Opinion
Case No. CIV-18-437-R
11-14-2018
SAMANTHA MITCHELL, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
REPORT & RECOMMENDATION
Plaintiff seeks judicial review pursuant to 42 U.S.C. § 405(g) of the final decision of Defendant Commissioner denying her application for supplemental security income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §§ 416(i), 1382. The Commissioner 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 Agency Decision
On March 7, 2106, Plaintiff protectively filed her application for SSI alleging she became disabled on January 1, 2015, which date she later amended to the application date, March 7, 2016. AR 16-17. An Administrative Law Judge ("ALJ") held a hearing at which Plaintiff and a vocational expert ("VE") testified. AR 37-79. The ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. 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 March 7, 2106, the application date. At the second step, the ALJ found that Plaintiff had severe impairments of major motor seizures, epilepsy, depressive disorder, personality disorder, post-traumatic stress disorder, and substance abuse disorders. At the third step, the ALJ found that 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.
At step four, the ALJ found that Plaintiff had the residual functional capacity ("RFC") to perform a full range of work at all exertional levels, except with the following non-exertional limitations:
[T]he claimant must avoid all exposure to hazards, such as dangerous moving machinery and unprotected heights. Mentally, the claimant retains sufficient concentration, memory, and general cognitive abilities to understand, remember, and carry out "simple" and some, but not all, more complex tasks with routine supervision; "simple" tasks means unskilled entry-level work with an SVP of one (which can be learned by a simple demonstration) and an SVP of two (which can be learned in 30 days or less); the claimant retains adequate social skills to respond/relate appropriately to supervisors, co-workers, and the general public on a "superficial" work basis; "superficial" means brief, succinct, cursory, concise communication relevant to the task being performed; and the claimant is aware of basic hazards and can adapt to a lower stress work environment; an example of a "basic hazard" is if the fire alarm goes off, the claimant would know that she needs to exit the work site; a "lower stress work environment" means an unskilled entry-level work environment as described above.AR 26.
Under the new expedited process set forth in 20 C.F.R. § 416.920(h), the ALJ made no findings regarding Plaintiff's past relevant work. Based on the RFC finding and VE testimony, the ALJ determined that there exists in the national economy jobs that can be performed by an individual with Plaintiff's age, education, work experience, and RFC. As a result, the ALJ concluded that Plaintiff had not been under a disability, as defined by the Social Security Act, from March 7, 2016 through the date of the decision.
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 asserts the ALJ erred in (1) failing to properly consider her seizures when determining her RFC; (2) failing to consider her Chiari I malformation and its corresponding limitations when determining her RFC; and (3) improperly weighing the opinion of Yasmeen Ahmad, MD. Plaintiff's Opening Brief (Doc. No. 14) at 4-11. 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). 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, internal quotation marks, 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. § 416.909 (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. § 416.920(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 [or she] is not able to perform other work." Bowen v. Yuckert, 482 U.S. 137, 142 (1987). IV. Analysis
A. The ALJ did not err in considering Plaintiff's seizures.
In reviewing the medical evidence of record and considering Plaintiff's seizures, the ALJ stated that Plaintiff had not had a seizure since August 30, 2016. AR 22. Plaintiff asserts the ALJ was incorrect in making such a "bold assertion" because the medical record does not extend past November 2016 and, thus, the ALJ "did not have all of the necessary information." Pl.'s Br. at 4, citing AR 22. Plaintiff contends the ALJ should have either accepted her hearing testimony regarding her seizure activity or recontacted Plaintiff's treating physician to obtain additional evidence beyond that contained in the record. Pl.'s Br. at 4. Plaintiff further contends the ALJ should have included seizure precautions in the RFC. Pl.'s Br. at 6.
Plaintiff's allegation of error fails for several reasons, not the least of which is that the ALJ did include seizure precautions in the RFC: "[T]he claimant must avoid all exposure to hazards, such as dangerous moving machinery and unprotected heights." AR 26. Plaintiff does not point to any other seizure-related functional limitations that she alleges should have been included in the RFC but were not. See Pl.'s Br. at 4-6.
Additionally, the ALJ's statement that Plaintiff had not had a seizure since August 30, 2016, was a true reflection of the medical record. The ALJ summarized the record from Plaintiff's September 13, 2016 visit to the Oklahoma City Indian Clinic that included notations of Plaintiff reporting having gone to the ER after having seizure-like activity on August 30, 2106, and "Patient has not had a seizure since then." AR 22 (summarizing Ex. 12F); AR 407 (Ex. 12F, record of Sept. 13, 2016). The undersigned finds no error in the ALJ's accurate summary of the medical record.
With respect to Plaintiff's hearing testimony, Plaintiff testified that "[she] still ha[s] [seizures]" . . . "every once in a while." AR 49. When asked by the ALJ to specify how often she had them, Plaintiff explained that she has seizures approximately "every four or five months." AR 49 (Plaintiff confirming the ALJ's restatement of her testimony). Plaintiff asserts the ALJ erred in rejecting Plaintiff's testimony regarding the frequency of her seizures. Pl.'s Br. at 5. However, it is not entirely clear the ALJ did reject this testimony as the ALJ found that the objective medical evidence did not support Plaintiff's claims of disabling "limitations of functioning"; the ALJ did not state that he found Plaintiff's allegations of one seizure approximately every four to five months to be unsupported. See AR 29. Moreover, even if the ALJ did reject Plaintiff's testimony, it is unclear such rejection would have prejudiced Plaintiff. Per Plaintiff's testimony that she experiences one seizure every four or five months, at most she would have three seizures per year. Plaintiff has not shown that such infrequent seizures would be disabling. As such, any alleged error in rejecting Plaintiff's testimony about the frequency of her seizures would be harmless. Cf. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1162-63 (10th Cir. 2012) (explaining that an alleged error in the ALJ's decision did not prejudice the plaintiff because giving greater weight to a particular part of the record would not have helped her).
Finally, Plaintiff argues the ALJ was obligated to recontact Plaintiff's treating physician to determine if she had experienced a seizure since August 30, 2016. Pl.'s Br. at 4. In support of this argument, Plaintiff cites to the 2008 version of 20 C.F.R. §416.912(e)(1), which, when it was in effect, required an ALJ to recontact a treating source if additional evidence or clarification was needed due to a conflict or ambiguity. Pl.'s Br. at 4 (citing 20 C.F.R. § 416.912(e)(1) (2008)). However, this section was amended in 2012, more than five years before the administrative hearing at issue here, and thus not in effect at the relevant time. See 77 Fed. Reg. 10651-01, 2011 WL 7404303 (final rules, effective March 26, 2012); see also Casey v. Berryhill, CIV-18-166-STE, 2018 WL 4658702, at *6 (W.D. Okla. Sept. 27, 2018) (recognizing amendment). The regulation governing the ALJ's decision advises that "if the evidence in your case record is insufficient or inconsistent, we may need to take additional actions," including the option—but not requirement—of recontacting medical sources. 20 C.F.R. § 416.920b(b). This current regulation provides the ALJ with greater flexibility and discretion in deciding whether to recontact a treating source than Plaintiff alleges. Here, the ALJ did not find that the evidence in the case was insufficient or inconsistent, nor has Plaintiff shown that he should have. As such, Plaintiff's assertion that the ALJ was required to recontact her treating physician is unavailing.
Plaintiff additionally alleges that "there was no evidence showing that with medication, her seizures were controlled." Pl.'s Br. at 6. This statement is inaccurate. See AR 30 (citing AR 89 ("claimant has a history of seizures which evidence indicates are under fair control with medication"), 104 (same)).
"The burden to prove disability in a social security case is on the claimant, and to meet this burden, the claimant must furnish medical and other evidence of the existence of the disability." Branum v. Barnhart, 385 F.3d 1268, 1271 (10th Cir. 2004). The undersigned finds no reversible error in the ALJ's consideration of Plaintiff's seizures.
B. The ALJ did not err in considering Plaintiff's Chiari I malformation.
Plaintiff next asserts the ALJ did not properly consider her Chiari I malformation and its corresponding limitations. Pl.'s Br. at 6-8. In his decision, the ALJ reviewed the treatment records of October 27, 2016 through November 30, 2016, from Chickasaw Nation Health Center that indicated Chiari I malformation. AR 23. Plaintiff argues this diagnosis "substantiates [her] credibility involving her complaints of neck pain and dizziness associated [with] her Chiari [m]alformation" and, as such, "the RFC should have included time off task due to her Chiari I malformation limitations of dizziness, as well as no overhead reaching and minimal neck movement that exacerbates her condition." Pl.'s Br. at 8. Plaintiff, however, does not point to any objective evidence in the record indicating this impairment caused functional limitations that would limit her ability to work. Indeed, the medical record indicates Plaintiff did not have exertional, postural, or manipulative functional limitations. AR 87, 102-03. Instead, Plaintiff cites only two medical visits from June and July 2016, in which she complained of neck pain and dizziness, but no treatment provider noted or imposed functional limitations. See Pl.'s Br. at 7 (citing AR 399, 404).
It is well established that an ALJ must consider the effects of all impairments when determining a claimant's RFC. Wells v. Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013). However, the RFC need only include such limitations as the medical record substantially supports. Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000). In other words, the fact that a medically-determinable impairment exists does not, by itself, mandate the ALJ incorporate corresponding limitations into the RFC determination. See Kirkpatrick v. Colvin, 663 F. App'x 646, 650 (10th Cir. 2016) ("Clearly, an ALJ doesn't commit error by omitting limitations not supported by the record."); Arles v. Astrue, 438 F. App'x 735, 740 (10th Cir. 2011) (rejecting the plaintiff's claim that a limitation should have been included in his RFC because "such a limitation has no support in the record").
Support in the record for a claimant's limitations must relate to the functional consequences of a condition. See Maestas v. Colvin, 618 F. App'x 358, 361 (10th Cir. 2015) (explaining that the plaintiff's burden of establishing disability includes "provid[ing] evidence of his functional limitations"); Walters v. Colvin, 604 F. App'x 643, 648 (10th Cir. 2015) (explaining that a finding of disability requires that a condition not merely exist, but must prevent claimant from working); Madrid v. Astrue, 243 F. App'x 387, 392 (10th Cir. 2007) (diagnosis of a condition does not establish disability, the question is whether an impairment significantly limits the ability to work). "[T]he mere presence of [a condition] is not necessarily disabling. Rather, [a condition], alone or in combination with other impairments, must render claimant unable to engage in any substantial gainful employment." Coleman v. Chater, 58 F.3d 577, 579 (10th Cir. 1995) (citations, brackets, and internal quotations omitted). Here, the only evidence of functional limitations caused by the Chiari I malformation Plaintiff provides is her subjective complaints, which the ALJ found to be not fully credible. As such, Plaintiff has not established that such functional limitations should have been included in the RFC but were not. Plaintiff has not shown reversible error in the ALJ's consideration of her Chiari I malformation.
To the extent Plaintiff intended to challenge the ALJ's determination that Plaintiff's subjective complaints were not supported by the record, she does not adequately develop that argument and the undersigned will not develop it for her. See Murrell v. Shalala, 43 F.3d 1388, 1389 n. 2 (10th Cir. 1994) (explaining that, to obtain judicial review, it is insufficient for a party to "suggest dissatisfaction" or merely mention an issue in the context of another matter.); SSR 16-3p, 2017 WL 5180304, at *4 (app. Mar. 28, 2016) (providing guidance for evaluating the intensity, persistence, and limiting effects of a claimant's subjective symptoms).
C. The ALJ did not err in weighing Dr. Ahmad's opinion.
Plaintiff's final argument is that the ALJ erred in weighing Dr. Ahmad's decision, specifically asserting that the ALJ did not follow the proper procedure for evaluating a treating physician opinion and did not provide a valid reason for the discounted weight given. Pl.'s Br. at 9. Again, Plaintiff's argument fails. As an initial matter, it does not appear that Dr. Ahmad was Plaintiff's treating physician. During the administrative hearing, Plaintiff's counsel and the ALJ discussed this issue at length and Plaintiff's counsel contended that Dr. Ahmad was not a treating physician. AR 43-45, 55-56. Thus, the two-step procedure that Plaintiff alleges was not followed was, in fact, not applicable. See 20 C.F.R. § 416.927 (distinguishing between the procedure for evaluating opinions from treating physicians and opinions from other medical sources).
And even if Dr. Ahmad were considered a treating physician, it is evident from the decision that the ALJ declined to give controlling weight to his opinion, thus any error in failing to explicitly so state is harmless. See Mays v. Colvin, 739 F.3d 569, 575 (10th Cir. 2014) (declining to reverse when ALJ did not expressly state whether he had given the treating physician's opinion "controlling weight"). --------
Additionally, Plaintiff points to the ALJ's statement that Dr. Ahmad's opinion was entitled to little weight because "[Plaintiff] herself does not allege she was disabled" as of the date of the opinion. Pl.'s Br. at 9 (citing AR 29). Plaintiff argues that "the fact that Dr. Ahmad submitted an opinion one month before her (amended) alleged onset date should not be reason alone to dismiss this opinion." Pl.'s Br. at 9. However, the fact that Dr. Ahmad's opinion was dated before Plaintiff's alleged onset date was not the only reason given by the ALJ for discounting the opinion. Indeed, the ALJ provided several additional reasons for his decision:
The issue whether [Plaintiff] is disabled under the Social Security Act is reserved to the Commissioner. Dr. Ahmad did not specify how often [Plaintiff] has epileptic seizures, nor how long each episode lasts. Also, Dr. Ahmad did not specify whether [Plaintiff's] epilepsy can be controlled by medication. Further, Dr. Ahmad did not specify whether [Plaintiff's] functional limitations have lasted, or are expected to last, for the minimum duration of at least twelve consecutive months. Finally, [Plaintiff] herself did not allege she was disabled in February 2016.AR 21; see 20 C.F.R. § 416.927(c)(3) ("The more a medical source presents relevant evidence to support a medical opinion, particularly medical signs and laboratory findings, the more weight we will give that medical opinion. The better an explanation a source provides for a medical opinion, the more weight we will give that medical opinion."), (d)(1)(3) (issue of disability is reserved to the Commissioner); .909 (12-month duration requirement).
Plaintiff does not challenge these additional reasons and, accordingly, has not shown reversible error. See Pl.'s Br. at 8-11; cf. Bernal v. Bowen, 851 F.2d 297, 302-03 (10th Cir. 1988) (explaining that one error does not warrant remand if the ALJ's determination is otherwise supported by substantial evidence); see also Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009) (explaining that the party seeking to have a judgment set aside because of an erroneous ruling carries the burden of showing that prejudice resulted). V. Recommendation
In view of the foregoing findings, it is recommended that judgment enter AFFIRMING the decision of the Commissioner to deny Plaintiff's application for benefits. The parties are advised of their respective right to file an objection to this Report and Recommendation with the Clerk of this Court on or before December 4, 2018, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Report and Recommendation will 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, and any pending motion not specifically addressed herein is denied.
ENTERED this 14th day of November, 2018.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE