Opinion
Case No. CIV-18-1191-HE
10-01-2019
JOHNNY BERRY, Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff, Johnny Berry, seeks judicial review of the Social Security Administration's (SSA) denial of his application for disability insurance benefits (DIB). United States District Judge Joe Heaton has referred the matter for proposed findings and recommendations. See 28 U.S.C. §§ 636(b)(1)(B), 636(B)(3); Fed. R. Civ. P. 72(b). The Commissioner has filed the Administrative Record (AR) [Doc. No. 11], and both parties have briefed their 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 April 9, 2018, an Administrative Law Judge (ALJ) issued an unfavorable decision finding Plaintiff was not disabled and, therefore, not entitled to DIB. AR 15-25. 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. Following this process, the ALJ first determined that Plaintiff had not engaged in substantial gainful activity since August 14, 2014, his alleged onset date. AR 17.
At step two, the ALJ determined Plaintiff suffers from the following severe impairments: degenerative disc disease, degenerative joint disease, arthritis, high blood pressure, slight kidney damage, and obesity. Id. at 18. At step three, the ALJ found that Plaintiff's 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 18.
The ALJ next determined Plaintiff's residual functional capacity (RFC), concluding that Plaintiff could perform sedentary work as defined in 20 C.F.R. § 404.1567(a) with the following additional restrictions:
[Plaintiff] can lift, carry, push and pull no more than 10 pounds occasionally; he can sit, in whatever increments he wishes, for not to exceed 6 hours in a day[;] stand, in whatever increments he wishes, for not to exceed 4 hours in a day[;] and walk, in whatever increments he wishes, for not to exceed 4 hours in a day. [Plaintiff] can frequently crouch, kneel, crawl, and stoop; he can frequently climb ramps and stairs, and can occasionally climb scaffolds and ladders.Id. at 18-23.
At step four, the ALJ determined Plaintiff is unable to perform any past relevant work and that transferability of job skills is not a material issue. Id. at 23-24. The ALJ then proceeded to step five and, relying on the testimony of a vocational expert (VE), found Plaintiff can perform work existing in significant numbers in the national economy. Id. at 24. Specifically, the ALJ found Plaintiff can perform the requirements of representative jobs such as food and beverage order clerk, information clerk, and call out clerk. Id. Therefore, the ALJ concluded that Plaintiff is not disabled for purposes of the Social Security Act. Id. at 25.
III. Claims Presented for Judicial Review
Plaintiff brings four allegations of error, asserting that the ALJ failed to: (1) properly consider Plaintiff's obesity; (2) properly evaluate the opinion evidence; (3) include proper vocational limitations in the RFC; and (4) consider the cumulative effect of Plaintiff's impairments. Pl.'s Br. [Doc. No. 16] at 7-21. For the reasons set forth below, the undersigned finds no grounds for reversal.
IV. 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); see also Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (holding that the court only reviews an ALJ's decision "to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied" and in that review, "we neither reweigh the evidence nor substitute our judgment for that of the agency" (citations and internal quotation marks omitted)). Under such review, "common sense, not technical perfection, is [the Court's] guide." Keyes-Zachary v. Astrue, 695 F.3d 1156, 1167 (10th Cir. 2012).
V. Analysis
A. Plaintiff's Obesity
Plaintiff contends the ALJ erred because he found obesity to be a severe impairment but did not explicitly consider it when determining his RFC. Pl.'s Br. at 7-10. Relying on Social Security Ruling 02-01p, Plaintiff argues that the ALJ was required to "evaluate" the effects of obesity. Pl.'s Br. at 7-8. This ruling, however, also specifies that an ALJ "will not make assumptions about the severity or functional effects of obesity combined with other impairments." SSR 02-01p, 2002 WL 34686281, at *6 (Sept. 12, 2002); Rose v. Colvin, 634 F. App'x 632, 637 (10th Cir. 2015). Instead, the ALJ must "evaluate each case based on the information in the case record." SSR 02-01p, 2002 WL 34686281, at *6; Rose, 634 F. App'x at 637. And the Tenth Circuit does not require an ALJ to "note the absence of any evidence that [his] obesity resulted in additional functional limitations or exacerbated any other impairment." Smith v. Colvin, 625 F. App'x 896, 899 (10th Cir. 2015).
Indeed, the Tenth Circuit has determined that an ALJ's failure to explicitly discuss a claimant's obesity during the formulation of the claimant's RFC is not grounds for remand when the claimant has "not discuss[ed] or cite[d] to any evidence showing that obesity further limited" the claimant's RFC more than the ALJ's final determination. Arles v. Astrue, 438 F. App'x 735, 740 (10th Cir. 2011) (finding remand was not warranted despite the court's conclusion that the ALJ "could have provided a more particularized discussion of the effects of [the claimant's] obesity on" his RFC); see also, e.g., Smith, 625 F. App'x at 899 (affirming when the ALJ concluded the claimant's obesity was a severe impairment but "never analyzed or discussed [the claimant's] obesity, including in [the ALJ's] RFC analysis").
Here, Plaintiff points to no omitted functional limitation that was necessary in light of his obesity, cites no evidence of his obesity's impact, and "has not shown that [his] obesity alone, or in combination with other impairments, resulted in any further limitations" or precluded him from performing sedentary work. Smith, 625 F. App'x at 899 (citing SSR 02-01p, 2002 WL 34686281); see Pl.'s Br. at 7-10. See also Rose, 634 F. App'x at 637 (finding that "the factual record does not support [claimant's] position that her obesity, either alone or in combination with other conditions, precludes her from performing a limited range of sedentary work" when claimant "point[ed] to no medical evidence indicating that her obesity resulted in functional limitations" (internal alterations, quotation marks, and citation omitted)); Callicoatt v. Astrue, 296 F. App'x 700, 702 (10th Cir. 2008) (rejecting challenge to ALJ's failure to consider claimant's obesity where claimant pointed to no evidence or testimony "showing that her obesity exacerbated her other impairments"); Woods v. Colvin, No. CIV-13-763-HE, 2014 WL 2801301, at *5 (W.D. Okla. May 28, 2014) (rejecting claimant's challenge to ALJ's consideration of obesity where claimant "fail[ed] to state what 'sufficient limitations' the ALJ should have included" (emphasis in original)). Accordingly, this argument does not warrant remand.
With respect to Plaintiff's argument that "[i]t is posited that the ALJ should have made some accommodation for all the severe impairments in [the] RFC," Pl.'s Br. at 9-10, the ALJ did include in the RFC the restrictions that Plaintiff is limited to less than the full range of sedentary work, with specific restrictions on Plaintiff's ability to stand, walk, and sit, as well as other postural limitations. AR 18. Plaintiff has offered no explanation as to why the limitations included in the RFC are not adequate; nor has Plaintiff cited evidence demonstrating inadequacy. Instead Plaintiff bases this argument only on the determination at step two, which does not suffice to prove reversible error. See, e.g., Banks v. Colvin, 547 F. App'x 899, 903 (10th Cir. 2013) (explaining that a step-two determination that an impairment is severe "only allows the sequential process to proceed; it does not reflect the severity of [the claimant's] functional limitations relevant to step four").
B. Opinion Evidence
In March of 2013, Plaintiff injured his back while working and there are several medical records from 2013 relating to this injury and his workers' compensation claim. See, e.g., AR 224-300. On August 14, 2013, Plaintiff underwent surgery and, thereafter, "reached maximum medical improvement." Id. at 280-81. His surgeon determined that "[h]e still has some mild persistent symptoms but is able to tolerate full-duty." Id. Plaintiff was released to "full-duty" with no restrictions. Id. at 281-82. Thereafter, Plaintiff returned to work until he was laid off in August 2014. Id. at 19, 302. Plaintiff's alleged onset date is August 14, 2014. Medical records after Plaintiff's surgery are minimal, until 2016, when evidence indicates Plaintiff experienced chronic lower back and right hip pain. See id. at 301-32.
Plaintiff's introductory paragraph to this section of his brief suggests several arguments that Plaintiff does not actually develop. See Pl.'s Br. at 10. To obtain judicial review, however, it is insufficient to simply "suggest dissatisfaction" or merely mention an issue in the context of another matter. See Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994). Plaintiff's hint of an argument regarding the ALJ's review of certain medical opinions fails to develop a sufficient legal or factual basis for reversal, and the undersigned will not speculate or develop appellate arguments on his behalf. See id.; Threet v. Barnhart, 353 F.3d 1185, 1190 (10th Cir. 2003).
1. Agency Physician
Agency physician Shakra Junejo, M.D., reviewed Plaintiff's request for reconsideration and concluded that the initial determination of not disabled was "still appropriate." AR 61-71. Plaintiff contends that Dr. Junejo "violated the law" in his reconsideration of Plaintiff's application because, in the section of his explanation for "reconciling medical opinions," Dr. Junejo stated that "[t]here is no indication that there is a medical opinion from any medical source." Pl.'s Br. at 12.
In reference to this statement by Dr. Junejo, Plaintiff's attorney Miles Mitzner asserts, without any evidence whatsoever, that the state agency physicians are "bought off." Pl.'s Br. at 10. Such allegation strikes at the integrity of the social security process and should not be made flippantly.
Plaintiff asserts that Dr. Junejo disregarded the following medical opinions:
• June 7, 2013, opinion by Winston Fong, M.D. (AR 245);Pl.'s Br. at 11-12. With respect to the medical records from 2013, neither of the records from Dr. Estep are actual medical opinions as they do not "reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions." See 20 C.F.R. § 404.1527. The record from Ms. Davis also is not a medical opinion as a medical opinion may only be rendered by an "acceptable medical source," which a physical therapist is not. See id.; 25 C.F.R. § 404.1502(a); Kellams v. Berryhill, 696 F. App'x 909, 918 (10th Cir. 2017) (holding that a physical therapist was not an acceptable medical source). And while the restrictions set forth by Dr. Fong do qualify as medical opinions, they predate both Plaintiff's alleged onset date and the August 2013 surgery that rendered Plaintiff "asymptomatic with regard to leg pain," and permitted him to return to full duty activity without restrictions. See AR 20, 278, 280-81, 282. Although medical evidence that predates a claimant's alleged onset date in some cases may shed light on a claimant's functional limitations during the relevant time period, Plaintiff has offered no argument as to how these pre-surgery restrictions do so. As such, with respect to the cited medical records from 2013, the undersigned finds no reversible error in Dr. Junejo's statement that there were no medical opinions to reconcile. See AR 69.
• June 3, 2013, opinion by Randel Estep, D.O. (AR 247-48);
• June 3, 2013, opinion by Dr. Fong (AR 249);
• May 3, 2013, opinion by Christin Lynn Davis, P.T. (AR 254-56);
• May 3, 2013, opinion by Dr. Estep (AR 258-59); and
• December 5, 2016, opinion by J. Arden Blough, M.D. (AR 306-09).
Interspersed throughout his arguments relating to Dr. Junejo, Plaintiff also asserts that the ALJ failed to weigh the medical opinions of Ms. Davis and Dr. Estep. Pl.'s Br. at 11-12 (citing AR 254-56, 258-59). For the reasons set forth above, these arguments fail.
Regarding the December 5, 2016, record from Dr. Blough, much of the report consists of treatment notes—recording history of present injury, past medical history, results of a physical examination, an assessment, and opinions on the cause of the injury as well as recommendations for further treatment. AR 306-09. This portion does not qualify as a medical opinion. See Moua v. Colvin, 541 F. App'x 794, 797-98 (10th Cir. 2013) ("Dr. Bhakta's treatment notes do not offer any medical opinions concerning [the plaintiff's] abilities or limitations. Rather, they document her complaints and chronicle the pain medications and treatment he prescribed for her. Thus, there was no pertinent medical opinion for the ALJ to weigh."). And the portion of Dr. Blough's report that opines that Plaintiff is "temporarily totally disabled" is also not a medical opinion, but rather is an opinion on an issue reserved to the Commissioner. See 25 C.F.R. § 404.1527(d)(1). As such, there was no error in Dr. Junejo's statement with respect to this medical record.
Plaintiff confusingly conflates several arguments, but with respect to Dr. Junejo ultimately asserts that Dr. Junejo's conclusion could not provide substantial support for the ALJ's RFC determination because Dr. Junejo ignored the medical opinions that were available for him to review. See Pl.'s Br. at 10-12. As explained, the undersigned finds no error with respect to actual medical opinions. And to the extent Plaintiff is attempting to argue that Dr. Junejo ignored the medical evidence of record, the undersigned also finds no error. In reaching his determination, Dr. Junejo summarized the medical evidence of record he considered, which comports with Exhibits 1F, 2F, 3F, 4F, 5F, 6F, and 7F in the administrative record. Compare AR 69, with AR 224-338; see also AR 62-66 (listing medical evidence received); Pl.'s Br. at 11 ("Note that exhibits 8F and 9F were the only exhibits that the agency did not have the benefit of reviewing. That means that all of the exhibits through 7F were available to the agency." (internal citations omitted)). Accordingly, it is clear from Dr. Junejo's Disability Determination Explanation that, despite his statement regarding "medical opinion[s]," he did indeed consider all of the medical evidence of record. See AR 69 (summarizing medical evidence of record from Exhibits 1F through 7F). Plaintiff's arguments regarding the agency physician do not warrant remand.
2. Workers' Compensation Doctors
Nor do Plaintiff's arguments regarding the workers' compensation physicians warrant remand. Plaintiff acknowledges that the SSA is not bound by the decisions of other governmental and non-governmental agencies, and that the determination of disability is an issue reserved to the Commissioner. Pl.'s Br. at 13. Plaintiff takes issue, however, with the ALJ's decision to grant "little weight" to the opinions of Dr. Blough and C.B. Pettigrew, D.O., both physicians who examined Plaintiff for his workers' compensation claim. Id. Drawing a distinction between the "disability determination" and the "underlying opinion and findings not related to the pronouncement that the person is disabled," Plaintiff contends that the ALJ erred in "summarily throw[ing] out" the latter. Id. at 14.
There is, however, no indication that the ALJ disregarded the remainder of the workers' compensation doctors' reports. Indeed, the ALJ provided a detailed summary of both physicians' physical examinations and specified that he considered their statements regarding Plaintiff's temporary total disability to be their "opinion[s]." See AR 20-21; see also 25 C.F.R. § 404.1504 (explaining that, though the SSA is not bound by disability decisions made by others, it will nevertheless "consider all of the supporting evidence underlying the other governmental agency or nongovernmental entity's decision that [it] receive[s] as evidence"). It is therefore reasonable to interpret the ALJ's statement that he was giving little weight to the opinions as a determination to disregard only that portion of the medical reports containing an opinion on disability. See AR 23.
Plaintiff further argues that the ALJ "failed to address the limitations given by the doctors [that] were not incorporated or addressed in determination of [the] RFC," asserting that the RFC "stood in conflict" with Dr. Blough's and Dr. Pettigrew's "opinions and limitations." Pl.'s Br. at 15. Plaintiff does not, however, point to specific limitations in the relevant medical record and while the undersigned's review has found indications of pain and reduced range of motion, it has not found any functional limitations included in either Dr. Blough's or Dr. Pettigrew's reports. See id. at 15-16; AR 301-310. Nor does Plaintiff explain how an RFC for limited range of sedentary work conflicts with anything in the records from Dr. Blough or Dr. Pettigrew. See Pl.'s Br. at 15-16. It is well-settled that the claimant "bears the burden of establishing a prima facie case of disability at steps one through four." Hackett v. Barnhart, 395 F.3d 1168, 1171 (10th Cir. 2004). As part of his burden, then, Plaintiff "must provide evidence of his functional limitations." Maestas v. Colvin, 618 F. App'x 358, 361 (10th Cir. 2015). Here, the physical examinations of Dr. Blough and Dr. Pettigrew are consistent with Plaintiff's complaints of lower back and hip pain, but Plaintiff provides no evidence of any actual conflict with a restricted sedentary RFC and has not established any functional limitations that the ALJ failed to include in his RFC determination. See Howard v. Barnhart, 379 F.3d 945, 948 (10th Cir. 2004) (finding substantial evidence supported the ALJ's RFC determination when plaintiff put forth no evidence to the contrary).
Plaintiff argues at length that the ALJ erred because he did not follow the governing law for considering a treating physician's opinion. Pl.'s Br. at 14-17. But neither Dr. Blough nor Dr. Pettigrew was Plaintiff's treating physician and, accordingly, the ALJ was not required to follow the treating physician rule in considering their opinions. Cf. Watkins v. Barnhart, 350 F.3d 1297, 1300-01 (10th Cir. 2003) (setting forth the framework for considering opinions of treating physicians); see Doyal v. Barnhart, 331 F.3d 758, 762 (10th Cir. 2003) (explaining that opinions of physicians who are not treating physicians are not entitled to the presumption of controlling weight because such presumption is founded on the treating physician's unique perspective to the medical evidence due to both the duration and frequency of the treatment relationship); AR 166 (indicating that Plaintiff saw Dr. Blough and Dr. Pettigrew each only one time).
C. Vocational Limitations
Arguing that the ALJ failed to include "sufficient or proper vocational limitations" in the hypothetical presented to the VE, Plaintiff contends that the ALJ should have included limitations for Plaintiff's obesity, hip, and back. Pl.'s Br. at 17-20. Again, though, Plaintiff does not point to any limitations established in the record that were not included in the RFC. See id. And it is well- settled that a hypothetical posed to the VE is sufficient if "it contained all of the limitations found to exist by the ALJ." Barnett v. Apfel, 231 F.3d 687, 690 (10th Cir. 2000). Additionally, when a hypothetical question includes "all (and only) those impairments borne out by the evidentiary record," Evans v. Chater, 55 F.3d 530, 532 (10th Cir. 1995), a VE's testimony in response provides substantial evidence to support the ALJ's step-five determination. Decker v. Chater, 86 F.3d 953, 955 (10th Cir. 1996); see also Qualls v. Apfel, 206 F.3d 1368, 1373 (10th Cir. 2000) ("We have already rejected plaintiff's challenges to the ALJ's RFC assessment. The ALJ propounded a hypothetical question to the VE that included all the limitations the ALJ ultimately included in his RFC assessment. Therefore, the VE's answer to that question provided a proper basis for the ALJ's disability decision."). Accordingly, this argument is unavailing.
D. Cumulative Effect
Plaintiff's final argument is the assertion that "the ALJ's decision does not indicate that he considered the cumulative effect of [Plaintiff's] impairments." Pl.'s Br. at 20. Plaintiff offers nothing beyond his own assertion to support this claim. See id. ("Simply put, he did not or this Court would have seen evidence of same in his opinion."). And, to the contrary, the ALJ explicitly states that he did precisely that. See AR 15-16 (ALJ stating that the disability review process requires consideration of an impairment or combination of impairments); AR 17, 18 (ALJ stating that he considered all symptoms and evidence); see also Wall, 561 F.3d at 1070 ("Where . . . the ALJ indicates he has considered all the evidence our practice is to take the ALJ at his word." (alteration and internal quotation marks omitted)). Accord Bryant v. Berryhill, No. CIV-15-1151-HE, 2017 WL 401263, at *11 (W.D. Okla. Jan. 30, 2017). Plaintiff's argument regarding the cumulative effect of his impairments is without merit.
RECOMMENDATION
The ALJ applied the correct legal standards and considered the relevant medical evidence. Plaintiff demonstrates no reversible error in those assessments and this Court cannot reweigh the medical evidence to reach a different conclusion. So, 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 October 15, 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 1st day of October, 2019.
/s/_________
BERNARD M. JONES
UNITED STATES MAGISTRATE JUDGE