Opinion
Case No. CIV-18-0251-D
09-28-2018
MERCEDES MAHAN, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.
REPORT AND RECOMMENDATION
Mercedes Mahan (Plaintiff) brings this action for judicial review of the Commissioner of Social Security's (Commissioner) final decision that she was not "disabled" under the terms of the Social Security Act. See 42 U.S.C. §§ 405(g), 1382c. United States District Judge Timothy D. DeGiusti 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. 11.
After a 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 his 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 he can no longer engage in his 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 (ALJ) findings.
The ALJ assigned to Plaintiff's case applied the standard regulatory analysis in order to decide whether Plaintiff was disabled during the relevant timeframe. AR 20-21; see 20 C.F.R. § 416.920(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (describing the five-step process). Specifically, the ALJ found Plaintiff:
For the parties' briefs, the undersigned's page citations refer to this Court's CM/ECF pagination. Page citations to the AR refer to that record's original pagination.
(1) had the severe impairments of "asthma; major depressive disorder; posttraumatic stress disorder (PTSD); social anxiety disorder, and obsessive-compulsive disorder";AR 21-32.
(2) had no impairment or combination of impairments that met or medically equaled the severity of a listed impairment;
(3) had the residual functional capacity (RFC) for a full range of work at all exertional levels with various nonexertional restrictions;
(4) had no past relevant work, but could perform jobs existing in the national economy; and thus
(5) had not been under a disability as defined by the Social Security Act since her application date of April 8, 2015.
Residual functional capacity "is the most [a claimant] can still do despite [a claimant's] limitations." 20 C.F.R. § 416.945(a)(1). --------
2. Appeals Council findings.
The Social Security Administration's Appeals Council found no reason to review that decision, so the ALJ's decision is the Commissioner's final decision in this case. AR 1-6; 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. 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. Issue for judicial review.
Plaintiff argues the ALJ's RFC determination is not supported by substantial evidence because the ALJ did not include limitations related to Plaintiff's dermatillomania. Doc. 14, at 3-7. As noted by Plaintiff, the ALJ acknowledged that Plaintiff has a condition called dermatillomania, which results in her compulsively picking at her skin. Doc. 14, at 3-4. The record reflects that Plaintiff has suffered from this condition for many years. See AR 206 (Apr. 13, 2005 school record); 321, 324 (June 30, 2005 mental status exam); 353 (July 1, 2009 mental health progress note); 366-68 (July 23, 2015 physical consultative examination report); 374-77 (Sept. 24, 2015 psychological consultative examination report). Despite this history, however, there is nothing in the record reflecting functional limitations caused by Plaintiff's dermatillomania. See AR 67-82, 84-100, 235-42, 251-58, 304-79. Indeed, at the administrative hearing, Plaintiff described her picking behavior as "stress relief" that she does "all the time," but she "do[esn't] even notice it" and does it "[m]ostly in [her] sleep." AR 52-53. Plaintiff did not report any functional limitations caused by the dermatillomania. See AR 40-57.
"[T]here is no requirement in the regulations for a direct correspondence between an RFC finding and a specific medical opinion on the functional capacity in question," and the ALJ need not match each aspect of the RFC determination to a specific medical condition or a specific item of medical evidence. Chapo v Astrue, 682 F.3d 1285, 1288-89 (10th Cir. 2012). However, the RFC need only include such limitations as the record substantially supports. 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 plaintiff's claim a limitation should have been included in his RFC when "such a limitation has no support in the record"). And here, Plaintiff does not point to anything in the record that would support additional limitations in the RFC.
The "Personal/Social History" portion of the psychological consultative examiner's report indicates that Plaintiff told the examiner that she picks at the sores on her face daily in sessions that typically last an hour and cause her face to be bloody when she quits. AR 375. Plaintiff points to this statement to support her contention that the ALJ "completely ignored" limitations required for her dermatillomania. Doc. 14, at 4-5. But this statement is not, as Plaintiff asserts, a finding by a physician. See id. Instead, it is a statement by Plaintiff regarding her symptoms. See AR 374-75. And the ALJ declined to fully accept Plaintiff's allegations regarding the extent of her limitations, a determination Plaintiff has not challenged. AR 29; see also Doc. 14, at 3-7. Though Plaintiff suggests several limitations that she contends "any reasonable person could conclude based on this condition," see Doc. 14, at 5-6 (emphasis added), Plaintiff must present evidence that any such work-related restrictions actually existed. See Kirkpatrick, 663 F. App'x at 649 (affirming RFC when plaintiff argued that ALJ ignored limitations but plaintiff "[didn't] identify, nor have we found, any evidence suggesting such [limitations]."). Plaintiff has not done so.
Accordingly, the record shows that, though Plaintiff undoubtedly suffers from dermatillomania, the RFC as determined by the ALJ was based on a proper consideration of the record and is supported by substantial evidence. See Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000) (holding where the medical record did not establish an alleged limitation "the ALJ did not err by failing to include [the] alleged limitation in his RFC assessment"); McAnally v. Astrue, 241 F. App'x 515, 518 (10th Cir. 2007) (affirming in part because "with regard to [her severe impairments], 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," (citation and internal brackets omitted)). Reversal is not warranted on the above basis.
III. Recommendation and notice of right to object.
Based on the foregoing, the undersigned recommends the entry of judgment affirming 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 the 19th day of October, 2018, 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 28th day of September, 2018.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE