Summary
finding that a physician's treatment notes and recommendations "do not qualify as either functional limitations or a medical opinion"
Summary of this case from Shoun v. SaulOpinion
Case No. CIV-19-144-R
10-18-2019
MARY WRIGHT, Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff, Mary Wright, seeks judicial review of the Social Security Administration's (SSA) denial of her applications for disability insurance benefits (DIB) and supplemental security income (SSI). United States District Judge David L. Russell 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. 17], 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' briefs reference the Court's CM/ECF pagination.
I. Procedural Background
On April 3, 2018, an Administrative Law Judge (ALJ) issued an unfavorable decision finding Plaintiff was not disabled and, therefore, not entitled to DIB or SSI. AR 12-23. The Appeals Council denied Plaintiff's request for review. Id. at 1-8. 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, 416.920. Following this process, the ALJ first determined that Plaintiff had not engaged in substantial gainful activity since February 2, 2014, her alleged onset date. AR 14.
At step two, the ALJ determined Plaintiff suffers from the following severe impairments: degenerative disc disease, degenerative joint disease of the knees bilaterally, rheumatoid arthritis, osteoarthritis, headaches, obesity, anxiety, and depression. Id. 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 16.
The ALJ next determined Plaintiff's residual functional capacity (RFC), concluding that Plaintiff could perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) with the following additional restrictions:
[Plaintiff] can lift, carry, push or pull no more than twenty pounds occasionally; can sit for a total of six hours a day, stand for a total of six hours a day, and walk for a total of six hours a day; can perform simple and some complex tasks with supervision; can only interact incidentally with the public; and can accept instructions from supervisors.Id. at 18.
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 21-22. The ALJ then proceeded to step five and, relying on the testimony of a vocational expert, found Plaintiff can perform work existing in significant numbers in the national economy. Id. at 22-23. Specifically, the ALJ found Plaintiff can perform the requirements of representative jobs such as small products assembler, office helper, and electronics worker. Id. at 23. Therefore, the ALJ concluded that Plaintiff is not disabled for purposes of the Social Security Act. Id.
III. Claim Presented for Judicial Review
Plaintiff alleges that the ALJ erred in considering whether Plaintiff's headaches necessitated additional restrictions in the RFC. Pl.'s Br. [Doc. No. 19] at 3-10. For the reasons set forth below, the Court 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
It is undisputed that Plaintiff suffers from headaches. See AR 14, 19-20. What is at issue in this appeal is whether the ALJ should have found that Plaintiff's headaches are disabling. Plaintiff alleges that her headaches cause functional limitations that the ALJ erred by omitting from the RFC. Pl.'s Br. at 3. 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 her burden, then, Plaintiff "must provide evidence of [her] functional limitations." Maestas v. Colvin, 618 F. App'x 358, 361 (10th Cir. 2015). Here Plaintiff has not done so.
Plaintiff asserts that the ALJ should have included in the RFC a limitation that Plaintiff must be able to treat her headaches by lying down in a dark room with ice packs. Pl.'s Br. at 4, 9. Plaintiff premises her argument on two medical records. The first, dated December 26, 2015, indicates that Plaintiff presented to Mercy Clinic complaining of "the worst headache she has ever had and different from previous headaches." AR 454, 1181. Plaintiff rated the severity of pain as 5 out of 10, and moderate. Plaintiff was seen by Heather Stanley, APRN-CNP, who conducted a physical exam with normal findings, and assessed acute intractable headache. Plaintiff declined medications and Nurse Practitioner Stanley recommended that Plaintiff proceed to the ER. Nurse Practitioner Stanley also recommended the following treatment plan: "continue present treatment and plan, lie in darkened room and apply cold packs prn [as needed] for pain, . . . keep headache diary, avoid alcohol, caffeine, fatty or fried foods, smoking and stressful situations as much as practical." Id. at 454-55, 1181-82. There is no indication that a physician reviewed the progress note entered by Nurse Practitioner Stanley. See id. at 455, 1182.
The record indicates that Plaintiff's physical exam was normal, with the exception of muscular tenderness in her neck, and she was assessed with a nonintractable headache and released. AR 450-54.
The second medical record Plaintiff relies on is dated April 3, 2016, and indicates that Plaintiff presented to Mercy Clinic complaining of a chronic headache that had been gradually worsening and included the associated symptom of loss of balance. Id. at 407-08, 1195-96. Plaintiff rated the severity of the pain as 4 out of 10. Plaintiff was again seen by Nurse Practitioner Stanley, who noted that Plaintiff had recently been evaluated by a neurologist who conducted an EEG and MRI. Nurse Practitioner Stanley conducted a physical exam and "reassured [Plaintiff] that [a] neurodiagnostic workup [was] not indicated from benign H & P [history and physical]." Id. at 408, 1196. Nurse Practitioner Stanley assessed a chronic intractable headache, recommended Plaintiff follow up with neurology and her primary care physician, gave her an injection of Toradol, and recommended the same treatment plan discussed above. The record indicates that Richard Lowrance, M.D., reviewed Nurse Practitioner Stanley's progress note on April 5, 2016, and "agree[d] with the evaluation and plan as documented." Id. at 407-08, 1195-96.
The record indicates that the EEG was normal and the MRI showed no changes. AR 411.
Plaintiff asserts that Nurse Practitioner Stanley's recommendation to "lie in a dark room and apply cold packs [as needed] for pain" is a medical opinion from Dr. Lowrance setting forth functional limitations that should have been included in the RFC. Pl.'s Br. at 4-8. Plaintiff is incorrect. As an initial matter, the recommendations at issue were suggested by Nurse Practitioner Stanley, not by Dr. Lowrance. Dr. Lowrance only reviewed and agreed with them. But the undersigned will assume without deciding that Dr. Lowrance's endorsement merits attributing the recommendations to him. Even so, the recommendations are simply a treatment plan and do not qualify as either functional limitations or a medical opinion. See Duncan v. Colvin, 608 F. App'x 566, 574 (10th Cir. 2015) ("Given that . . . there were no medical opinions regarding . . . [the plaintiff's] work-related functional limitations, there was no opinion . . . for the ALJ to weigh."); McDonald v. Astrue, 492 F. App'x 875, 884 (10th Cir. 2012) (explaining that treatment notes including a treatment plan do not qualify as medical opinions because they "do not indicate any prognoses, nor do they provide opinions as to what [the plaintiff] could still do despite her impairments"); Hawkins v. Saul, CIV-18-1177-D, 2019 WL 5090008, at *4 (W.D. Okla. Sept. 23, 2019) (R&R), adopted 2019 WL 5087489 (W.D. Okla. Oct. 10, 2019) (finding that a physician's treatment notes that "merely summarize[d] Plaintiff's diagnosis and treatment plan" "did not give an opinion or provide any functional limitations"); Gourley v. Colvin, CIV-15-880-HE, 2016 WL 3579048, at *3 (W.D. Okla. Apr. 15, 2016) (R&R), adopted 2016 WL 3582158 (W.D. Okla. June 28, 2016) (recognizing that treatment notes documenting symptoms, treatment plans, and diagnoses were not medical opinions as they did not contain opinions regarding the plaintiff's functional limitations); 25 C.F.R. §§ 404.1545 (setting forth how an RFC is determined), 416.945 (same). As such, Plaintiff's argument that the ALJ "wholly failed" in considering a medical opinion rendered by treating physician Dr. Lowrance is without merit. See Pl.'s Br. at 5, 6-8.
Citing to page 19 of the Administrative Record, Plaintiff next argues that the ALJ's analysis regarding her headaches was flawed in that the evidence of record "fails to support the ALJ's bald assertion" that Plaintiff's "headaches can be controlled and are not as frequent when using medication." Pl.'s Br. at 8. Plaintiff goes on to argue that "the ALJ's assumption that they can be controlled is simply not true, or she would not still be searching for treatment options after three (3) years. Indeed, maybe the word should have been 'ameliorated' and not controlled." Id. at 9 (internal citations omitted). A careful reading of page 19, however, reveals that the ALJ did not, in fact, say that Plaintiff's headaches were controlled. See AR 19. Rather, the ALJ stated:
The claimant has been treated for persistent headaches and states that she sometimes has light and noise hypersensitivity. She does not report loss of vision, diplopia, or vertigo. An MRI of the claimant's brain found stable punctate subcortical white matter lesions in the bilateral cerebral hemisphere. In December 2015, the claimant was advised to go to the emergency department for the reported worst headache she had ever experienced, which she rated as a five out often on the pain scale. Her neurological exam was normal with no abnormalities. She has been prescribed multiple medications, but has denied that any have worked. However, treatment records indicate the claimant admitted that her headaches did improve with the use of over-the-counter headache medication and Doxepin has helped her sleep better at night. The claimant also noted a decrease in headache frequency and overall pain with therapy treatment.Id. (internal citations omitted); see also Pl.'s Br. at 4 (quoting the ALJ's statement). And the undersigned's review of the medical record finds the ALJ's statements to be accurate.
Moreover, though Plaintiff is correct that the medical record indicates that Plaintiff has often complained of headaches, frequency of symptoms alone does not equate to functional limitations. Here, as set forth above, Plaintiff has shown that a nurse practitioner gave her physician-approved recommendations for treating her headaches, but Plaintiff has shown no evidence of functional limitations the ALJ should have included in the RFC but did not. Accordingly, the undersigned finds no error in the ALJ's consideration of Plaintiff's headaches.
Plaintiff asserts that her "latest visit in January 2017 indicates that [she] was still asking her doctor for treatment/medication options for her migraines." Pl.'s Br. at 9. While it is true that Plaintiff sought treatment for headaches in January 2017, later medical records from March through July of 2017 indicate that Plaintiff denied having headaches at seven separate appointments during that time. See AR 1037, 1235, 1240, 1243, 1245, 1250, 1254. Indeed, though Plaintiff's medical record encompasses over 1000 pages, the undersigned's review reveals that Plaintiff denied headache symptoms almost as frequently as she complained of headaches. See id. at 296-1377 (finding 37 complaints of headache pain and 32 denials of headache pain).
The undersigned notes that Plaintiff indicated that the recommended treatment "provided no relief." AR 550.
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 November 1, 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 18th day of October, 2019.
/s/_________
BERNARD M. JONES
UNITED STATES MAGISTRATE JUDGE