Opinion
Case No. CIV-18-995-D
06-14-2019
TY TOWELL, Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff, Ty Towell, seeks judicial review of the Social Security Administration's (SSA) denial of his application for supplemental security income (SSI). United States District Judge Timothy D. DeGiusti has referred the matter for proposed findings and recommendations. See 28 U.S.C. § 636(b)(1)(B) and (C). The Commissioner has filed the Administrative Record (AR), [Doc. No. 10], and both parties have briefed their positions. For the reasons set forth below, it is recommended that the Commissioner's decision be affirmed.
Plaintiff's brief refers to an application for disability insurance benefits but the record reflects he filed for social security income.
Citations to the parties' briefs reference the Court's CM/ECF pagination.
I. Procedural Background
On November 27, 2017, an Administrative Law Judge (ALJ) issued an unfavorable decision finding Plaintiff was not disabled and, therefore, not entitled to SSI. AR 18-30. The Appeals Council denied Plaintiff's request for review. Id. at 1-5. Accordingly, the ALJ's decision constitutes the Commissioner's final decision. See Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011). Plaintiff timely commenced this action for judicial review.
II. The ALJ's Decision
The ALJ followed the five-step sequential evaluation process required by agency regulations. See Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009) (explaining process); see also 20 C.F.R. § 416.920. The ALJ first determined that Plaintiff has not engaged in substantial gainful activity since April 19, 2016, his application date. AR 20.
At step two, the ALJ determined Plaintiff suffers from the following severe impairments: "obesity, bilateral plantar fasciitis, autistic spectrum disorder (Asperger's disorder), [attention deficit disorder], and affective disorder." Id. Then, at step three, the ALJ found Plaintiff's impairments do not meet or medically equal any of the impairments listed at 20 C.F.R. Part 404, Subpart P, App. 1. Id. at 20-22.
The ALJ next determined Plaintiff's residual functional capacity, concluding that he:
[can] perform medium work . . . except lifting and carrying on an occasional basis 50 pounds, on a frequent basis 25 pounds; sitting six hours in an eight-hour day; standing and walking for only two hours in an eight-hour day; with the following postural limitations: . . . can climb ramps and stairs on an occasional basis; can never climb ladders, ropes, or scaffolds; stoop on a frequent basis; kneel on an occasional basis; crouch on an occasional basis; crawl on an occasional basis; with the following mental limitations: limited to performing simple, routine and repetitive tasks but not at a production rate pace (e.g. assembly line work); . . . can have frequent contact with supervisors; frequent contact with coworkers; frequent contact with the public; limited to tolerating few changes in routine work setting, defined as the individual can adapt to occasional changes in the work setting with a stable work routine.Id. at 22.
At step four, the ALJ determined Plaintiff has no past relevant work, id. at 28, and at step five, found Plaintiff can perform work existing in significant numbers in the national economy. Id. at 28-29. Therefore, the ALJ concluded that Plaintiff is not disabled for purposes of the Social Security Act. Id. at 29.
III. Claim Presented for Judicial Review
According to Plaintiff, the ALJ erred in the RFC assessment because he: (1) relied on miscalculated evidence; (2) ignored the Plaintiff's need to wear headphones; and, (3) improperly found Plaintiff capable of frequent interaction with supervisors, coworkers, and the public. See Pl.'s Br. at 3-8.
Plaintiff briefly discusses his obesity and plantar fasciitis but fails to connect the discussion to any alleged legal or factual error. See Pl.'s Br. at 6. The Court will not develop such an argument for him. See Threet v. Barnhart, 353 F.3d 1185, 1190 (10th Cir. 2003) (concluding argument was "insufficiently developed" and declining to "speculate on" plaintiff's behalf).
IV. Standard of Review
Judicial review of the Commissioner'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. See 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) (quotation omitted). While the Court considers whether the ALJ followed the applicable rules of law, it does not reweigh the evidence or substitute its own judgment for that of the Commissioner. See Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008).
V. Analysis
For the reasons discussed below, the Court finds no reversible error in the ALJ's decision.
A. The ALJ's Reliance on Miscalculated Evidence
Dr. Robert Danaher, Psy. D. examined Plaintiff at the SSA's request. AR 352. In addition to noting general observations, Dr. Danaher evaluated Plaintiff's present illnesses, treatment history, and family social and environmental history. Id. at 352-54. Dr. Danaher also administered the Montreal Cognitive Assessment (MOCA) test which "was designed as a rapid screening instrument for mild cognitive dysfunction." Id. at 354. According to Dr. Danaher, Plaintiff's score was "25/30." Id. at 355. Plaintiff is correct that when adding his individual scores in each section, his overall score was a 24 - not 25. See id. at 357. Relying on Talbot v. Heckler, 814 F.2d 1456, 1463-64 (10th Cir. 1987), Plaintiff argues this miscalculation results in reversible error, because the wrong score was relied upon by Dr. Danaher, the ALJ, and the medical expert (ME). See Pl.'s Br. at 4-5, 11-12. The Court disagrees.
In Talbot, the physician concluded the "claimant could neither sit, walk, nor stand for longer than two hours at a time for a maximum of a six-hour work day" and the ALJ "mischaracterize[d] the evaluation" to assume the claimant could perform light work. Talbot, 814 F.2d at 1463. Here, Dr. Danaher incorrectly added the individual MOCA section scores - arriving at a score of 25 instead of 24 - and then the incorrect score was repeated numerous times. However, the miscalculation did not create reversible error.
For example, while Dr. Danaher did incorrectly note the overall MOCA score, he discussed each individual section of the test and correctly noted Plaintiff's score in each. AR 354-55. After discussing Plaintiff's correct score results from each individual section, Dr. Danaher opined that "this individual's ability to understand, remember and carry out simple and complex instructions in a work related environment would be rated as adequate." Id. at 356. Plaintiff's RFC includes a less demanding limitation to "simple, routine and repetitive tasks" with only "occasional changes in the work setting with a stable work routine." Id. at 22. Additionally, Dr. Danaher stated that Plaintiff's (incorrect) score of 25 suggested "possible mild cognitive impairment," id. at 355, and the Court judicially notices that a score of 24 would still place Plaintiff in the "mild cognitive impairment" spectrum. See https://www.mocatest.org/moca-clinic-data/ (last accessed June 14, 2019) (stating a MOCA score ranging from 19.0-25.2 suggests mild cognitive impairment). And, while the ME did note Dr. Danaher's incorrect overall score, the expert also considered his ultimate finding that Plaintiff could adequately understand, remember, and carry out simple and complex tasks and further considered mental health records from Dr. Janita Ardis, M.D. AR 41-42. Finally, while the ALJ mentioned the (incorrect) score of 25, he also considered Plaintiff's score on the individual sections of the test and Dr. Danaher's other evaluation findings. Id. at 25.
The transcript refers to "Dr. Jenny Arden" but notes that it a phonetic translation of the physician's name. AR 41. The medical records the ME refer to - Exhibits 9F and 13F - are records from Dr. Janita Ardis, M.D. See id. at 424-65; 489-99.
Contrary to Plaintiff's assertion, see Pl.'s Br. at 5, the ME did not testify that a MOCA score of 25 was "normal" but that Plaintiff's score constituted "his normal." AR 42. Further, it is clear the ME considered all the mental health records and did not - as Plaintiff suggests - find Plaintiff had moderate "part B findings" "[b]ased on that false reading of the record[.]" Pl.'s Br. at 5; AR 41-42. --------
In sum, both Dr. Danaher and the ALJ considered Plaintiff's correct scores on each individual section of the MOCA and the ME considered Dr. Danaher's related opinion on Plaintiff's limitations. So, the Court finds that the error in documenting the overall MOCA score did not create reversible error. See, e.g., McKellar v. Colvin, No. 1:15-CV-2521-CBS, 2017 WL 1023381, at *10 (D. Colo. Mar. 15, 2017) (finding the ALJ's error incorrectly identifying a date did not have any substantial effect on the overall analysis and so "remand is not warranted").
B. The ALJ's Failure to Include a Need for Headphones in Plaintiff's RFC
Plaintiff next alleges that the ALJ erred in failing to account for Plaintiff's need for constant headphone usage in the RFC analysis. See Pl.'s Br. at 7. The Court again finds no error.
The RFC need only include such limitations as the medical record substantially supports. See Kirkpatrick v. Colvin, 663 F. App'x 646, 650 (10th Cir. 2016) ("Clearly, an ALJ doesn't commit error by omitting limitations not supported by the record"); Arles v. Astrue, 438 F. App'x 735, 740 (10th Cir. 2011) (rejecting claimant's argument that a limitation should have been included in his RFC when "such a limitation has no support in the record"). Here, Plaintiff cites to no medical opinion to support the statement that he must wear his headphones "all the time," Pl.'s Br. at 7, and Plaintiff did not testify that he could not function without his headphones. Instead, at the ALJ's questioning, Plaintiff said simply: "I spend most of my day with them on. It makes me comfortable." AR 57. Without more, and without any medical opinion discussing Plaintiff's need for headphones, the Court finds no error in the ALJ's failure to include a limitation related to the use of headphones in the RFC.
C. The ALJ's Finding that Plaintiff May Frequently Interact with People
Finally, Plaintiff alleges the ALJ erred in finding him capable of interacting frequently with supervisors, coworkers, and the public. See Pl.'s Br. at 7-8. More specifically, Plaintiff alleges the ALJ ignored the symptoms of Asperger's and his testimony that customers had found him to be "rude." Id. Again, the Court finds no reversible error.
As discussed above, Dr. Danaher evaluated Plaintiff's mental status. See supra at 3-4. During the examination, Plaintiff mentioned that people "often find him to be too blunt or forthright" but "described difficulties functioning in the workplace primarily revolving around spending long periods of time on his feet." AR 354. In fact, Plaintiff "indicated he was able to interact with coworkers in each work setting appropriately though he had more difficulty responding to issues that developed as he interacted with the public." Id. Finally, Plaintiff said his "barriers to employment . . . [were] physical concerns" and he believed he "'could get by with the mental factors.'" Id.
Based on this assessment, and other medical records, the ME testified that Plaintiff had only a moderate limitation in interacting with others and "would be able to relate to others in the workplace." Id. at 42. The following exchange took then took place:
[ALJ] Okay. And so, now you opined that they're moderate limitations in interacting with others.Id. 43-44.
[ME] Yes.
[ALJ] So, so far as limitations, social limitations, if I understand them, are there any limitations in dealing with the public?
[ME] I listed that as moderate simply because he has a small circle of people that he relates with.
[ALJ] Okay.
[ME] Which is consistent with a mild Asperger's disorder and in terms of being able to work with the public I would probably not want him to be constantly working with the public. He could manage probably frequent work with the public.
[ALJ] Okay. And what about contact with coworkers and supervisors?
[ME] He could manage frequent contact with coworkers and supervisors.
The ALJ was entitled to rely on this testimony, which provides substantial evidence for the RFC assessment, and the Court will not reweigh the evidence or substitute its judgment for the Commissioners. See Bowman, 511 F.3d at 1272. Accordingly, the Court finds no reversible error in the ALJ's finding that Plaintiff can frequently interact with supervisors, coworkers, and the public.
RECOMMENDATION
As discussed above, the Court finds no reversible error in the ALJ's decision. It is therefore recommended that the Commissioner's decision be affirmed.
NOTICE OF RIGHT TO OBJECT
The parties are advised of their right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by July 3, 2019. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to make timely objection 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 (10th Cir. 1991).
STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.
ENTERED this 14th day of June, 2019.
/s/_________
BERNARD M. JONES
UNITED STATES MAGISTRATE JUDGE