Opinion
Case No. CIV-18-580-D
02-28-2019
SAMUEL SPOON, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff, Samuel Spoon, seeks judicial review of the Social Security Administration's denial of disability insurance benefits (DIB) and supplemental security income (SSI). This matter has been referred by United States District Judge Timothy D. DeGiusti for proposed findings and recommendations. See 28 U.S.C. §§ 636(b)(1)(B), 636(b)(3). The Commissioner has filed the Administrative Record (AR) [Doc. No. 13], and both parties have briefed their respective positions. For the reasons set forth below, it is recommended that the Commissioner's decision be affirmed.
Citations to the parties' submissions reference the Court's CM/ECF pagination.
I. Procedural Background
On July 21, 2015, Plaintiff protectively filed applications for DIB and SSI. See AR 15. The Social Security Administration denied the applications initially and on reconsideration. AR 77-78, 121-122. Following a hearing, an Administrative Law Judge (ALJ) issued an unfavorable decision dated June 16, 2017. AR 16-36. The Appeals Council denied Plaintiff's request for review. AR 1-6. Thus, the decision of the ALJ became the final decision of the Commissioner. Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011). Plaintiff seeks judicial review of this final agency decision.
II. The ALJ's Decision
The ALJ followed the sequential evaluation process required by agency regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005) (explaining five-step sequential evaluation process); see also 20 C.F.R. §§ 404.1520; 416.920. The ALJ first determined Plaintiff had not engaged in substantial gainful activity since July 15, 2014, the alleged onset date. AR 17.
At step two, the ALJ determined Plaintiff suffers from the following severe impairments: diabetes; diabetic retinopathy; arthropathies; blindness in the right eye with secondary glaucoma; and presbyopia in the left eye AR 17-18. At step three, the ALJ found Plaintiff's impairments do not meet or medically equal any of the impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 18-19.
The ALJ also found Plaintiff's allegation of left knee swelling (HT) did not amount to a medically determinable impairment. AR 18.
The ALJ next determined Plaintiff's residual functional capacity (RFC), concluding:
[Plaintiff] had the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except he is limited to no visual fields on the right. Additionally, he is limited to no more than frequent visual fields and near and far acuity on the left. [Plaintiff] must avoid all hazards.AR 20-24. The ALJ then found Plaintiff could not perform any past relevant work. AR 24-25. Relying on the testimony of a vocational expert (VE), the ALJ found there were other jobs that existed in significant numbers in the national economy that Plaintiff could perform—dining room attendant, linen room attendant, and cart attendant. AR 25-26. The ALJ concluded, therefore, that Plaintiff was not disabled for purposes of the Social Security Act. AR 26.
III. Standard of Review
Judicial review of the Commissioner's final decision is limited to determining whether the factual findings are supported by substantial evidence in the record as a whole and whether the correct legal standards were applied. See 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) (quotation 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). The court "meticulously examine[s] the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met." Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (citations 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 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) (quotations and citations omitted).
IV. Claim Presented for Judicial Review
Plaintiff asserts the ALJ erred in analyzing limitations related to the vision in his left eye, in the analysis of his symptoms, and in the Step Five analysis. The Court finds Plaintiff's allegations are without merit.
V. Analysis
A. The RFC Related to Plaintiff's Left Eye Vision is Supported by Substantial Evidence
Plaintiff argues the ALJ erred in formulating the RFC with regard to the vision in his left eye. "The RFC assessment is a function-by-function assessment based upon all of the relevant evidence of an individual's ability to do work-related activities." SSR 96-8p, 1996 WL 374184, at *3. It "considers only functional limitations and restrictions that result from an individual's medically determinable impairment or combination of impairments, including the impact of any related symptoms." Id. at *1.
Plaintiff also asserts the ALJ erred in considering the evidence with regard to the vision in his right eye, but he concedes that any such error would be harmless. Pl.'s Br. 10.
Plaintiff alleges there was no medical evidence supporting the ALJ's finding that Plaintiff could frequently use the visual field on the left. Pl.'s Br. 11. Plaintiff contends the ALJ did not link her findings to credible evidence, but instead "played doctor." Id. at 11-12. The decision, however, shows the ALJ supported her assertions with citations to the medical record. The ALJ cited reports from two doctors who examined Plaintiff's eyes—Dr. Joshua Hendrix, M.D. and Dr. Vidya Rege, M.D. AR 22. The ALJ referenced Dr. Hendrix's conclusion that Plaintiff had normal vision in his left eye. Id. (citing AR 393, 397). The ALJ also referred to Dr. Rege's examination, in which she noted Plaintiff had a normal field of vision in his left eye. Id. (citing AR 401). Another court found the ALJ accounted for evidence related to a claimant's field of vision by limiting the claimant to jobs with "no more than frequent visual fields." Barger v. Berryhill, No. CIV-18-501-STE, 2019 WL 191661, at *2 (W.D. Okla. Jan. 14, 2019). Thus, here the ALJ accounted for evidence related to Plaintiff's field of vision by placing a limitation on his visual fields.
Plaintiff also argues because the Dictionary of Occupational Titles (DOT) recognizes near acuity, far acuity, depth perception, accommodation, color vision and field of vision, the ALJ should have made findings with regard to each function. Pl.'s Br. 9-10. The ALJ made findings with regard to near acuity, far acuity, and field of vision, and Plaintiff has not put forth any evidence suggesting he had limitations with regard to depth perception, accommodation, or color vision.
Indeed, the positions identified by the VE and ALJ as being able to be performed by Plaintiff indicate that field of vision is "not present."5 See DICOT 311.677-018, 1991 WL 672696 (dining room attendant); DICOT 222.387-030, 1991 WL 672098 (linen-room attendant); DICOT 920.687-014, 1991 WL 687964 (cart attendant).
Plaintiff's argument appears to based on the premise that the RFC means Plaintiff is unable to see out of his left eye at all for periods of time during the day. Pl.'s Br. 12 (asserting the ALJ's RFC determination with regard to his left eye vision "logically means that [he] has no vision on the left up to one-third of the day, which is ridiculous for any worker."); see also Martin v. Barnhart, 124 F. App'x 624, 626, n.1 (10th Cir. 2005) (unpublished) ("frequently" for purposes of the DOT means from between one-third and two-thirds of the time). Plaintiff, however, has not directed the Court to any findings of temporary blindness, and the medical record does not support such a proposition.
Plaintiff also takes issue with the ALJ's reference to his having normal vision in his left eye and cites evidence indicating his vision was not normal. Pl.'s Br. 11. The Court first notes that Dr. Hendrix specifically found Plaintiff had normal vision in his left eye. AR 393, 397. Furthermore, the conclusions cited by Plaintiff do not appear to be supported by the evidence. Plaintiff cites a test result from his visit to Dr. Rege for the proposition that he has lost a portion of central vision in his left eye. Pl.'s Br. 11 (citing AR 403). It is unclear exactly how the cited test result—which makes no overt statement about central vision loss—supports Plaintiff's claim. AR 403. Further, Dr. Rege's written report makes no reference to central vision loss in the left eye. AR 404. Plaintiff also asserts objective tests proved he had blurry vision in his left eye. Pl.'s Br. 11 (citing AR 392-398). Plaintiff cites to the entirety of Dr. Hendrix's report and does not specify which tests support his contentions. The ALJ, however, considered Plaintiff's complaint of blurry vision. AR 22. Thus, Plaintiff's contention that the ALJ abandoned the actual medical findings is without merit.
Plaintiff also asserts he has "loss of control of all of the eye muscles in both eyes." Pl.'s Br. 12 (citing AR 393-397). The cited records do not state such a condition. Earlier in his brief, Plaintiff noted a finding of abnormal motility and cites articles from the internet for the proposition that motility refers to the study of the eye muscles. Pl.'s Br. 8-9. Nevertheless, Plaintiff has not directed the Court to any evidence that Plaintiff lacks control of all of his eye muscles. In addition, Plaintiff cites Dr. Hendrix's report to show that he has nuclear sclerosis in his central vision. Pl.'s Br. 9 (citing AR 396). Lumping the nuclear sclerosis in with other conditions, Plaintiff alleges it could "dramatically affect his best eye's vision," but he does not assert he has any functional limitations from the condition. Id. at 12. Furthermore, Plaintiff cites an article stating that the condition is "very common in humans." Id. at 9, n.2.
Finally, Plaintiff argues the RFC should have included an inability to use a full field of vision, inability to judge distance, and difficulty reaching for and grabbing objects due to his lack of binocular vision. Pl.'s Br. 15. In support of this proposition, Plaintiff cites a blog from Duke Medicine indicating issues individuals with monocular vision have. Id. Plaintiff, however, does not allege that he personally suffers from these functional limitations. As such, he has not shown that the RFC, which is based on what the individual claimant can do, is not based on substantial evidence.
For the reasons stated above, the ALJ did not err with regard to the RFC determinations based on Plaintiff's left eye vision.
B. The ALJ Did Not Err in the Symptom Analysis
Plaintiff argues the ALJ erred when she evaluated some of Plaintiff's symptoms. Pl.'s Br. 13-14. The Court will not disturb an ALJ's evaluation of a claimant's symptoms if it is supported by substantial evidence because such "determinations are peculiarly the province of the finder of fact." Cowan v. Astrue, 552 F.3d 1182, 1190 (10th Cir. 2008) (citing Diaz v. Sec'y of Health & Human Servs., 898 F.2d 774, 777 (10th Cir. 1990)). An ALJ's findings regarding a claimant's symptoms "should be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings." Id. (citing Huston v. Bowen, 838 F.2d 1125, 1133 (10th Cir.1988) (footnote omitted)). The ALJ may consider a number of factors when evaluating a claimant's symptoms, including: objective medical evidence; the claimant's daily activities; the location, duration, frequency, and intensity of the claimant's pain; medication used by the claimant for relief of pain or other symptoms; and other measures utilized by the claimant to relieve pain. See 20 C.F.R. § 416.929(c). Furthermore, the ALJ is entitled to resolve evidentiary conflicts. See Allman v. Colvin, 813 F.3d 1326, 1333 (10th Cir. 2016).
In both Cowan and Diaz, the Tenth Circuit utilized the term "credibility" to describe the process of evaluating an individual's statements about pain or other symptoms. The use of the term "credibility" was in line with the language used in previously applicable Social Security Rulings. See, e.g., SSR 96-7p, 1996 WL 374186. The currently applicable Social Security Ruling removed the use of the term "credibility" to align with the regulations which do not utilize the term and clarify "that subjective symptom evaluation is not an examination of an individual's character." SSR 16-3p, at *2, 2017 WL 5180304. The general rule regarding the amount of deference to give an ALJ's evaluation of a Plaintiff's statements about pain or other symptoms need not be disturbed.
Plaintiff contends the ALJ ignored Plaintiff's statements to Dr. Hendrix about pain which comes and goes in his right eye and about blurry vision in his left eye. Pl.'s Br. 13 (citing AR 393). The ALJ addressed Plaintiff's complaints of blurry vision, however, in his summary of Dr. Rege's report: "[Plaintiff] reported at the time that his left eye had been doing fine until about six months ago when he started noticing blurred vision." AR 22. With regard to pain in his right eye, earlier in his brief Plaintiff noted that the pain was secondary to "extremely high intraocular pressure." Pl.'s Br. 11. The ALJ specifically noted that Dr. Rege advised Plaintiff to obtain treatment for high intraocular pressure in his right eye. AR 22.
Plaintiff contends the ALJ did not engage in a "frank discussion about 'pain.'" Pl.'s Br. 14. It is clear from the decision, however, that the ALJ engaged in a thorough symptom analysis. She analyzed the objective medical evidence, discussed medication used by Plaintiff—and in this case, the noncompliance with his diabetes medication, and addressed Plaintiff's activities of daily living. AR 20-24. Furthermore, Plaintiff does not assert he had any functional limitations due to pain.
The Court notes that Plaintiff told Dr. Hendrix that he was "not significantly affected by pain at this point" with regard to his eyes. AR 397.
In sum, the ALJ linked her findings to substantial evidence. As a result, the Court will not disturb the ALJ's evaluation of Plaintiff's symptoms.
C. The ALJ Did Not Err at Step Five
Plaintiff contends the ALJ did not conduct a proper analysis at Step Five. Plaintiff's argument is premised on an allegation that the ALJ determined Plaintiff could perform medium work for the sole purpose of denying benefits. The Court finds this point of error to be without merit.
At the hearing, the ALJ asked the VE whether Plaintiff had "any transferrable skills to other light work or such term" and the VE answered that Plaintiff had none. AR 68. Plaintiff's counsel asked the VE the same question at the hearing and received the same answer. AR 70-71. Plaintiff argues that "it is readily apparent that the ALJ was not expecting the VE's answer of no transferrable skills to light work; so, it is submitted that in order to deny [Plaintiff], she went back up to medium work to find jobs and not have to deal with the GRID rules at sedentary and light." Pl.'s Br. 16.
By "not hav[ing] to deal with the GRID rules at sedentary and light," Plaintiff likely means that the applicable rules from the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2 (the grids) for light and sedentary work—Rules 201.02 and 202.02—would require a finding of disabled. The grids apply, however, "only when they describe a claimant's abilities and limitations accurately." Id. 461 U.S. at 462 n. 5; see also Channel v. Heckler, 747 F.2d 577, 579 (10th Cir. 1984). Here, the ALJ found that Plaintiff could perform medium work. The applicable rules for medium work—203.12 and 203.13—support a finding of "not disabled." Because Plaintiff had additional non-exertional limitations, the ALJ continued to determine whether there were jobs in the national economy Plaintiff could perform with such limitations. AR 25-26. Finding there were jobs available in the national economy Plaintiff could perform, the ALJ found Plaintiff was not disabled. Id.
Rule 201.02 applies to individuals of advanced age limited to sedentary work, with limited or less education, whose previous work experience is skilled or semiskilled, but those skills are not transferrable. Rule 202.02 involves the same criteria, except for individuals limited to light work.
Rule 203.12 applies to individuals of advanced age limited to medium work, with limited or less education, whose previous work experience is skilled or semiskilled, but those skills are not transferrable. Rule 203.13 involves the same criteria, except the skills are transferrable.
Plaintiff argues the ALJ ignored an unfavorable answer when the VE testified Plaintiff did not have any transferrable skills to light work. Plaintiff's reliance on Campbell v. Bowen, 822 F.2d 1518 (10th Cir.1987) is misplaced. There, the Tenth Circuit noted that "[a]n administrative law judge may not ask a vocational expert a hypothetical question based on substantial evidence and then ignore unfavorable answers." Id. at 1523 n. 6. The Tenth Circuit found that "[t]he questions asked by the ALJ in this case were based on substantial evidence." Id. Here, Plaintiff does not direct the Court to any evidence suggesting substantial evidence supported a limitation to light work. Furthermore, Plaintiff does not sufficiently challenge the ALJ's finding that he could perform medium work. Plaintiff's only argument that he should be limited to light work instead of medium work only is based on speculation that the ALJ tailored her finding to find him not disabled. But nothing in the hearing transcript or decision suggests that the ALJ manipulated her findings based on a desired outcome.
In one sentence, Plaintiff contends the ALJ "understated" the medical evidence by concluding Plaintiff could perform medium work. Plaintiff does not cite any portion of the record to support the argument. The Court does not find this one sentence argument to be developed and will not consider it herein. See Strickland v. Astrue, 496 F. App'x 826, 835 (10th Cir. 2012) (unpublished) ("We do not address the issue because this one-sentence statement does not adequately develop the argument.").
Plaintiff also contends the ALJ erred because she made no findings concerning the skills Plaintiff obtained in his previous jobs. Quoting Nielson v. Sullivan, 992 F.2d 1118, 1121 (10th Cir. 1993), Plaintiff notes "when the transferability of skills arises with respect to a claimant of advanced age, the ALJ must present the [VE] with a hypothetical that asks whether or not the skill is transferable with little or no vocational training or job orientation." Pl.'s Br. 20. But in this case, the transferability of skills is not an issue because the jobs the ALJ determined Plaintiff could perform were medium, unskilled positions. AR 26; see also Standifer v. Berryhill, No. 1:16-CV-01364-LF, 2018 WL 3037389, at *10 (D.N.M. June 19, 2018) ("Transferability of skills is not relevant in this case, however, because the ALJ—relying on the VE's testimony—found that Ms. Standifer was able to perform only unskilled jobs."); 20 C.F.R. §§ 404.1568(d)(4), 416.968(d)(4) ("If you are of advanced age (age 55 or older), and you have a severe impairment(s) that limits you to sedentary or light work, we will find that you cannot make an adjustment to other work unless you have skills that you can transfer to other skilled or semiskilled work (or you have recently completed education which provides for direct entry into skilled work) that you can do despite your impairment(s)."). The cases cited by Plaintiff in support of his argument all involved a claimant who was limited to sedentary work. As such, Plaintiff's point of error is without merit.
Plaintiff also contends "the ALJ failed to consider whether [his] chronological age placed him at advanced age." Pl.'s Br. 17. The ALJ specifically found Plaintiff's age category had changed to "advanced age." AR 25.
RECOMMENDATION
For the reasons set forth above, it is recommended that the Commissioner's decision be affirmed.
NOTICE OF RIGHT TO OBJECT
The parties are advised of their right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by March 14, 2019. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. Moore v. United States, 950 F.2d 656 (10th Cir. 1991).
STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.
ENTERED this 28th day of February, 2019.
/s/_________
BERNARD M. JONES
UNITED STATES MAGISTRATE JUDGE