Opinion
Case No. CIV-19-323-SLP
12-13-2019
JESSIE MAYFIELD, Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Jessie Mayfield (Plaintiff) brings this action for judicial review of the Commissioner of Social Security's final decision that he was not "disabled" under the Social Security Act. See 42 U.S.C. §§ 405(g), 423(d)(1)(A). United States District Judge Scott L. Palk has referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. §§ 636(b)(1)(B), 636(b)(3). Doc. 16.
Plaintiff maintains the Administrative Law Judge improperly weighed a consultative examiner's opinion. After a careful review of the record (AR), the parties' briefs, and the relevant authority, the undersigned recommends the court reverse and remand the Commissioner's decision. See 42 U.S.C. § 405(g).
Citations to the parties' pleadings and attached exhibits will refer to this Court's CM/ECF pagination. Citations to the Administrative Record will refer to its original pagination.
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). "This twelve-month duration requirement applies to the claimant's inability to engage in any substantial gainful activity, and not just his 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 he can no longer engage in his 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. ALJ'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 17-31; see 20 C.F.R. § 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 Plaintiff:
(1) had not engaged in substantial gainful activity since the application date;AR 19-30.
(2) had the severe impairments of idiopathic juvenile arthritis, learning disorder, diabetes mellitus with polyneuropathy, obesity, sleep apnea, and mild carpal tunnel syndrome on the left;
(3) had no impairment or combination of impairments that met or medically equaled the severity of a listed impairment;
(4) had the residual functional capacity (RFC) for sedentary work with additional restrictions;
(5) had no past relevant work, but could perform jobs that exist in significant numbers in the national economy, such as scanner, surveillance monitor, and sorter; and thus
(6) was not disabled.
Residual functional capacity "is the most [a claimant] can still do despite [a claimant's] limitations." 20 C.F.R. § 416.945(a)(1).
2. Appeals Council's findings.
The SSA's Appeals Council denied Plaintiff's request for review, so the ALJ's unfavorable decision is the Commissioner's final decision. Id. at 1-6; see Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011).
II. Judicial review of the Commissioner's final decision.
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 also 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).
III. Analysis.
A. Issue for judicial review.
Plaintiff asserts the ALJ improperly evaluated the opinion of a consultative examiner, Dr. Julie S. Wallace, Ph.D. Doc. 17, at 3-8.
B. Relevant law.
"Medical opinions are 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(a)(1). The applicable regulations governing the consideration of medical opinions distinguish between "treating" physicians, "examining" physicians, and "nonexamining" (or "consulting") physicians. See id. § 416.927(c). For an ALJ to evaluate and assign weight to a medical opinion, the issuing physician must provide "judgment" about the nature and severity of a claimant's limitations or "information" about the activities he or she could still perform despite these limitations. Cowan v. Astrue, 552 F.3d 1182, 1189 (10th Cir. 2008).
An ALJ must "give consideration to all the medical opinions in the record [and] discuss the weight [s]he assigns to such opinions." Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (citations omitted). The opinions of examining consultants generally receive less weight than a treating physician's opinion. See Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004). Even so, an ALJ must properly consider their opinions and provide legitimate reasons for discounting them. See 20 C.F.R. § 416.927(c).
The ALJ should consider: "(1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship, including the treatment provided and the kind of examination or testing performed; (3) the degree to which the physician's opinion is supported by relevant evidence; (4) consistency between the opinion and the record as a whole; (5) whether or not the physician is a specialist in the area upon which an opinion is rendered; and (6) other factors brought to the ALJ's attention which tend to support or contradict the opinion." See Krauser, 638 F.3d at 1331. That said, so long as the ALJ provides a well-reasoned discussion, the failure to "explicitly discuss" all the factors "does not prevent [the] court from according [the ALJ's] decision meaningful review." Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007).
C. Consideration of Dr. Wallace's opinion.
Dr. Wallace conducted an October 2016 consultative examination. AR 664-73. In her report, Dr. Wallace found that Plaintiff's "learning disability may make it necessary for him to have additional instruction, training, and time to complete tasks that are work related." Id. at 668. The ALJ considered Dr. Wallace's report and found that her "opinion [that Plaintiff's] learning disability could make it necessary for him to have additional instructions, training, and time to complete work-related tasks is not in vocationally relevant terms. I considered the opinion but it is not given significant weight in assessing the RFC due to lack of relevant vocational terms." Id. at 25-26.
Plaintiff argues the ALJ erred in finding that Dr. Wallace's opinion was "not in vocationally relevant terms." Doc. 17, at 5-8 (quoting AR 25-26). He contends that if he needs additional instruction, training, and time to complete work tasks, "he will necessarily be receiving an accommodation that goes above and beyond that given to other employees." Id. at 6; see also Doc. 24, at 3. The Commissioner contends that the ALJ properly considered Dr. Wallace's report and gave good reasons for the weight given to Dr. Wallace's conclusions. Doc. 23, at 5-8.
Plaintiff also argues Dr. Wallace's opinion means that Plaintiff will "need a job coach, or extra help from an on-the-job trainer to help him learn how to do a job," and as a result any work would amount to "supported employment and not SGA." Doc. 17, at 5-6. Such requirements, however, were not part of Dr. Wallace's opinion and Plaintiff cites no portion of the record supporting their inclusion in the RFC.
The portion of Dr. Wallace's report at issue constitutes a medical opinion because it reflects a judgment about the severity of Plaintiff's mental limitation. See 20 C.F.R. § 416.927(a)(1); see also Taulbee v. Berryhill, CIV-18-52-G, 2019 WL 1421758, at *3 (W.D. Okla. Mar. 29, 2019) ("Dr. Wallace's assessment that Plaintiff 'is likely to need additional instruction and supervision in performing work-related tasks' reflects Dr. Wallace's judgment regarding a functional limitation caused by Plaintiff's impairments. As such, [this] statement[] clearly fall[s] within the regulatory definition of a medical opinion to which an ALJ must assign weight."). So the court must determine whether the ALJ gave legitimate reasons for the weight given to the opinion.
The ALJ did not give "significant weight" to Dr. Wallace's opinion because of its "lack of relevant vocational terms." The court, however, finds Dr. Wallace's opinion provided vocational terms. See Harvey v. Colvin, 839 F.3d 714, 717 (8th Cir. 2016) (holding a doctor's opinion that a claimant "might need additional training time" was a "work-related limitation[] suggested by [a] medical source opinion[]"). But see, e.g., Griffith v. Colvin, 2014 WL 1303102, at *5, n.3 (D. Or. Mar. 30, 2014) ("Dr. Carrello's statements that Ms. Griffith may have difficulty completing work without interference from her mental impairments or performing work activities on a consistent basis without additional instructions do not represent 'work-related limitation[s] of function that nee[d] to be reflected in the RFC.'"). Because the "lack of relevant vocational terms" was the sole reason relied on by the ALJ for rejecting the opinion, she did not provide legitimate reasons to support the amount of weight given to it. As such, the ALJ erred in considering Dr. Wallace's opinion.
The Commissioner argues that "Dr. Wallace did not provide an unqualified opinion that Plaintiff needed instruction, training, or time, and instead vaguely opined on what he may (or may not) need." Doc. 23, at 8. But "[i]f the ALJ viewed the opinions as vague or equivocal, he could have stated as much as explanation for" the amount of weight given to Dr. Wallace's opinion. Taulbee, 2019 WL 1421758, at *3 (citing Haga v. Astrue, 482 F.3d 1205, 1207-08 (10th Cir. 2007) (noting that where an ALJ "did not provide" the Commissioner's proffered explanations, the court "may not create or adopt" such "post-hoc rationalizations to support the ALJ's decision")).
Plaintiff also argues that "it was critical for the ALJ to pose these limitations to the VE in a hypothetical question, because it is up to the VE to determine whether these limitations were sufficiently descriptive enough to provide an opinion." Doc. 17, at 6. The ALJ, however, "had to ask only about the effect of those limitations ultimately assessed; the judge did not need to ask about the effect of limitations that [s]he didn't believe applied." Smith v. Colvin, 821 F.3d 1264, 1270 (10th Cir. 2016). But if the ALJ adopts Dr. Wallace's opinion on remand, she should include these limitations in the hypothetical posed to the VE.
The court does not reach the argument made in Plaintiff's reply brief that technical perfection on the part of a consultative examiner should not be required. See Doc. 24, at 2.
D. The error was not harmless.
The Commissioner alternatively argues that, despite the error, the court should affirm the ALJ's decision. A finding of harmless error is appropriate when the court can "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). Further, "an ALJ's failure to weigh a medical opinion involves harmless error if there is no inconsistency between the opinion and the ALJ's assessment of residual functional capacity." Mays v. Colvin, 739 F.3d 569, 578-79 (10th Cir. 2014). Thus, to find reversible error, the court must determine whether the RFC was inconsistent with Dr. Wallace's opinion.
The ALJ found "[Plaintiff] is able to perform simple, routine, and repetitive tasks. He is able to interact with supervisors and coworkers on a superficial, work-related basis. [Plaintiff] should not interact with the public. The job should not involve more than ordinary and routine changes in the work setting or work duties. [Plaintiff] is able to work at a consistent pace throughout the workday, but not at a production rate pace where each task must be completed within a strict time deadline." AR 22.
The Commissioner contends these "numerous and wide-ranging mental restrictions . . . accounted for Dr. Wallace's statement that Plaintiff may need additional instruction, training, or time to complete work tasks." Doc. 23, at 8. The Commissioner argues the RFC's limitations to simple, routine, and repetitive tasks and no more than ordinary and routine changes in work setting or duties account for Dr. Wallace's limitations "because Plaintiff would not have to switch between different tasks or have irregular changes in his work setting or duties." Id. at 8-9. Further, the Commissioner asserts the RFC's limitations to work that is not at a production-rate pace and decreased contact with supervisors, co-workers, and the general public account for the opinion that Plaintiff may need additional time to complete tasks. Id. at 8-9. The Commissioner cites no caselaw to support this argument.
This Court recently addressed a similar fact scenario in Taulbee. There, the RFC allowed for the claimant to "understand, remember, and carry out simple, routine, and repetitive tasks" and to "relate to supervisors and co-workers on a superficial work basis[,] . . . . respond to usual work situations[,] . . . . and have no contact with the general public." 2019 WL 1421758, at *1. The court found the RFC was inconsistent with a medical opinion which stated that the claimant was "likely to need additional instruction and supervision in performing work-related tasks" and that "she may not remember when tasks have been explained to her and she will need repetition in teaching." Id. at *2-3. The court also noted "[t]he VE opined that an individual with Plaintiff's RFC would be unable to perform any jobs existing in significant numbers in the national economy if the limitations articulated by Dr. Wallace were added." Id. at *3. Taulbee is persuasive—the court found a similar opinion and RFC were inconsistent. Furthermore, that the Taulbee VE testified that the claimant could not perform unskilled work with the opinion's limitations convinces the court that an administrative factfinder could have resolved the matter differently, precluding a finding of harmless error. See id.
The Commissioner also argues that Plaintiff failed to explain how the three jobs identified by the ALJ at step five—all unskilled with a specific vocational preparation rating of two—did not account for Dr. Wallace's opinion. Doc. 23, at 9-10. In Taulbee, the ALJ identified jobs that were also unskilled, but the court found reversible error. 2019 WL 1421758, at *1. --------
The court acknowledges that this matter is not on all fours with Taulbee—the doctor's opinion there neither included a finding that the claimant may need additional time to complete work-related tasks nor did the RFC exclude work requiring a production-rate pace. The court also notes at least one case that found a restriction against a production-rate pace and a limitation to simple, routine, and repetitive work "adequately accounted for any additional time [the claimant] needed to complete tasks." Grabiak v. Berryhill, 2019 WL 1296943, at *3 (W.D. Pa. Mar. 21, 2019). And in Harvey, the Eighth Circuit held that an RFC limiting the claimant to "simple, repetitive, and routine tasks . . . . expressly incorporated into the RFC work-related limitations" including the possible need for additional training time. 839 F.3d at 717.
While these out-of-circuit cases support the Commissioner's argument, the court finds Taulbee more persuasive. So, the court cannot "confidently say that no reasonable administrative factfinder, following the correct analysis, could have resolved the factual matter in any other way." Allen, 357 F.3d at 1145.
IV. Recommendation and notice of right to object.
For these reasons, the undersigned recommends the court reverse and remand the Commissioner's decision.
The undersigned advises the parties of their right to file an objection to this Report and Recommendation with the Clerk of Court by the 3rd day of January, 2020, 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 make timely objection to this Report and Recommendation waives their 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 referred to the Magistrate Judge in this matter.
ENTERED this 13th day of December, 2019.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE