Summary
finding the ALJ's allegedly improper mischaracterization of daily activities harmless where the ALJ considered other legitimate factors in assessing subjective complaints
Summary of this case from Godsey v. SaulOpinion
Case No. CIV-18-711-HE
04-08-2019
WANDA COOK, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff, Wanda Cook, seeks judicial review of the Social Security Administration's denial of her applications for disability insurance benefits (DIB) and supplemental security income (SSI). Chief United States District Judge Joe Heaton has referred the matter for proposed findings and recommendations. See 28 U.S.C. § 636(b)(1)(B) and (C). The Commissioner has filed the Administrative Record (AR), [Doc. No. 13], and both parties have briefed their positions. For the reasons set forth below, it is recommended that the Commissioner's decision be affirmed.
Plaintiff's brief refers only to her application for DIB, but as addressed below, the Commissioner denied her applications for DIB and SSI.
Citations to the parties' briefs reference the Court's ECF pagination.
I. Procedural Background
On December 22, 2017, an Administrative Law Judge (ALJ) issued an unfavorable decision finding Plaintiff was not disabled and, therefore, not entitled to DIB or SSI. AR 18-36. The Appeals Council denied Plaintiff's request for review. Id. at 1-7. Accordingly, the ALJ's decision constitutes the Commissioner's final decision. See Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011). Plaintiff timely commenced this action for judicial review.
II. The ALJ's Decision
The ALJ followed the five-step sequential evaluation process required by agency regulations. See Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009) (explaining process); see also 20 C.F.R. §§ 404.1520, 416.920. The ALJ first determined that Plaintiff met the insured status requirement through December 31, 2018 and has not engaged in substantial gainful activity since April 15, 2014, her alleged onset date. AR 20.
At step two, the ALJ determined Plaintiff suffers from the following severe impairments: "diabetes mellitus, degenerative disc disease status post-surgery, status post left knee surgery, right knee arthritis, hypothyroidism, bilateral carpal tunnel syndrome status post surgery, rheumatoid arthritis, fibrosis of the liver, asthma, and morbid obesity." Id. at 21. Then, at step three, the ALJ found Plaintiff's impairments do not meet or medically equal any of the impairments listed at 20 C.F.R. Part 404, Subpart P, App. 1. Id. at 22-23.
The ALJ next determined Plaintiff's residual functional capacity, concluding that she:
[can] lift and/or carry 10 pounds occasionally and up to 10 pounds frequently. She can sit for 6 hours out of [an] 8-hour workday. [She] can stand and/or walk for 2 hours out of an 8-hour workday. She can occasionally climb stairs, stoop, kneel, crouch, and crawl. She should avoid concentrated exposure to dust and fumes. [She] should avoid unprotected heights and open machinery. She [can] use her bilateral hands for no more than frequent use of the hands for handling and fingering.Id. at 23-24.
At step four, the ALJ determined Plaintiff is unable to perform any past relevant work, id. at 34, and at step five, found Plaintiff can work as document preparer and/or clerical mailer, work existing in significant numbers in the national economy. Id. at 35. Therefore, the ALJ concluded that Plaintiff is not disabled for purposes of the Social Security Act. Id. at 35-36.
III. Claim Presented for Judicial Review
According to Plaintiff, the ALJ mischaracterized, and improperly relied upon, her ability to perform activities of daily living in finding her allegations "not entirely consistent." See Pl.'s Br. at 3-8.
Plaintiff refers to the ALJ's assessment as a "credibility determination." Pl.'s Br. at 3. "The Commissioner no longer uses the term 'credibility' in its sub-regulatory policy." Adcock v. Comm'r, SSA 748 F. App'x 842, 848 n.3 (10th Cir. 2018) (citing Social Security Ruling 16-3P, 2016 WL 1119029, at *1 (Mar. 16, 2016)); see also Watts v. Berryhill, 705 F. App'x 759, 763, n.4 (10th Cir. 2017) ("SSR 96-7p [governing credibility assessments] was superseded in March 2016 to 'eliminate the use of the term 'credibility' and to 'clarify that subjective symptom evaluation is not an examination of an individual's character.'" (citation, internal quotation marks, and brackets omitted)).
IV. Standard of Review
Judicial review of the Commissioner's final decision is limited to determining whether the factual findings are supported by substantial evidence in the record as a whole and whether the correct legal standards were applied. See Poppa v. Astrue, 569 F.3d 1167, 1169 (10th Cir. 2009). The Court may find an ALJ's error harmless, if "based on material the ALJ did at least consider (just not properly), [the court] could confidently say that no reasonable administrative factfinder, following the correct analysis, could have resolved the factual matter in any other way[.]" Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004). The burden to show prejudicial error on appeal rests with Plaintiff. See Shinseki v. Sanders, 556 U.S. 396, 409 (2009) ("[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination.").
V. Analysis
The ALJ detailed Plaintiff's subjective allegations and then noted that a "review of the medical evidence reveals [Plaintiff] has a history of inconsistencies between her subjective complaints and objective medical evidence." AR 24-25. Over the course of the next seven pages, the ALJ detailed Plaintiff's medical history, id. at 25-31, and then restated that "the dichotomy between [Plaintiff's] allegations and the evidence of record as a whole reflects poorly due to inconsistencies in the record." Id. at 32. The ALJ then wrote another six paragraphs, linking the record with specific inconsistencies. See id. at 32-33.
Of those six paragraphs, Plaintiff takes issue with one, see Pl.'s Br. at 4, wherein the ALJ stated:
[Plaintiff's] activities are not consistent with her allegations. Despite her numerous complaints, she exercised with her aunt two hours a day, and she had lost 10 pounds by exercise and water aerobics. In addition, she reported [she] liked to read, watched television[,] worked puzzles, drove, shopped in the grocery store, cooked, visited with her grandchildren whenever possible, and independently did personal hygiene. Given her activities, she could perform within the above RFC.Id. at 33 (citations omitted). According to Plaintiff, the ALJ "mischaracterized the true nature" of these daily activities and/or failed to inquire as to the specifics of the activities before relying on them to discredit Plaintiff's allegations. See Pl.'s Br. at 4-8. The Court need not determine if the ALJ in fact erred, because any error would be harmless.
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 by the claimant for relief of pain or other symptoms; and other measures utilized by the claimant to relieve pain. See 20 C.F.R. §§ 404.1529(c), 416.929(c).
Here, Plaintiff does not challenge any of the other multiple grounds the ALJ relied upon in finding her subjective allegations inconsistent. See Pl.'s Br., passim; see also, e.g., AR 32-33 (discussing inconsistences between the record and Plaintiff's allegations involving (1) sleep apnea, (2) use of a cane, (3) driving, (4) bilateral carpal tunnel syndrome, (5) rheumatoid arthritis/fibromyalgia, (6) liver symptoms, (7) bilateral knee impairments, and (8) pain medications). Accordingly, even if the Court agreed with Plaintiff that the ALJ improperly relied on her daily activities when assessing her allegations, any error would be harmless considering the other substantial evidence supporting the ALJ's assessment. See Wilson v. Astrue, 602 F.3d 1136, 1145-46 (10th Cir. 2010) (agreeing with plaintiff that evidence showing she financially needed an award of benefits "standing alone would be insufficient to support an adverse credibility finding" but affirming the Commissioner's decision because "[t]his was not, however, the only evidence relied upon by the ALJ"); Scott v. Berryhill, 695 F. App'x 399, 406 (10th Cir. 2017) (relying on the ALJ's other findings - which the plaintiff did not challenge - to hold "the ALJ's credibility assessment, while perhaps not perfect, is supported by substantial evidence"); Purdy v. Berryhill, No. 16-CV-00169-NYW, 2017 WL 897845, at *12 (D. Colo. Mar. 6, 2017) (unpublished memorandum op. and order) ("Therefore, the court concludes that any error in mischaracterizing Plaintiff's daily activities is harmless, as [other] substantial evidence supports the ALJ's RFC assessment and credibility determination."); Quiver v. Colvin, No. CIV-13-41-F, 2014 WL 769159, at *1, *5 (W.D. Okla. Feb. 26, 2014) (unpublished district court order) ("Plaintiff does not question that substantial evidence supports the remainder of the ALJ's extensive credibility findings. Thus . . . this single unsupported finding by the ALJ as to Plaintiff's lack of medical treatment does not undermine the ALJ's otherwise supportable credibility findings."). Accordingly, the Court recommends denying relief on Plaintiff's sole allegation.
RECOMMENDATION
Any error in the ALJ's reliance on Plaintiff's daily activities to find her allegations inconsistent is harmless as the decision was otherwise supported by substantial evidence. It is therefore recommended that the Commissioner's decision be affirmed.
NOTICE OF RIGHT TO OBJECT
The parties are advised of their right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by April 22, 2019. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. See Moore v. United States, 950 F.2d 656 (10th Cir. 1991).
STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the Chief District Judge in this matter.
ENTERED this 8th day of April, 2019.
/s/_________
BERNARD M. JONES
UNITED STATES MAGISTRATE JUDGE