Opinion
CIV-21-411-G
06-10-2022
BRANDON BURNS, Plaintiff, v. KILOLO KIJAKAZI, Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE.
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of the Social Security Administration denying Plaintiff's application for benefits under the Social Security Act. The Commissioner has answered and filed a transcript of the administrative record (hereinafter TR. ___). This matter has been referred to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). The parties have briefed their positions, and the matter is now at issue. It is recommended that the Commissioner's decision be AFFIRMED.
I. PROCEDURAL BACKGROUND
Initially and on reconsideration, the Social Security Administration denied Plaintiff's application for benefits. Following a hearing, an Administrative Law Judge (ALJ) issued an unfavorable decision. (TR. 18-29). The Appeals Council denied Plaintiff's request for review. (TR. 1-3). Thus, the decision of the ALJ became the final decision of the Commissioner.
II. THE ADMINISTRATIVE DECISION
The ALJ followed the five-step sequential evaluation process required by agency regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R. § 404.1520. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since February 1, 2016, the alleged onset date. (TR. 20). At step two, the ALJ determined that Mr. Burns had the following severe impairments: degenerative disc disease of the lumbar spine; depression; post-traumatic stress disorder; and alcohol dependence, in sustained remission. (TR. 20). At step three, the ALJ found that Plaintiff's impairments did not meet or medically equal any of the presumptively disabling impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. (TR. 20).
At step four, the ALJ concluded that Mr. Burns retained the residual functional capacity (RFC) to:
[P]erform sedentary work as defined in 20 CFR 404.1567(a) except that he would be limited to less than complex tasks and instructions (defined as SVP 4 or less), with no more than occasional brief interaction with the public, coupled with the need to avoid crowded work settings.(TR. 22). The ALJ also concluded that Mr. Burns was unable to perform his past relevant work. (TR. 27).
At the administrative hearing, the ALJ presented Plaintiff's RFC limitations to a vocational expert (VE) to determine whether there were other jobs in the national economy that Plaintiff could perform. (TR. 54). Given the limitations, the VE identified three jobs from the Dictionary of Occupational Titles (DOT). (TR. 54-55). The ALJ adopted the VE's testimony and concluded that Mr. Burns was not disabled at step five based on his ability to perform the identified jobs. (TR. 28-29).
III. STANDARD OF REVIEW
This Court reviews the Commissioner's final decision “ to determin[e] whether the Commissioner applied the correct legal standards and whether the agency's factual findings are supported by substantial evidence.” Noreja v. Commissioner, SSA, 952 F.3d. 1172, 1177 (10th Cir. 2020) (citation omitted). Under the “substantial evidence” standard, a court looks to an existing administrative record and asks whether it contains “sufficien [t] evidence” to support the agency's factual determinations. Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). “Substantial evidence ... is more than a mere scintilla ... and means only-such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. at 1154 (internal citations and quotation marks omitted).
While the court considers whether the ALJ followed the applicable rules of law in weighing particular types of evidence in disability cases, the court will “neither reweigh the evidence nor substitute [its] judgment for that of the agency.” Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (internal quotation marks omitted).
IV. ISSUE PRESENTED
Mr. Burns alleges error in the ALJ's consideration of Plaintiff's subjective allegations. (ECF No. 19:3-9).
V. NO ERROR IN THE ALJ'S CONSIDERATION OF PLAINTIFF'S SUBJECTIVE ALLEGATIONS
The Court should reject Plaintiff's assertion that the ALJ erred in considering Plaintiff's subjective allegations.
A. Plaintiff's Subjective Allegations
At the administrative hearing, Mr. Burns' attorney asked his client several questions regarding how his leg and hip instability “affected [his] ability to walk and stand, to do things around the house.” (TR. 49). Plaintiff stated that “a lot of weakness and instability” prevented him from standing for more than 30 minutes without taking a break, and that his day is spent alternating between reclining or lying down. (TR. 49, 50). Plaintiff's attorney then asked Mr. Burns about his mental state and Plaintiff testified that he frequently isolated, suffered flashbacks related to his PTSD, had difficulty concentrating, and was easily distracted. (TR. 50-51). After Plaintiff testified that he does not keep up with his personal hygiene, the following exchange occurred:
ATTORNEY: And keeping up with other activities around the house, with cleaning and laundry and those kinds of things, are those things that you can do pretty much every day to some limited extent or is it more a good day bad day situation?
MR. BURNS: It's a good day bad day situation. I put some clothes in the washer several days ago and they're still in the washer. I mean, so, yeah, it's, it's a good day bad day thing.(TR. 52). And at a mental health consultative examination, Plaintiff reported that he has “days where he is very depressed and can't get out of bed and other days where he is happy.” (TR. 276).
B. ALJ's Duty to Evaluate Plaintiff's Subjective Allegations
Social Security Ruling 16-3p provides a two-step framework for the ALJ to evaluate a claimant's subjective allegations. SSR 16-3p, 2016 WL 1119029, at *2 (Mar. 16, 2016). First, the ALJ must make a threshold determination regarding “whether there is an underlying medically determinable physical or mental impairment(s) that could reasonably be expected to produce an individual's symptoms, such as pain.” Id., at *2. Second, the ALJ will evaluate the intensity and persistence of the claimant's symptoms to determine the extent to which they limit an individual's ability to perform work-related activities. Id. At step two, the ALJ will examine the objective medical evidence, the claimant's statements regarding his symptoms, information from medical sources, and “any other relevant evidence” in the record. Id., at *4. SSR 16-3p also directs the ALJ to consider the following seven factors in evaluating the intensity, persistence, and limiting effects of the claimant's symptoms:
• Daily activities;
• The location, duration, frequency, and intensity of pain or other symptoms;
• Factors that precipitate and aggravate the symptoms;
• The type, dosage, effectiveness, and side effects of any medication;
• Treatment, other than medication, an individual receives or has received for relief of pain or other symptoms;
• Any measures other than treatment a claimant has used to relieve pain or other symptoms; and
• Any other factors concerning an individual's functional limitations and restrictions due to pain or other symptoms.Id., at *7. Finally, in evaluating a claimant's subjective statements, the ALJ must "provide specific reasons for the weight given to the [claimant's] symptoms, [which are] consistent with and supported by the evidence, and [ ] clearly articulated” for purposes of any subsequent review. Id., at *9.
C. The ALJ's Evaluation of Plaintiff's Subjective Allegations was Supported by Substantial Evidence
In formulating the RFC, the ALJ stated that he had considered Mr. Burns' subjective allegations. (TR. 22). The ALJ then: (1) set forth the two-step framework under SSR 163p, (2) summarized the Plaintiff's hearing testimony and medical evidence, and stated:
[T]he claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant'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 for the reasons explained in this decision.(TR. 19).
Mr. Burns alleges that in evaluating his subjective allegations, the ALJ erred in failing to consider Plaintiff's reports, both at the hearing and at the consultative mental health exam, that he suffered from "good days and bad days, ” rendering the evaluation lacking in substantial evidence. (ECF No. 19:3-9). Plaintiff directs the Court's attention to the cases of Cox v. Saul, No. CIV-20-763, 2021 WL 2697546, at *1 (W.D. Okla. June 30, 2021) and Borgsmiller v. Astrue, 499 F. App'x. 812, 813, 2012 WL 4902972, at *1 (10th Cir. 2012) as persuasive authority in support of his argument. The Court should reject Plaintiff's argument.
In Cox, the Plaintiff testified to episodic flare-ups with gout which caused 2-3 “bad days” per week, rendering him immobilized and unable to use his hands. Cox v. Saul, 2021 WL 2697546, at *3. In his recitation of the plaintiff's hearing testimony, the ALJ acknowledged that the plaintiff had testified to “really bad days” which caused him to have to visit the emergency room for a steroid injection to release muscle tension. Id. Even so, the ALJ omitted any reference to what the plaintiff characterized as “bad days” 2-3 times per week. Id. The Court found error in the ALJ's omission, citing Borgsmiller v. Astrue, 499 Fed.Appx. 812 (10th Cir. 2012).
In Borgsmiller, the plaintiff suffered from flare-ups of pain which resulted in her being bedbound and interfered with her ability to work. Borgsmiller v. Astrue, 499 Fed.Appx. 812-814. In discounting the plaintiff's subjective allegations, the ALJ relied on a decreasing frequency of the pain flare-ups, coupled with the plaintiff's ability to do chores on her “good days.” Id. at 817-818. The Tenth Circuit found these rationales inadequate because the plaintiff had specifically testified: “[t]here are days that I can get up and I can ... feel better and I can do some things. There are other times where I'm either sitting in my recliner or I'm in bed and there are other times I do not get out of bed for weeks at a time.” Id. at 818. In light of this testimony, the Court found that “although the ALJ tied her credibility finding to some specific evidence in the record, we conclude none of the evidence relied upon, neither the decreasing frequency of flares nor [the plaintiff's] alleged ability to do some daily activities, provide[d] substantial evidence that Ms. Borgsmiller's complaints of pain were incredible.” Id. at 819 (internal citation omitted).
In Cox, the Court reversed, citing Borgsmiller, and stating:
Borgsmiler v. Astrue is persuasive. As in Borgsmiler, Mr. Cox specifically testified that he suffered from “bad days” with his gout 2-3 days per week which essentially keeps him bedridden. The ALJ omitted this portion of Plaintiff's testimony and instead focused on: normal examination findings, one record of pain being controlled following medication, and Plaintiff's ability to grip a cane without difficulty.
...
Because the ALJ did not acknowledge Plaintiff's “bad days” which appear to affect his ability to work 2-3 days per week, remand is appropriate.Cox v. Saul, 2021 WL 2697546, at *4.
Here, the Court should conclude that neither Cox nor Borgsmiler are persuasive. In those cases, the plaintiffs testified regarding the frequency of “bad days” and how, specifically, those days impacted their abilities to function. Here, Mr. Burns merely stated: (1) “[i]t's a good day bad day situation” (regarding his ability to perform household chores) and (2) he has “days where he is very depressed and can't get out of bed and other days where he is happy.” (TR. 52, 276). But Plaintiff never: (1) clarifies whether his inability to complete household chores is related to physical limitations or his mental health, (2) explains how, specifically, he is functionally limited by his “bad days, ” or (3) states how often his depression renders him bedbound.
“While the record must demonstrate that the ALJ considered all of the evidence, there is no requirement that an ALJ discuss every piece of evidence.” Bales v. Colvin, 576 Fed.Appx. 792, 797 (10th Cir. 2014). In discussing Plaintiff's subjective allegations, the ALJ referenced:
• Plaintiff's leg and hip instability which made it difficult to stand, walk, or sit for long periods of time;
• Plaintiff's need to lie in his recliner;
• Plaintiff's reports that he forgets things, has memory trouble, difficulty focusing, difficulty completing tasks, and isolates;
• Plaintiff's need to “break up” household chores to complete them.(TR. 23). Ultimately, the ALJ found that Plaintiff's allegations were “not entirely consistent with the longitudinal and objective medical evidence of record” relying on:
• Plaintiff's statement in a function report that he had no trouble performing personal care routines;
• Opinions from psychological consultants that Plaintiff “appeared to have capacity to maintain adequate levels to fulfill obligations in a work setting most of the time, for at least two hours at a time, with reasonable breaks;
• Findings from the mental health consultative examiner that Plaintiff “did not seem to have difficulty with concentration skills;” and
• Opinions from state agency medical consultants that Plaintiff could sit, stand, or walk for six hours each in an eight-hour workday.(TR. 25-26). Accordingly, the Court should: (1) conclude that the evidence relied upon provides substantial evidence to support the ALJ's findings regarding Plaintiff's subjective allegations, (2) reject Plaintiff's reliance on Cox and Borgsmiler, and (3) affirm the Commissioner's decision.
VI. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Having reviewed the medical evidence of record, the transcript of the administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties, the undersigned magistrate judge finds that the decision of the Commissioner should be AFFIRMED.
The parties are advised of their right to file specific written objections to this Report and Recommendation. See 28 U.S.C. § 636 and Fed.R.Civ.P. 72. Any such objections should be filed with the Clerk of the District Court by June 6, 2022. The parties are further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VII. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.