Opinion
Case No. CIV-19-143-G
10-01-2019
FELICIA BOZWORTH, Plaintiff, v. ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
Felicia Bozworth (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), 423(d)(1)(A). United States District Judge Charles Goodwin has referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (b)(3) and Fed. R. Civ. P. 72(b). Doc. 14.
Plaintiff maintains substantial evidence does not support the ALJ's decision, focusing on three providers' medical reports. After careful review of the record (AR), the parties' briefs, and the relevant authority, the undersigned recommends the entry of judgment affirming the Commissioner's final decision. See 42 U.S.C. § 405(g).
I. Administrative determination.
A. Disability standard.
The Social Security Act defines "disability" as the "inability 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 12 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 [her] 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 a different type of work and that such a specific type of job exists in the national economy. Id.
C. Relevant findings.
1. Administrative Law Judge'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 16-27; see 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (describing the five-step process). The ALJ found Plaintiff:
For the parties' briefs, the undersigned's page citations refer to this Court's CM/EFC pagination. Page citations to the AR refer to that record's original pagination.
(1) had severe multiple sclerosis; depression; and anxiety;
(2) had no impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments;
(3) had the residual functional capacity to perform light work with the following restrictions: no more than frequent handling and fingering; limited to simple and detailed tasks and instructions, with no more than occasional interaction with coworkers and supervisors, and no public interaction;
(4) had no past relevant work;
(5) could also perform other jobs in the national economy in significant numbers such as housekeeper, garment sorter, and presser;
(6) had not been under a disability, as defined in the Social Security Act, based on the April 14, 2017 application for disabled widow's benefits or based on the protectively filed supplemental security income application filed on November 24, 2015.AR 18-27.
Residual functional capacity "is the most [a claimant] can still do despite [a claimant's] limitations." 20 C.F.R. §§ 404.1545(a)(1); 416.945(a)(1).
The ALJ listed the incorrect Dictionary of Occupational Titles identifier for this position; the vocational expert gave the correct number, 222.687-014.
2. Appeals Council's findings.
The SSA's Appeals Council denied Plaintiff's request for review, so the ALJ's unfavorable decision is the Commissioner's final decision. Id. at 1-5; see Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011).
II. Judicial review of the Commissioner's final 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 also Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (holding substantial evidence "means—and means only—such relevant evidence as a reasonable mind might accept as adequate to support a conclusion" (internal quotation marks omitted)). A decision is not based on substantial evidence "if it is overwhelmed by other evidence in the record." Wall, 561 F.3d at 1052 (citation omitted). The court will "neither reweigh the evidence nor substitute [its] judgment for that of the agency." Newbold v. Colvin, 718 F.3d 1257, 1262 (10th Cir. 2013) (citation omitted).
B. Issues for judicial review.
Plaintiff argues substantial evidence does not support the ALJ's decision. Doc. 16, at 4-8. She maintains the ALJ failed to include all of the relevant medical findings from the consultative examiner Dr. Stephen R. Close, a licensed clinical psychologist; Spencer Clark, D.O.; and Suzan B. Simmons, Ph.D., two examining physicians. Id. at 4. Plaintiff argues the ALJ ignored "hand limitations"; restrictions for panic attacks; poor attention and memory limitations; decreased sensation in distal extremities bilaterally; no sensation below knee and little on inner thigh; little sensation distal to the elbow bilaterally; mild deformity of both hand with flexion of the phalanges. Id. at 5.
Dr. Close conducted Plaintiff's social security disability evaluation. AR 278-79. Plaintiff complains the ALJ failed to include these findings: "Unable to detect temperature with her hands, not socializing, avoids people; too fearful to enter a room alone without panic; cognitive disorder NOS; poor attention and memory." Doc. 16, at 4 (citing AR 279). Dr. Close did not provide an assessment of Plaintiff's ability to maintain steady employment.
Plaintiff contends the ALJ omitted these findings from Dr. Clark:
Multiple sclerosis, relapsing remitting; decreased sensation in the distal extremities bilaterally; no sensation below knee and little on inner thigh; little sensation distal to the elbow bilaterally; rheumatoid arthritis; mild deformity of both hands with flexion of the phalanges, cannot extend arms fully over head. R. 283.Id.
And, lastly, Plaintiff maintains the ALJ omitted these findings from Dr. Simmons:
Prescribed antidepressant medication since age 20 for panic attacks and depression; she is likely to have difficulty keeping up with the pace in a job moreso due to her medical condition versus any lowered cognitive abilities; she may become more easily overwhelmed; she has chronic pain and is fatigued which may influence her memory and concentration abilities. R. 295.Id.
Only scant portions of the above-cited medical records constitute medical opinions. See 20 C.F.R. §§ 404.1527(a)(1); 416.927(a)(1) ("Medical opinions are statements from [physicians] that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions."). The ALJ found the severe impairments of multiple sclerosis, depression, and anxiety. AR 19. The ALJ included significant limitations in his RFC assessment. Beyond limiting Plaintiff to light work, he restricted her to no more than frequent handling and fingering, which accounts for Plaintiff's hand-related difficulties. Id. at 22. He limited her to simple and detailed tasks and instructions, to account for her cognitive issues. Id. And he included a limitation to no more than occasional interaction with coworkers and supervisors, and no public interaction, to account for her social interaction issues. Id. As to the loss of sensation, as the Commissioner points out, the medical record does not indicate this resulted in a loss of function. Doc. 20, at 14; see also AR 286 (Dr. Clark's statement Plaintiff could "grasp tools" and "manipulate small objects").
As to Dr. Clark's limitation regarding Plaintiff's inability to fully reach overhead, to the extent the ALJ neglected to include this limitation, this omission is harmless. Plaintiff makes no note of any functional limitation caused by her inability to fully reach overhead.
To the extent the symptoms and complaints Plaintiff contends the ALJ omitted constitute Plaintiff's subjective reports, which comprise much of Plaintiff's alleged omissions, the court finds the ALJ discounted Plaintiff's credibility because such reports of extreme limitations were inconsistent with the medical evidence and her demonstrated activities. Doc. 20, at 14; AR 23. Further, the ALJ cited Plaintiff's fairly extensive daily activities to support his determination. AR 23, 25.
Finally, the undersigned agrees with the Commissioner that to the extent Plaintiff challenges the ALJ's hypothetical he gave to the vocational expert, Plaintiff's paraphrasing of the hypothetical omitted key aspects. Doc. 16, at 5 ("Likely to have difficulty keeping up with the pace in a job? The ALJ actually asked a similar hypothetical. It returned no jobs." (AR citation omitted)). The hypothetical the ALJ posed reads:
Now if we were to . . . . just add an additional limitation that this individual would lack the ability to be able to maintain persistence and pace on work-assigned tasks, without breaks, that receives standard breaks in both frequency and duration, such that the individual would be off task 20 percent or more of the workday.AR 53. To that hypothetical, which also included the twenty-percent-off-task limitation, the vocational expert responded that no jobs would exist. Id.
Finally, Plaintiff cites Dr. Simmons' findings that Plaintiff "is likely to have difficulty keeping up with pace in a job . . . ." AR 295; Doc. 16, at 5. But Dr. Simmons did not give an opinion as to whether Plaintiff could or could not maintain steady employment, rather she expressed uncertainty about Plaintiff's ability. See AR 291-96; Blazevic v. Colvin, 2015 WL 5006139, at *10 (D. Kan. Aug. 20, 2015) (physician's statement that "I am very concerned about [claimant]'s ability to maintain steady employment at the present time due to his symptomatology" was "not an opinion" as it expressed "uncertainty regarding [claimant]'s ability, rather than his opinion that [claimant] can or cannot maintain steady employment" (emphasis deleted)).
Substantial evidence supports the ALJ's opinion.
III. Recommendation and notice of right to object.
The undersigned recommends the court AFFIRM the Commissioner's final decision.
The undersigned advises the parties of their right to file an objection to this Report and Recommendation with the Clerk of Court by October 22, 2019, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises the parties that failure to make timely objection to this Report and Recommendation waives their 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 referred to the Magistrate Judge in this matter.
ENTERED this 1st day of October, 2019.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE