Opinion
CIV-22-876-SLP
09-21-2023
SYRONE A. NERO, Plaintiff, v. KILOLO KIJAKAZI, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
Syrone A. Nero (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), 1383(c)(3). United States District Judge Scott L. Palk has referred the matter to the undersigned Magistrate Judge for submission of findings and recommendations consistent with 28 U.S.C. §§ 636(b)(1)(B), (C), and Fed.R.Civ.P. 72(b). Doc. 15.
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 (ALJ) “failed to properly develop the record” and “instead relied on a stale opinion to determine her” residual functional capacity (RFC). Doc. 18, at 10. After careful review of the record, the parties' briefs, and the relevant authority, the undersigned recommends the Court affirm 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 twelve months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). “This twelvemonth 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 an alternative work activity and that this specific type of job exists in the national economy.” Id. (quoting Channel v. Heckler, 747 F.2d 577, 579 (10th Cir. 1984)).
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 13-24; 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 October 10, 2019, the alleged onset date;
(2) had the following severe physical and mental impairments: disorders of the cervical and lumbar spine; discogenic and degenerative; status post November 2020 cervical fusion, C3-6; status post March 2021, lumbar L5 bilateral laminectomies, right L5-S1 foraminotomy, and L5 partial medial facetectomy; obesity; major depressive disorder, single episode, in partial remission; and generalized anxiety disorder;
(3) had no impairment or combination of impairments that met or medically equaled the severity of a listed impairment;
(4) had the RFC to perform light work, except that she can only occasionally climb ramps and stairs, balance, stoop, kneel,
crouch, or crawl; could never climb ropes, ladders, or scaffolds; must avoid exposure to workplace hazards, such as dangerous moving machinery and unprotected heights; requires a sit/stand option, in that the claimant might be on her feet, standing and/or walking, for about four hours in an eight-hour workday and might be seated for about four hours in an eight-hour workday, and can maintain either posture for at least thirty minutes at any one time; can understand, recall, and perform simple and detailed tasks; can make simple but detailed work-related decisions; and can adapt to work settings and some changes in work settings;
(5) was unable to perform her past relevant work;
(6) can perform jobs that exist in significant numbers in the national economy, such as Assembler, Dictionary of Occupational Titles (DICOT) 706.684-022; Laundry Folder, DICOT 369.687-018; and Price Marker, DICOT 209.587-034; and so,
(7) had not been under a disability from October 10, 2019, through March 15, 2022.See AR 13-24.
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. Plaintiff's claims and pertinent medical and administrative history.
A. Plaintiff's issues with the ALJ's decision.
Plaintiff asserts the “ALJ failed to properly develop the record, when it contained no functional opinions reflective of Plaintiff's entire medical record, and instead relied on a stale opinion to determine her RFC.” Doc. 18, at 10. Plaintiff argues that “[d]espite voluminous objective evidence via surgical reports and medical imaging of ongoing degenerative spine disorders, the record here is remarkably devoid of functional medical opinions.” Id. at 11. She argues this lack of evidence should have triggered the ALJ to further investigate her deteriorating condition rather than “rel[ying] on the patently stale opinions of the State Agency Medical Consultants” to formulate an RFC. Id. at 10-11.
B. Plaintiff's pertinent medical history.
The ALJ stated he considered the entire record in rendering his decision. AR 16. The following is a recitation of Plaintiff's pertinent medical history, which the ALJ considered. See id. at 13, 14-16, 17-22.
During a November 14, 2019 office visit with family medicine physician Kyle Mueller, M.D., Plaintiff complained of neck pain which had started three weeks prior as a “crick” in her neck with stiffness. Id. at 491. Dr. Mueller examined Plaintiff and found muscular tenderness and spasm present in Plaintiff's neck along with a decreased range of motion due to pain. Id. at 492. He diagnosed her with a neck spasm and prescribed over-the-counter pain medications, a heating pack, a muscle relaxant, and osteopathic manipulation treatment (OMT). Id.
Family medicine physician Tara Korff, D.O., saw Plaintiff on November 18, 2019, and performed OMT on her neck. Id. at 493-94. Dr. Korff prescribed heat, ice, and stretching and instructed Plaintiff to return in two weeks for further OMT. Id. at 494-95. Plaintiff returned on December 2, 2019, for OMT and told Dr. Korff her pain had not improved and she was having headaches. Id. at 497-500. Dr. Korff performed OMT and ordered an MRI of Plaintiff's cervical spine. Id. at 498-500.
Plaintiff's December 17, 2019 cervical MRI results showed multilevel degenerative changes with moderate to severe spinal canal stenosis and foraminal stenosis. Id. at 520-21. On February 3, 2020, Plaintiff saw pain management physician Patrick Prevo, M.D., for pain management. Id. at 431-436. During his physical examination, Dr. Prevo observed Plaintiff had mildly reduced neck extension, moderately reduced right-side rotation, right paraspinous tenderness, and a positive test for nerve root compression on her right and left sides. Id. at 434. Her strength and sensation were intact. Id. He assessed her with cervical spondylosis without myelopathy and referred her for a series of cervical epidural steroid injections. Id. at 436.
On February 18, 2020, Plaintiff saw neurosurgeon Hakeem Shakir, M.D. Id. at 424-28. Dr. Shakir reviewed Plaintiff's MRI, which showed “significant central canal stenosis.” Id. at 428. During his physical examination he observed Plaintiff exhibited a decreased range of motion and tenderness in her neck. Id. at 427-28. But she did “not display any evidence of cervical spondylitic myelopathy and demonstrate[d] good strength.” Id. at 428. He diagnosed her with cervical radiculopathy, recommended physical therapy and injections, and ordered a “flexion-extension view of her cervical spine.” Id. That X-ray of her cervical spine showed “mild multilevel degenerative disc disease and spondylosis” with “[n]o acute osseous abnormality” or “cervical instability.” Id. at 661.
On February 19 and March 4, 2020, Dr. Prevo administered cervical epidural steroid injections to Plaintiff. Id. at 439-41. During an April 3, 2020 visit with Eduardo Garcia, PA-C, Plaintiff stated that the injections had completely relieved her pain for about two weeks but then her pain returned. Id. at 437-38. PA-C Garcia started Plaintiff on 300 mg of gabapentin. Id. at 438.
In an April 15, 2020 follow-up office visit with Jessica Flint, PA, for her neck pain, Plaintiff reported she had been to physical therapy and received two epidural steroid injections. Id. at 611-15. She still had neck pain and headaches, though, along with hand tingling, which were both eased by gabapentin. Id. at 611. PA Flint recommended further injections and added a muscle relaxer to treat Plaintiff's neck “spasm.” Id. at 615. She also recommended Plaintiff utilize a traction device she already had at home to help ease the spasm. Id.
In an April 16, 2020 visit with Dr. Korff, Plaintiff complained of rightside sciatic nerve pain which she had been dealing with for five or six years. Id. at 914. Plaintiff's pain was not acute and Dr. Korff prescribed OMT and stretches. Id. at 915-16.
Plaintiff saw PA Flint on June 11, 2020, for a follow-up visit. Id. at 618-22. She reported that her last epidural steroid injection, on May 13, 2020, had not helped with her pain. Id. at 618. Plaintiff complained of pain on both sides of her neck with pain radiating down her left shoulder to her hand with tingling. Id. She was having trouble holding things in her left hand and was starting to have balance issues. Id. PA Flint discussed the possibility of surgical intervention with Plaintiff. Id. at 622. In a June 15, 2020 visit with PA-C Garcia, Plaintiff described her intermittent neck pain as aching, throbbing, sharp, tingling/pins and needles. Id. at 569. Plaintiff told PA-C Garcia that she was going to pursue surgery to address her symptoms. Id. at 571.
On August 10, 2020, Plaintiff saw neurologist Farhan Tariq, M.D. Id. at 627-31. He reviewed her nerve conduction study and EMG which indicated “active cervical radiculopathy involving C5-C6 C7.” Id. at 627. Dr. Tariq's physical examination of Plaintiff yielded normal musculoskeletal and neurological findings including normal muscle strength and tone in her extremities, and normal reflexes and sensation. Id. at 630-31. Dr. Tariq recommended Plaintiff continue using anti-inflammatory medication and a muscle relaxant as needed, continue with stretching exercises and physical therapy as tolerated, and continue taking gabapentin. Id. at 628.
On November 3, 2020, Dr. Shakir performed a C3-C6 anterior cervical discectomy and fusion on Plaintiff. Id. at 648-52. At her post-op appointment with PA Flint, Plaintiff reported she was “doing well” and had “minimal neck pain.” Id. at 633. She had some residual numbness in her right hand and occasional paresthesias in her arm but was still improving. Id. PA Flint instructed Plaintiff to wear her cervical collar for two more weeks. Id. at 639.
On November 14, 2020, Plaintiff went to the emergency room (ER). Id. at 834. She reported that her neck had significantly improved after surgery, but she needed pain relief for her recurring “sciatic pain on the right side.” Id. Philip Sloan, M.D., examined Plaintiff and found no focal neurological deficits or weakness. Id. at 836-37. He also found no musculoskeletal swelling, tenderness, or deformity. Id. at 837. Dr. Sloan noted Plaintiff's “presentation [was consistent] with self-diagnosis.” Id. at 838. He treated Plaintiff's pain with injections of morphine, a muscle relaxer, and a steroid and told her to return to the ER if her symptoms worsened. Id.
On November 17, 2020, during her post-op visit with PA Flint, Plaintiff complained of right leg pain extending into her foot. Id. at 633-39. Plaintiff stated that pain medication and gabapentin had provided her only “minimal” pain relief. Id. at 633. A steroid injection at the ER had provided her with “moderate” relief. Id. Upon examination, Plaintiff had a normal range of motion and full strength in her extremities. Id. at 637-38. She had a positive straight leg raise on her right. Id. at 638. PA Flint diagnosed Plaintiff with “lumbar radiculopathy in the right leg which is consistent with a L4-5 radiculopathy.” Id. at 639. She prescribed a “[M]edrol dose pack” and increased her muscle relaxer. Id. She recommended a steroid injection and referred Plaintiff to physical therapy. Id. She also ordered “imaging of [Plaintiff's] lumbar spine for further evaluation.” Id.
In a telehealth visit the next day with Dr. Korff, Plaintiff complained of “[c]onstant pain” from her right-side sciatic nerve. Id. at 934. She reported she could not bear weight on her right leg, she had numbness, and the pain was getting worse. Id. Dr. Korff diagnosed Plaintiff with [l]umbar back pain with radiculopathy affecting right lower extremity.” Id. at 935. She told Plaintiff to follow-up with neurosurgery, to continue with the muscle relaxer and to pick up the steroid pack PA Flint had prescribed. Id. She also referred Plaintiff to physical therapy for her “[s]ciatica of right side.” Id.
Plaintiff visited the ER on November 21, 2020, complaining of severe, sharp pain in her lower back which radiated down her right leg. Id. at 842. PA-C Amy Potts' physical examination of Plaintiff showed a normal range of motion in Plaintiff's neck and back with no weakness. Id. at 845-46. Plaintiff exhibited tenderness on her right lower back and had a positive right straight leg test. Id. at 846. PA-C Potts gave Plaintiff pain medications and an anti-inflammatory and released her. Id. at 848-50.
An MRI of Plaintiff's lumbar spine on November 27, 2020, showed a “[l]arge right paracentral and lateral recess disc protrusion at ¶ 5-S1 resulting in abutment of the traversing right S1 nerve root.” Id. at 666. “Degenerative changes also contribute to moderate L5-S1 spinal canal, mild bilateral L5-S1 foraminal stenosis,” and “[m]inimal L4-5 foraminal stenosis secondary to degenerative disc disease and posterior epidural lipomatosis.” Id. An X-ray of Plaintiff's lumbar spine performed that same day showed a “moderate disc narrowing and degeneration at ¶ 5-S1” and a “mild disc narrowing and degeneration at ¶ 4-5.” Id. at 669.
PA Flint later reviewed Plaintiff's imaging with her. Id. at 642. PA Flint noted Plaintiff's pain was less severe, so she recommended “conservative management before jumping into surgery.” Id. at 648. She instructed Plaintiff to keep her appointment with Dr. Prevo for a lumbar epidural steroid injection and to continue with her physical therapy. Id. Dr. Prevo administered lumbar epidural steroid injections to Plaintiff on December 8, 2020, and January 5, 2021. Id. at 857, 869.
At the beginning of March of 2021, Plaintiff visited the ER twice seeking pain relief for her back pain and saw Dr. Korff for follow-up. Id. at 883-89, 893-98, 946-47. Dr. Korff started Plaintiff on meloxicam, continued her on gabapentin and a muscle relaxer and prescribed heat, ice, stretching, and OMT for her “[a]cute bilateral low back pain with right-side sciatica.” Id. at 947.
In a March 9, 2021 office visit with Dr. Shakir, he noted Plaintiff had recovered “very well” from her neck surgery but was now presenting with “severe 10/10 back pain which radiates into her right lower extremity and is causing her difficulty with ambulation and mild weakness.” Id. at 909. Plaintiff reported that a steroid injection in January had not provided her any relief. Id. Upon physical examination, Dr. Shakir noted a “right gastrocnemius weakness 4/5,” and a positive straight leg raise on the right. Id. at 910. Sensation was intact “throughout all four limbs.” Id. at 911. Dr. Shakir reviewed Plaintiff's lumbar MRI and discussed performing a “lumbar decompression with a possible discectomy.” Id. Plaintiff agreed and Dr. Shakir scheduled her for surgery. Id.
Dr. Shakir performed a lumbar laminectomy and discectomy on March 16, 2021. Id. at 1016-17. In a March 31, 2021 visit with Dr. Korff, Plaintiff reported that her pain had improved but was not “all the way gone.” Id. at 949. Dr. Korff continued Plaintiff on gabapentin. Id. at 951.
On April 6, 2021, Plaintiff had a surgical follow-up appointment with Dr. Shakir. Id. at 905-07. He stated she was had “recovered very well from surgery” and “no longer require[ed] a cane or a walker or wheelchair.” Id. at 905. He noted she had presented herself in a wheelchair on their initial visit because of her “excruciating pain and right leg weakness.” Id. During this visit, Plaintiff had “no major complaints” except for a “persistent numbness[/]tingling that goes down the right leg.” Id. at 905, 907. Otherwise, Plaintiff was “80% better than her preoperative baseline.” Id. at 905. His physical examination showed “improved strength in her right lower extremity [ and she] is able to ambulate without assistance.” Id. at 907. She was also able to “raise up on her tippy toes” during the examination. Id. He recommended she continue her use of Neurontin to address her numbness and tingling. Id.
In a final follow-up appointment with Dr. Shakir on July 6, 2021, Dr. Shakir noted Plaintiff had improved strength in her right leg, she ambulated without assistance, she was able to raise up on her tippy toes, and she had intact sensation “throughout all four limbs.” Id. at 903. Plaintiff reported she was still experiencing numbness/tingling in her right leg, so Dr. Shakir recommended a new MRI and X-ray on a follow-up visit. Id. at 901, 903. The record reflects no more visits with Dr. Shakir.
Plaintiff states she “complained of excruciating pain” to Dr. Shakir during this visit. Doc. 18, at 8. But Dr. Shakir's notes indicate her chief complaint was that her “right leg was bothering her” and she “reports persistent numb[n]ess[/]tingling in her right leg.” AR 901.
In an August 4, 2021 office visit with family medicine physician Jessnie Jose, M.D., Plaintiff complained of “chronic right hip pain” which had “worsened after surgery.” Id. at 953, 955. She also complained of back pain, neck pain with neck stiffness, and right lower leg numbness. Id. at 953-54. Upon physical examination she had no gait or coordination abnormalities and had no tenderness to palpation of her right hip. Id. at 955. Dr. Jose refilled her prescriptions and encouraged her to follow-up with the neurosurgeon to discuss further imaging. Id.
In a September 10, 2021 office visit with family medicine physician Jay E. Vinnedge, M.D., for a blood pressure check, Plaintiff stated she still had pain and would be doing a “fusion in the future.” Id. at 958.
C. Plaintiff's hearing testimony.
The ALJ held a hearing on November 4, 2021. During the hearing, Plaintiff's non-attorney representative told the ALJ that Plaintiff had only “marginal improvement” after her two surgeries. Id. at 40.
Plaintiff testified that she still has pain and stiffness in her neck after surgery, that she has limited mobility, and that the “pain radiates up to [her] head” causing her headaches. Id. at 45. She further testified that her back pain was so bad before her March 2021 surgery she could not put weight on her right leg, and she had to use a wheelchair. Id. at 46. She stated that her pain and weakness had somewhat improved after surgery, but she still has “the pulling” and “burning sensation,” as well as numbness in different parts of her right leg. Id. She told the ALJ she was going to have a “fusion” and that she had an office appointment with Dr. Shakir on November 18, 2021. Id. at 46-47.
When asked about her mobility, Plaintiff testified she can “sit for a good [twenty] minutes” before she has to lie down. Id. at 50-51. She can also walk for about twenty minutes and can sustain activity for about thirty minutes before she has to lie in bed or recline the rest of the day. Id. at 51-52. She is uncomfortable driving because it hurts her back, and she never lifts things. Id. at 52.
D. State Agency Medical Consultants' opinions.
Stage Agency Medical Consultant Karl K. Boatman, M.D., initially reviewed Plaintiff's medical history through May 2020, and determined Plaintiff had the RFC for light work due to her neck pain. Id. at 72-83, 86-98. He opined she could occasionally lift and carry twenty pounds, frequently lift and carry ten pounds, stand or walk for about six hours in an eight-hour workday, and sit for about six hours in an eight-hour workday. Id. at 78-79, 92-93. She could also occasionally climb ladders, ropes, and scaffolds. Id.
State Agency Medical Consultant Carla Werner, M.D., reconsidered Plaintiff's records and issued her opinion Plaintiff was not disabled on September 8, 2020. Id. at 99-113. She evaluated Plaintiff's medical history through August 28, 2020, and affirmed Dr. Boatman's RFC for light work with the above-referenced limitations. Id. at 107-09.
III. 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 quotations omitted). The Court “remain[s] mindful that evidence is not substantial if it is overwhelmed by other evidence in the record.” Wall, 561 F.3d at 1052 (internal quotation marks omitted).
The Court “consider[s] whether the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases, but [it] will not reweigh the evidence or substitute [its] judgment for the Commissioner's.” Lax, 489 F.3d at 1084 (internal quotations omitted). Thus, “[t]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence.” Id.
“[T]he failure to apply proper legal standards may, under the appropriate circumstances, be sufficient grounds for reversal independent of the substantial evidence analysis.” Hendron v. Colvin, 767 F.3d 951, 954 (10th Cir. 2014). But the failure to apply the proper legal standard requires reversal only where the error was harmful. Cf. Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (placing the burden to show harmful error on the party challenging an agency's determination).
B. Analysis.
Plaintiff complains the ALJ's RFC determination is unsupported because the ALJ relied on stale medical opinions to formulate it. Doc. 18, at 10. She asserts the ALJ should have “develop[ed] the record” with “functional opinions” instead of relying on his own medical opinion. Id. The undersigned disagrees.
1. The ALJ did not fail in his duty to develop the record.
Plaintiff “bears the burden to prove her disability.” Wall, 561 F.3d at 1062 (quoting Flaherty v. Astrue, 515 F.3d 1067, 1071 (10th Cir. 2007)). But administrative disability hearings are non-adversarial. Wall, 561 F.3d at 1062. So “every ALJ has ‘a basic obligation . . . to ensure that an adequate record is developed during the disability hearing consistent with the issues raised.'” Glass v. Shalala, 43 F.3d 1392, 1396 (10th Cir. 1994) (quoting Henrie v. U.S. Dep't of Health & Hum. Servs., 13 F.3d 359, 360-61 (10th Cir. 1993)); see also Hawkins v. Chater, 113 F.3d 1162, 1168 (10th Cir. 1997) (“The duty to develop the record is limited to ‘fully and fairly develop[ing] the record as to material issues.'” (quoting Baca v. Dep't of Health & Hum. Servs., 5, F.3d 476, 479-80 (10th Cir. 1993)). And this obligation is “particularly acute” where a claimant is unrepresented or (as here) is “represented by a non-attorney” at the hearing. Miracle v. Barnhart, 187 Fed.Appx. 870, 874 (10th Cir. 2006). “This duty is not a panacea for claimants, however, which requires reversal in any matter where the ALJ fails to exhaust every potential line of questioning.” Glass, 43 F.3d at 1396 (citing Henrie, 13 F.3d at 361 (noting that it is not the ALJ's duty to become the plaintiff's advocate)).
In the administrative proceedings, Plaintiff was represented by Terry Willis, a “non-attorney” representative. AR 36, 57. Although not an attorney, Mr. Willis represents Social Security claimants, including Plaintiff, in a professional capacity. Id. at 214-29 (reflecting Plaintiff appointed Mr. Willis as her representative pursuant to a contingency fee agreement).
Plaintiff, now represented by counsel on appeal, does not argue that her voluminous medical records were incomplete. Rather, she complains her records generated after September 2020 detailed a deterioration of her spine which should have triggered the ALJ to further develop the record either by ordering a consultative examination or by seeking Dr. Shakir's opinion on her functional abilities. Doc. 18, at 11-13. She argues that, without this additional information, the ALJ had nothing upon which to base her RFC except the stale opinions of the state agency medical consultants. Id. at 12-13. The Court should reject this argument.
There is “no requirement in the regulations for a direct correspondence between an RFC finding and a specific medical opinion on the functional capacity in question.” Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012). And it is “the ALJ, not a physician, [who] is charged with determining a claimant's RFC from the medical record.” Howard v. Barnhart, 379 F.3d 945, 949 (10th Cir. 2004). So the ALJ had no duty to seek an opinion from Dr. Shakir before formulating Plaintiff's RFC.
Regarding a consultative examination, the Commissioner has “broad latitude” in deciding whether to order one. Hawkins, 113 F.3d at 1166. Generally, an ALJ should order a consultative exam “where there is a direct conflict in the medical evidence requiring resolution,” “where the medical evidence in the record is inconclusive,” or “where additional tests are required to explain a diagnosis already in the record.” Id.; see also 20 C.F.R. §§ 404.1519a(b); 416.919a(b) (stating that the agency may-but need not- purchase a consultative examination “to try to resolve an inconsistency in the evidence, or when the evidence as a whole is insufficient to allow [the agency] to make a determination or decision” on the claim). Plaintiff does not point to any direct conflict or inconsistency in the medical evidence requiring resolution. Rather, she claims her spine condition had worsened so much, even after her surgeries, that her true functional abilities were not represented in the medical evidence. Doc. 18, at 12-13; See 20 C.F.R. §§ 404.1519a(b)(4); 416.919a(b)(4) (noting that one example of when the agency “might purchase a consultative examination” is when “[t]here is an indication of a change in [the claimant's] condition that is likely to affect [the claimant's] ability to work”). But Plaintiff's representative made no request at the hearing for the ALJ to obtain a consultative examination, or for any further development of the record. See AR 40, 56. And, while the ALJ's duty to develop the record may have been particularly acute in this case, he was not obliged to advocate for Plaintiff or to “exhaust every possible line of inquiry in an attempt to pursue every potential line of questioning.” Hawkins, 113 F.3d at 1168.
The record here contained sufficient information about Plaintiff's condition and how it had evolved up to the time of the hearing. As the undersigned explains below, this evidence allowed the ALJ to evaluate Plaintiff's RFC. So, the ALJ did not fail in his duty to develop the record. See, e.g., Sneed v. Barnhart, 88 Fed.Appx. 297, 301 (10th Cir. 2004) (“Because the record before the ALJ contained sufficient evidence to evaluate Mr. Sneed's mental impairments, the ALJ did not err in failing to purchase an additional consultative examination to test Mr. Sneed's I.Q. Accordingly, we conclude that the ALJ did not fail to develop the record.”).
2. The ALJ identified substantial evidence in support of the RFC assessment.
The ALJ considered “all the evidence” before making his RFC determination. AR 11. The ALJ discussed Plaintiff's medical history beginning in 2019 through to her two spine surgeries and after care. Id. at 17-20. He noted that, before surgery and despite her MRI and X-ray results, her neurological findings were mostly normal, and she retained good strength. Id. at 18. He noted that, after her cervical spine surgery, Plaintiff reported “minimal neck pain” and Dr. Shakir noted she had “recovered well.” Id. at 19.
The ALJ noted that Plaintiff then complained of right leg pain. Id. He discussed her initial physical examinations, which revealed no loss in strength, reflexes, or sensation. Id. He also discussed her MRI results, which revealed degenerative changes and nerve impingement. Id. He noted that, one week before her lumbar spine surgery, Plaintiff reported “ten out of ten” pain, “difficulty ambulating[,] and mild weakness.” Id. (citing Id. at 909). He observed that Dr. Shakir's physical examination showed only “slight weakness (i.e., four out of five) in the right gastrocnemius muscle,” a positive straight leg raise on the right, and intact sensation in all extremities. Id. (citing Id. at 910-11). Two weeks after surgery, Plaintiff was “80% better than her preoperative baseline” and no longer had problems ambulating. Id. (citing Id. at 905). She complained of “residual numbness/ tingling” in her right leg but “demonstrated improved strength in the right lower extremity and unassisted ambulation” upon physical examination. Id. In a final follow-up appointment, Plaintiff still complained of some numbness/tingling but Dr. Shakir's “physical examination findings remained normal,” and he observed she had “intact sensation to light touch in all [her] extremities.” Id. (citing Id. at 903).
After examining Plaintiff's medical history, the ALJ found:
Overall, the medical evidence shows that the claimant's spinal abnormalities have been effectively corrected via surgical intervention. The claimant has reported significant improvement following these surgeries, with only residual numbness/tingling. Furthermore, the claimant has shown few neurological abnormalities on examination, including mostly normal muscle strength, throughout much of the relevant period.Id. at 20.
In his examination of the record, the ALJ found that Plaintiff's “statements concerning the intensity, persistence and limiting effects of [her] symptoms [were] not entirely consistent with the medical evidence and other evidence in the record.” Id. at 17. Addressing Plaintiff's reports of her functional abilities, the ALJ noted that Plaintiff had “alleged significant exertional limitations, including limitations on prolonged walking,” at the hearing. Id. at 21. But her “physical examination findings” had showed “normal gait and mostly normal muscle strength in [Plaintiff's] lower extremities.” Id. In further discounting Plaintiff's consistency, the ALJ explained:
The claimant also alleged that she required a wheelchair prior to lumbar spine surgery in March 2021 (Hearing Testimony). However, there is no evidence that the claimant required a wheelchair for ambulation prior to said surgery. After surgery, Dr. Shakir noted the following, “The patient is no longer requiring a cane or a walker or wheelchair initially when she saw me she was in a wheelchair given the excruciating pain and right leg weakness (sic).” However, at the previous appointment, Dr. Shakir did not make any notes about the claimant using a wheelchair. Rather, Dr. Shakir only noted, “difficulty with ambulation and mild weakness.” Thus, Dr. Shakir's statement on wheelchair use is inconsistent with his own progress notes, as well as the rest of the medical evidence. Furthermore, as discussed above, the claimant reported significant improvement following surgery. Otherwise, the claimant's allegations are well accounted for by the generous residual functional capacity assessed herein.Id. (internal citations omitted).
Finally, the ALJ addressed-and found “persuasive”-the state agency medical consultants' opinions, noting that those opinions had been rendered before the “hearing stage.” Id. at 21-22. He found their opinions, which restricted Plaintiff to light work, were “well supported by the cited MRI imaging and physical examination findings, which show that the claimant is mostly neurologically intact.” Id. at 22. He also found the opinions were “consistent with the evidence received at the hearing stage, which continues to show normal neurological findings.” Id. (citing later-received medical records).
Based on all this evidence, the ALJ formulated Plaintiff's RFC for light work with additional limitations. Id. But Plaintiff contends that, because her condition materially changed after the state agency medical consultants rendered their opinions, the ALJ erred by relying on the persuasiveness of those stale opinions to formulate the RFC. Doc. 18, at 11-13. The Court should reject this argument.
Whether “new evidence [the agency] receive[s] after the medical source made his or her . . . prior administrative medical finding makes the . . . prior administrative medical finding more or less persuasive” is considered an “other factor” an ALJ must consider when determining the persuasive value of a prior administrative medical finding. 20 C.F.R. §§ 404.1520c(c)(5); 416.920c(c)(5). But the ALJ need not explain how he considered the factor in the decision. Id. §§ 404.1520c(b)(2); 416.920c(b)(2).
The undersigned agrees that Plaintiff underwent extensive treatment after the consultants rendered their opinions on her functional abilities. But, as the ALJ observed, the medical evidence reflects Plaintiff's condition improved after both surgeries. So that treatment does not necessarily render the earlier opinions on her functional abilities patently stale. See, e.g., Tarpley v. Colvin, 601 Fed.Appx. 641, 644 (10th Cir. 2015) (holding ALJ did not err in giving great weight to an agency opinion that was formulated before subsequent medical records were available, in part because “nothing in the later medical records . . . supports . . . a material change in [the plaintiff's] condition that would render [the physician's] opinion stale”). And even if stale, those opinions were not the sole basis for the ALJ's RFC assessment. The record reflects the ALJ acknowledged the further development of the record after those opinions. See AR 20-22 (noting that the consultants' opinions were “consistent with the evidence received at the hearing stage, which continues to show normal neurological findings” (citing Id. at 610-1020)). Rather than just relying on the state agency medical opinions as Plaintiff contends, the ALJ considered the effect of the newer evidence and added further limitations to accommodate Plaintiff's most recent medical treatment. See, e.g., Kearns v. Colvin, 633 Fed.Appx. 678, 683 (10th Cir. 2015) (“The ALJ carefully considered all of the medical evidence in formulating an RFC that addressed [the claimant's] mental impairments. Just because his assessment was similar to the medical opinions of [the agency doctors] does not mean that it was based solely on stale evidence.”).
Plaintiff asserts that the ALJ's addition of those further limitations was error itself because it was not based on a medical opinion. Doc. 18, at 12-14; Doc. 25, at 3. But, as noted, “there is no requirement in the regulations for a direct correspondence between an RFC finding and a specific medical opinion on the functional capacity in question.” Chapo, 682 F.3d at 1288. And the ALJ has the “final responsibility” to determine a claimant's RFC. Corber v. Massanari, 20 Fed.Appx. 816, 822 (10th Cir. 2001) (“The determination of RFC is an administrative assessment, based upon all of the evidence of how the claimant's impairments and related symptoms affect her ability to perform work related activities.”).
The ALJ's RFC assessment here was more limiting than the state agency consultants' opinions, but it was not arbitrary. Rather, it was based on the ALJ's review of all the evidence and Plaintiff's progress throughout her treatment. The Court should thus conclude that “[s]ubstantial evidence supports the ALJ's decision.” Kearns, 633 Fed.Appx. at 683.
3. Conclusion.
The ALJ gave an adequate explanation to support the RFC assessment based on his review of “the entire record.” AR 13; Wall, 561 F.3d at 1070 (“Where, as here, the ALJ indicates he has considered all the evidence our practice is to take the ALJ at his word.” (internal quotation marks and alteration omitted)). The Court should therefore affirm the Commissioner's decision.
IV. Recommendation and notice of right to object.
For the above reasons, the undersigned recommends that the Court affirm the Commissioner's final decision.
The undersigned advises the parties that they may file an objection to this Report and Recommendation with the Clerk of Court on or before October 5, 2023, 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.