Opinion
Case No. CIV-18-70-HE
09-05-2018
MEGAN GARFIELD, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff, Megan Garfield, 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 Chief United States District Judge Joe Heaton 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. 12], and both parties have briefed their respective positions. For the reasons set forth below, it is recommended that the Commissioner's decision be reversed and remanded for further proceedings.
Citations to the parties' submissions reference the Court's CM/ECF pagination.
I. Procedural Background
On October 2, 2014, Plaintiff protectively filed an application for DIB. See AR 23. Plaintiff also protectively filed an application for SSI on October 20, 2014. See id. The Social Security Administration denied the application initially and on reconsideration. AR 74-75, 106-107. Following a hearing, an Administrative Law Judge (ALJ) issued an unfavorable decision dated March 8, 2017. AR 20-39. 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 May 10, 2014, the alleged onset date. AR 25.
At step two, the ALJ determined Plaintiff suffers from the following severe impairments: obesity; chronic back pain status post back surgery; chronic right hip pain; and depression. AR 26. 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 26-28.
Plaintiff also made allegations of headaches, which the ALJ found to be nonsevere. Id.
The ALJ next determined Plaintiff's residual functional capacity (RFC), concluding she could perform sedentary work with the following limitations:
[Plaintiff] can occasionally climb ramps or stairs, but should avoid climbing ladders, ropes, or scaffolds. [Plaintiff] can occasionally balance, kneel, stoop, crouch, and crawl. Additionally, [Plaintiff] is limited to simple and some less complex tasks (defined as semi-skilled work with a specific vocational preparation (SVP) of 3-4). Furthermore, [Plaintiff] should avoid public contact, and contact with coworkers and supervisors should be superficial (defined as brief and cursory contact).AR 28-31. The ALJ then found Plaintiff could not perform any past relevant work. AR 31-32. 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—document specialist, addresser, and touch-up screener. AR 32-33. The ALJ concluded, therefore, that Plaintiff was not disabled for purposes of the Social Security Act. AR 33.
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. Claims Presented for Judicial Review
Plaintiff asserts that the ALJ erroneously mischaracterized the evidence and that the ALJ failed to weigh a medical opinion.
In a heading, Plaintiff notes that "the ALJ also owed a duty to [Plaintiff] as an unrepresented claimant at the time of her hearing." This off-handed reference, with no further development, is insufficient to warrant the Court's review. See Tietjen v. Colvin, 527 F. App'x 705, 709 (10th Cir. 2013) (unpublished) (holding that the court will consider waived all "unspecific, undeveloped, and unsupported" arguments).
V. Analysis
A. The ALJ Improperly Picked and Chose Through the Medical Record
1. Background and Legal Standard
Plaintiff contends the ALJ's discussion regarding her mental RFC "was not at all representative of how significant [her] mental condition was over the course of her treatment and past the date of her hearing." Pl.'s Br. 5. The ALJ, Plaintiff argues, improperly picked-and-chose through the medical records. Specifically, Plaintiff contends the ALJ largely ignored the records of her visits with Krista B. Braud, PA-C. Pl.'s Br. 6. Plaintiff also asserts the ALJ did not reference many of the findings of Dr. Stephen R. Close, Ph.D. Id. at 5-6. Finally, she contends the ALJ did not adequately account for symptoms reported during her inpatient hospitalization for mental health issues at St. Mary's Behavioral Health Center. Id. at 6-8.
In her brief, Plaintiff erroneously refers to Ms. Braud as "Dr. Braud." See Pl.'s Br. 6. PA-C is an acronym for a certified physician's assistant.
Picking and choosing from the record is an impermissible practice and one necessitating remand. See Hardman v. Barnhart, 362 F.3d 676, 681 (10th Cir. 2004) (finding an ALJ may not "pick and choose among medical reports, using portions of evidence favorable to his position while ignoring other evidence."); see also Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996) (holding that an ALJ need not "discuss every piece of evidence" but "must discuss the uncontroverted evidence he chooses not to rely on as well as significantly probative evidence he rejects."). However, where the court "can follow the adjudicator's reasoning in conducting our review, and can determine that correct legal standards have been applied, merely technical omissions in the ALJ's reasoning do not dictate reversal." Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012). The Tenth Circuit has cautioned that courts cannot insist on technical perfection. Id.
In determining the extent that Plaintiff's mental impairment limited her functional limitations, the ALJ found:
[T]he evidence does not support a finding that the symptoms from this condition prevent [Plaintiff] from engaging in the work assessed within the residual functional capacity. There is limited evidence regarding [Plaintiff's] mental condition with the exception of a consultative examination and an admission for treatment. During a December 2014 consultative examination performed by Stephen Close, Ph.D., even though [Plaintiff] demonstrated a moderately depressed mood, she was alert and attentive. However, subsequently in November 2016, [Plaintiff] was admitted for depression where she remained for four days. Upon admission, she was fully oriented, but presented with anxious behavior, and a depressed mood. Nonetheless, upon being administered medication, [Plaintiff's] mood stabilized and there are no other admissions for mental health in the record. Thus, considering this evidence and [Plaintiff's] domain functioning, the undersigned finds that [Plaintiff] is capable of engaging in simple and some less complex tasks, having superficial contact with coworkers and supervisors, but should avoid public contact.AR 30 (internal citations omitted). Because the ALJ did not address significantly probative evidence in his consideration of Plaintiff's mental impairments, the Court finds that Plaintiff's argument has merit.
2. Ms. Braud
Outside of Plaintiff's hospitalization and consultative examination, the ALJ characterized the evidence of Plaintiff's depression as "limited." AR 30. The ALJ did not, however, at all address Plaintiff's numerous visits with Ms. Braud in which Plaintiff received treatment for mental health issues. Plaintiff presented to Ms. Braud in April 2015 regarding anxiety. AR 753. The records indicate she was "crying all the time and snapping at her kids and husband." Id. On examination, she appeared to have a depressed affect and was tearful. AR 755. The record from the visit also shows her past attempts at medicating her mental impairment—Zoloft gave her nightmares and she had taken Wellbutrin for depression and Lorazepam for anxiety, but they did not help much. AR 753-754. She was taking Buspirone for anxiety and Cymbalta for depression and pain. AR 756.
The records indicate her primary providers were Ms. Braud and "M. Short M.D." The records, however, are signed by Ms. Braud. AR 753.
In July 2015, Plaintiff again presented to Ms. Braud with a depressed affect and anxiety, this time advising that she had stopped taking Cymbalta because it caused nightmares. AR 721-722. In January 2016, Plaintiff returned to Ms. Braud with anxiety and irritability, and she was prescribed Citalopram for anxiety. AR 714-715. When presenting for a follow-up visit in February 2016, Plaintiff advised that she believed Citalopram was making her more tearful, and she was prescribed Venlafaxine. AR 712-713. Plaintiff returned for follow-up visits in March, April, May, July, and August 2016, in part to discuss depression and anxiety. AR 688-708.
Defendant cites these and other records for the proposition that Plaintiff "showed relatively few problems" from her mental impairments. Def.'s Br. 7-8. The ALJ, however, did not cite these records or explain their significance. "[T]he district court may not create post hoc rationalizations to explain the Commissioner's treatment of evidence when that treatment is not apparent from the Commissioner's decision itself." Grogan v. Barnhart, 399 F.3d 1257, 1263 (10th Cir. 2005). The Court refuses to engage in speculation as to what the ALJ might have decided had he considered the evidence.
Plaintiff's treatment and medication history with Ms. Braud amount to significantly probative evidence. The records illustrate Plaintiff's ongoing treatment for depression and anxiety and also discuss medications she took to treat those conditions and side effects she reported. As stated above, the ALJ is not permitted to ignore evidence unfavorable to his position. Here, the ALJ engaged in such activity by limiting discussion of the medical evidence regarding Plaintiff's mental impairment to other records while characterizing the remaining evidence as "limited." AR 30. The evidence of ongoing treatment from Ms. Braud, however, is not "limited," and by not addressing it in the decision, the ALJ improperly mischaracterized the evidence. Thus, the ALJ's error was not one that was merely technical in nature, and reversal is required.
Defendant argues Plaintiff failed to show how these records "would have reasonably made a difference to the ALJ's mental RFC finding and conclusion that she was not disabled." Def.'s Br. 13. A finding of harmless error is appropriate when the court can "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, 1144 (10th Cir. 2004). Here, the ALJ based his findings, in part, on the "limited" nature of the other evidence. The Court cannot confidently say that no reasonable factfinder could have resolved this matter in another way, and therefore harmless error is inappropriate.
3. Dr. Close and St. Mary's Behavioral Health Center
Plaintiff also argues that the ALJ did not address the reported symptoms from her consultative examination with Dr. Close or her hospitalization at the St. Mary's Behavioral Health Center. Pl.'s Br. 5-8. Because the ALJ's failure to address Plaintiff's visits with Ms. Braud regarding her mental impairment require reversal, the Court does not make a determination as to whether the ALJ further erred with regard to his treatment of these additional records.
The Court notes, however, that the Commissioner's brief asserts that "the ALJ reflected that Plaintiff had a history of mood problems that were diagnosed as depression or bipolar disorder." Def.'s Br. 7. During her hospitalization, Dr. Jahangir H. Ghaznavi, M.D. diagnosed Plaintiff with bipolar disorder. AR 787. The ALJ acknowledged that Plaintiff alleged her ability to work was limited due to bipolar disorder. AR 29. However, he did not address Dr. Ghaznavi's diagnosis of bipolar disorder or otherwise consider Plaintiff's bipolar disorder in the decision.
Dr. Ghaznavi diagnosed Plaintiff various mental impairments, including: mixed bipolar I disorder with rapid cycling; acute depression; anxiety disorder; personality disorder; psychosocial stressors; and anxiety disorder. AR 787.
On remand, the ALJ should refrain from picking and choosing through the medical record and instead discuss the uncontroverted evidence he chooses not to rely on as well as significantly probative evidence he rejects.
B. The Court Does Not Reach Plaintiff's Remaining Point of Error
Plaintiff further argues the ALJ failed to weigh the opinion of Dr. Close. The Court does not reach this issue. After a proper evaluation of the medical evidence to determine the extent that Plaintiff's mental impairment limited her functional limitations, "the ALJ may be required to reweigh [the] medical opinion based on the relevant factors. Sitsler, 410 F. App'x 112, 119 (10th Cir. 2011) (unpublished); see also Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003) (finding the court need not reach the merits of claims that "may be affected by the ALJ's treatment of the case on remand").
Plaintiff correctly identified Dr. Close as a consultative examiner in her opening brief, but incorrectly addressed the standard for weighing a treating physician. Pl.'s Br. 3-4.
Defendant argues that "Dr. Close did not opine of Plaintiff's work-related mental functional abilities, and thus there was nothing from him on that issue for the ALJ to weigh." Def.'s Br. 11-12. Although the Court does not make a recommendation with regard to this argument, it notes that medical opinions are "statements from acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [a claimant's] symptoms, diagnosis and prognosis, what [a claimant] can still do despite impairment(s), and [a claimant's] physical or mental restrictions." 20 C.F.R. § 404.1527(a)(1). --------
RECOMMENDATION
For the reasons set forth above, it is recommended that the Court reverse the Commissioner's decision and remand the matter for further proceedings consistent with this Report and Recommendation.
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 September 19, 2018. 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 Chief District Judge in this matter.
ENTERED this 5th day of September, 2018.
/s/_________
BERNARD M. JONES
UNITED STATES MAGISTRATE JUDGE