Opinion
CIV-20-1017-PRW
11-23-2021
PATRICIA CHARLOTTE JACKSON, Plaintiff, v. KILOLO KIJAKAZI, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
Patricia Charlotte Jackson (Plaintiff) brings this action for judicial review of the Commissioner of Social Security's final decision that she was not “disabled” under the Social Security Act. See 42 U.S.C. §§ 405(g), 423(d)(1)(A). United States District Judge Patrick R. Wyrick has referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C).Doc. 28.
Citations to the parties' pleadings and attached exhibits will refer to this Court's CM/ECF pagination. Citations to the Administrative Record (AR) will refer to its original pagination.
Plaintiff asks this Court to reverse the Commissioner's decision and remand the case for further proceedings, arguing the Administrative Law Judge's (ALJ) residual functional capacity (RFC) assessment lacks substantial supporting evidence. Doc. 24, at 12-22. After careful review of the record, the parties' briefs, and the relevant authority, the undersigned concludes the ALJ did not articulate why he addressed only a portion of a medical opinion. The undersigned thus recommends the Court reverse the Commissioner's decision. See 42 U.S.C. § 405(g).
Residual functional capacity “is the most [a claimant] can still do despite [a claimant's] limitations.” 20 C.F.R. §§ 404.1545 (a)(1), 416.945(a)(1).
I. Administrative determination.
A. Disability standard.
The Social Security Act defines “disability” as the “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); 1382c(a)(3)(A). “This twelve-month duration requirement applies to the claimant's inability to engage in any substantial gainful activity, and not just [the claimant's] underlying impairment.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Barnhart v. Walton, 535 U.S. 212, 218-19 (2002)).
B. Burden of proof.
Plaintiff “bears the burden of establishing a disability” and of “ma[king] a prima facie showing that [s]he can no longer engage in h[er] prior work activity.” Turner v. Heckler, 754 F.2d 326, 328 (10th Cir. 1985). If Plaintiff makes that prima facie showing, the burden of proof then shifts to the Commissioner to show Plaintiff retains the capacity to perform a different type of work and that such a specific type of job exists in the national economy. Id.
C. Relevant findings.
1. Administrative Law Judge's findings.
The ALJ assigned to Plaintiff's case applied the standard regulatory analysis to decide whether Plaintiff was disabled during the relevant timeframe. AR 12-19; see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (describing the five-step process). The ALJ found that Plaintiff:
(1) had not engaged in substantial gainful activity since February 2, 2017, the alleged onset date;
(2) has the following severe impairments: obesity, degenerative disc disease (cervical spine), status post anterior cervical discectomy and fusion, and carpal tunnel syndrome;
(3) has no impairment or combination of impairments that meet or medically equal the severity of a listed impairment;
(4) had the RFC to perform sedentary work, except that she can sit up to six hours in an eight-hour work day; can stand/walk
up to 2 hours in an eight-hour work day; can occasionally climb ramps or stairs, but never ropes, ladders, or scaffolds;can occasionally stoop and crouch; can frequently handle and finger; should avoid exposure to excessive vibration; no work requiring constant head movement; and is limited to detailed non-production rate jobs;
(5) can perform past relevant work as a reservations agent;
(6) can perform jobs that exist in significant numbers in the national economy, such as order clerk, receptionist, and appointment clerk; and so,
(7) was not under a disability from February 2, 2017, through March 19, 2020.See AR 12-19.
2. Appeals Council's findings.
The Social Security Administration's Appeals Council denied Plaintiff's request for review, see id. at 1-6, making the ALJ's decision “the Commissioner's final decision for [judicial] review.” Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011).
II. Judicial review of the Commissioner's decision.
A. Review standard.
The Court reviews the Commissioner's final decision to determine “whether substantial evidence supports the factual findings and whether the ALJ applied the correct legal standards.” Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016). Substantial evidence is “more than a scintilla, but less than a preponderance.” Lax, 489 F.3d at 1084; see Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (“It means-and means only-such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”) (internal quotation marks and citation omitted). A decision is not based on substantial evidence “if it is overwhelmed by other evidence in the record.” Wall, 561 F.3d at 1052 (citation omitted). The Court will “neither reweigh the evidence nor substitute [its] judgment for that of the agency.” Newbold v. Colvin, 718 F.3d 1257, 1262 (10th Cir. 2013) (citation omitted).
B. The ALJ's RFC assessment.
Plaintiff claims that substantial evidence does not support the ALJ's RFC assessment because he failed to “properly evaluate” Advanced Practice Registered Nurse (APRN) and Certified Nurse Practitioner (CNP) A. Brooke Smith's opinions. Doc, 24, at 17. As to these opinions, the ALJ found:
In October 2019, nurse practitioner A. Brooke Smith, APRN-CNP opined the claimant had moderate limitations in her ability to understand, remember, or apply information; mostly moderate limitations in her ability to concentrate, persist, or maintain pace; moderate limitations in her ability to adapt or manage herself; and some moderate limitations in her ability to interact with others (Exhibit 26F). I did not find these assessed limitations persuasive as they were inconsistent with and not supported by the claimant's mental status examination, which noted the claimant's normal mood and affect, speech was normal, behavior was normal, judgment and thought content were normal, and cognition and memory were normal (Exhibit 28F, pages 15 and 20). Moreover, Ms. Smith based these assessed limitations on the claimant's use of prescribed medication for pain control for physical impairments (Exhibit 26F, page 4).
Ms. Smith then noted the claimant was not able to sit, stand/walk at all during an 8 hour work day; could occasionally lift and carry less than 10 pounds; has limitations in doing repetitive reaching, handling, or fingering; and would likely be absent from work as a result of their[sic] impairments or treatments three or four times a month (Exhibit 27F, page 3). I did not find the limitations of an inability to sit, stand or walk during an 8 hour work day nor the claimant's likely absences from work persuasive as these limitations were not supported by nor consistent with the claimant's treatment records, which noted the claimant was exercising and driving, as well as, the claimant demonstrated a normal gait (Exhibits 8E; 9F, pages 19 and 48; 14F, page 7; 25F, page 11; 32F, page 5; and 34F, page 2).AR 17 (emphases added, footnote omitted).
1. The applicable regulations.
Under the applicable regulations, the ALJ does “not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s)[, ] . . . including those from [the claimant's] medical sources.” 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Rather, the ALJ considers the persuasiveness of those opinions using five factors: supportability; consistency; relationship with the claimant; specialization; and other factors, such as “a medical source's familiarity with the other evidence in a claim.” Id. §§ 404.1520c(c), 416.920c(c).
The regulations governing the agency's evaluation of medical evidence were revised effective March 27, 2017. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.Reg. 5844 (Jan. 18, 2017), as amended in 82 Fed.Reg. 15132 (Mar. 27, 2017).
Supportability and consistency are the most important factors. Id. §§ 404.1520c(a), 416.920c(a). “Supportability” examines how closely connected a medical opinion is to the medical source's objective medical evidence and supporting explanations: “The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s)[, ] . . . the more persuasive the medical opinions . . . will be.” Id. §§ 404.1520c(c)(1), 416.920c(c)(1).
“Consistency, ” on the other hand, compares a medical opinion to the other evidence: “The more consistent a medical opinion(s) . . . is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) . . . will be.” Id. §§ 404.1520c(c)(2), 416.920c(c)(2).
An ALJ must consider, but need not explicitly discuss, the remaining factors (relationship with the claimant, specialization, and other factors) unless there are differing medical opinions on an issue and those opinions are equally well-supported and consistent with the record. See 20 C.F.R. §§ 404.1520c(b)(2), (3), 416.920c(b)(2), (3).
“The record must demonstrate that the ALJ considered all of the evidence, but an ALJ is not required to discuss every piece of evidence. Rather, in addition to discussing the evidence supporting his decision, the ALJ also must discuss the uncontroverted evidence he chooses not to rely upon as well as significantly probative evidence he rejects.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996) (citation omitted).
2. Substantial evidence supports the ALJ's assessment as to Plaintiff's mental limitations.
As to mental limitations, the state agency medical consultants assessed no work-related mental limitations, which the ALJ found persuasive. AR 17. The ALJ acknowledged Plaintiff's April 2019 diagnosis of adjustment disorder with depressed mood. Id. (citing id. at 893). This assessment outlined no work-related mental limitations. Id. The ALJ adequately considered this assessment.
The ALJ discounted APRN Smith's opinion that Plaintiff had a variety of moderate mental limitations, because her mental status examination by APRN Smith showed “normal mood and affect, speech was normal, behavior was normal, judgment and thought content were normal, and cognition and memory were normal.” Id. (citing id. at 994, 999). The latter October 24, 2019 examination (id. at 999) took place the same day APRN Smith formed her opinion finding a variety of limitations. Id. at 972-74.
Plaintiff also argues that the ALJ overlooked her PHQ-9 scores, which she maintains were consistent and showed moderate to severe levels of depression. Doc. 24, at 25; Doc. 30, at 3; AR 658, 868, 1163. But none of these scores are linked to specific work-related limitations. And her February 2020 PHQ-9 score was accompanied by normal mood and affect, normal behavior, and normal judgment and thought content. Compare AR 1163 with id. at 1166. The PHQ-9 is also a report of Plaintiff's subjective symptoms. And the scores are not sufficient by themselves to determine disability or non-disability. Substantial evidence supports the ALJ's RFC assessment as to mental limitations.
The “PHQ-9” denotes a nine-item depression scale of a patient health questionnaire:
The nine items of the PHQ-9 are based directly on the nine diagnostic criteria for major depressive disorder in the DSM-IV. The PHQ-9 can function as a screening tool, an aid in diagnosis, and as a symptom tracking tool that can help track a patient's overall depression severity as well as track the improvement of specific symptoms with treatment.
See https://aims.uw.edu/resource-library/phq-9-depression-scale (last visited Oct. 29, 2021).
3. The ALJ did not adequately explain his rejection of APRN Smith's recommended physical limitations, so substantial evidence does not support the physical RFC assessment.
Plaintiff begins her challenge to the ALJ's physical limitation assessment by suggesting the ALJ considered APRN Smith's opinion to be from a “lesser” acceptable source, because the ALJ referred to her as Ms. Smith. Doc. 24, at 18. While Plaintiff's characterization of the ALJ's reference is accurate, the ALJ cited the appropriate regulations in his consideration of the opinion evidence. See AR 15.
Next, Plaintiff argues the ALJ used boilerplate language in discrediting APRN Smith's opinion regarding Plaintiff's likely absences and her inability to sit, stand, or walk during a workday. Doc. 24, at 19 (citing AR 17-18) (noting “these limitations were not supported by nor consistent with the claimant's treatment records, which noted the claimant was exercising and driving, as well as, the claimant demonstrated a normal gait”). The ALJ referred to Plaintiff's ability to exercise and drive as part of her activities of daily living. Similarly, the ALJ referred to objective medical evidence of record showing Plaintiff's normal gait. AR 18.
Plaintiff argues that her exercising (as ordered by several medical sources), her occasional driving, and her normal gait do not detract from or relate to APRN Smith's limitations. Doc. 24, at 20-21. The Court agrees that it can interpret APRN Smith's notation, which the ALJ relied upon, that Plaintiff is “exercising some, journaling, and practicing meditation, ” See AR 1163, in a variety of ways. While this Court will not reweigh the evidence, the Court agrees that several of Plaintiff's physicians recommended she exercise. Doc. 24, at 21 (collecting examples).
Plaintiff argues she only drives occasionally, and she cannot drive while on her medication, and that driving causes her pain while sitting. Id. at 21-22. But the ALJ discounted Plaintiff's consistency and subjective statements. As to her normal gait, Plaintiff argues an unstable gait is neither part of her condition nor is it related to her inability to sit or stand without pain.
The Court agrees that the ALJ's citation to Ex. 9F at page 48 (AR 701) appears to be a miscite as that record refers to a Vitamin B-12 lab test.
More importantly, Plaintiff maintains that the ALJ did not mention APRN Smith's other limitations, including her ability to use her hands and fingers for less than ten percent of an eight-hour workday. Doc. 24, at 24. Each of the four jobs the ALJ found Plaintiff can perform require frequent handling, and three of the four require frequent fingering. Similarly, the ALJ appeared to overlook APRN Smith's opinion that Plaintiff would need unscheduled breaks each hour, would have disturbances due to pain, and would need to recline or lie down during the workday. Id.
See DICOT 238.367-018 (reservations agent); DICOT 249.362-026 (order clerk); DICOT 237.367-038 (receptionist); DICOT 237.367-010 (appointment clerk) (requiring occasional fingering). Occasional means up to one-third of the time, which is greater than what APRN Smith opined Plaintiff could perform.
While the Court agrees with the Commissioner that the ALJ need provide only source-level articulation of the medical opinion, Doc. 29, at 7, here the ALJ conflated his analysis to address only a subset of that opinion. The Court cannot discern what the ALJ thought of the remaining limitations to which APRN Smith opined, other than that he apparently rejected them as he did not include them in the RFC assessment. And those limitations would preclude Plaintiff from performing her past relevant work and the remaining jobs the ALJ identified at step five.
The possibility that this Court might have reached a different result based on the record is not a basis for reversal absent a showing that substantial evidence does not support the ALJ's decision. See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990); see also Putnam v. Comm'r, SSA, 789 Fed.Appx. 694, 701 (10th Cir. 2019) (reaffirming that a reviewing court “cannot reverse simply because [it] might have reached a different result based on th[e] record”). So, when reviewing for substantial evidence, this Court must conduct a holistic review of the ALJ's decision.
Looking at the ALJ's decision as a whole, the Court considered the ALJ's review of the state agency medical consultants' opinions. AR 17. Those consultants opined that Plaintiff could perform light work and had no other limitations. Id. The ALJ found these opinions “somewhat persuasive” and imposed greater limitations in the RFC assessment, noting the objective medical evidence documents chronic back pain and joint pain in Plaintiff's hands. Id. This seemingly bolsters Plaintiff's argument that the remaining limitations APRN Smith recommended remain unaddressed, as it appears the ALJ agreed her severe carpal tunnel syndrome required greater limitations than did the state agency physicians. So, although the Court could infer the ALJ rejected APRN Smith's more severe hand and finger usage, by limiting Plaintiff to frequent handling and fingering, the ALJ did not specifically address those limitations.
The Court considered the ALJ's review of the objective medical evidence and his discounting of Plaintiff's consistency. Id. at 15-17. The ALJ could have rejected APRN Smith's other limitations to the extent she relied on Plaintiff's subjective reports, but the ALJ did not so specify.
Based on the record, the Court cannot conclude that these were mere technical omissions in the ALJ's reasoning. Cf. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012) (“[M]erely technical omissions in the ALJ's reasoning do not dictate reversal.”) And, while the record may contain evidence that could support these findings, the Court cannot decide the issue on behalf of the ALJ “in the first instance.” Allen v. Barnhart, 357 F.3d 1140, 1144-45 (10th Cir. 2004); see Drapeau v. Massanari, 255 F.3d 1211, 1214 (10th Cir. 2001) (holding the court is “not in a position to draw factual conclusions on behalf of the ALJ” (internal quotation marks omitted)).
“Affirming this post hoc effort to salvage the ALJ's decision” would require this Court “to overstep [its] institutional role and usurp essential functions committed in the first instance to the administrative process.” Allen, 357 F.3d at 1142; see also Robinson v. Barnhart, 366 F.3d 1078, 1084-85 (10th Cir. 2004) (rejecting “post hoc effort to salvage the ALJ's decision”). The undersigned therefore recommends the Court reverse and remand the Commissioner's decision so that the ALJ can consider the whole of APRN Smith's opinion.
III. Recommendation and notice of right to object.
For the above reasons, the undersigned recommends that the Court reverse the Commissioner's final decision and remand for further proceedings.
The undersigned advises the parties that they may file an objection to this Report and Recommendation with the Clerk of Court on or before December 7, 2021, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises the parties that failure to timely object to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge in this matter.