Opinion
CIV-21-441-R
03-25-2022
JOHN RUTH, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE
Plaintiff 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 denying Plaintiff's application for benefits under the Social Security Act. The Commissioner has answered and filed a transcript of the administrative record (hereinafter TR.). This matter has been referred to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). The parties have briefed their positions, and the matter is now at issue. It is recommended that the Commissioner's decision be AFFIRMED.
I. PROCEDURAL BACKGROUND
Initially and on reconsideration, the Social Security Administration denied Plaintiff's application for benefits. Following an administrative hearing, an Administrative Law Judge (ALJ) issued an unfavorable decision. (TR. 10-21). The Appeals Council denied Plaintiff's request for review. (TR. 1-3). Thus, the decision of the ALJ became the final decision of the Commissioner for purposes of the instant appeal.
II. THE ADMINISTRATIVE DECISION
The ALJ followed the five-step sequential evaluation process required by agency regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R. § 416.920. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since August 14, 2019, the application date. (TR. 12). At step two, the ALJ determined that Mr. Ruth suffered from the following severe impairments: psychotic disorder, not elsewhere classified; major depressive disorder recurrent, severe, with psychotic features; and post-traumatic stress disorder. (TR. 12). At step three, the ALJ found that Plaintiff's impairments did not meet or medically equal any of the presumptively disabling impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1 (TR. 13).
At step four, the ALJ concluded that Mr. Ruth retained the residual functional capacity (RFC) to:
[P]erform a full range of work at all exertional levels, but with the following non-exertional functional limitations: understand, remember, and carry out simple and some more detailed instructions; deal with no more than occasional changes in work processes and environment; have no contact with the general public; relate to supervision and a limited number of co-workers on a superficial work basis, defined as brief, succinct, cursory, concise communication relevant to the task being performed; cannot perform work traditionally known or classified as “teamwork” type jobs, jobs wherein the employee must work in conjunction with, in tandem with, one or more co-workers on the very same job task or duty; and avoid jobs traditionally known or classified as “fast pace, ” “production pace” type work.(TR. 15).
With this RFC, the ALJ concluded that Mr. Ruth could not perform his past relevant work. (TR. 19). Thus, the ALJ presented the RFC limitations to a vocational expert (VE) to determine whether there were other jobs in the national economy that Plaintiff could perform. (TR. 49-50). Given the limitations, the VE identified three jobs from the Dictionary of Occupational Titles. (TR. 57-58). At step five, the ALJ adopted the VE's testimony and concluded that Mr. Ruth was not disabled based on his ability to perform the identified jobs. (TR. 21).
III. ISSUES PRESENTED
On appeal, Plaintiff alleges the ALJ erred in: (1) evaluating the opinion of a consultative psychologist and (2) assessing the RFC. (ECF No. 20:3-12).
IV. STANDARD OF REVIEW
This Court reviews the Commissioner's final decision “to determin[e] whether the Commissioner applied the correct legal standards and whether the agency's factual findings are supported by substantial evidence.” Noreja v. Commissioner, SSA, 952 F.3d. 1172, 1177 (10th Cir. 2020) (citation omitted). Under the “substantial evidence” standard, a court looks to an existing administrative record and asks whether it contains “sufficien[t] evidence” to support the agency's factual determinations. Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). “Substantial evidence . . . is more than a mere scintilla . . . and means only-such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. at 1154 (internal citations and quotation marks omitted).
While the court considers whether the ALJ followed the applicable rules of law in weighing particular types of evidence in disability cases, the court will “neither reweigh the evidence nor substitute [its] judgment for that of the agency.” Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (internal quotation marks omitted).
V. NO ERROR IN THE EVALUATION OF A MEDICAL OPINION
Plaintiff alleges that the ALJ impermissibly substituted his opinion when evaluating a medical opinion offered by consultative psychologist Robert Danaher. (ECF No. 20:3-9). The Court should disagree.
On October 25, 2019, Dr. Danaher performed a mental status examination on Plaintiff and diagnosed him with psychotic disorder not elsewhere classified and post-traumatic stress disorder. (TR. 371). Dr. Danaher also stated: “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 marginal to poor.” (TR. 371).
The ALJ rejected Dr. Danaher's opinion, stating:
The ALJ actually stated that he found Dr. Danaher's opinion to be “only somewhat persuasive, ” but the ALJ's explanation and the fact that the RFC contradicts Dr. Danaher's opinion with respect to Plaintiff's ability to understand, remember, and carry out some simple and complex instructions indicates that the ALJ completely rejected the opinion. Compare TR. at 371 with TR. at 18.
In support of his opinion, Dr. Danaher connected the opinion with his observations and the claimant's reported history and symptoms, which can be a proper supporting rationale. The evidence, however, is not fully consistent with his opinion. The examination did reveal a degree deficit in the claimant's memory, attention, and concentration consistent with the limitation to simple and some more detailed instructions. For instance, the claimant was only able to recall two of five words (Ex. B2F/6). He also did not receive full credit on the performance of serial 7 subtractions (Ex. B2F/6). He was, however, able to repeat two sentences verbatim and accurately repeat five digits forward and three digits backwards (Ex. B2F/6). The claimant also admitted to daily hobbies including watching television, playing video games, reading, and listening to music that are consistent
with the ability to understand, remember, and carry out simple and some more detailed instructions (Ex. B2F/5, B3E/5, B8E/5, B13E/5).(TR. 18). According to Mr. Ruth, the ALJ impermissibly substituted his opinion for that offered by Dr Danaher effectively “playing doctor.” (ECF No. ECF No. 20:3-9). The Court should disagree.
It is true that administrative law judges cannot substitute their own lay opinions for those given by a medical expert. McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002). But that is not what the ALJ did here. Instead, the ALJ relied on various portions of Dr. Danaher's own testing, as well as Plaintiff's activities of daily living to conclude that Plaintiff was capable of performing jobs which required the ability to understand, remember, and carry out simple and some more detailed instructions-i.e.-effectively rejecting Dr. Danaher's contrary conclusion. By doing so, the ALJ fulfilled his “obligation to determine what [Mr. Ruth] could do in spite of his limitations.” See Howard v. Barnhart, 379 F.3d 945, 949 (10th Cir. 2004) (stating that the ALJ, not a physician, is charged with determining the claimant's residual functional capacity). Accordingly, the Court should find no error with regard to the ALJ's evaluation of Dr. Danaher's opinion. See Trujillo v. Colvin, 626 Fed.Appx. 749, 752-53 (10th Cir. 2015) (ALJ was not “playing doctor” when analyzing physician's opinion “against the backdrop of the other . . . evidence.”); Gonzalez v. Berryhill, No. CIV-18-364-HE, 2018 WL 6274067, at *3 (W.D. Okla. Nov. 8, 2018), report and recommendation adopted, No. CIV-18-0364-HE, 2018 WL 6274013 (W.D. Okla. Nov. 30, 2018) (ALJ's conclusion that a plaintiff had “shown improvement” was not an example of the ALJ “playing doctor” because the ALJ had supported her findings with citations to the medical record); Sylvia Lee v. Berryhill, No. CIV-16-483-R, 2017 WL 2892338, at *5 (W.D. Okla. June 15, 2017), report and recommendation adopted, No. CIV-16-483-R, 2017 WL 2880862 (W.D. Okla. July 6, 2017) (ALJ's statement that “findings from examination do not support the alleged severity of [Plaintiff's] complaints” was not an example of the ALJ “playing doctor, ” but instead “st[ood] for the proposition that the medical evidence d[id] not support the level of severity of the impairments alleged by [the plaintiff].”).
Plaintiff also challenges the ALJ's reliance on Mr. Ruth's daily activities as a basis for discounting Dr. Danaher's opinion. (ECF No. 20:7-8). In doing so, Plaintiff relies on Gossett v. Bowen, 862 F.2d 802 (10th Cir. 1988) for the proposition that “evidence that a claimant engages in limited activities . . . does not establish that the claimant can engage in light or sedentary work activity.” Gossett, 862 F.2d at 807. But in this case, the ALJ was not relying on Plaintiff's daily routine to suggest that he was capable of performing a certain exertional level of activity. Instead, the ALJ relied on Plaintiff's daily routine to show that he had the mental ability to perform work that required the ability to understand, remember, and carry out simple and some complex instructions. See supra. But even if this rationale was eliminated, the ALJ's remaining rationale-the internal inconsistency of Dr. Danaher's opinion-was a sufficient basis on which to reject the opinion. See Simmons v. Colvin, 635 Fed.Appx. 512, 515 (10th Cir. 2015) (affirming ALJ's rejection of medical opinion based on internal inconsistencies).
Based on the forgoing, the Court should reject Plaintiff's challenge to the ALJ's evaluation of Dr. Danaher's opinion.
VI. NO ERROR IN THE RFC DETERMINATION
At step four of the sequential evaluation process, the ALJ must make specific findings in three phases. Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996). In phase one, “the ALJ must evaluate a claimant's physical and mental residual functional capacity” by first assessing “the nature and extent of [the claimant's] physical limitations” and “mental impairments. Id. at 1023- 24. In phase two, the ALJ must “make findings regarding the physical and mental demands of the claimant's past relevant work.” Id. at 1024. Finally, in phase three, the ALJ must determine “whether the claimant has the ability to meet the job demands found in phase two despite the mental and/or physical limitations found in phase one.” Id. at 1023. The ALJ should make these findings on the record. Id. at 1025.
Mr. Ruth alleges that the ALJ erred at phase one of step four by failing to include work-related limitations stemming from the psychotic disorder which the ALJ deemed severe at step two. (ECF No. 20:9-10). According to Mr. Ruth, the ALJ failed to include limitations related to the fact that when Plaintiff experiences a psychotic episode, he will “not talk and act[] strange, scared or fidgety, and he also ‘blank[s] out for hours at a time.'” (ECF No. 20:10). Plaintiff alleges that the failure at phase one “corrupted the remainder of [the ALJ's] findings.” (ECF No. 20:11). For two reasons, the Court should disagree.
First, although Mr. Ruth was diagnosed with psychotic disorder, not elsewhere classified, “the mere diagnosis of a condition does not establish its severity or any resulting work limitations.” Paulsen v. Colvin, 665 Fed.Appx. 660, 666 (10th Cir. 2016). Second, no medical professional has actually opined that Plaintiff suffered from particular work-related limitations of the sort Plaintiff describes. Instead, the “limitations” Plaintiff urges appear to based solely on Plaintiff's subjective complaints, which the ALJ discounted and which Plaintiff does not otherwise challenge. As a result, the Court should find no merit to Plaintiff's RFC challenge and otherwise affirm the ALJ's findings. See Wall v. Astrue, 561 F.3d 1048, 1068 (10th Cir. 2009) (finding no error in failing to account for Plaintiff's fatigue in the RFC, stating that “[o]ther than Claimant's subjective complaints, little evidence in the record relates to Claimant's problems sleeping” and citing 20 C.F.R. § 416.905(a) for the proposition that “a claimant's disability must be predicated on a ‘determinable physical or mental impairment.'”).
VII. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Having reviewed the medical evidence of record, the transcript of the administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties, the undersigned magistrate judge finds that the decision of the Commissioner should be AFFIRMED.
The parties are advised of their right to file specific written objections to this Report and Recommendation. See 28 U.S.C. §636 and Fed.R.Civ.P. 72. Any such objections should be filed with the Clerk of the District Court by April 8, 2022. The parties are further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VIII. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.