Opinion
Case No. CIV-18-505-R
11-29-2018
MICHAEL MILACEK, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff, Michael Milacek, seeks judicial review of the Social Security Administration's denial of supplemental security income (SSI). This matter has been referred by United States District Judge David L. Russell 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. 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 April 23, 2015, Plaintiff protectively filed an application for SSI. See AR 16. The Social Security Administration denied the application initially and on reconsideration. AR 63, 70. Following a hearing, an Administrative Law Judge (ALJ) issued an unfavorable decision dated March 27, 2017. AR 13-32. 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. § 416.920. The ALJ first determined Plaintiff had not engaged in substantial gainful activity since April 23, 2015, the application date. AR 18.
At step two, the ALJ determined Plaintiff suffers from the following severe impairments: autism spectrum disorder (ASD) and depression. Id. 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 19-21.
The ALJ also found Plaintiff's encopresis amounted to a non-severe impairment. AR 19.
The ALJ next determined Plaintiff's residual functional capacity (RFC), concluding he had the residual functional capacity to perform a full range of work subject to the following limitations:
[Plaintiff] can understand, remember, and carry out simple, routine, and repetitive tasks. [Plaintiff] can relate to supervisors and co-workers on a superficial work basis. [Plaintiff] can respond to usual work situations. [Plaintiff] can have no contact with the general public.AR 21-26. The ALJ then found Plaintiff had no past relevant work. AR 26. Relying on the testimony of a vocational expert, the ALJ found there were other jobs that existed in significant numbers in the national economy that Plaintiff could perform—hand packer, motel cleaner, and cafeteria floor worker. AR 26-27. The ALJ concluded, therefore, that Plaintiff was not disabled for purposes of the Social Security Act. AR 28.
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 the following points of error: 1) the ALJ erred at step three by improperly considering the paragraph B criteria; 2) Plaintiff should not have been limited to "simple work;" 3) the ALJ did not properly account for Plaintiff's encopresis in the RFC; 4) the ALJ erred in considering Plaintiff's symptoms; and 5) the ALJ did not properly consider opinion evidence.
V. Analysis
A. The ALJ Did Not Err at Step Three
At step three, the ALJ determined Plaintiff's mental impairments did not meet or equal a listing. AR 19-21. In the process, the ALJ considered the paragraph B criteria and determined Plaintiff had moderate limitations in the following areas: 1) understanding, remembering, or applying information; 2) interacting with others; 3) concentrating, persisting, or maintaining pace; and 4) adapting or managing oneself. AR 19-20.
Plaintiff contends this analysis is an example of the "overall disturbing tone" of the decision. Pl.'s Br. 24. He asserts the "ALJ ridiculously found moderate limitations in understanding, remembering[,] or applying information" and that the determination that Plaintiff had moderate limitations in interacting with others was "perhaps the biggest joke in the decision." Id. Plaintiff also takes issue with the ALJ's determination that he had moderate limitations in maintaining pace. Id. at 24-25. In support of this position, Plaintiff cites various facts (that the ALJ noted in the decision) and otherwise speculates that if he had only moderate limitations he would not be completing high school courses into his twenties and would have a driver's license. Id. In other words, Plaintiff asks the Court to reweigh the evidence, which it is not permitted to do. See Bowman, 511 F.3d at 1272. As such, there is no error with regard to the ALJ's analysis of the paragraph B factors at step three.
Plaintiff states that he testified has no friends and does not interact with his brother. Pl.'s Br. 24. But Plaintiff actually testified that he had friends "over the internet" and that he and his brother "keep it low and don't go into long conversations or anything." AR 44. The ALJ addressed this testimony in his analysis. AR 20.
B. Plaintiff Was Not Limited to "Simple Work" as Plaintiff Suggests
Plaintiff contends the ALJ erred by limiting him to "simple work." By citing various portions of the record, Plaintiff asserts that "the ALJ could not accept that [Plaintiff's] particular set of limitations were social and communicative." Pl.'s Br. 12, 16-20. Plaintiff concludes that he "is smart, so the 'simple work' found by the ALJ is simply a wrong application of the law by the ALJ." Id. at 12-13.
The problem with Plaintiff's argument is that the RFC does not limit him to "simple work." While the ALJ limited Plaintiff to "simple, routine, and repetitive tasks," the ALJ also included limitations related to the social or communicative aspects of Plaintiff's mental impairments by noting that Plaintiff "can relate to supervisors and co-workers on a superficial work basis" and "can have no contact with the general public." AR 21. Plaintiff does not advise the Court of any additional limitations the ALJ should have considered, except for not working at all. See Pl.'s Br. 12-20. To the extent Plaintiff was more limited than the ALJ concluded due to the social or communicative aspects of his mental impairments, entertaining such an argument would require reweighing the evidence, which the Court cannot do. See Bowman, 511 F.3d at 1272
C. The ALJ Did Not Err in the Consideration of Encopresis
The medical record indicates that Plaintiff was diagnosed with encopresis, or fecal incontinence. The ALJ recognized the diagnosis, but found that it was a non-severe impairment. Specifically, the ALJ found:
[Plaintiff] testified that he soils his underwear approximately once per week when he gets upset over miscommunications with others. He testified that this condition has improved significantly in recent years. [Plaintiff's] mother also testified that she believes his encopresis has improved, but that, sometimes, she will find dirty underwear hidden in his room. [I do] not find that these infrequent episodes would, for example, require additional breaks from work on a regular basis, or result in any other significant work-related limitations.AR 19.
Plaintiff rhetorically asks: "why was this symptom and limitation (encopresis) not reconsidered for RFC limitations at steps 4 and 5, after ASD was determined to be a severe impairment?" Pl.'s Br. 9. Plaintiff alleges it was error for the ALJ to fail to include limitations regarding encopresis in the RFC. Pl.'s Br. 20-22.
In a paragraph alleging the ALJ erred by not including limitations for severe impairments in the RFC, Plaintiff noted "the ALJ's RFC accounted for no encopresis limitations." Pl.'s Br. 20. The ALJ, however, clearly did not consider encopresis to be a severe impairment. AR 19.
When formulating the RFC, an "ALJ must consider the combined effect of all medically determinable impairments, whether severe or not." Wells v. Colvin, 727 F.3d 1061, 1069 (10th Cir. 2013) (emphasis in original). Here, the ALJ stated he determined the RFC on the basis of all of the evidence and considered the combined effects of all of Plaintiff's medically determinable impairments. AR 21. Further, the ALJ specifically referenced the testimony of Plaintiff's mother that he occasionally enters an episode of rage and that during such episodes, Plaintiff does not use the bathroom. AR 25-26. Thus, the ALJ considered Plaintiff's encopresis.
In Wells, a case quoted extensively by Plaintiff in his brief, the Court held that "a conclusion that the claimant's mental impairments are non-severe at step two does not permit the ALJ simply to disregard those impairments when assessing a claimant's RFC and making conclusions at steps four and five." Id. at 1068-69. That Wells dealt with a mental limitation is significant because the ALJ must undergo a "more detailed assessment" to determine an RFC involving mental impairments at step four than what is required to determine severity at step two. See id. (citing SSR 96-8p, 1996 WL 374184, at *4). Encopresis is a physical impairment, which was not at issue in the relevant portion of Wells.
Plaintiff argues that the ALJ did not reference encopresis during the step four analysis. But "the question is not whether the RFC recounts or lists the . . . impairments found at step two, but whether the RFC accounts for the work-related limitations that flow from those impairments." Cavalier v. Colvin, No. 13-CV-651-FHM, 2014 WL 7408430, at *2 (N.D. Okla. Dec. 30, 2014). Here, Plaintiff has not alleged any work-related limitations flowing from his encopresis, and "it isn't [the Court's] obligation to search the record and construct a party's arguments." Kirkpatrick v. Colvin, 663 F. App'x 646, 649 (10th Cir. 2016). The Court finds no error regarding the ALJ's handling of encopresis.
To the extent Plaintiff would argue that he needed additional breaks from work due to encopresis, the ALJ considered such a limitation, and cited evidence from the record to dismiss such la limitation in his thorough step-two analysis. AR 19.
D. The ALJ Did Not Improperly Consider Plaintiff's Symptoms
Plaintiff contends the ALJ improperly considered his symptoms by using a "template instead of tying the evidence to critical credibility issues." Pl.'s Br. 9. Plaintiff quotes extensively from a Seventh Circuit case which denounces the use of boilerplate language when considering the intensity, persistency, and limiting effects of a claimant's symptoms. Pl.'s Br. 10 (quoting Bjornson v. Astrue, 671 F.3d 640, 644-45 (7th Cir. 2012)). While the ALJ's initial paragraph discussing Plaintiff's symptoms contained boilerplate language, he continued his discussion to cite particular evidence to support his finding. AR 22-24. As such, there is no error for using boilerplate language.
AR 23 and AR 24 are out of order in the administrative record.
E. The ALJ Properly Considered Opinion Evidence
1. Dr. Goddard
Plaintiff first contends the ALJ erred in the consideration of a treating physician, Dr. Goddard. Pl.'s Br. 22. As the Commissioner points out, however, there is no Dr. Goddard in the record and the page of the administrative record cited by Plaintiff does not exist. Def.'s Br. 8. Thus, Plaintiff's reference to Dr. Goddard was in error.
2. Dr. Swink
Dr. Richard H. Swink, Ph.D. performed a consultative examination of Plaintiff on September 15, 2015. Dr. Swink diagnosed Plaintiff with ASD and encopresis and found:
Dr. Swink was not a treating physician, as the argument's heading would suggest. See Pl.'s Br. 22.
It is recommended that [Plaintiff] continue outpatient treatment to address social relatedness, communicating more openly with others and developing a wider range of social interests and activities. He could benefit from appropriate groups with similar interests and problem areas. Speech-language communication therapy and occupational therapy services are recommended to address interactive skills and pragmatics.AR. 329. The ALJ then addressed Dr. Swink's opinion as follows:
He has high academic promise. He needs to be encouraged to look into college course work when appropriate, and/or vocational technical school. He may want to consult the Department of Rehabilitation Services for assistance in education and training for employment, and job finding.
His mother was encouraged to consult with the Social Security Administration to consider disability benefits.
[Dr.] Swink . . . recommended speech-language communication therapy and occupational therapy services. He stated that [Plaintiff] shows high academic promise and needs to be encouraged to look into college course work when appropriate and/or vocational technical school, and may want to consult the Department of Rehabilitation Services for assistance in education and training for employment, and job finding. He also stated that [Plaintiff] may want to consider disability benefits, which the undersigned notes is somewhat inconsistent with his early suggestion that [Plaintiff] would be capable of work activity. Dr. Swink's objective findings have been discussed above and were considered heavily in the [RFC]. However, as Dr. Swink's overall assessment does not contain an opinion regarding specific work-related limitations and does not reflect consideration of Social Security Rules or Regulations, it is given little weight.AR 23 (internal citations omitted).
The opinions of examining consultants are generally entitled to less weight than a treating physician's opinion. See Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004). Nevertheless, an ALJ is required to properly consider their opinions and provide legitimate reasons for discounting them. See 20 C.F.R. § 416.927(c). The ALJ should consider: "(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." See Krauser, 638 F.3d at 1331. However, so long as the ALJ provides a well-reasoned discussion, the failure to "explicitly discuss" all the factors "does not prevent [the] court from according [the ALJ's] decision meaningful review." Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007).
Dr. Swink did not give an opinion as to any work-related limitations. Instead, he noted that Plaintiff may want to consult a state agency for assistance in training for employment and also that Plaintiff may want to "consider" disability benefits. AR 329. An opinion as to whether an individual is disabled is an issue reserved for the Commissioner. SSR 96-5p, 1996 WL 374183, at *2; see also Olson v. Berryhill, 689 F. App'x. 628, 631 (10th Cir. 2017) (unpublished) ("[A] treating physician may not render opinions that are essentially administrative findings . . . dispositive of a case such as whether the claimant is disabled." (internal quotation omitted)). "[T]o the extent Dr. [Swink] meant to suggest that [Plaintiff] could not maintain employment, his opinion was not a medical opinion." Adcock v. Comm'r, SSA, --- F. App'x ---, 2018 WL 4760095, at *3 (10th Cir. Oct. 2, 2018) (unpublished) (citing 20 C.F.R. § 404.1527(a)(1)). Nevertheless, the ALJ considered the statement and ultimately assessed it little weight. In doing so, the ALJ provided a well-reasoned discussion. He found that Dr. Swink's opinions were internally inconsistent, AR 23, and an opinion's consistency with the record is an appropriate factor to consider. Krauser, 638 F.3d at 1331
Plaintiff argues—without citing any law—that the ALJ erred by considering that the assessment does not reflect consideration of Social Security Rules and Regulations because "there is no requirement that a doctor parrot SSA rules and regulations" and that "it is actually fraud because no doctor ever uses SSA regulations to make a finding." Pl.'s Br. 23-24. Even if the ALJ erred by considering this factor, his discussion regarding the opinion was otherwise well-reasoned and considered an appropriate factor, and therefore the error is harmless. See Williams v. Colvin, No. 14-CV-2861-WJM, 2015 WL 4941029, at *5 (D. Colo. Aug. 19, 2015) ("This error is harmless, however, because the ALJ's previous two reasons are enough on their own to sustain the ALJ's decision to discredit Dr. Richesin's report."); LeFevre v. Colvin, No. 2:13-CV-602-PMW, 2014 WL 2967472, at *4 (D. Utah July 1, 2014) ("Furthermore, even if the court were to agree with Plaintiff's two arguments, the court would nevertheless conclude that the other reasons cited by the ALJ are sufficient to uphold his determination that Dr. McCune's opinions were entitled to little weight.").
Plaintiff also contends Dr. Swink included opinions related to Plaintiff's high social introversion with difficulty relating to others, mild depressiveness, unusual self-perceptions with autistic characteristics—all of which "could be placed in a work specific hypothetical." Pl.'s Br. 24. Earlier in the decision, the ALJ specifically referenced that the tests performed by Dr. Swink objectively found that Plaintiff had "mild depressiveness and high social introversion with difficulty relating openly to others." AR 24. The ALJ considered these test results to be objective findings and not medical opinions. Even if they did amount to medical opinions, Plaintiff does not suggest how those conditions could have impacted the RFC. Further, the ALJ included limitations related to Plaintiff's difficulty relating to others in the RFC. See AR 21 (including limitations related to the social or communicative aspects of Plaintiff's mental impairments by finding that Plaintiff "can relate to supervisors and co-workers on a superficial work basis" and "can have no contact with the general public"). Thus, the omission is harmless error because these findings were consistent with the ALJ's RFC conclusion and his finding that ASD was a severe impairment. See Mays v. Colvin, 739 F.3d 569, 578-79 (10th Cir. 2014) ("[A]n ALJ's failure to weigh a medical opinion involves harmless error if there is no inconsistency between the opinion and the ALJ's assessment of residual functional capacity."). Likewise, the Court finds no reversible error.
The ALJ found that the RFC was supported by the opinion of the state agency psychological consultant (Dr. Lisa Swisher, Ph.D.) and the objective findings of Dr. Swink and Mr. William James, MA, NCSP. AR 26. Plaintiff contends "Dr. Swink's opinion lies in stark contrast to agency doctor Swisher's opinion." Pl.'s Br. 14. Plaintiff, however, misunderstands the ALJ's rationale. The ALJ clearly found that the objective findings of Dr. Swink's tests—not Dr. Swink's opinion—is consistent with the RFC. Thus, Plaintiff's contention that the ALJ dismissed objective mental health testing of Dr. Swink and Mr. James is incorrect as well. See AR 23 (noting that Mr. James' objective findings were considered in the RFC, but giving little weight to Mr. James' findings regarding Plaintiff's ability to work). --------
3. Oklahoma Department of Rehabilitation Services/Ms. Williams
A November 7, 2016 letter from the Oklahoma Department of Rehabilitation Services signed by Vocational Rehabilitation Specialist Danielle Williams states:
Based upon the documentation we received, you have an impairment which results in an impediment to employment, you can benefit in terms of an employment outcome and you do require VR services to prepare for, enter, engage in, or retain employment. Therefore, you meet the basic eligibility criteria for vocational rehabilitation services.
In addition, we consider you to meet the criteria for a Priority Group 1 disability under our Order of Selection.AR 277. Priority Group One includes:
Eligible individuals with the most severe mental or physical disabilities who have serious limitations in three or more functions (such as mobility, communication, self-direction, interpersonal skills, work tolerance or work sills). Individuals require multiple services over an extended period of time.AR 278. The ALJ gave the determination that Plaintiff was eligible for these services little weight because "there is no medical assessment accompanying this letter, or any other explanation or findings regarding specific work-related limitations." AR 25. Plaintiff contends the ALJ erred in considering the opinion.
The Agency promulgated Social Security Ruling 06-03p (SSR 06-03p), 2006 WL 2329939 (Aug. 9, 2006) to "clarify how [it] consider[s] opinions from sources who are not 'acceptable medical sources[.]'" SSR 06-03p at *1. The Ruling notes that opinions from "'non-medical sources' who have had contact with the individual in their professional capacity . . . who are not health care providers, are also valuable sources of evidence for assessing impairment severity and functioning." Id. at *3. The Ruling also clarifies that "Opinions from 'non-medical sources' who have seen the individual in their professional capacity should be evaluated by using the applicable factors" for evaluating medical opinions. Id. at *6. Rehabilitation counselors are considered "non-medical sources." Id. at *2.
Plaintiff asserts the ALJ improperly relied on the fact there was no medical assessment or any findings regarding specific work-related limitations accompanying the letter. Pl.'s Br. 15-16. First, he asserts that "there is no requirement in Watkins [v. Barnhart, 350 F.3d 1298 (10th Cir. 2003)] that something be attached to an opinion." Id. at 15. While the regulations do not "require" that medical evidence be attached to an opinion to be valid, an ALJ should consider the degree to which an opinion is supported by relevant evidence. See 20 C.F.R. § 416.927(c), (f)(1). That the opinion did not address any medical evidence or attach any reports to substantiate the opinion is directly related to whether the opinion is supported by relevant evidence. Furthermore, the regulations state that a non-medical source opinion may be given more weight than a medical source opinion if it "has provided better supporting evidence and a better explanation for the opinion, and the opinion is more consistent with the evidence as a whole." Id. at § 416.297(f)(1). Here, the non-medical source opinion provided no supporting evidence to support its conclusion.
Plaintiff also contends that the opinion contained work limitations, contrary to the ALJ's conclusion. Pl.'s Br. 15-16. Presumably relying on the generic "Priority Group 1" criteria, Plaintiff argues Ms. Williams "listed examples that might apply to him," including mobility, communication, self-direction, and interpersonal skills-work tolerance or work skills. Id. at 16. Ms. Williams, however, did not directly tie those examples to Plaintiff—as Plaintiff tacitly admits when he argues that those examples "might" apply to him. Thus, the ALJ's claim that Ms. Williams' opinion did not contain specific work-related limitations is supported by substantial evidence.
As shown above, the Court finds no error with regard to the ALJ's consideration of Ms. Williams' opinion.
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 December 13, 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 District Judge in this matter.
ENTERED this 29th day of November, 2018.
/s/_________
BERNARD M. JONES
UNITED STATES MAGISTRATE JUDGE