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Green v. Saul

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA
Jan 21, 2020
Case No. CIV-19-130-G (W.D. Okla. Jan. 21, 2020)

Opinion

Case No. CIV-19-130-G

01-21-2020

BRIAN SCOTT GREEN, 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 his application for disability insurance ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. Defendant 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 that the Commissioner's decision be affirmed. I. Administrative History and Agency Decision

On October 18, 2016, Plaintiff filed his application for DIB. AR 12. The Social Security Administration denied his application initially and on reconsideration. An Administrative Law Judge ("ALJ") then held a hearing at which Plaintiff and a vocational expert ("VE") testified. AR 29-57. The ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. AR 12-24.

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 the alleged onset date. At the second step, the ALJ found that Plaintiff had severe impairments of major depressive disorder and anxiety disorder. At the third step, the ALJ found that 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 14, 16.

At step four, the ALJ found that Plaintiff had the residual functional capacity ("RFC") to perform the full range of work at all exertional levels, but with the following nonexertional mental limitations:

Limited to performing simple, routine and repetitive tasks; limited to simple work-related decisions; limited to occasional contact with supervisors; limited to occasional contact with co-workers; and can never have contact with the public.
AR 18. Based on this RFC finding and VE testimony regarding the requirements of Plaintiff's previous work, the ALJ determined that Plaintiff was unable to perform his past relevant work. AR 22.

At step five, the ALJ again relied on the VE's testimony and concluded Plaintiff's RFC would allow him to perform jobs existing in significant numbers in the national economy including mail clerk, router clerk, and laundry worker. AR 22-23. As a result, the ALJ concluded that Plaintiff had not been under a disability, as defined by the Social Security Act, from September 30, 2016 through the date of the decision. AR 23.

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

Plaintiff alleges that the ALJ failed to properly evaluate (1) Plaintiff's subjective statements and (2) the opinion of Plaintiff's treating mental health physician. Plaintiff's Opening Brief (Doc. No. 20) at 12-20. The undersigned disagrees. 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, 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 (internal quotation marks omitted). 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 (internal quotation marks, citation, 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 his 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 his 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. Analysis

A. The ALJ Did Not Improperly Evaluate Plaintiff's Subjective Statements

The Court will not disturb an ALJ's evaluation of a claimant's symptoms, if they are supported by substantial evidence, because such "determinations are peculiarly the province of the finder of fact." Cowan v. Astrue, 552 F.3d 1182, 1190 (10th Cir. 2008). In making such a determination, the ALJ may consider numerous factors, including objective medical evidence; the claimant's daily activities; the location, duration, frequency, and intensity of the claimant's pain; medication used for relief of pain or other symptoms; and other measures used to relieve pain. See 20 C.F.R. § 404.1529(c); SSR 16-3p, 2017 WL 5180304 (eff. March 28, 2016), at *4, *7-8; Wilson, 602 F.3d at 1144-45. The ALJ need not conduct "a formalistic factor-by-factor recitation of the evidence . . . [s]o long as [he] sets forth the specific evidence he relies on in evaluating the claimant's credibility." Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000).

Plaintiff alleges that the ALJ improperly considered his subjective complaints of symptoms. Pl.'s Br. at 12-16. The undersigned disagrees and finds that the ALJ followed the proper procedure and made determinations that were supported by substantial evidence. In evaluating Plaintiff's allegations of disabling symptoms at step one, the ALJ found that Plaintiff has medically determinable impairments that could reasonably be expected to cause some of the psychological limitations alleged. AR 20. The ALJ then evaluated the record to determine the extent of limitations caused by Plaintiff's symptoms and found that Plaintiff's "statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record." Id.

In making this determination, the ALJ first considered Plaintiff's testimony regarding his limitations as well as his activities of daily living. AR 18-19. Plaintiff argues that the ALJ failed to evaluate Plaintiff's "capacity for tolerating the stress and social interaction required by a work situation" and disregarded specific portions of Plaintiff's testimony that indicated limitations. Pl.'s Br. at 14-15. As Defendant notes, however, the ALJ's consideration of Plaintiff's activities of daily living demonstrates that "Plaintiff can perform at least simple tasks, but that he does best when there is limited social interaction." Def.'s Br. (Doc. No. 22) at 9. Moreover, an ALJ "is not required to discuss every piece of evidence." Wall, 561 F.3d at 1067 (internal quotation marks omitted).

Plaintiff alleges that the ALJ failed to mention that Plaintiff "retreated to his room alone after finishing his household chores, was sometimes unable to perform chores or make trips to the store alone at all, occasionally fell asleep while watching movies, retreated to his bedroom when his home became crowded, sometimes became distracted and failed to complete certain tasks, tended to isolate himself during church services and small group sessions, and had lost interest or motivation to engage in several hobbies." Pl.'s Br. at 14. While it is true that the ALJ did not mention Plaintiff's testimony that "sometimes if I'm in a recliner and I put my feet up I'll doze off" while watching a movie, the ALJ need not discuss every piece of evidence. AR 39; see Wall, 561 F.3d at 1067. And the ALJ did discuss each of the other "facts" Plaintiff alleges he "disregard[ed]." Compare AR 17, 18-19, with Pl.'s Br. at 14.

Plaintiff further alleges that the ALJ "failed to acknowledge" that Plaintiff received consistent mental health treatment and that he had failed attempts to return to work. Pl.'s Br. at 15. Again, however, the ALJ's discussion was not lacking as he clearly recognized both Plaintiff's mental health treatment and Plaintiff attempted to return to work. See AR 15-16, 17, 19, 20 (mental health treatment); AR 19 (attempt to return to work). Finally, Plaintiff argues that the ALJ "seemingly placed no significance" on Plaintiff's long work history. Pl.'s Br. at 15. But contrary to Plaintiff's characterization of the decision, the ALJ did consider Plaintiff's prior work history. See AR 19; see also AR 22 (inability to do previous work). Plaintiff's allegations that the ALJ did not consider certain evidence is unpersuasive and, to the extent he invites the Court to reweigh the evidence underlying the ALJ's finding, it is not the Court's role to do so. See Branum v. Barnhart, 385 F.3d 1268, 1270 (10th Cir. 2004).

B. The ALJ Did Not Improperly Evaluate the Treating Physician Opinion

In October 2016, Plaintiff began seeing Juanita Ardis, M.D., for management of his psychotropic medications. See Pl.'s Br. at 7; AR 15. On January 12, 2018, Dr. Ardis completed a Medical Source Statement in which she opined that Plaintiff had some severe limitations, including being likely to miss work more than four days a month and having a reduction in concentration of more than 20%. AR 567-68. The ALJ essentially rejected Dr. Ardis' opinion, giving it only "little weight." AR 21. Plaintiff argues that the ALJ failed to properly evaluate Dr. Ardis' opinion, alleging that the ALJ's reasoning for discounting the opinion was flawed. Pl.'s Br. at 16-20. The undersigned disagrees.

When considering a treating physician's medical opinion, the ALJ must follow a two-step process, generally known as the treating physician rule. The ALJ "must first consider whether the opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques." Mays v. Colvin, 739 F.3d 569, 574 (10th Cir. 2014) (internal quotation marks omitted). "If the ALJ finds that the opinion is well-supported, [the ALJ] must then confirm that the opinion is consistent with other substantial evidence in the record." Id. (internal quotation marks omitted). If the ALJ determines that the medical opinion is deficient in either of these respects, the ALJ may give the opinion less than controlling weight. Id. If the ALJ finds that a treating physician's medical opinion is not entitled to controlling weight, the ALJ must proceed to the second phase of the inquiry to determine what weight to give the opinion "and give good reasons, tied to the factors specified in the [governing] regulations for this particular purpose, for the weight assigned." Krauser v. Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011).

Under this legal framework, then, the opinion of a treating physician is properly denied controlling weight if it is not well-supported by medically acceptable clinical and laboratory diagnostic techniques or if it is inconsistent with the other substantial evidence. And the opinion may be rejected outright if the ALJ gives "specific, legitimate reasons for doing so," relating to such matters as "the degree to which the physician's opinion is supported by relevant evidence," the "consistency between the opinion and the record as a whole," and any "other factors . . . which tend to support or contradict the opinion." Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (internal quotation marks omitted); see also 20 C.F.R. § 404.1527 (listing factors).

The ALJ explained that he gave little weight to Dr. Ardis' opinion because it was not supported by her contemporaneous treatment records and was not consistent with the records of other medical providers. AR 21. Both lack of supportability and lack of consistency with the record as a whole are valid reasons for discounting a treating physician's opinion. 20 C.F.R. § 404.1527(c)(3) (ALJ will consider how much relevant evidence supports a medical opinion as well as the explanation provided for the opinion), (4) (ALJ will consider consistency with the record as a whole).

The ALJ further explained that "[t]he contemporaneous treatment records by Dr. Ardis contain very little objective findings of deficits on mental status exams" and "most of her notes show [Plaintiff] is doing well, aside from up and down mood swings." AR 21. The ALJ also more thoroughly discussed Dr. Ardis' treatment records at step two of the sequential evaluation process. See AR 15-16; cf. Bradley v. Colvin, 643 F. App'x 674, 676 (10th Cir. 2016) (finding that the ALJ considered plaintiff's impairment in determining his RFC when ALJ discussed impairment in detail at step two but did not repeat the discussion at step four); Fischer-Ross, 431 F.3d at 730, 733-34 (holding that an ALJ's factually-substantiated findings at other steps of the sequential-evaluation process provide a proper basis for upholding a step-three decision). Though Plaintiff argues that the ALJ failed to fully consider additional notations within Dr. Ardis' records reflecting Plaintiff's reports of anxiety, sadness, and fatigue, see Pl.'s Br. at 19, such notations do not undermine the ALJ's ultimate determination that Dr. Ardis' contemporaneous records do not reflect the extreme limitations she indicated in the Medical Source Statement. See Simmons v. Colvin, 635 F. App'x 512, 515 (10th Cir. 2015) ("The ALJ also properly relied on the fact that [the treating physician's] impairment ratings on the forms were far more extreme than his own treatment notes would suggest."); White v. Barnhart, 287 F.3d 903, 907 (10th Cir. 2002) (finding discrepancy between treating physician's very restrictive functional assessment and contemporaneous examination a legitimate factor for rejecting that opinion). While Plaintiff did report ongoing anxiety, with occasional additional reports of low mood and sleep dysregulation, he also at times reported improvement as well as success with medications. See Ex. 4F, 7F, 12F. Additionally, the ALJ is correct that Dr. Ardis' treatment notes, which include forms for assessing a psychiatric examination and whether specific problems were improving or worsening, include very little objective findings of deficits. See Ex. 4F, 7F, 12F; 20 C.F.R. § 404.1527(c)(3) ("The more a medical source presents relevant evidence to support a medical opinion, particularly medical signs and laboratory findings, the more weight [the ALJ] will give that medical opinion."). As such, the ALJ properly relied on his finding that Dr. Ardis' contemporaneous treatment records did not comport with the extreme restrictions set forth in her Medical Source Statement. See 20 C.F.R. §404.1527(c)(3), (4); Simmons, 635 F. App'x at 515.

Plaintiff further argues that the ALJ erred in finding that Dr. Ardis' opinion was inconsistent with Plaintiff's records from Oasis Counseling Center. Pl.'s Br. at 19-20; see also AR 21. Plaintiff alleges that the ALJ based his finding "solely on the improvement in [Plaintiff's] GAF scores between October 2016 and 2017," and that "such reasoning represented an overly selective view of those reports." Pl.'s Br. at 19. The ALJ, however, more fully discussed the treatment notes from Oasis at step two, including discussion of Plaintiff's anxiety, low mood, difficulties in concentration, and struggles with family and social interactions. See AR 16. Additionally, though Plaintiff supports his argument with citation to the Feeling/Mood/Affect domain of the Client Assessment Record in the treatment notes from March and September of 2017, see Pl.'s Br. at 19-20, the undersigned's review of those records reveals that the ALJ's discussion of the Oasis treatment notes is accurate. Compare AR 16, 21-22, with AR 508-09, 516, 521-22, 527. Plaintiff has shown no error in the ALJ's determination that Dr. Ardis' opinion was inconsistent with the findings of the mental health counselors at Oasis.

Finally, Plaintiff argues that the ALJ was incorrect in stating that Dr. Ardis' treatment notes did not reflect that Plaintiff was "knocked out by his medications," and that the ALJ erred in failing to mention the number of times Plaintiff had seen Dr. Ardis or that Dr. Ardis is a mental health specialist. Pl.'s Br. at 18, 20. The undersigned finds no reversible error. Though Plaintiff cites to two of Dr. Ardis' treatment notes reflecting that Plaintiff reported medication side-effects, any resulting error does not undermine the remainder of the substantial evidence supporting the ALJ's decision. And the ALJ acknowledged both that Dr. Ardis was Plaintiff's treating physician and that she is a psychiatrist who manages Plaintiff's psychotropic medications. See AR 15.

As such, the ALJ applied the proper factors and his findings were "sufficiently specific to make clear to any subsequent reviewers the weight he gave to the treating source's medical opinion and the reason for that weight." Krauser, 638 F.3d at 1331 (internal quotations marks and brackets omitted). The undersigned finds no reversible error in the ALJ's evaluation of Dr. Ardis' medical source statement. See Krauser, 638 F.3d at 1330-31; Watkins, 350 F.3d at 1300-01. V. Recommendation

In view of the foregoing findings, it is recommended that judgment enter AFFIRMING the decision of the Commissioner to deny Plaintiff's application for benefits. The parties are advised of their respective right to file an objection to this Report and Recommendation with the Clerk of this Court on or before February 10 , 2020, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Report and Recommendation will 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, and any pending motion not specifically addressed herein is denied.

ENTERED this 21 day of January, 2020.

/s/_________

GARY M. PURCELL

UNITED STATES MAGISTRATE JUDGE


Summaries of

Green v. Saul

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA
Jan 21, 2020
Case No. CIV-19-130-G (W.D. Okla. Jan. 21, 2020)
Case details for

Green v. Saul

Case Details

Full title:BRIAN SCOTT GREEN, Plaintiff, v. ANDREW M. SAUL, Commissioner of the…

Court:UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

Date published: Jan 21, 2020

Citations

Case No. CIV-19-130-G (W.D. Okla. Jan. 21, 2020)