Opinion
Case No. CIV-19-140-F
11-19-2019
RHONDA WOODS, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff, Rhonda Woods, seeks judicial review of the Social Security Administration's denial of her applications for disability insurance benefits (DIB) and supplemental security income (SSI). United States District Judge Stephen P. Friot has referred the matter for proposed findings and recommendations. See 28 U.S.C. § 636(b)(1)(B) and (C). The Commissioner has filed the Administrative Record (AR), [Doc. No. 17], and both parties have briefed their positions. For the reasons set forth below, it is recommended that the Commissioner's decision be affirmed.
Plaintiff's brief refers only to her application for DIB, but as addressed below, the Commissioner denied her applications for DIB and SSI.
Citations to the parties' briefs reference the Court's ECF pagination.
I. Procedural Background
On January 30, 2018, an Administrative Law Judge (ALJ) issued an unfavorable decision finding Plaintiff was not disabled and, therefore, not entitled to DIB or SSI. AR 13-24. The Appeals Council denied Plaintiff's request for review. Id. at 1-7. Accordingly, the ALJ's decision constitutes the Commissioner's final decision. See Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011). Plaintiff timely commenced this action for judicial review.
II. The ALJ's Decision
The ALJ followed the five-step sequential evaluation process required by agency regulations. See Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009) (explaining process); see also 20 C.F.R. §§ 404.1520, 416.920. The ALJ first determined that Plaintiff met the insured status requirement through June 30, 2018 and has not engaged in substantial gainful activity since August 8, 2013, her alleged onset date. AR 15.
At steps two and three, the ALJ determined Plaintiff suffers from severe "osteoporosis, obesity, depression, and an anxiety-related disorder" but that her impairments do not meet or medically equal any of the impairments listed at 20 C.F.R. Part 404, Subpart P, App. 1. Id. at 16-19.
The ALJ next determined Plaintiff's residual functional capacity, concluding that she:
[can] perform medium exertion work as defined in 20 CFR 404.1567(c) and 416.967(c), with the following mental abilities: [she] can perform "simple" and some complex tasks with routine supervision; "simple" tasks means unskilled entry level tasks with a SVP of one (which can be learned by a simple demonstration) and a SVP of two (which can be learned in thirty days or less); [she] can relate and interact with supervisors and coworkers on a "superficial" work basis; "superficial" means brief, succinct, cursory, and concise communication relevant to the task being performed; [she] can interact with the general public on a "superficial" basis (as defined above); [she] may have difficulty coping with stress of rapid changes, so [she] may prefer tasks that do not require much alteration in routine, i.e., a job where [she] has a consistent type of task to be performed routinely throughout the workday and workweek; there may be some work changes, but they would not occur on a rapid basis, i.e., [she] can performed unskilled entry level work. [She] has no other physical or mental limitations or [restrictions].Id. at 19.
At step four, the ALJ made no findings concerning past relevant work, id. at 22, and at step five, found Plaintiff can perform work existing in significant numbers in the national economy. Id. at 23. Therefore, the ALJ concluded that Plaintiff is not disabled for purposes of the Social Security Act. Id.
III. Claim Presented for Judicial Review
According to Plaintiff, the ALJ "improperly analyzed [her] credibility." Pl.'s Br. at 3-8.
Plaintiff refers to the ALJ's assessment as a "credibility" determination. Pl.'s Br. at 3-8. "The Commissioner no longer uses the term 'credibility' in its sub-regulatory policy." Adcock v. Comm'r, SSA 748 F. App'x 842, 848 n.3 (10th Cir. 2018) (citing Social Security Ruling 16-3P, 2016 WL 1119029, at *1 (Mar. 16, 2016)); see also Watts v. Berryhill, 705 F. App'x 759, 763, n.4 (10th Cir. 2017) ("SSR 96-7p [governing credibility assessments] was superseded in March 2016 to 'eliminate the use of the term 'credibility' and to 'clarify that subjective symptom evaluation is not an examination of an individual's character.'" (citation, internal quotation marks, and brackets omitted)).
IV. Standard of Review
Judicial review of the Commissioner's final decision is limited to determining whether substantial evidence supports the factual findings and whether the correct legal standards were applied. See Poppa v. Astrue, 569 F.3d 1167, 1169 (10th Cir. 2009). The Court may find an ALJ's error harmless, if "based on material the ALJ did at least consider (just not properly), [the Court] could 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). The burden to show prejudicial error on appeal rests with Plaintiff. See Shinseki v. Sanders, 556 U.S. 396, 409 (2009) ("[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination.").
V. Analysis
The Court will not disturb an ALJ's evaluation of a claimant's symptoms, if they are 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). In making such a determination, the ALJ may consider numerous factors, including objective medical evidence; the claimant's daily activities; the location, duration, frequency, and intensity of the claimant's pain; medication used for relief of pain or other symptoms; and other measures utilized to relieve pain. See 20 C.F.R. §§ 404.1529(c), 416.929(c).
According to Plaintiff, the ALJ erred in this analysis because he: (1) relied on evidence unrelated to Plaintiff's disability, (2) improperly relied on minimal daily activities, and (3) failed to consider testimony of disabling symptoms which were consistent with the medical record. See Pl.'s Br. at 3-4. Reviewing these allegations in reverse order, the Court finds any error is harmless.
To begin, the ALJ detailed Plaintiff's subjective allegations as including "alleged breast cancer in remission, fibromyalgia, inability to think clearly, irritable bowel syndrome, nausea, headaches, high blood pressure, arthritis, chronic depression, anxiety, and muscle joint pain" and "difficulty lifting, squatting, bending, standing, reaching, walking, kneeling, climbing stairs, remembering, completing tasks, concentrating, understanding, and following instructions." AR 20. Plaintiff alleges this list failed to consider "pain so bad that she must lie down four to six hours per day, about 15 days out of the month" and "that she does not sleep well," getting "about three to four hours of sleep per night." Pl.'s Br. at 6. But the Court finds no error. That is, the ALJ specifically mentioned Plaintiff's allegations of pain and he stated that he was considering "all symptoms" in his assessment. AR 19. The Court takes the ALJ at his word, see Wall, 561 F.3d at 1070, and finds he had no legal duty to identify each of Plaintiff's specific statements as credible or incredible. See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1170 (10th Cir. 2012) (rejecting plaintiff's allegation "the ALJ did not adequately analyze or discuss her hearing testimony" because an ALJ is not required to "identif[y] any specific incredible statements," so long as the ALJ "indicat[es] to what extent he credited what [the claimant] said when determining the limiting effect of [the claimant's] symptoms").
Turning to Plaintiff's remaining allegations - that the ALJ improperly considered evidence unrelated to disability and her minimal daily activities, the Court finds any error harmless. That is, it may or may not have been improper for the ALJ to rely on Plaintiff's inconsistent statements about her marital status, AR 22, and her ability to perform light housework, meal preparation, driving, shopping, reading, television watching, coloring, crocheting, computer use, texting, crafting, and church attendance. Id. at 20. Regardless, the ALJ also relied on: (1) the "largely benign findings" in the medical record, (2) evidence of effective treatment, and (3) two State agency physicians who both opined Plaintiff's allegations were only partially consistent with the medical record. Id. at 20, 22. Plaintiff does not challenge these findings, and as such, the Court finds no reversible error in the ALJ's analysis. See Wilson v. Astrue, 602 F.3d 1136, 1145-46 (10th Cir. 2010) (agreeing with plaintiff that evidence showing she financially needed an award of benefits "standing alone would be insufficient to support an adverse credibility finding" but affirming the Commissioner's decision because "[t]his was not, however, the only evidence relied upon by the ALJ"); Scott v. Berryhill, 695 F. App'x 399, 406 (10th Cir. 2017) (relying on the ALJ's other findings - which the plaintiff did not challenge - to hold "the ALJ's credibility assessment, while perhaps not perfect, is supported by substantial evidence"); Bevel v. Saul, No. CIV-18-1172-STE, 2019 WL 4738275, at *8 (W.D. Okla. Sept. 27, 2019) ("Because the ALJ provided rationales in addition to Plaintiff's 'activities of daily living,' the Court concludes that the ALJ's evaluation of Plaintiff's subjective complaints was supported by substantial evidence."). Accordingly, the Court recommends denying relief on Plaintiff's sole claim for relief.
The Commissioner suggests this information is relevant because "[w]hen calculating a claimant's income for purposes of SSI eligibility, alimony and support payments are considered income." Def.'s Br. at 14. As noted above, the Court need not decide if it agrees.
Plaintiff's ability to watch television, read, and crochet, as examples, may not establish that she is capable of engaging in substantial gainful activity as related to her physical impairments, but may be relevant to (and inconsistent with) her claims she cannot concentrate, understand, remember, complete tasks, etc. See AR 18, 20.
RECOMMENDATION
Any error in the ALJ's subjective symptom evaluation is harmless as substantial evidence otherwise supported the decision. It is therefore 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 December 3, 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. See 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 19th day of November, 2019.
/s/_________
BERNARD M. JONES
UNITED STATES MAGISTRATE JUDGE