Opinion
CIV-18-706-SLP
06-10-2019
KRYSTAL HAILE, Plaintiff, v. NANCY A. BERRYHILL, Acting 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 child's insurance benefits. 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 Final Agency Decision
Plaintiff filed her application for child's insurance benefits on October 23, 2015, alleging disability beginning February 1, 2014. Her application was denied initially and on reconsideration. Plaintiff appeared with counsel and testified at an administrative hearing conducted on May 12, 2017, before an Administrative Law Judge (ALJ). AR 32-80. A vocational expert (VE) also testified at the hearing, id. at 74-78, as did one of Plaintiff's counselors. Id. at 65-73. The ALJ issued a decision in which she found Plaintiff was not disabled within the meaning of the Social Security Act. Id. at 12-28.
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 her alleged onset date. Id. at 15-16. At the second step, the ALJ found Plaintiff had two severe impairments: affective disorder and hyperactivity attention deficit disorder Id. at 16-18. At the third step, the ALJ found Plaintiff did not have an impairment or combination of impairments that met or medically equaled the requirements of a listed impairment. Id. at 18-21.
At step four, the ALJ found Plaintiff had the following residual functional capacity (RFC):
[T]he claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: work must be limited to simple, routine, and repetitive tasks; occasional interaction with co-workers and supervisors, but only superficial[,] and no interaction with the public; and free of production rate pace.Id. at 21. The ALJ further found that Plaintiff has no past relevant work.
Relying on the VE's testimony, the ALJ concluded at step five that Plaintiff could perform jobs existing in significant numbers in the national economy including Warehouse Worker, Industrial Cleaner, and Document Specialist. Id. at 27-28. Based on this finding, the ALJ concluded Plaintiff had not been under a disability, as defined by the Social Security Act, from February 1, 2014 through the date of the decision. Id. at 27.
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 raises four issues. First, Plaintiff contends the ALJ made improper "credibility" findings regarding Plaintiff's mental conditions. Second, Plaintiff states the ALJ erred at step two of the sequential analysis by identifying her mental limitations generally as "affective disorders" rather than specifying each subcategory of affective disorders with which Plaintiff may have been diagnosed. In her third and fourth assignments of error, Plaintiff challenges the weight the ALJ afforded to the opinion of Ginger Rader, LAPC, and contends the ALJ failed to weigh the opinion of Lawrence K. Kaczmarek, M.D.
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. Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citations and quotations 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 (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 five-step sequential evaluation procedure is described at 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 [she] is not able to perform other work." Bowen v. Yuckert, 482 U.S. 137, 142 (1987).
IV. Analysis
A. Analysis of Subjective Symptoms
The Social Security regulations and rulings require an ALJ to consider a claimant's allegations of symptoms, first to determine whether the claimant's severe impairments could reasonably be expected to cause the alleged symptoms, and if so, to determine whether the severity of the symptoms described is supported by substantial evidence in the record. Determinations concerning the validity of a claimant's subjective complaints are particularly suited to the finder of fact, but those findings must, of course, be supported by substantial evidence. Wilson v. Astrue, 602 F.3d 1136, 1144 (10th Cir. 2010). "An ALJ must consider such factors as a claimant's daily activities; attempts to find relief; the type, effectiveness and side effects of medication; and factors that precipitate and aggravate the symptoms" in determining whether the symptoms are disabling. Watts v. Berryhill, 705 F. App'x 759, 763 (10th Cir. 2017) (citing Hamlin v. Barnhart, 365 F.3d 1208, 1220 (10th Cir. 2004)).
Social Security Ruling (SSR) 16-3p, 2016 WL 1119029, at *4-7 (Mar. 16, 2016), states the ALJ should consider a variety of factors when determining whether a claimant's symptoms are disabling:
[W]e instruct our adjudicators to consider all of the evidence in an individual's record when they evaluate the intensity and persistence of symptoms after they find that the individual has a medically determinable impairment(s) that could reasonably be expected to produce those symptoms. We evaluate the intensity and persistence of an individual's symptoms so we can determine how symptoms limit ability to perform work-related activities for an adult and how symptoms limit ability to function independently, appropriately, and effectively in an age-appropriate manner for a child with a title XVI disability claim.Soc. Sec. Ruling 16-3p; Titles II & XVI: Evaluation of Symptoms in Disability Claims, SSR 16-3P (S.S.A. Mar. 16, 2016). The ALJ need not, however, recite a formalistic factor-by-factor recitation of the evidence but must merely set forth the specific evidence she relies on in evaluating the impact of a claimant's symptoms on her ability to work. See Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000).
Effective March 16, 2016, the Social Security Administration eliminated use of the term "credibility" from the rulings. This ruling emphasized that subjective symptom evaluation is not an examination of an individual's character.
The ALJ included a thorough review of the medical records in her decision and considered multiple factors in determining whether Plaintiff's allegations describing the severity of her symptoms were supported by the medical record. Plaintiff argues, however, that the ALJ's conclusion regarding the severity of her symptoms was premised on Plaintiff's "noncompliance with medical treatment and marijuana use." Doc. No. 17 at 7. The bulk of Plaintiff's argument on this issue is devoted to a generalized discourse to the effect that society in general, "most judges" and certainly the ALJ deciding this case, are biased against people who use marijuana. Id. at 9. In support of her argument, Plaintiff states there "was obvious bias premised upon how many times the ALJ mentioned [use of marijuana] in her decision." Id. at 12. Further, Plaintiff contends, "social security employees often consider the illegal use of drugs as a way to give little or no credibility to claimant's explanations regarding how diagnosed conditions affect you. That is what the ALJ did here." Doc. No. 17 at 12. But nothing in the ALJ's decision remotely suggests she based her findings on Plaintiff's use of marijuana. Plaintiff's sweeping, unfounded generalizations do not support her challenge to the ALJ's findings.
By advancing this theory, Plaintiff demonstrates her belief that the ALJ was judging Plaintiff's character when she determined that Plaintiff's reported symptoms were not supported by the medical evidence. In fact, however, the ALJ carefully followed the guidelines of SSR 16-3p and refrained from referring to or judging Plaintiff's credibility.
Moreover, Plaintiff has mischaracterized the ALJ's decision. The ALJ's findings regarding support for the severity of Plaintiff's alleged symptoms were not based primarily on either Plaintiff's noncompliance with her medical regime or her use of marijuana. Rather, the ALJ properly considered the attempts Plaintiff had made to mitigate the symptoms caused by her affective disorders and anxiety— including whether she took prescribed medication—as one factor in the evaluation of Plaintiff's symptoms and the decision as to whether those symptoms were so severe as to preclude Plaintiff from engaging in substantial gainful activity. In reality, the ALJ also considered other factors in assessing the severity of Plaintiff's symptoms.
The ALJ noted, for example, that Plaintiff was assessed with a normal mental status after an examination dated October 2015, a period during which Plaintiff had been off her medications for a few months. AR 17; 402-03. The ALJ also considered the daily activities reported by Plaintiff's father who stated Plaintiff's physical abilities were not limited, that she took care of her personal hygiene, that she washed dishes, that she put away her clothes, that she helped around the house and that she cooked her own meals. AR 19-20. In making her step-three determination, the ALJ properly considered the Part B criteria in the Listings for affective disorders and concluded Plaintiff was no more than moderately limited in any of the four broad areas of mental functioning—understanding, remembering or applying information; interacting with others; concentrating, persisting or maintaining pace; and adapting or managing one's self.
In sum, the ALJ considered Plaintiff's noncompliance with her prescribed medication as only one factor bearing on the severity of her symptoms. Moreover, there is no support in the record for Plaintiff's contention that her marijuana use had any effect at all on the ALJ's decision. Thus, this proposition is without merit.
B. Step Two Identification of Severe Impairments
At step two of the sequential evaluation, the ALJ found Plaintiff to have two severe impairments: affective disorder and attention deficit hyperactivity disorder. AR 16. Plaintiff challenges the ALJ's step-two finding because the ALJ identified one of Plaintiff's severe impairments as "affective disorders." Plaintiff suggests the ALJ should have separately listed each diagnosed mental impairment, even though all of them were, in fact, "affective disorders." However, the undersigned finds the ALJ properly identified Plaintiff's severe impairments.
What is more, even if the ALJ had omitted listing a severe impairment at step two, Plaintiff's argument would fail as a matter of law. An impairment is "severe" if it "significantly limits [a claimant's] physical or mental ability to do basic work activities." 20 C.F.R. § 404.1520(c). A claimant must make only a de minimis showing to advance beyond step two. Langley v. Barnhart, 373 F.3d 1116, 1123 (10th Cir.2004). Thus, to proceed to the next step of the sequential evaluation, a claimant needs to establish, and an ALJ needs to find, only one severe impairment. See Oldham v. Astrue, 509 F.3d 1254, 1256-57 (10th Cir. 2007) (noting that, for step two, the ALJ explicitly found that the claimant "suffered from severe impairments," which "was all the ALJ was required to do").
The regulation describing step two states: "If you do not have a severe medically determinable physical or mental impairment . . . or a combination of impairments that is severe . . ., we will find that you are not disabled." 20 C.F.R. §404.1520(a)(4)(ii). As long as the ALJ finds one severe impairment, the ALJ may not deny benefits at step two but must proceed to the next step. Thus, even if an ALJ completely fails to include a particular severe impairment in her decision, that omission is not reversible error because the sequential evaluation continues. See Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016) (failure to find a particular impairment severe at step two is not reversible error when the ALJ finds that at least one other impairment is severe).
In this case, the ALJ thoroughly discussed the medical evidence of record, noted the various diagnoses of affective disorders included in the record, assessed the functional limitations caused by Plaintiff's mental impairments, and included those functional limitations in the RFC. Plaintiff's challenge to the ALJ's step two findings is without merit .
C. The Weight the ALJ Afforded Opinion Evidence
Plaintiff contends the ALJ erred in affording minimal weight to the Medical Source Opinion of Ability to do Work-Related Activities, (Mental), completed by Ginger Rader, a Licensed Associate Professional Counselor (LAPC). AR 467-468. Ms. Rader's medical source statement assessed Plaintiff's mental impairment as "marked" in eight separate areas. AR 467-468.
Ms. Rader testified she had been going to Plaintiff's home or elsewhere to meet with Plaintiff approximately every week for three years. Id. at 67. At first, Ms. Rader was counseling Plaintiff's mother, but Plaintiff was apparently the source of the problem. Thereafter, Ms. Rader began seeing Plaintiff. From her testimony, it appears Ms. Rader talked to Plaintiff, monitored her behavior, encouraged her to take her medications, and suggested ways Plaintiff might change her behavior. She testified that Plaintiff's behavior was better when she was taking medications, but that even on medications Plaintiff "doesn't do people well." Id. at 73. Moreover, Covenant Youth and Family, the organization for which Ms. Rader worked, does not provide medications. Id.
The ALJ correctly noted that Ms. Rader is not an "acceptable medical source," as defined in the regulations in force at the time Plaintiff filed her claim for benefits, but she nevertheless considered the evidence, giving it "minimal weight" because the assessed limitations were not consistent with other medical records, treatment notes or Plaintiff's daily activities. AR 25.
For claims filed before March 27, 2017, the rules in 20 C.F.R. § 416.927 apply to consideration of medical opinions. Under the rules in effect at the time Plaintiff filed her application for benefits, "medical opinions" were defined as "statements from acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions." 20 C.F.R. § 416.927. "Opinions of providers who are not acceptable medical sources . . ., cannot, by themselves, establish a medically determinable impairment, constitute a medical opinion, or be considered the opinions of a treating source." Holcomb v. Astrue, 389 F. App'x 757, 759 (10th Cir. 2010) (holding that a Licensed Clinical Social Worker (LCSW) is not an acceptable medical source) (citing Frantz v. Astrue, 509 F.3d 1299, 1301 (10th Cir. 2007)); see also Johnson v. Apfel, 2000 WL 208741, at *3 (S.D. Ala. Feb.17, 2000) (holding that a licensed professional counselor is not an acceptable medical source under 20 C.F.R. § 416.913(a).
A review of Ms. Rader's treatment notes indicate that Plaintiff's mental impairments were exacerbated by her mother's hospitalization during which time Plaintiff quit attending school. Id. at 555-569. Additionally, Ms. Rader's notes demonstrate that Plaintiff admitted that taking lithium for her bi-polar affective disorder helped her refrain from yelling and cursing at her family. Id. at 569; 777; 781-782. Despite the efficacy of the lithium, however, Plaintiff apparently refused to take the medication from time to time because "everyone is dogging her constantly" about taking it. Id. at 646. Despite Plaintiff's mental problems, Ms. Rader's records indicate Plaintiff was able to sustain a relationship with a boyfriend and another friend with whom she could talk about her family problems. Id. at 757, 767. The ALJ also noted the numerous normal mental status examinations, which do not support Ms. Rader's marked findings. See AR 402-403; 289-417; and 520-540). The ALJ did not err in affording Ms. Rader's opinion minimal weight.
Plaintiff also takes issue with the ALJ's alleged failure to weigh the opinion of Dr. Lawrence K. Kaczmarek, M.D., but this challenge is without merit. The record contains a second Medical Source Opinion of Ability to do Work-Related Activities, (Mental) completed by Kelvin H. Hunter, III, a Licensed Clinical Social Worker (LCSW) working under the supervision of Dr. Kaczmarek. But the opinion of Mr. Hunter cannot fairly be attributed to Dr. Kaczmarek. See Catt v. Colvin, 2014 WL 98720, at *9 (D. Or. Jan. 8, 2014) (fact that medical source added his signature to the bottom of assessment of other source opinion does not qualify as a concurrence); see also Cruise v. Astrue, 2012 WL 5037257, *5-6 (D. Or. Sept. 28), adopted by 2012 WL 4966462 (D. Or. Oct. 17, 2012) (nurse practitioner's functional assessment was not attributable to an acceptable medical source simply because a supervising doctor "added his signature to the bottom of [that] assessment") (citations omitted)); Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1234 (9th Cir. 2011) (lay opinion "is to be considered that of an 'acceptable medical source' "only where that other source "was working closely with, and under the supervision of [a physician]"). Nothing in the record before this Court indicates that Dr. Kaczmarek was working closely with Mr. Hunter or did anything more than sign the document in question as the supervising physician. Thus, the medical evidence of record does not include any opinion regarding Plaintiff's functional limitations posited by Dr. Kaczmarek. Moreover, Dr. Kaczmarek attended Plaintiff only a few times within a period of four months. As there was no opinion advanced by Dr. Kaczmarek, the ALJ committed no error.
See discussion supra at 11-12, n. 3.
Although Mr. Hunter also assessed Plaintiff with some marked mental impairments, they were not identical to the marked impairments assessed by Ms. Rader. --------
RECOMMENDATION
Based on the foregoing, it is recommended that the Commissioner's decision finding Plaintiff not disabled be AFFIRMED. Plaintiff is advised of her right to file an objection to this Report and Recommendation with the Clerk of this Court by July 1st , 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 results in waiver of 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 10th day of June, 2019.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE