Opinion
Case No. CIV-18-1180-F
08-15-2019
LOLLY JOHNSON, Plaintiff, v. ANDREW M. SAUL, Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff seeks judicial review pursuant to 42 U.S.C. § 405(g) of the final decision of Defendant Commissioner denying her applications for disability insurance benefits and supplemental security income benefits under Title II and Title XVI of the Social Security Act, 42 U.S.C. §§ 423, 1382. Defendant has answered the Complaint and filed the administrative record (hereinafter AR___), and the parties have briefed the issues. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. §636(b)(1)(B). For the following reasons, it is recommended the Commissioner's decision be affirmed.
I. Administrative History and Final Agency Decision
Plaintiff filed her applications for disability insurance benefits and supplemental security income benefits on August 18, 2015. AR 254, 256-57, 260-64. Plaintiff alleged she became disabled on November 20, 2009, due to acute postconcussion headaches, fibrous dysplasia - benign tumor on Plaintiff's brain, digestion problems related to 2006 gastric bypass surgery, and daily diarrhea. AR 256, 260, 293. The Social Security Administration denied Plaintiff's applications on December 31, 2015, see id. at 69, 70, 71-85, 86-100, and on reconsideration on May 23, 2016. AR 101-17, 118-34, 135, 136.
Plaintiff appeared with counsel and testified at an administrative hearing conducted before an Administrative Law Judge ("ALJ") on August 2, 2017. AR 37-68. A vocational expert ("VE") testified at the hearing. AR 62-67. The ALJ issued a decision in which she found Plaintiff was not disabled within the meaning of the Social Security Act. AR 12-30. Following the agency's well-established sequential evaluation procedure, the ALJ found at the first step that Plaintiff had not engaged in substantial gainful activity since November 20, 2009. AR 17. At the second step, the ALJ found Plaintiff had severe impairments of dysfunction of major joints, fibrous dysplasia, benign brain tumor, lumbar degenerative disc disease, obesity, and affective disorder. Id. At the third step, the ALJ found these impairments were not per se disabling as Plaintiff did not have an impairment or combination of impairments that met or medically equaled the requirements of a listed impairment. AR 18.
At step four, the ALJ found Plaintiff had the residual functional capacity ("RFC") to perform a limited range of sedentary work. AR 20. Specifically, Plaintiff can never climb ladders, ropes, or scaffolds and can only occasionally climb ramps or stairs. Id. Plaintiff is also limited to simple, routine, and repetitive tasks and no more than occasional interaction with co-workers, supervisors and the public. Id.
Relying on the VE's testimony as to the ability of a hypothetical individual with Plaintiff's work history, age, education, and determined RFC, the ALJ concluded Plaintiff is unable to perform any past relevant work. AR 29. Additionally, the ALJ, still relying on the VE's testimony, concluded Plaintiff could perform the jobs of sorter, table worker, and document preparer. AR 29-30. Based on these findings, the ALJ concluded Plaintiff had not been under a disability, as defined by the Social Security Act, from November 20, 2009 through the date of the decision. AR 30.
The Appeals Council denied Plaintiff's request for review, and therefore the ALJ's decision is the final decision of the Commissioner. See 20 C.F.R. § 404.981; Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009).
II. Issues Raised
Plaintiff raises two issues on appeal. First, Plaintiff argues the ALJ erred by granting only partial weight to the opinion of Plaintiff's treating physician, Dr. Ahmed Abdelaziz. Plaintiff's Opening Brief (Doc. No. 15) at 3-9. Second, Plaintiff contends the ALJ failed to properly consider the opinion of consultative examiner, Dr. Micheline Chrisman. Doc. No. 15 at 9-13.
III. General Legal Standards Guiding Judicial Review
The Court must determine whether the Commissioner's decision is supported by substantial evidence in the record and whether the correct legal standards were applied. Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citations and quotations omitted). The "determination of whether the ALJ's ruling is supported by substantial evidence must be based upon the record taken as a whole. Consequently, [the Court must] remain mindful that evidence is not substantial if it is overwhelmed by other evidence in the record." Wall, 561 F.3d at 1052 (citations, quotations, and brackets omitted).
The Social Security Act authorizes payment of benefits to an individual with disabilities. 42 U.S.C. § 401 et seq. A disability is an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); accord 42 U.S.C. § 1382c(a)(3)(A); see 20 C.F.R. §404.1509 (duration requirement). Both the "impairment" and the "inability" must be expected to last not less than twelve months. Barnhart v. Walton, 535 U.S. 212 (2002).
The agency follows a five-step sequential evaluation procedure in resolving the claims of disability applicants. See 20 C.F.R. § 404.1520(a)(4), (b)-(g). "If the claimant is not considered disabled at step three, but has satisfied her burden of establishing a prima facie case of disability under steps one, two, and four, the burden shifts to the Commissioner to show the claimant has the [RFC] to perform other work in the national economy in view of her age, education, and work experience." Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005). "The claimant is entitled to disability benefits only if he is not able to perform other work." Bowen v. Yuckert, 482 U.S. 137, 142 (1987).
IV. Treating Physician Opinion
In her first basis for appeal, Plaintiff contends the ALJ erred in her consideration of the opinion of her treating physician, Dr. Abdelaziz. Doc. No. 15 at 3-9. As noted by the ALJ in Plaintiff's decision, Dr. Abdelaziz completed a Medical Source Statement ("MSS") indicating Plaintiff
has moderate limitation in the ability to make judgements on simple work-related decision, and slight limitation in all other areas of the claimant's ability to understand, remember and carry out instructions. He assessed the clamant [sic] has marked limitation in the abilities to interact appropriately with the public, supervisors and co-workers, and to respond appropriately to work pressures in a usual work setting. She has moderate limitation in the ability to respond appropriately to changes in a routine work setting. He assessed she can manage benefits in her own best interest.AR 27, 672-74.
In considering the MSS, the ALJ noted that Dr. Abdelaziz had a long-term treatment relationship with Plaintiff and that his opinion was within his medical specialty. AR 27. However, the ALJ granted Dr. Abdelaziz's opinion only partial weight because while she "agree[d] with the limitations concerning her ability to understand, remember and carry out instructions, because it is supported by the evidence of record in its entirety; [] the marked limitation regarding social interactions is inconsistent with the evidence of record in its entirety." Id.
Specific Social Security regulations govern the consideration of opinions by "acceptable medical sources." 20 C.F.R. §§ 404.1502, 404.1513(a), 416.902, 416.913(a). The Commissioner generally gives the highest weight to the medical opinions of a "treating source," which includes a physician who has provided the claimant "with medical treatment or evaluation" during a current or past "ongoing treatment relationship" with the claimant. 20 C.F.R. §§ 404.1502, 404.1527(c)(2), 416.902, 416.927(c)(2); Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004).
When considering the medical opinion of a claimant's treating physician, the ALJ must first determine whether the opinion should be given "controlling weight" on the matter to which it relates. See Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003); 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). The opinion of a treating physician must be given controlling weight if it is both "'well-supported by medically acceptable clinical and laboratory diagnostic techniques'" and not inconsistent with the other substantial evidence in the record. Watkins, 350 F.3d at 1300 (quoting SSR 96-2p, 1996 WL 374188, at *2); 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
A treating-physician opinion not afforded controlling weight is still entitled to deference. See Watkins, 350 F.3d at 1300; SSR 96-2p, 1996 WL 374188, at *4 ("In many cases, a treating source's medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight."). If the ALJ has determined that the medical opinion of a treating physician is not entitled to controlling weight, the ALJ must determine what lesser weight should be afforded the opinion. See Watkins, 350 F.3d at 1300-01; Langley, 373 F.3d at 1119.
In this second inquiry, the determination of how much deference to afford a treating-physician opinion not entitled to controlling weight should be made in view of a prescribed set of regulatory factors:
(1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship,
including the treatment provided and the kind of examination or testing performed; (3) the degree to which the physician's opinion is supported by relevant evidence; (4) consistency between the opinion and the record as a whole; (5) whether or not the physician is a specialist in the area upon which an opinion is rendered; and (6) other factors brought to the ALJ's attention which tend to support or contradict the opinion.Watkins, 350 F.3d at 1301 (quotations omitted); see 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6). The ALJ's decision "'must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight.'" Watkins, 350 F.3d at 1300 (quoting SSR 96-2p, 1996 WL 374188, at *5).
Here, the ALJ's assessment of the evidence, and her reliance on this assessment in weighing Dr. Abdelaziz's opinion, is supported by substantial evidence. In considering the factors indicated in Watkins, the ALJ noted that Dr. Abdelaziz had a long-term treatment relationship and his opinion is within his medical specialty. AR 27. However, as the ALJ also noted, Dr. Abdelaziz's opinion regarding Plaintiff's marked limitations in social interactions is not supported by the record as a whole, including his own treatment notes. Id.
Throughout a significant portion of Dr. Abdelaziz's treatment, Plaintiff was going through divorce proceedings and custody disputes, contributing to her anxiety and depression. AR 692, 704, 706, 710, 714, 715, 716, 717, 719 There are no notes in Dr. Abdelaziz's records indicating difficulties regarding social interactions. AR 692, 695, 699, 704, 706, 708, 710-11, 712, 714, 715, 716, 717, 719. Indeed, Plaintiff's symptoms overall appear to improve over time with the gradual cessation of the familial disputes with her ex-husband, and there are several notations within Dr. Abdelaziz's records indicating that her relationships with family and friends are good. AR 692, 695, 699.
Plaintiff addresses the lack of support in Dr. Abdelaziz's treatment record by relying on Dr. Abdelaziz's "diagnosis of irritability." Doc. No. 15 at 5. Plaintiff argues that "[c]ommon sense dictates that Irritability would have an impact on [Plaintiff's] ability to interact with others." Id. While the undersigned recognizes irritability may affect one's social interactions, Plaintiff has not presented any medical or legal authority indicating that it inherently results in a "marked limitation" in one's ability to interact appropriately with the public, supervisors, and/or co-workers.
"The more a medical source presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, the more weight we will give that opinion. The better an explanation a source provides for an opinion, the more weight we will give that opinion." 20 C.F.R. § 404.1527(c)(3). "A treating physician's opinion may be rejected if his conclusions are not supported by specific findings." Castellano v. Sec'y of Health & Human Servs., 26 F.3d 1027, 1029 (10th Cir.1994); see also White v. Barnhart, 287 F.3d 903, 907-08 (10th Cir. 2001) (affirming ALJ's rejection of treating physician's opinion where it was not supported by the physician's own treatment notes). Here, Dr. Abdelaziz did not offer any explanation within the MSS to support his finding that Plaintiff has marked limitations regarding social interactions, and his own treatment notes offer no support for this conclusion. See, supra.
Plaintiff also relies upon the opinion of Dr. Andrew John as evidence in the record allegedly supporting Dr. Abdelaziz's findings regarding social interaction. Dr. John stated that Plaintiff's social function was limited and that she has chosen to limit most social activities. AR 611. It appears from the record that this notation is based on Plaintiff's subjective reporting, rather than a medical conclusion. Id. In any event, merely noting that Plaintiff's social function is limited does not lend support to a "marked limitation" in social interactions.
Notably, the ALJ gave little weight to Dr. John's opinion, see AR 27, and Plaintiff does not challenge the ALJ's decision in this regard. --------
Moreover, the remainder of the record in this matter also fails to lend support to Dr. Abdelaziz's opinion. The record is filled with relatively normal psychological findings, including Plaintiff's own subjective reports, and the portions of the record that reflect psychological symptoms do not support a finding that Plaintiff experienced marked limitations in social interactions. AR 416, 451, 494, 508, 512, 517, 521, 526, 542, 547, 551, 555, 559, 562, 620, 626, 632, 678, 683. Indeed, as the Commissioner notes, upon applying for benefits, Plaintiff indicated that she only has difficulties getting along with family, friends, neighbors, or others if she fails to take her medications. AR 328. Finally, the state consultative examiners concluded Plaintiff had only moderate limitations in maintaining social functioning and interacting with the general public. AR 78, 82, 97, 108, 114.
The undersigned finds the ALJ articulated adequate reasons for granting Dr. Abdelaziz's opinion partial weight. In reviewing the record as a whole, it reveals that Dr. Abdelaziz's own records do not support his finding regarding Plaintiff's limitations in social interactions and that his opinion was inconsistent with the remainder of the record. Accordingly, the undersigned concludes the ALJ's decision in this regard is supported by substantial evidence and should, therefore, be affirmed.
V. Consultative Examiner Opinion
In her second issue on appeal, Plaintiff contends the ALJ failed to properly weigh the opinion of consultative examiner, Dr. Chrisman. Doc. No. 15 at 9-13. Plaintiff asserts that while the ALJ provided a summation of Dr. Chrisman's findings, she failed to indicate the actual weight she gave to Dr. Chrisman's opinion. Id. at 9. Additionally, Plaintiff relies on Dr. Chrisman's administration of a Mental Cognitive Assessment to argue that the RFC does not sufficiently account for Dr. Chrisman's findings.
Regarding the assessment, Dr. Chrisman stated the following:
[Plaintiff] received a score of 22 out of 30, which is indicative of mild cognitive impairment. She demonstrated deficits in
visuospatial/executive functioning, in that she did not copy the cube correctly. She did not place all numbers on the clock, and she did not differentiate the lengths of the minute and hour hands. With regard to attention, she was unable to accurately repeat digits forward. She demonstrated deficits in language, in that she was unable to identify more than four words beginning with the letter "F." With regard to delayed recall, she was unable to recall one of five words preceded by interference. She was able to free recall one word, required a category cue to recall one word, and a multiple choice cue to recall two words.AR 593. Relying on Chapo v. Astrue, 682 F.3d 1285 (10th Cir. 2012), Plaintiff argues the ALJ's RFC limitation to simple, routine, and repetitive tasks does not sufficiently account for the memory deficits indicated by the above assessment. Doc. No. 15 at 11. However, as the Commissioner argues, Chapo is distinguishable from the present case.
In Chapo, the consultative examiner specifically found that the plaintiff suffered from "moderate to extreme limitations in all categories of mental functioning. He concluded that in her present condition and in the foreseeable future, she is not psychologically stable to where she would be able to function in a competitive job market." Id. at 1289 (brackets and quotations omitted). As the court in Chapo noted, while this overall description was relevant, the consultative examiner's "findings with respect to specific functional areas [we]re crucial for purposes of the mental RFC assessment." Id. The examiner found that the plaintiff suffered from marked to extreme limitations within almost every subcategory listed under the ability to follow instructions and work procedures, attention and concentration, reliability, independent decision-making/need for supervision, interaction with supervisors and co-workers, social interaction, and adaptation and orientation to work setting. Id. at 1289-90. Considering the extreme nature of the consultative examiner's opinion, the court concluded that the restriction to "simple" work was not "sufficient to capture the various functionally distinct mental limitations recognized by [the consultative examiner]." Id. at 1290 n.3.
Clearly, Chapo is highly distinguishable from the present case. The consultative examiner in Chapo concluded the plaintiff experienced extreme limitations in nearly every aspect related to her ability to work. By contrast, in the present case, Dr. Chrisman merely noted that Plaintiff experienced some memory deficits. The ALJ specifically noted Dr. Chrisman's findings in this regard, see AR 26, and there is nothing in the record to suggest the ALJ's resulting RFC limitation to unskilled work that involves only simple, routine, and repetitive tasks does not sufficiently account for the same.
RECOMMENDATION
In view of the foregoing findings, it is recommended that judgment enter affirming the decision of the Commissioner. Plaintiff is advised of her right to file an objection to this Report and Recommendation with the Clerk of this Court on or before September 4th , 2019 in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter.
Dated this 15th day of August, 2019.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE