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remanding where RFC limited contact with the public but the jobs identified by vocational expert required significant interaction with people
Summary of this case from Smethurst v. SaulOpinion
Case No. CIV-16-1191-F
10-25-2017
REGINA PARKER, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff Regina Parker brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of the Social Security Administration ("SSA") denying Plaintiff's application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. United States District Judge Stephen P. Friot has referred this matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure. The Commissioner has answered and filed the administrative record (Doc. No. 9, hereinafter "R. ___"). The parties have briefed their positions, and the case is now ready for decision. For the reasons set forth below, the undersigned recommends that the Commissioner's decision be reversed and remanded for further proceedings.
With the exception of the administrative record, references to the parties' filings use the page numbers assigned by the Court's electronic filing system.
PROCEDURAL HISTORY
Plaintiff protectively filed her application for SSI on January 6, 2014. R. 10, 33, 182-84. Following denial of Plaintiff's applications initially and on reconsideration, an Administrative Law Judge ("ALJ") held a hearing. R. 27-65, 86-89, 93-95. The ALJ issued an unfavorable decision on May 28, 2015. R. 10-21. The SSA Appeals Council denied Plaintiff's request for review, making the ALJ's unfavorable decision the final decision of the Commissioner. R. 1-5; see also 20 C.F.R. § 416.1481. Plaintiff then filed this action for judicial review.
ADMINISTRATIVE DECISION
As relevant here, a person is "disabled" within the meaning of the Social Security Act if he or she is "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A). The Commissioner uses a five-step sequential evaluation process to determine eligibility for disability benefits. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009); 20 C.F.R. § 416.920(a)(4).
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since January 6, 2014, the application date. R. 12. At step two, the ALJ determined that Plaintiff had the severe impairments of diabetes mellitus, hypertension, obesity, depression, and bipolar disorder. R. 12. At step three, the ALJ determined that Plaintiff's impairments did not meet or equal any of the presumptively disabling impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. 12-14.
The ALJ next assessed Plaintiff's residual functional capacity ("RFC") based on all of her impairments. R. 15-20. The ALJ found that Plaintiff had the RFC to perform light exertion work subject to the additional limitations that she
occasionally could balance, stoop, kneel, crouch, crawl, and climb ladders, ropes, scaffolds, and stairs. In addition, she must avoid exposure to extreme temperatures. Finally, she is capable of occasional contact with supervisors and coworkers, but she must avoid contact with the public.R. 15; see 20 C.F.R. § 416.967(b) (defining "light" work). At step four, the ALJ found that Plaintiff had no past relevant work. R. 20.
At step five, the ALJ considered whether there are jobs existing in significant numbers in the national economy that Plaintiff—in view of her age, education, work experience, and RFC—could perform. Taking into consideration testimony provided by a vocational expert ("VE") at the hearing, the ALJ concluded that Plaintiff could perform light unskilled occupations such as convenience store clerk, photofinishing counter clerk, and furniture-rental clerk, all of which offer jobs that exist in significant numbers in the national economy. R. 20-21. On that basis, the ALJ concluded that Plaintiff had not been disabled since January 6, 2014. R. 21.
STANDARD OF REVIEW
Judicial review of the Commissioner's final decision is limited to determining whether factual findings are supported by substantial evidence in the record as a whole and whether correct legal standards were applied. Poppa v. Astrue, 569 F.3d 1167, 1169 (10th Cir. 2009). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003) (internal quotation marks omitted). "A decision is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting it." Branum v. Barnhart, 385 F.3d 1268, 1270 (10th Cir. 2004) (internal quotation marks omitted). The court "meticulously examine[s] the record as a whole," including any evidence "that may undercut or detract from the ALJ's findings," "to determine if the substantiality test has been met." Wall, 561 F.3d at 1052 (internal quotation marks omitted). While the reviewing court considers whether the Commissioner followed applicable rules of law in weighing particular types of evidence in disability cases, the court does not reweigh the evidence or substitute its own judgment for that of the Commissioner. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008).
ISSUES PRESENTED
Plaintiff argues that the ALJ failed to include "proper limitations" in the RFC. Pl.'s Br. (Doc. No. 11) at 2. Specifically, Plaintiff contends that the ALJ's RFC assessment failed to include limitations for all of the severe impairments found at step two, limitations found at step three, and mental limitations noted by the psychological consultative examiner. See id.
ANALYSIS
A. Conflict between RFC and Step-Five Findings
As an initial matter, there is a plain inconsistency between the RFC assessed by the ALJ and the occupations expressly relied upon by the ALJ to make her step-five determination. The ALJ's RFC includes a limitation that Plaintiff "must avoid contact with the public." R. 15. The three occupations cited by the ALJ—convenience store clerk, photo finish counter clerk, and furniture rental clerk—all require "[s]ignificant" interaction with people. See R. 21; Dictionary of Occupational Titles (4th rev. ed. 1991) ("DOT") 211.462-010 (convenience store clerk), 1991 WL 671840; DOT 249.366-010 (photofinishing counter clerk), 1991 WL 672323; DOT 295.357-018 (furniture-rental clerk), 1991 WL 672589. The VE testified that a person who can have no contact with the general public cannot perform these three occupations. R. 61-62. The VE discussed other occupations that such a person could perform, but the ALJ did not rely on those occupations. R. 21; 61-63.
While neither Plaintiff nor Defendant addressed this issue in the briefing to this Court, the error cannot be ignored because it affects both the result of the disability determination and the Court's analysis of whether the errors alleged by Plaintiff concerning the ALJ's RFC assessment are material. Because there is not substantial evidence to support the ALJ's step-five determination that Plaintiff could perform the occupations relied on in the decision, the undersigned finds that reversal is warranted. See Truesdale v. Colvin, No. CIV-12-1307-HE, 2014 WL 549377, at *1, *4 (W.D. Okla. Feb. 11, 2014) (remanding "in the interests of justice" based on argument plaintiff did not raise); Womack v. Astrue, No. CIV-07-167-W, 2008 WL 2486524, at *1, 3, 5 (W.D. Okla. June 19, 2008) (remanding on issue plaintiff did not raise because "[i]n the interests of justice," "[t]his Court cannot . . . ignore obvious and prejudicial errors, even if the litigants did not identify and debate them").
B. Dr. Danaher's Assessment
The undersigned further finds that Plaintiff's argument that the ALJ did not adequately consider mental limitations noted by the psychological consultative examiner also warrants remand. See Pl.'s Br. at 3. Relevant to this argument, Plaintiff asserts that it was error for the ALJ to fail to include mental limitations in the RFC and, in particular, limitations on Plaintiff's ability to understand, remember, and carry out simple and/or complex instructions. See Pl.'s Br. at 3-4.
On November 4, 2014, Robert Danaher, PsyD, conducted a consultative examination of Plaintiff. See R. 502-10. Dr. Danaher completed a Medical Source Statement ("MSS") regarding Plaintiff's mental ability to do work-related activity. R. 502-04. On the MSS, Dr. Danaher marked that Plaintiff's restriction in understanding and remembering simple instructions was "none"; in carrying out simple instructions was "none"; in understanding and remembering complex instructions was "mild"; and in carrying out complex instructions was "moderate." R. 502. Dr. Danaher also provided a report on the examination ("Report"). See R. 505-09. Under the heading "Additional Comments," Dr. Danaher opined: "From a mental status standpoint this individual's ability to understand, remember and carry out simple and complex instructions in a work related environment would be rated as questionable." R. 509.
Though purporting to quote the record, Plaintiff is incorrect in stating that Dr. Danaher found that "she has a 'questionable ability to perform work,' all things considered." Compare Pl.'s Br. at 3, with R. 509.
Despite purporting to give Dr. Danaher's opinions "great weight," the ALJ did not include in the RFC any limitation regarding Plaintiff's abilities with respect to complex (or other) instructions. See R. 15, 19. This is a de facto rejection of Dr. Danaher's opinion and, as such, required discussion by the ALJ. See Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996).
The error cannot be disregarded as insignificant. Two of the three occupations cited by the ALJ require a reasoning level of three, which is generally understood to require the ability to carry out complex instructions. See DOT 211.462-010 (convenience store clerk), 1991 WL 671840; DOT 295.357-018 (furniture-rental clerk), 1991 WL 672589; Bowers v. Astrue, 271 F. App'x 731, 734 (10th Cir. 2008) (recognizing that level-three reasoning assumes the ability to carry out written and oral instructions); cf. Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005) (finding that an RFC for "simple and routine work tasks" "seem[ed] inconsistent with the demands of level-three reasoning"). Upon remand, the ALJ should consider the evidence of Plaintiff's ability to carry out complex instructions, and to the extent she rejects any significant evidence of such a limitation, explain the basis for doing so.
C. Additional Claims of Error
Because the above issues warrant remand, the Court need not address Plaintiff's other claims of error. See Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003) ("We will not reach the remaining issues raised by appellant because they may be affected by the ALJ's treatment of this case on remand."). The undersigned notes, however, that there are inaccuracies in the ALJ's discussion of the medical evidence that should be addressed on remand.
For instance, in the ALJ's summary of Dr. Danaher's report, the ALJ stated that Plaintiff "had no history of auditory or visual hallucination"; but Dr. Danaher noted that Plaintiff had experienced sporadic auditory hallucinations. Compare R. 17, with R. 506. The ALJ stated that Dr. Danaher had diagnosed Plaintiff with "a bipolar disorder" but did not acknowledge that it was Bipolar Disorder Type 1 with Psychotic Features. Compare R. 17, with R. 508. And, the ALJ attributed a "normal" psychiatric examination to Plaintiff's "primary care physician," stating that it was "telling" that the physician noted that Plaintiff "'was doing well . . . follow up in one year.'" R. 17 (citing Ex. 7F at 2-3 [R. 477-78]). This examination, however, was not conducted by Plaintiff's primary care physician but by a urologist who saw Plaintiff twice for a recurrent urinary tract problem. See R. 477-82.
Bipolar Disorder Type 1 is defined by manic episodes that are more severe than those occurring with Type 2. See National Institute of Mental Health, Bipolar Disorder, https://www.nimh.nih.gov/health/topics/bipolar-disorder/index.shtml (last visited Oct. 23, 2017).
The ALJ stated that Plaintiff "had not attempted to get professional help for depression management," but Dr. Danaher indicated that Plaintiff received treatment from her primary care physician, including medications used for treating such concerns. Compare R. 17, with R. 506. Similarly, in explaining the decision to assess no mental health limitations in the RFC, the ALJ stated that Plaintiff had "failed to maintain a consistent relationship with a mental health specialist or attend regular psychotherapy sessions." R. 17-18. But the ALJ's explanation does not reflect that she considered the record evidence that Plaintiff's primary care physician had been treating her for mental health impairments since 2009 or that Plaintiff indicated that she could not afford additional medical treatment, including for her mental impairments. See R. 259-80, 285-94, 295-331, 400-75, 494-501, 512-41, 546-550 (medical records from Plaintiff's primary care physician indicating treatment for bipolar disorder, depression, anxiety, and panic disorder); R. 45, 56, 278, 286, 296, 506, 547-548 (indications that Plaintiff could not afford additional medical treatment); see also Alarid v. Colvin, 590 F. App'x 789, 793 (10th Cir. 2014) ("[T]he ALJ is ordinarily required to address [a claimant's inability to pay for treatment] before drawing adverse inferences from the claimant's failure to seek or pursue treatment." (citation omitted)); Madron v. Astrue, 311 F. App'x 170, 178-79 (10th Cir. 2009).
Dr. Danaher included a list of medications Plaintiff was then taking, including venlafaxine (used to treat major depressive disorder, anxiety, and panic disorder), Xanax (used to treat anxiety disorders, panic disorders, and anxiety caused by depression), carbamazepine (used to treat bipolar disorder), and Risperdal (an antipsychotic medicine used to treat bipolar disorder). R. 506. See generally https://www.drugs.com (last visited Oct. 23, 2017). --------
RECOMMENDATION
Having reviewed the record, the transcript of the administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties, the undersigned Magistrate Judge recommends that the decision of the Commissioner be reversed and remanded for further proceedings. In making this recommendation, the undersigned takes no position on the merits of Plaintiff's disability claim, and "[no] particular result" upon remand is recommended. See Thompson v. Sullivan, 987 F.2d 1482, 1492-93 (10th Cir. 1993).
NOTICE OF RIGHT TO OBJECT
The parties are advised of their right to file written objections to this Report and Recommendation in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. Any such objections must be filed with the Clerk of this Court by November 8, 2017. The parties are further advised that failure to timely object to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
STATUS OF REFERRAL
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in this case.
ENTERED this 25th day of October, 2017.
/s/_________
CHARLES B. GOODWIN
UNITED STATES MAGISTRATE JUDGE