 706). Dr. Anigbogu stated that as a result, medical records should include objective findings supporting Plaintiff's symptoms, and Plaintiff's examinations were generally normal. Id.; Id. at 45. During questioning from Plaintiff's counsel, Dr. Anigbogu thoroughly explained that Dr. McCoy's records did not include objective findings that would support the need for an assistive device and/or support Plaintiff's subjective complaints. Id. at 50-57.
Relying on Wood v. Berryhill, No. CIV-18-670-STE, 2019 WL 470914 (W.D. Okla. Feb. 6, 2019), Plaintiff asserts that an assistive device “no longer need[s] to be medically prescribed” to be included in the RFC. Doc. 10, at 1314. She contends that Dr. Anigbogu's opinion about an assistive device was based on a mistaken premise that a prescription was required. Id. In Wood, this Court explained that a prescription is not dispositive and instead, the relevant inquiry is whether the record establishes that an assistive device is medically necessary. 2019 WL 470914, at *3. The Wood record did not include an assistive device prescription but did include objective findings about the plaintiff's “weak gait requiring a cane.” Id. Here, as Dr. Anigbogu explained, Plaintiff's medical examinations were relatively normal and did not establish an assistive device was medically necessary. AR 45, 49-57.
The ALJ discussed Dr. Anigbogu's testimony throughout his decision. Id. at 16, 17, 18, 19. The ALJ explained that he found Dr. Anigbogu's opinion persuasive based on its consistency and supportability. Id. at 19. The ALJ stated that Dr. Anigbogu's opinion was supported by Plaintiff's relatively normal physical examinations. Id. Further, the ALJ explained that Dr. Anigbogu's opinion was consistent with the overall record and prior opinion evidence. Id. at 19 (citing Id. at 693, 718, 720, 726). The ALJ committed no error in considering Dr. Anigbogu's opinion. 20 C.F.R. § 404.1520c(c)(5).
Finally, Plaintiff challenges the reliability of Dr. Anigbogu's opinion that Plaintiff did not meet or equal a listing, because Dr. Anigbogu did not specify which listings he had considered. Doc. 10, at 13. But Dr. Anigbogu was not required to do so.
At the third step of the sequential analysis, the ALJ must determine whether a plaintiff's impairments are “equivalent to one of a number of listed impairments that the [Commissioner] acknowledges as so severe as to preclude substantial gainful activity.” Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996) (quoting Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988)). The ALJ “is responsible for deciding the ultimate legal question whether a listing is met or equaled.” Social Security Ruling (SSR) 96-6p, 1996 WL 374180, at *3 (July 2, 1996). As a result, the ALJ must explain the listings he considered at step three, see Clifton, 79 F.3d at 1009, but there is no such requirement for a medical expert. In his decision, the ALJ explained that he specifically considered musculoskeletal/back disorders included in Listing 1.15, pulmonary/sleep apnea disorders under Listing 3.00, cardiovascular/hypertension/sleep apnea disorders under Listing 4.00, and obesity under SSR 19-2p. AR 15. So the ALJ committed no legal error here and substantial evidence supports the ALJ's consideration of and conclusions about Dr. Anigbogu's opinions.
b. The ALJ's consideration of Dr. McCoy's opinion.
Plaintiff also challenges the ALJ's consideration of Dr. McCoy's opinion. Doc. 10, at 14-15. Dr. McCoy completed two Medical Source Statements in which he stated that Plaintiff needed an assistive device to ambulate. AR 687, 732. The ALJ noted these opinions, Id. at 17, 19-20, but concluded they were not persuasive. Id. at 20.
The ALJ explained that Dr. McCoy's contemporaneous treatment records did not “contain physical examinations outlining objective findings to support this level of restriction[].” Id. See Best-Willie v. Colvin, 514 Fed.Appx. 728, 733 (10th Cir. 2013) (explaining that when the ALJ sufficiently discusses the medical evidence, the record as a whole may support discounting a doctor's opinion as inconsistent with the evidence, even if there was not a “contemporaneous discussion” on the inconsistency). The ALJ also explained that Dr. McCoy's opinion was inconsistent with other opinion evidence, such as Dr. Anigbogu's and the state agency physicians, as well as the overall objective medical evidence, which included Plaintiff's daily activities and history of conservative treatment. AR 16-17, 18, 19, 20. So the ALJ complied with Social Security regulations in analyzing the supportability and consistency of Dr. McCoy's opinion and substantial evidence supports his decision.
III. Recommendation and notice of right to object.
For the above reasons, the undersigned recommends that the Court affirm the Commissioner's final decision.
The undersigned advises the parties that they may file an objection to this Report and Recommendation with the Clerk of Court on or before January 2, 2024, under 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b)(2). The undersigned further advises the parties that failure to timely object to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge in this matter.