Opinion
Case No. CIV-19-0030-F
11-04-2019
SHARON WHITE, Plaintiff, v. ANDREW M. SAUL, Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff seeks judicial review pursuant to 42 U.S.C. § 405(g) of the final decision of Defendant Commissioner denying her application for disability insurance benefits and supplemental security income benefits under Title II and Title XVI of the Social Security Act, 42 U.S.C. §§ 423, 1382. The Commissioner has answered the Complaint and filed the administrative record (hereinafter AR___), and the parties have briefed the issues. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. §636(b)(1)(B). For the following reasons, it is recommended the Commissioner's decision be affirmed.
I. Administrative History and Final Agency Decision
Plaintiff filed her applications for disability insurance benefits and supplemental security income benefits on December 2, 2015. AR 227-28, 229-34. Plaintiff alleged she became disabled on August 1, 2015, due to chronic back pain (mainly lower back), stenosis, carpal tunnel in both wrists, tendinitis in her left wrist, anxiety, depression, post-traumatic stress disorder, migraines, endometriosis, and blood clots. AR 227, 229, 260. The Social Security Administration denied Plaintiff's applications on February 18, 2016, see id. at 149-52, 154-57, and on reconsideration on September 28, 2016. AR 163-65, 166-68.
Plaintiff appeared with counsel and testified at an administrative hearing conducted before an Administrative Law Judge ("ALJ") on July 6, 2017. AR 35-68. A vocational expert ("VE") also testified at the hearing. AR 58-66. The ALJ issued a decision in which she found Plaintiff was not disabled within the meaning of the Social Security Act. AR 12-29. Following the agency's well-established sequential evaluation procedure, the ALJ found at the first step that Plaintiff had not engaged in substantial gainful activity since December 1, 2015. AR 17. At the second step, the ALJ found Plaintiff had severe impairments of obesity, diabetes mellitus, hypertension, history of 2013 embolism and deep vein thrombosis requiring long-term anticoagulant medication therapy, obstructive sleep apnea, degenerative disc disease of the lumbar spinal region, bilateral carpal tunnel syndrome status-post June 2015 left release surgery, chronic knee pain of unknown etiology, recurrent major depressive disorder with anxious distress, post-traumatic stress disorder, non-severe GERD, endometriosis, and stress urinary incontinence. AR 17-18. Id. At the third step, the ALJ found these impairments were not per se disabling as Plaintiff did not have an impairment or combination of impairments that met or medically equaled the requirements of a listed impairment. AR 18.
At step four, the ALJ found Plaintiff had the residual functional capacity ("RFC") to perform a limited range of sedentary work. AR 20.
[Plaintiff can perform sedentary work] except that involving more than frequently reaching, handling, fingering, and feeling bilaterally; occasionally climbing stairs and ramps and stooping; no kneeling, crouching, and crawling; no climbing ladders, ropes, and scaffolds; adapting to a work situation, performing simple tasks with routine supervision; relating to supervisors and co-workers on a superficial work basis; no customer service work; and no public contact.Id.
Relying on the VE's testimony as to the ability of a hypothetical individual with Plaintiff's work history, age, education, and determined RFC, the ALJ determined Plaintiff could not perform her past relevant work. AR 27. Continuing to rely on the VE, the ALJ further concluded Plaintiff could perform the jobs of polisher, surveillance systems monitor, and final assembler. AR 28-29. Based on these findings, the ALJ concluded Plaintiff had not been under a disability, as defined by the Social Security Act, from December 1, 2015 through the date of the decision. AR 29.
The Appeals Council denied Plaintiff's request for review, and therefore the ALJ's decision is the final decision of the Commissioner. See 20 C.F.R. § 404.981; Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009).
II. Issues Raised
On appeal, Plaintiff raises four issues. First, Plaintiff contends the ALJ erred by failing to explain inconsistency between the RFC and the state agency physician opinions, to which she granted great weight. Plaintiff's Opening Brief (Doc. No. 17) at 3-4. Second, Plaintiff argues the ALJ failed to indicate the weight she granted consultative examiner Dr. Raymond Azadgoli's opinion and claims this constitutes reversible error because it conflicted with the ALJ's RFC. Id. at 4-6. Third, Plaintiff challenges the accuracy of certain statements within the ALJ's decision. Id. at 6-7. Finally, Plaintiff argues the opinions of the state agency physicians were stale based on a 2017 MRI performed after said opinions were rendered. Id. at 7-10.
III. General Legal Standards Guiding Judicial Review
The Court must determine whether the Commissioner's decision is supported by substantial evidence in the record and whether the correct legal standards were applied. Biestek v. Berryhill, ___ U.S. ___, 139 S.Ct. 1148, 1153 (2019); Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010). Substantial evidence "means-and means only-'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Biestek, 139 S.Ct. at 1154 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The "determination of whether the ALJ's ruling is supported by substantial evidence must be based upon the record taken as a whole. Consequently, [the Court must] remain mindful that evidence is not substantial if it is overwhelmed by other evidence in the record." Wall, 561 F.3d at 1052 (citations, quotations, and brackets omitted).
The Social Security Act authorizes payment of benefits to an individual with disabilities. 42 U.S.C. § 401 et seq. A disability is an "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); accord 42 U.S.C. § 1382c(a)(3)(A); see 20 C.F.R. §404.1509 (duration requirement). Both the "impairment" and the "inability" must be expected to last not less than twelve months. Barnhart v. Walton, 535 U.S. 212 (2002).
The agency follows a five-step sequential evaluation procedure in resolving the claims of disability applicants. See 20 C.F.R. § 404.1520(a)(4), (b)-(g). "If the claimant is not considered disabled at step three, but has satisfied her burden of establishing a prima facie case of disability under steps one, two, and four, the burden shifts to the Commissioner to show the claimant has the [RFC] to perform other work in the national economy in view of her age, education, and work experience." Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005). "The claimant is entitled to disability benefits only if he [or she] is not able to perform other work." Bowen v. Yuckert, 482 U.S. 137, 142 (1987).
IV. State Agency Physician Opinions
Plaintiff's first issue on appeal is perplexing at best. The state agency physicians concluded Plaintiff could perform light work. AR 94-96, 108-10, 125-27, 130, 142-44, 147. The ALJ gave their opinions great weight, see AR 26, although she concluded Plaintiff could perform only a limited range of sedentary work. AR 20. Plaintiff complains on appeal that the ALJ's RFC conflicts with the state agency physician opinions that she could perform light work and that the ALJ did not explain this inconsistency. Doc. No. 21 at 3-4. The undersigned finds this alleged error does not warrant reversal.
As the Commissioner points out, any alleged error the ALJ made in this regard inured to Plaintiff's benefit. Thus, the ALJ's failure to explain why she adopted a more restrictive RFC than that encompassed within the medical opinions to which she gave great weight constitutes harmless error, at best. See Kohler v. Colvin, No. CIV-16-0170 MCA/LAM, 2017 WL 3589217, at *7 (D.N.M. Jan. 18, 2017) ("Indeed, the only opinion that Plaintiff specifically discussed, that of Dr. Glass, was actually less restrictive than the RFC that was assessed by the ALJ. Therefore, any error by the ALJ in failing to discuss the § 404.1527(c) factors was harmless."); see also, cf., Keyes-Zachary v. Astrue, 695 F.3d 1156, 1167 (10th Cir. 2012) (noting that in Social Security administrative review, "common sense, not technical perfection, is [a court's] guide." (quotations omitted)); Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004) (explaining that "certain technical errors [] 'minor enough not to undermine confidence in the determination of th[e] case,'" may be viewed as harmless "where, based on material the ALJ did at least consider (just not properly), we could confidently say that no reasonable administrative factfinder, following the correct analysis, could have resolved the factual matter in any other way." (quoting Gay v. Sullivan, 986 F.2d 1336, 1341 n.3 (10th Cir. 1993)).
Plaintiff also asserts, in conclusory fashion, that the ALJ erred by giving greater weight to the opinions of the state agency physicians than the treating physicians. Doc. No. 17 at 4. Plaintiff had a number of treating physicians and Plaintiff fails to specify the treating physician opinion(s) upon which she is relying on making this assertion of error and/or how the alleged error affected the final determination in this matter. The Court cannot and will not "construct arguments or theories for the plaintiff in the absence of any discussion of those issues," Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991), and it cannot address an issue that has been inadequately developed or argued on appeal. Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994) (holding that perfunctory complaints of error that fail to develop an issue are insufficient to invoke appellate review). See also Holland v. Colvin, No. CIV-14-184-R, 2015 WL 1003615, at *6 (W.D. Okla. March 5, 2015) ("The court is unable to address contentions for which a claimant fails to develop the factual and legal bases for his arguments. On judicial review, "'it is not our role to shore up [Plaintiff's] argument for him . . . .'" (quoting Chrismon v. Colvin, 531 F. App'x 893, 896 (10th Cir. 2013) (citation omitted)).
V. Consultative Examiner Opinion
Dr. Azadgoli performed a consultative examination of Plaintiff on August 24, 2016. AR 858-64. Plaintiff complains the ALJ failed to indicate the weight she granted his opinion and claims this constitutes reversible error because it conflicted with the ALJ's RFC. Doc. No. 17 at 4-7. The undersigned disagrees.
Plaintiff is correct that an ALJ must generally consider and address each medical opinion and explain why any such opinion was not adopted. Id. at 4 (citing Social Security Ruling 96-8, 1996 WL 374184, at *7 ("The RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted.")). However, as the Defendant notes, Dr. Azadgoli did not set forth any functional limitations in his assessment. AR 858-64.
The Tenth Circuit has explained that a "true medical opinion" is one that contains a doctor's "judgment about the nature and severity of [the plaintiff's] physical limitations, or any information about what activities [the plaintiff] could still perform." Cowan v. Astrue, 552 F.3d 1182, 1189 (10th Cir. 2008). Applying this standard, the Tenth Circuit has found that statements by physicians that do not provide information about a plaintiff's functional limitations are not true medical opinions. See id. at 1188-89 (finding doctor's statement providing no information about the nature and severity of the claimant's physical limitations or the activities he could still perform was not a medical opinion); see also Welch v. Colvin, 566 F. App'x 691, 694 (10th Cir. 2014) (finding that physicians' statements that did not include opinions on limitations resulting from the plaintiff's impairments were not medical opinions); Sullivan v. Colvin, 519 F. App'x 985, 988 (10th Cir. 2013) (finding that physician's statements that the plaintiff might have difficulty working in the majority of competitive environments and should locate work within a highly structured and supportive setting were not medical opinions about the nature and severity of her mental limitations).
Nevertheless, to the extent Dr. Azadgoli assessed Plaintiff's impairments and resulting symptoms, his findings do not appear to conflict with the RFC. Dr. Azadgoli found Plaintiff suffered from severe anxiety, depression, and cognitive deficits with difficulty concentrating. AR 860. The RFC appears to allow for these findings in its limitation to simple tasks with routine supervision, limiting her interaction with co-workers and supervisors, and precluding contact with the public. AR 20.
Plaintiff relies heavily on Dr. Azadgoli's notation that she cried throughout the examination and stated that she did not want to be there without her friend. AR 859. Plaintiff argues these notations should have been reflected in the RFC, though she fails to state or cite to any supporting authority that might indicate precisely the limitation that should have resulted. Doc. No. 17 at 5-6. In any event, in spite of Plaintiff's crying throughout the examination, Dr. Azadgoli described Plaintiff as "alert and oriented x 3 and in no acute distress. [Plaintiff's] speech is 100% intelligible. . . . [Plaintiff]'s sensorium is clear." AR 859. Again, the RFC limited Plaintiff to simple tasks with routine supervision, limited her interaction with co-workers and supervisors, and precluded contact with the public. AR 20. Dr. Azadgoli's examination notes and/or findings do not conflict with the RFC and therefore, this is not a proper basis for reversal of the ALJ's decision. See Keyes-Zachary, 695 F.3d at 1165-66 (explaining that the ALJ is required to discuss and weigh medical opinions in the record, however, an ALJ's failure to do so is harmless when an undiscussed opinion does not conflict with the ALJ's RFC); Pruitt v. Saul, No. CIV-18-1204-STE, 2019 WL 4777314, at *5 (W.D. Okla. Sept. 30, 2019) ("Although the ALJ did not expressly weigh Dr. Chaudry's opinion, the need for express analysis was weakened because the opinion did not conflict with the RFC.").
VI. RFC Narrative
Plaintiff takes issue with several individual statements within the ALJ's decision explaining the rationale supporting the RFC determination. First, she challenges the ALJ's statement, "There is no confirmation in the contemporaneous psychiatric treatment notes and reports of the claimant suffering panic disorder or other psychiatric disorders precluding her from leaving her home or suffer other similar marked restrictions and limitations. She has not experienced any acute episodes of psychiatric symptoms requiring inpatient admissions, emergency room treatments, and other crisis treatments." Doc. No. 17 at 6 (citing AR 23). Relying on the examination record from Dr. Azadgoli and Plaintiff's treating psychiatrist, Dr. Jeridian Perdue, Plaintiff argues these statements are inaccurate, indeed stating they are "absolutely false." Doc. No. 17 at 6.
The undersigned previously reviewed Dr. Azadgoli's examination record with regard to notations related to Plaintiff's mental status. See, supra. Contrary to Plaintiff's assertion, while his notes indicate Plaintiff suffers from anxiety and depression, he did not find Plaintiff's conditions precluded her from leaving her home or make any finding that might equate to such a severe limitation. AR 858-64. Similarly, Dr. Perdue's records also do not contradict the ALJ's conclusions. Indeed, Dr. Perdue specifically found Plaintiff did not suffer from an inability to function independently outside the home. AR 966.
Plaintiff also criticizes the ALJ's decision wherein she wrote that "the mental status examinations reported by physician[s] treating or evaluating the claimant for her physical impairments have not reported significant deficits of psychiatric functions." AR 24. In claiming this statement is false, Plaintiff again relies upon Dr. Azadgoli's reference to her crying throughout the examination and indicating that she did not want to be there without her friend. Doc. No. 17 at 7. However, as previously noted, while Dr. Azadgoli's examination record did include those references, he also observed that she was "alert and oriented x3 and in no acute distress" and her "sensorium is clear." AR 859. Moreover, while Dr. Azadgoli noted Plaintiff suffered from severe anxiety and depression, he did not indicate she suffered "significant deficits of psychiatric functions." AR 858-64.
Plaintiff also referenced Dr. Perdue's notes as contradicting the ALJ's conclusion. Doc. No. 17 at 6. However, to the extent Dr. Perdue's records note limitations resulting from Plaintiff's mental status, the ALJ adequately allotted for those in her RFC. For example, Dr. Perdue indicated Plaintiff had marked difficulty in maintaining social functioning, ability to understand, remember, and carry out, detailed instruction, and ability to interact appropriately with the general public. AR 965-66. Dr. Perdue also concluded Plaintiff had extreme difficulty in working in coordination with others and suffered deficiencies in concentration, persistence, and pace. Id. The ALJ's RFC limited Plaintiff to performing simple tasks with routine supervision, relating to coworkers and supervisors on a superficial work basis only, and precluded customer service work and any contact with the public. AR 20.
Finally, Plaintiff challenges the ALJ's reference to Plaintiff's having "independently participated in medical and psychiatric treatments by attending medical/psychiatric appointments, providing histories and reports of symptoms, cooperating with physicians and medical personnel, complying with treatment therapies and regimens, comprehending treating issues, making treating decisions, and accessing public benefits and facilities." Doc. No. 17 at 7 (citing AR 24). Plaintiff argues that every person not involuntarily confined participates independently in their own health care and therefore, this is "a dumb statement and if anyone thinks it defeats actual medical opinions by trained doctors who treated her who said the exact opposite, they are dumb too." Doc. No. 17 at 7. Reviewing the ALJ's decision as a whole and purposefully restraining from addressing counsel for the Plaintiff's language and opinion, the undersigned agrees with the Defendant that the ALJ appears to be merely considering Plaintiff's treatment in evaluating her symptoms as the ALJ is required to do under Social Security regulations. 20 C.F.R. § 404.1529(c)(3)(v); Social Security Ruling 96-7p, 1996 WL 374186, at *4-8. In any event, it is clear the ALJ did not rely on Plaintiff's history of treatment as a basis for finding that she was not disabled.
Social Security Ruling 96-7p has been superseded by Social Security Ruling 16-3p. See SSR 16-3p, 2017 WL 5180304. However, the latter will only apply to Social Security applications filed after March 28, 2016.
VII. 2017 MRI
Finally, Plaintiff relies on an MRI performed after the proffered state agency opinions, which the ALJ granted great weight, to argue the opinions are stale and therefore, do not provide substantial evidence to support the ALJ's decision. Doc. No. 17 at 7-10. The undersigned notes again that the ALJ adopted more severe restrictions in the RFC than those encompassed within the agency physician opinions. Regardless, however, the MRI results do not reflect a drastic change in Plaintiff's conditions.
A 2014 CT, performed prior to the rendering of the state agency opinions, showed severe degenerative disk disease in her thoracic and lumbar spine. AR 612. It also evidenced, in Plaintiff's lumbar spine, moderate canal narrowing and some neural foraminal narrowing bilaterally, left worse than right in her L4, L5, and S1 distributions. Id. The 2017 MRI provided:
Although the 2014 CT does not appear to be in the record, the results are described within a 2015 medical record. AR 612.
There is evidence of multilevel degenerative disc disease through the lower lumbar spine manifest by loss of signal on T2-weighted imaging as well as some loss of intervertebral disc space height. These changes are most pronounced at L3-L4 through L5-S1. Remainder of intervertebral disc space heights and signal are maintained. Vertebral body heights are relatively well-maintained. There is mild bilateral lumbar facet arthrosis. There is STIR hyperintense type I reactive endplate change at L5-S1. There is fatty type II reactive endplate change at L4-L5. The remainder of the background of marrow signal intensity is benign, hyperintense to disc on unenhanced T1-weighted imaging. There is a normal lumbar lordosis.AR 875-77.
* * *
Impression:
Several sequences are degraded by motion.
1. Degenerative changes of the lower lumbar spine superimposed on a developmentally small canal, as discussed. These changes result in severe central canal narrowing of L3-L4 and moderate central canal narrowing at L4-L5. There is severe bilateral neuroforaminal stenosis at L5-S1.
2. There are STIR hyperintense type 1 reactive endplate [] changes at L5-S1. These findings may be a source of low axial back pain.
3. No abnormal intrathecal enhancement.
Reviewing the discussion of the previous imaging and the 2017 MRI results, the latter may show some possible worsening of the previous imaging findings, but it does not reflect such a material change as to render previously rendered opinions stale. See Hawkins v. Saul, No. CIV-18-1177-D, 2019 WL 5090008, at *5 (W.D. Okla. Sept. 23, 2019) (rejecting the plaintiff's argument that the ALJ erred by granting two physician opinions great weight when the opinions were rendered prior to 2017 treatment notes, noting that the later treatment notes were similar to previous treatments notes and therefore did not constitute a material change in the plaintiff's impairment so as to render the physicians' opinions stale); Harper v. Berryhill, No. CIV-17-1220-BMJ, 2018 WL 4517466, at *2 (W.D. Okla. Sept. 19, 2018) (affirming the ALJ's decision where a 2016 MRI, performed after an opinion was provided that was granted great weight, "fail[ed] to show that Plaintiff's impairments so materially changed after [the] opinion as to render it patently stale."). Accordingly, this claim of error does not provide a basis for appellate relief.
RECOMMENDATION
In view of the foregoing findings, it is recommended that judgment enter affirming the decision of the Commissioner. Plaintiff is advised of her right to file an objection to this Report and Recommendation with the Clerk of this Court on or before November 25th , 2019, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter.
Dated this 4th day of November, 2019.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE