Morro v. Social Security Administration
Filing
25
MEMORANDUM OPINION AND ORDER by Magistrate Judge Kirtan Khalsa denying 19 MOTION to Reverse or Remand Administrative Decision and Memorandum Brief in Support. (kc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
SUSAN A. MORRO,
Plaintiff,
vs.
Civ. No. 17-501 KK
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER1
THIS MATTER is before the Court on the Social Security Administrative Record
(Doc. 16) filed August 2, 2017, in support of Plaintiff Susan A. Morro’s (“Plaintiff”) Complaint
(Doc. 1) seeking review of the decision of Defendant Nancy A. Berryhill, Acting Commissioner
of the Social Security Administration, (“Defendant” or “Commissioner”) denying Plaintiff’s
claim for Title XVI supplemental security income benefits. On October 2, 2017, Plaintiff filed
her Motion to Reverse or Remand Administrative Decision and Memorandum Brief in Support
(“Motion”). (Docs. 19, 20.) The Commissioner filed a Response in opposition on December 1,
2017 (Doc. 22), and Plaintiff filed a Reply on December 15, 2017. (Doc. 23.) The Court has
jurisdiction to review the Commissioner’s final decision under 42 U.S.C. §§ 405(g) and 1383(c).
Having meticulously reviewed the entire record and the applicable law and being fully advised in
the premises, the Court finds the Motion is not well taken and is DENIED.
1
Pursuant to 28 U.S.C. § 636(c), the parties consented to the undersigned to conduct any or all proceedings, and to
enter an order of judgment, in this case. (Docs. 4, 8, 9.)
I. Background and Procedural Record
Claimant Susan A. Morro (“Ms. Morro”) alleges that she became disabled on July 30,
2013, at the age of thirty because of mental problems, pancreatitis, seizures, heart problems, right
ovarian cyst, and liver problems. (Tr. 178, 182.2) Ms. Morro completed the ninth grade in 2000,
and worked as a home healthcare provider. (Tr. 183.) Ms. Morro reported she stopped working
on July 30, 2013, due to her medical conditions. (Tr. 182.)
On August 30, 2013, Ms. Morro filed an application for Supplemental Security Income
(“SSI”) under Title XVI of the Act, 42 U.S.C. § 1381 et seq.
(Tr. 161-70.) Ms. Morro’s
application was initially denied on October 30, 2013. (Tr. 69, 70-83, 101-04.) It was denied
again at reconsideration on June 19, 2014.
(Tr. 84-99, 100, 108-113.)
On July 2, 2014,
Ms. Morro requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 114.) The
ALJ conducted a hearing on November 16, 2015. (Tr. 35-68.) Ms. Morro appeared in person at
the hearing with attorney representative Jeffrey Diamond. (Id.) The ALJ took testimony from
Ms. Morro (Tr. 41-59), and an impartial vocational expert (“VE”), Thomas E. Bott (Tr. 60-66).
On February 10, 2016, ALJ Matthew Allen issued an unfavorable decision. (Tr. 17-29.) On
February 28, 2017, the Appeals Council issued its decision denying Ms. Morro’s request for
review and upholding the ALJ’s final decision. (Tr. 1-6.) On April 28, 2017, Ms. Morro timely
filed a Complaint seeking judicial review of the Commissioner’s final decision. (Doc. 1.)
II. Applicable Law
A.
Disability Determination Process
An individual is considered disabled if she is unable “to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
2
Citations to “Tr.” are to the Transcript of the Administrative Record (Doc. 16) that was lodged with the Court on
August 2, 2017.
2
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) (pertaining to disability insurance
benefits); see also 42 U.S.C. § 1382(a)(3)(A) (pertaining to supplemental security income
disability benefits for adult individuals). The Social Security Commissioner has adopted the
familiar five-step sequential analysis to determine whether a person satisfies the statutory criteria
as follows:
(1)
At step one, the ALJ must determine whether the claimant is engaged in
“substantial gainful activity.”3 If the claimant is engaged in substantial
gainful activity, she is not disabled regardless of her medical condition.
(2)
At step two, the ALJ must determine the severity of the claimed physical
or mental impairment(s). If the claimant does not have an impairment(s)
or combination of impairments that is severe and meets the duration
requirement, she is not disabled.
(3)
At step three, the ALJ must determine whether a claimant’s impairment(s)
meets or equals in severity one of the listings described in Appendix 1 of
the regulations and meets the duration requirement. If so, a claimant is
presumed disabled.
(4)
If, however, the claimant’s impairments do not meet or equal in severity
one of the listing described in Appendix 1 of the regulations, the ALJ must
determine at step four whether the claimant can perform his “past relevant
work.” Answering this question involves three phases. Winfrey v. Chater,
92 F.3d 1017, 1023 (10th Cir. 1996). First, the ALJ considers all of the
relevant medical and other evidence and determines what is “the most
[claimant] can still do despite [her physical and mental] limitations.” 20
C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). This is called the claimant’s
residual functional capacity (“RFC”). Id. §§ 404.1545(a)(3),
416.945(a)(3). Second, the ALJ determines the physical and mental
demands of claimant’s past work. Third, the ALJ determines whether,
given claimant’s RFC, the claimant is capable of meeting those demands.
A claimant who is capable of returning to past relevant work is not
disabled.
(5)
If the claimant does not have the RFC to perform her past relevant work,
3
Substantial work activity is work activity that involves doing significant physical or mental activities. 20 C.F.R.
§§ 404.1572(a), 416.972(a). Work may be substantial even if it is done on a part-time basis or if you do less, get
paid less, or have less responsibility than when you worked before. Id. Gainful work activity is work activity that
you do for pay or profit. 20 C.F.R. §§ 404.1572(b), 416.972(b).
3
the Commissioner, at step five, must show that the claimant is able to
perform other work in the national economy, considering the claimant’s
RFC, age, education, and work experience. If the Commissioner is unable
to make that showing, the claimant is deemed disabled. If, however, the
Commissioner is able to make the required showing, the claimant is
deemed not disabled.
See 20 C.F.R. § 404.1520(a)(4) (disability insurance benefits); 20 C.F.R. § 416.920(a)(4)
(supplemental security income disability benefits); Fischer-Ross v. Barnhart, 431 F.3d 729, 731
(10th Cir. 2005); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). The claimant has
the initial burden of establishing a disability in the first four steps of this analysis. Bowen v.
Yuckert, 482 U.S. 137, 146, n.5, 107 S.Ct. 2287, 2294, n. 5, 96 L.Ed.2d 119 (1987). The burden
shifts to the Commissioner at step five to show that the claimant is capable of performing work
in the national economy. Id. A finding that the claimant is disabled or not disabled at any point
in the five-step review is conclusive and terminates the analysis. Casias v. Sec’y of Health &
Human Serv., 933 F.2d 799, 801 (10th Cir. 1991).
B.
Standard of Review
This Court must affirm the Commissioner’s denial of social security benefits unless
(1) the decision is not supported by “substantial evidence” or (2) the ALJ did not apply the
proper legal standards in reaching the decision. 42 U.S.C. § 405(g); Hamlin v. Barnhart, 365
F.3d 1208, 1214 (10th Cir. 2004); Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004);
Casias, 933 F.2d at 800-01. In making these determinations, the Court “neither reweigh[s] the
evidence nor substitute[s] [its] judgment for that of the agency.’” Bowman v. Astrue, 511 F.3d
1270, 1272 (10th Cir. 2008). A decision is based on substantial evidence where it is supported
by “relevant evidence . . . a reasonable mind might accept as adequate to support a conclusion.”
Langley, 373 F.3d at 1118. A decision “is not based on substantial evidence if it is overwhelmed
by other evidence in the record[,]” Langley, 373 F.3d at 1118, or “constitutes mere conclusion.”
4
Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). The agency decision must “provide
this court with a sufficient basis to determine that appropriate legal principles have been
followed.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005). Therefore, although an
ALJ is not required to discuss every piece of evidence, “the record must demonstrate that the
ALJ considered all of the evidence,” and “the [ALJ’s] reasons for finding a claimant not
disabled” must be “articulated with sufficient particularity.” Clifton v. Chater, 79 F.3d 1007,
1009-10 (10th Cir. 1996).
III. Analysis
The ALJ made his decision that Ms. Morro was not disabled at step five of the sequential
evaluation. (Tr. 27-28.) Specifically, the ALJ determined that Ms. Morro had not engaged in
substantial gainful activity since August 15, 2013. (Tr. 22.) He found that Ms. Morro had severe
impairments of history of ovarian cysts, depression, anxiety, post-traumatic stress disorder
(PTSD), intermittent explosive disorder, and history of substance abuse. (Id.) The ALJ also
found that Ms. Morro had nonsevere impairments of hyperlipidemia, eczema, restless leg
syndrome, headaches, mesenteric adenitis, acute pancreatitis, renal syndrome, and seizures.4
(Id.) The ALJ, however, determined that Ms. Morro’s impairments did not meet or equal in
severity one the listings described in Appendix 1 of the regulations. (Tr. 23-24.) As a result, the
ALJ proceeded to step four and found that Mr. Morro had the residual functional capacity to
perform light work as defined in 20 C.F.R. 416.967(b) except that she is
limited to simple, routine, repetitive work. The claimant is limited to making
simple work-related decisions. The claimant is limited to occasional interaction
with supervisors, co-workers, and the public.
4
The ALJ also discussed “claimant’s alleged fibromyalgia” pursuant to SSR 12-2p and determined the medical
evidence did not support any diagnosis of fibromyalgia. (Tr. 22-23.) Ms. Morro did not allege fibromyalgia in her
application, but mentioned fibromyalgia during her administrative hearing testimony. (Tr. 53.)
5
(Tr. 25.) The ALJ further concluded at step four that Ms. Morro had no past relevant work.
(Tr. 27.) The ALJ determined at step five that based on Ms. Morro’s age, education, work
experience, RFC, and the testimony of the VE, there were jobs that existed in significant
numbers in the national economy that Ms. Morro could perform. (Tr. 27-28.)
In support of her Motion, Ms. Morro argues that (1) the ALJ improperly relied on VE
testimony to conclude that jobs existed in significant numbers in the national economy that
Ms. Morro could perform, and that Ms. Morro was capable of performing jobs requiring level
one language development;5 and (2) the ALJ’s decision is contrary to and unsupported by
substantial evidence within the record. (Doc. 20 at 2-11.)
For the reasons discussed below, the Court finds no reversible error.
A.
Step Five Findings
When the disability analysis reaches step five of the sequential process, the burden shifts
to the Commissioner to show that “there are sufficient jobs in the national economy for a
hypothetical person with [the claimant’s] impairments,” Jensen v. Barnhart, 436 F.3d 1163,
1168 (10th Cir. 2005), “given her age, education, and work experience.” Lax v. Astrue, 489 F.3d
1080, 1084 (10th Cir. 2007); see also 20 C.F.R. §§ 416.960, 416.963-65 (explaining that a
claimant’s vocational factors of age, education, and work experience are considered, along with
the claimant’s RFC, to determine at step five whether there are a significant number of jobs that
a claimant can perform).
The Commissioner’s showing must be supported by substantial
evidence. Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
To determine whether jobs exist in significant numbers, regulations require the
Commissioner to take administrative notice of reliable job information from various
5
Ms. Morro argues that her low intelligence, limited education and reading anxiety call into question her ability to
perform reasoning level one jobs; however, the abilities cited in her argument refer to a job’s required language
development as that term is used in the DOT.
6
governmental and other publications. 20 C.F.R. § 416.966(d). Among the publications the
regulations identify is the Dictionary of Occupational Titles, published by the Department of
Labor.6 20 C.F.R. § 416.966(d)(1). The Commissioner may also use the services of a vocational
expert or other specialist to determine whether a claimant’s work skills can be used in specific
occupations. 20 C.F.R. § 416.966(e); see also Rogers v. Astrue, 312 F. App’x 138, 142 (10th Cir.
2009) (unpublished) (explaining that the whole point of vocational testimony is to go beyond
facts already established through publications eligible for judicial or administrative notice and
provide an alternative avenue of proof) (citing Gay v. Sullivan, 986 F.2d 1336, 1340 (10th Cir.
1993)). An ALJ may properly rely on a VE’s expert testimony, Haddock v. Apfel, 196 F.3d
1084, 1089 (10th Cir. 1999), but only when a claimant’s impairments and limitations are
adequately and precisely reflected in the hypothetical posed to the expert. Hargis v. Sullivan,
945 F.2d 1482, 1492 (10th Cir. 1991).
“An ALJ must investigate and elicit a reasonable
explanation for any conflict between the Dictionary and expert testimony before the ALJ may
rely on the expert testimony as substantial evidence to support a determination of nondisability.”
Haddock v. Apfel, 196 F.3d 1084, 1091 (10th Cir. 1999); see also SSR 00-4p, 2000 WL 1898704,
at *4 (clarifying the ALJ’s affirmative responsibility to ask about conflicts).
A claimant’s education is a vocational factor that the ALJ considers at steps four and five,
rather than an aspect of the RFC. See Davidson v. Sec’y of Health & Human Servs., 912 F.2d
1246, 1253 (10th Cir. 1990) (explaining that vocational factors such as age, education and work
experience, are combined with a claimant’s RFC to evaluate what, if any, work a claimant is able
to perform); see also SSR 96-8, 1996 WL 374184, at *1 (explaining that the RFC assessment
6
Other publications include the County Business Patterns, published by the Bureau of Census; Census Reports, also
published by the Bureau of Census; Occupational Analyses, prepared for the Social Security Administration by
various State employment agencies; and Occupational Outlook Handbook, published by the Bureau of Labor
Statistics. 20 C.F.R. 416.966(d)(2)-(5).
7
considers only functional limitations and restrictions that result from an individual’s medically
determinable impairments and related symptoms). “Education” is primarily used to mean formal
schooling or other training, but past work experience, daily activities, hobbies, and the results of
testing may also show intellectual ability. 20 C.F.R. § 416.964(a). The Administration uses
certain categories to evaluate a claimant’s level of education and, absent contradictory evidence,
will use the numerical grade level completed to determine a claimant’s educational abilities.7 20
C.F.R. § 416.964(b).
1.
The ALJ Met His Burden at Step Five Demonstrating That
Jobs Existed in Significant Numbers in the National Economy
That Ms. Morro Could Perform
Ms. Morro first argues that the ALJ failed to resolve a conflict between the VE’s
testimony and the DOT and improperly concluded that jobs existed in significant numbers in the
national economy that she could perform. Ms. Morro explains that the ALJ, based on VE
testimony, ultimately identified two jobs that she could perform - the job of a final assembler,
DOT code 735.687-018, and the job of a stone setter, DOT code 735.687.034, and thereby
directed a finding that Ms. Morro was not disabled. (Id., Tr. 28.) Ms. Morro asserts, however,
that the DOT code the VE cited at the administrative hearing for the job of final assembler, i.e.,
DOT code 783.687-018, is not the correct DOT code. (Tr. 63.) As such, Ms. Morro asserts that
there was a conflict between the VE testimony and the number of jobs he identified which the
ALJ failed to resolve and improperly relied on to find her not disabled at step five. (Doc. 20 at
2-5.) Ms. Morro goes on to assert that because the ALJ erroneously relied on the VE testimony
regarding the final assembler job, it must be eliminated from the ALJ’s findings, and that her
7
The categories include (1) illiteracy; (2) marginal; (3) limited; and (4) high school education and above.
20 C.F.R. § 416.964(b)(1)-(4).
8
denial of benefits is, therefore, only supportable if the one remaining job of stone setter exists in
significant numbers. (Id.) Ms. Morro contends that it does not. (Id.)
The Commissioner argues that the VE merely cited the DOT code number incorrectly at
the administrative hearing, and that upon review she was only off by one digit – that she cited
DOT code 783.687-018, which corresponds with a “hide inspector,” but meant to cite DOT code
713.687-018, which correctly corresponds to a final assembler.
(Doc. 22 at 15.)
The
Commissioner further argues that the DOT code for final assembler is consistent with the VE’s
testimony because the job of final assembler is unskilled and complies with the ALJ’s RFC
assessment. (Id.) Because there was no conflict to resolve, the Commissioner contends that the
two jobs the ALJ relied on at step five, in the aggregate, constitute a significant number of jobs.
For these reasons, the Commissioner asserts that the ALJ reasonably relied on the VE’s
testimony to find that Ms. Morro was not disabled at step five. (Id.)
Here, the ALJ utilized VE Thomas Bott to determine whether jobs existed in the national
economy for an individual with the claimant’s age, education, work experience, and RFC. (Tr.
20.) The ALJ presented the VE with three hypotheticals. (Tr. 60-63.) Based on the ALJ’s
second hypothetical,8 the VE identified one light exertional level job, and two sedentary
exertional level jobs that Ms. Morro could perform, identified their DOT numbers, and testified,
based on his professional experience and reliance on the Occupational Employment Survey,9
regarding the number of available jobs in the national economy as to each of them. (Tr. 62-63.)
8
“Assume an individual of the claimant’s age and education and with no past relevant work. Further assume the
individual is limited to light exertional level work. The individual would also be limited to simple, routine,
repetitive work []. The individual would also be limited [to] work related decisions and only occasional interaction
with supervisors, co-workers and the public.” (Tr. 60, 62.)
9
The VE testified that he was using the “Occupational Employment Survey as it’s programmed into a computer
program called the Job Browser Pro by the SkillTran Company[,]” and that it was capable of making mathematical
estimates of employment in the United States and in New Mexico. (Tr. 61.)
9
When questioned, the VE affirmatively stated that his testimony was consistent with the DOT.
(Tr. 65.)
The ALJ properly relied on the VE testimony and there was no conflict for the ALJ to
resolve. The Court is persuaded that the VE’s incorrect citation to one digit of the DOT code for
the job of final assembler was a technical error that is minor enough not to undermine the
Court’s confidence in the ALJ’s step five findings. Gay v. Sullivan, 986 F.2d 1336, 1341 n. 3
(10th Cir. 1993). Although the VE incorrectly cited DOT code number 783.687-018, instead of
713.687-018, the VE nonetheless described the job as “final assembler in the optical industry.”
(Tr. 63.) The ALJ, in turn, similarly identified the job of “final assembler” as one of the two jobs
he relied on at step five to determine that Ms. Morro was not disabled. (Tr. 28.) Thus, the Court
is persuaded that despite the incorrectly cited DOT code, the VE identified, described and
discussed the job of final assembler, which the ALJ properly relied on in making his step five
findings. Between the final assembler and the stone setter jobs, the VE identified 52,429
nationally available jobs in the aggregate, a number well above the 11,000 nationally available
jobs the Tenth Circuit has previously implied constitutes a significant number. Rogers v. Astrue,
312 F. App’x 138, 142 (10th Cir. 2009) (unpublished). The ALJ, therefore, properly determined
that jobs existed in significant numbers in the national economy that Ms. Morro could perform.
In short, because there was no conflict to resolve between the VE testimony and the DOT
regarding whether jobs existed in significant numbers in the national economy that Ms. Morro
could perform, and because the ALJ properly relied on the VE’s testimony regarding the number
of available jobs, there is no reversible error as to this issue.
10
2.
The Jobs the VE Identified Properly Accounted for
Ms. Morro’s Limited Education
Ms. Morro next argues that the ALJ failed to resolve a conflict between the VE testimony
and DOT with Ms. Morro’s low intelligence, limited education and reading anxiety. (Doc. 20 at
5-7.) In support, Ms. Morro explains that the ALJ’s mental RFC and the VE’s testimony failed
to account for her low intelligence, limited education, and reading anxiety, and that she does not
have the ability required to perform even level one reasoning jobs.10 (Id.) She further explains
that the jobs the VE identified have reasoning levels of one and require an ability to recognize
the “meaning of 2,500 (two or three-syllable) words[;] [r]ead at a rate of 95-120 words per
minutes[; and] [c]ompare similarities and differences between words and between series of
numbers.” (Id.) The Commissioner contends the ALJ expressly took into account Ms. Morro’s
limited education in making his step five findings and there is no apparent conflict for the ALJ to
resolve in this regard. (Doc. 22 at 15-17.)
As an initial matter, Ms. Morro appears to misunderstand the relevant regulation and
publication when she argues that her low intelligence, limited education and reading anxiety call
into question her ability to perform reasoning level one jobs. Indeed, the abilities cited in her
argument refer to a job’s required “language development” as that term is used in the DOT.11
Parsing out her argument then, it would appear that Ms. Morro believes that the jobs the VE
10
See fn. 6, supra.
11
“General Educational Development embraces those aspects of education (formal and informal) which are required
of the worker for satisfactory job performance. This is education of a general nature which does not have a
recognized, fairly specific occupational objective. Ordinarily, such education is obtained in elementary school, high
school, or college. However, it may be obtained from experience and self-study. The GED Scale is composed of
three divisions; Reasoning Development, Mathematical Development, and Language Development.” Dictionary of
Occupational Titles – Appendix C – Components of the Definition Trailer, 1991 WL 688702 (2008). Language
Development Level 1 requires: Reading: Recognize meaning of 2,500 (two- or three-syllable) words. Read at rate
of 95-120 words per minutes. Compare similarities and differences between words and between series of numbers.
Writing: Print simple sentences containing subject, verb, and object, and series of numbers, names, and addresses.
Speaking: Speak simple sentences, using normal word order, and present and past tenses. Id. (emphasis added).
11
identified require “language development” at a level higher than her low intelligence, limited
education and reading anxiety allow. As further discussed herein, the Court is not persuaded that
Ms. Morro’s low intelligence, limited education and reading anxiety precluded her ability to do
level-one reasoning jobs. The ALJ accounted for Ms. Morro’s mental impairments in his RFC
and limited Ms. Morro’s work-related mental activities to simple, routine, repetitive work,
simple work-related decisions, and occasional interaction with supervisors, co-workers, and the
public. (Tr. 25.) The two jobs the VE identified and the ALJ relied on at step five have
reasoning levels of one; i.e., apply commonsense understanding to carry out simple one- or twostep instructions.
Dictionary of Occupational Titles – Appendix C – Components of the
Definition Trailer, 1991 WL 688702 (2008). The Tenth Circuit has held that even level-two
reasoning jobs are consistent with the ability to do simple and routine work tasks. Hackett v.
Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005). And Ms. Morro has not cited to any authority to
support an argument that the ALJ’s mental RFC is inconsistent with level-one reasoning.
The ALJ asked about Ms. Morro’s education as he was required to do. (Tr. 41-43); see
20 C.F.R. § 416.964(b)(6). Ms. Morro testified that she was in school until the ninth grade12 and
left “mid-drift.”13 (Tr. 41-42.) She testified that she attended special education classes while in
school to receive extra help in concentration and writing, and that she had not obtained her GED.
(Tr. 42.) She testified that while she has problems with reading and writing, her problems have
more to do with concentration. (Tr. 42-43.) She testified that she can read the newspaper, and
the words, for maybe five minutes, but that after that she gets “bored with it.” (Tr. 43.) The
12
See 20 C.F.R. § 416.964(b)(3) (explaining that the Administration generally considers that a 7th grade through 11th
grade level of formal education is a limited education and presumes an ability in reasoning, arithmetic, and language
skills, but not enough to allow a person to do more complex job duties needed in semi-skilled or skilled jobs).
13
Ms. Morro reported to State agency examining psychological consultant Marianne Westbrook, Ph.D., that she left
high school in ninth grade because she gave birth to her son. (Tr. 277.)
12
record further supports that Ms. Morro similarly reported to the Administration that she
completed the ninth grade, but that she attended special education only from 1999-2000.14 (Tr.
183.) The record further demonstrates that Ms. Morro reported to the Administration that she
was able to read and write in English; that she enjoys, inter alia, playing “word search” and
computer games (puzzles especially); that she can pay bills and count change; and that she goes
to the library on a regular basis. (Tr. 181, 194, 233-34, 276.) Finally, the record demonstrates
that State agency examining psychological consultant Marianne Westbrook, Ph.D., estimated
Ms. Morro’s intelligence to be in the low average range.15 (Tr. 278.)
The ALJ properly relied on the VE testimony and there was no conflict for the ALJ to
resolve. The ALJ’s hypotheticals to the VE included limitations related to Ms. Morro’s mental
(and physical) impairments,16 and directed the VE to consider Ms. Morro’s vocational factors of
age and education, as well as absence of past relevant work, when testifying about work
Ms. Morro could perform. (Tr. 60.) The Court finds that the VE reasonably presumed that
Ms. Morro had some ability in reasoning, arithmetic, and language skills commensurate with a
limited education in light of Ms. Morro’s testimony and the uncontradicted record evidence
regarding her formal education up to the ninth grade, along with her testimony and
14
Ms. Morro reported to healthcare providers in 2008 that she was in special education in elementary school and
was told she had a reading disability. (Tr. 828.)
15
Dr. Westbrook did not administer any intelligence testing. Further, the ALJ determined at step two that
Ms. Morro had mental impairments of depression, anxiety, post-traumatic stress disorder, intermittent explosive
disorder, and history of substance abuse. (Tr. 22.) Ms. Morro has not disputed the ALJ’s step two findings, nor has
she argued that her low intelligence is evidence of an intellectual disability that the ALJ failed to consider at step
two. At step three, the ALJ considered Ms. Morro’s mental impairments, singly and in combination, and determined
that she did not have a mental impairment that met the listing criteria of listings 12.04 - Affective Disorders, 12.06 Anxiety Related Disorders, or 12.09 - Substance Addiction Disorders. (Tr. 23.) Ms. Morro has not disputed the
ALJ’s step three findings. (Tr. 23-24.)
16
Based on the record evidence and medical source opinion evidence, the ALJ assessed that Ms. Morro’s mental
impairments limited her ability to do work-related mental activities to simple, routine, repetitive work, simple workrelated decisions, and occasional interaction with supervisors, co-workers, and the public. (Tr. 25.) The ALJ
included these mental limitations in his hypotheticals to the VE. (Tr. 60-63.)
13
uncontradicted record evidence regarding her ability to read. See 20 C.F.R. § 416.964(b)(3).
Moreover, the VE identified two jobs, which the ALJ subsequently relied on, that require the
lowest level of language development as set forth in the DOT.17 Thus, Ms. Morro’s argument
that the ALJ failed to resolve a conflict between the VE testimony and the DOT because the job
identified were inconsistent with Ms. Morro’s low intelligence, limited education, and reading
anxiety is without merit. Finally, the Tenth Circuit, although not directly addressing the question
of what levels of language development are consistent with simple, routine, repetitive work, as is
the case here, held in an unpublished case that an RFC limiting a claimant to unskilled work
involving simple and repetitive tasks included the “lowest educational profile.” See Davison v.
Colvin, 596 F. App’x 675, 682 (10th Cir. 2014) (rejecting a claimant’s argument that the ALJ’s
RFC limiting him to unskilled work failed to account for his borderline intellectual functioning
and alleged illiteracy because the RFC included the lowest language development of one). As
such, the Court is persuaded that the ALJ’s mental RFC limiting Ms. Morro to simple, routine,
repetitive work included the lowest language development and accounted for Ms. Morro’s low
intelligence, limited education, and reading anxiety. Id.
The Court finds that Ms. Morro has failed to present any evidence that there was a
conflict between the VE testimony and the DOT regarding her low intelligence, limited
education and reading anxiety. The Court further finds that the jobs the VE identified and the
ALJ relied on in his step five findings properly accounted for Ms. Morro’s low intelligence,
limited education and reading anxiety. As such, there is no reversible error as to this issue.
17
See fn. 9, supra; see also DOT 713.687-018, Final Assembler (optical goods) – L1, and DOT 735.687-034, Stone
Setter (jewelry-silver) – L1.
14
B.
Substantial Evidence Supports the ALJ’s Determination
Ms. Morro broadly argues that the ALJ’s decision is contrary to and not supported by
substantial evidence. In support, she asserts (1) that the ALJ failed to assign proper weight to the
medical opinions and “other sources”; (2) that the ALJ failed to properly weigh State agency
examining psychological consultant Dr. Westbrook’s opinion; and (3) that the ALJ failed to
properly account for Ms. Morro’s pain and other symptoms. (Doc. 20 at 7-12.)
1.
Evaluation of Medical Evidence
Ms. Morro argues that the ALJ substituted his own lay opinion and disregarded medical
opinions in the record, regarding the severity of and pain associated with her ovarian cysts to
determine that she was not disabled. (Doc. 20 at 7-9.) Ms. Morro also argues that the ALJ failed
to give proper weight to State agency examining psychological consultant Marianne Westbrook,
Ph.D.’s opinion. (Id. at 1-10.) The Commissioner contends that the ALJ properly evaluated the
medical evidence, properly accorded great weight to the State agency nonexamining
psychological consultant opinions and some weight to Dr. Westbrook’s opinion, and that the
ALJ’s findings were supported by substantial evidence. (Doc. 22 at 11-14.)
a.
Relevant Medical Evidence
(1)
Lea Regional Medical Center
On July 30, 2013, Ms. Morro presented to Lea Regional Medical Center with complaints
of epigastric and right upper quadrant abdominal pain. (Tr. 285-86.) She reported a history of
stroke and seizures, for which she took no medications, and a heart attack at age 23 without
subsequent treatment.18 (Tr. 285.) She reported smoking three packs of cigarettes per day with
no plans to quit, and a history of heavy drinking, although only drinks occasionally now, but
18
Elsewhere Ms. Morro reported having had a heart attack at age 10. (Tr. 325, 897.)
15
admitted to drinking that day.19 (Tr. 283, 285.) Ms. Morro was admitted and radiologic studies
demonstrated mesenteric adenitis with fecal stasis and a 5 cm. right ovarian cyst. (Tr. 303.)
Ms. Morro was also diagnosed with chemical pancreatitis, likely alcohol induced. (Tr. 284.) An
ultrasound of Ms. Morro’s abdomen was “unremarkable,” and a two dimensional
echocardiogram demonstrated “nothing significant.” (Tr. 303.) Ms. Morro was treated with
morphine and Toradol for pain, and antibiotics for the mesenteric adenitis. (Tr. 303, 307.)
Gynecological consultant Kathleen Callaghan, M.D., determined the cyst was benign and stable,
with no evidence of torsion or tubo-ovarian abscess. (Tr. 301, 307.) She planned to have
Ms. Morro continue on pain medications and instructed Ms. Morro to follow up in her office in 4
to 6 weeks for a repeat pelvic ultrasound. (Tr. 307.) Dr. Callaghan indicated that if the cyst
continued to be symptomatic or increased in size, Ms. Morro would be a candidate for diagnostic
laparoscopy. (Id.) At discharge on August 1, 2013, Ms. Morro was “feeling fine.” (Tr. 301.)
She was instructed to arrange for a primary care physician and to refrain from smoking and
drinking. (Tr. 303.)
(2)
August 2013 through August 2014
Ms. Morro did not immediately arrange for a primary care provider or follow up with
Gynecologist Dr. Callaghan as she was instructed. Instead, over the next year, Ms. Morro
presented nine times to various urgent and emergency care providers and sought pain medication
for her complaints of abdominal pain.
On August 13, 2013, she presented to Covenant Health System in Lubbock, Texas, with
concerns about increased pain. (Tr. 746.) She was observed to “show no signs of distress.” (Id.)
Healthcare providers administered IV fluids, her condition improved, and she was discharged.
(Tr. 751.)
19
Elsewhere Ms. Morro reported smoking since age 8 and up to ten packs of cigarettes per day. (Tr. 1101.)
16
On four different occasions she returned to Lea Regional Medical Center with complaints
of abdominal pain. (Tr. 421-30, 448-53, 460-61, 711-16.) Treatment notes from those visits
indicate that on August 24, 2013, ER physician Fahad Inam, M.D., noted that he doubted the
severity of Ms. Morro’s pain because she was comfortable, with no signs of distress, her heart
rate was in the 50s, and she would go down to smoke and come back up asking for pain
medication. (Tr. 423, 429.) On October 4, 2013, ER treatment notes indicated that although
Ms. Morro alleged pain of 10/10, she was observed to be in only mild distress. (Tr. 449.)
Similarly on March 1, 2014, she was observed to be in mild distress. (Tr. 460.) On August 14,
2014, Ms. Morro complained of 10/10 pain, but was observed to be in no acute distress and
physical exam demonstrated “soft, moderate abdominal tenderness.”20 (Tr. 711-12.) Radiologic
studies were normal; i.e., no acute findings for gallstones, mesenteric adenitis, appendicitis or
pancreatitis. (Tr. 712.) At each of these ER visits, Ms. Morro was discharged with narcotic pain
medication.21
Ms. Morro also presented to Nor Lea General Hospital three times between August 2013
and August 2014. (Tr. 836-37, 844-45, 852-53.) On February 1, 2014, ER Physician James
McQueen, M.D., noted that Ms. Morro was seen frequently for chronic pain in the ER and also
other ERs around the area because she had no primary care physician or gynecologist. (Tr. 836.)
On May 7, 2014, ER Physician Bharath Karnati, M.D., noted that Ms. Morro was in no acute
distress, that she was sitting comfortably in the chair, laughing with her family members, and
that her abdominal exam was totally benign. (Tr. 844.) On June 18, 2014, ER physical exam
20
The ER physician noted that Ms. Morro “has a history of mental illness,” and that she reported having a very large
ovarian cyst and that her condition was terminal. (Tr. 711.) On physical exam, the ER physician noted, inter alia,
that Ms. Morro was anxious and angry, but that she was oriented to person, place, time, and situation. (Tr. 712.) At
discharge, notes indicated that Ms. Morro had “no cognitive and/or functional deficits.” (Tr. 716.)
21
Percocet (Tr. 430), Hydrocodone (Tr. 450), and Tramadol (Tr. 462, 713).
17
notes indicated that Ms. Morro had some upper and lower abdominal tenderness. (Tr. 852.)
Ms. Morro was discharged with narcotic pain medication after two of the ER visits.22
(3)
American Medical Group - 2014
(a)
Brock W. Morris, CFNP
On September 15, 2014, Ms. Morro presented to Brock W. Morris, CFNP, of American
Medical Group, seeking referrals for specialized care. (Tr. 577-79.) CFNP Morris conducted a
physical exam and assessed, inter alia, pelvic pain, ovarian cyst, chest pain, anxiety and
depression. (Tr. 578-79.) His treatment notes indicated that he discussed with Ms. Morro that
pain medications would be limited due to her not being in pain management. (Tr. 579.) CFNP
Morris referred Ms. Morro to Marianne Westbrook, Ph.D., for anxiety, depression and history of
mood disorder; he referred Ms. Morro to a cardiologist for a reported abnormal EKG; and
referred her to OB/GYN for her ovarian cyst and pelvic pain. (Id.) He prescribed hydrocodone
for pain. (Id.)
Ms. Morro saw CFNP Morris eight more times in 2014 for various lab results and
assorted complaints including pelvic/abdominal pain, sore throat and rashes. (Tr. 536-39, 54548, 548-52, 552-55, 563-67, 567-70, 570-74, 574-76.) CFNP Morris’s physical exam notes
consistently demonstrated that Ms. Morro was healthy-appearing, well-nourished, and welldeveloped. (Tr. 538, 548, 551, 554, 566, 569, 573, 576.) They also noted his observation that
Ms. Morro frequently presented with only mild distress (Tr. 551, 554, 566, 569, 573, 576), and
occasionally presented with moderate distress (Tr. 538, 548, 559). Physical exams consistently
indicated suprapubic tenderness (Tr. 538, 548, 551, 554, 566, 570, 573, 576.) CFNP Morris
prescribed hydrocodone for Ms. Morro’s complaints of pain. (Tr. 539, 548, 554, 570, 573, 576.)
22
Demerol (Tr. 836, 853).
18
Notably, Ms. Morro was referred to oncologist/hematologist Ajaz Bulbul, M.D., on
October 16, 2014, following abnormal blood work results. (Tr. 900-903.) Dr. Bulbul diagnosed
Ms. Morro with secondary polycythemia related to hypoxia with plasma volume contraction
from chronic smoking. (Id., Tr. 905, 914, 917, 921.) Dr. Bulbul recommended daily aspirin and
increased fluid intake, and advised Ms. Morro that she needed to quit smoking. (Tr. 902, 905,
908, 917.) Dr. Bulbul continued to follow Ms. Morro monthly for regular blood work. (Tr. 90406, 907-09, 910-12, 913-15, 916-18, 919-21.) He consistently observed she was in no acute
distress and that her abdomen was nontender on physical exam. (Tr. 902, 905, 908, 911, 914,
917, 920.)
Ms. Morro also saw Gynecologist Christopher Driskill, M.D., on November 5, 2014, at
Nor Lea General Hospital, for consultation regarding possible diagnostic laparoscopy and
aspiration or removal of her right ovarian cyst. (Tr. 859.) Dr. Driskill noted that Ms. Morro was
in no apparent distress and had an unremarkable abdominal exam. (Tr. 860.) Dr. Driskill
planned to request Ms. Morro’s radiologic studies before proceeding, but noted that Ms. Morro
indicated that her pain was so unbearable she wanted the diagnostic laparoscopy regardless. (Id.)
Dr. Driskill planned to move forward (id.), but a November 21, 2014, treatment record by CFNP
Morris indicated that Ms. Morro reported that she needed a new gynecology referral “due to
problems with Dr. Driskill.” (Tr. 554.) Ms. Morro was subsequently referred to Texas Tech
Physicians.23 (Tr. 542.)
23
See Section III.B.1.a.(4), infra.
19
(b)
Marianne Westbrook, Ph.D.
On October 29, 2014, Ms. Morro saw Marianne Westbrook, Ph.D., with complaints of
malaise and fatigue.24 (Tr. 560-63.) At intake, Ms. Morro reported that she had bipolar disorder
and seven different personalities. (Tr. 561.) She also reported she was in the clinic for anger
issues, anxiety and depression. (Id.) Ms. Morro provided a history of childhood sexual abuse
and current stress due to family living with her. (Id.) She described sleeping throughout the day.
(Id.) Ms. Morro said she did not have a job due to her aggressive behavior and panic attacks.
(Id.) On physical exam, Dr. Westbrook noted that Ms. Morro was healthy-appearing, wellnourished, well-developed, and overweight.
demonstrated moderate distress.
(Id.)
(Tr. 562.)
Dr. Westbrook noted Ms. Morro
On mental status exam, Dr. Westbrook noted that
Ms. Morro was oriented to time, place, and person; had motoric restlessness; was anxious and
depressed; had good eye contact; relevant, logical and coherent speech with normal rate, tone,
and volume; normal thought process and associations; adequate language; normal recent and
remote memory; and that her fund of knowledge was intact. (Id.) Dr. Westbrook assessed
malaise and fatigue, posttraumatic stress disorder (after your visit),25 panic disorder without
agoraphobia (after your visit),26 hypersomnia, unspecified; intermittent explosive disorder; and
attention deficit hyperactivity disorder, combined type. (Tr. 563.) Dr. Westbrook prescribed
Lamictal for Ms. Morro’s intermittent explosive disorder. (Id.)
On November 6, 2014, Ms. Morro returned to see Dr. Westbrook and reported that the
Lamictal had caused diarrhea and that she had stopped taking the medication. (Tr. 558.) She
24
Ms. Morro had previously seen Dr. Westbrook on October 13, 2013, for a consultative exam. (Tr. 275-79.) At
that time, Dr. Westbrook diagnosed Ms. Morro with PTSD, major depressive disorder, and panic disorder without
agoraphobia. See Section III.B.1.b.(1), infra.
25
See fn. 26, supra.
26
Id.
20
stated that she didn’t feel it helped her for the week she took it and that she had always been high
strung. (Id.) On physical exam, Dr. Westbrook noted that Ms. Morro was healthy-appearing,
well-nourished, well-developed, and overweight. (Tr. 559.) Dr. Westbrook noted Ms. Morro
demonstrated moderate distress. (Id.) On mental status exam, Dr. Westbrook indicated that
Ms. Morro was oriented to time, place, and person; had motoric restlessness; was anxious and
depressed; had good eye contact; relevant, logical and coherent speech with normal rate, tone,
and volume; normal thought process and associations; adequate language; normal recent and
remote memory; and that her fund of knowledge was intact. (Id.) Dr. Westbrook discontinued
Lamictal and prescribed Trileptal. (Tr. 560.)
On November 17, 2014, Ms. Morro saw Dr. Westbrook and reported that she had been
very snappy and angrier with the prescribed medication.
(Tr. 555.)
Ms. Morro said the
medication was not working and that she had a “seizure” the previous day and kicked everybody
out of her house. (Id.) Dr. Westbrook’s physical and mental exams were consistent with
previous visits. (Tr. 556.) Ms. Morro requested specific anxiety medication; i.e., Xanax and
Benzodiazepine. (Tr. 545, 557.) Dr. Westbrook instead increased the Trileptal and added
Clonazepam, and educated Ms. Morro about the medications. (Tr. 557.) Dr. Westbrook also
referred Ms. Morro to Dr. Jeffrey Nelson for treatment of her alleged seizure.27 (Id.)
On December 2, 2014, Ms. Morro presented to Dr. Westbrook and reported that the
prescribed medications were not working and that they only heightened her OCD and made her
anxiety worse. (Tr. 543.) She told Dr. Westbrook that she took the prescribed medications for
two weeks and then stopped. (Id.) Dr. Westbrook’s physical and mental exams were consistent
27
Ms. Morro saw Neurologist Jeffrey Nelson, M.D., on July 23, 2015. (Tr. 697.) Dr. Nelson’s initial impression
was “convulsions, epileptic versus nonepileptic on top of numerous comorbidities.” (Id.) He ordered an EEG study,
which was normal (Tr. 698), and a brain MRI which demonstrated nonspecific punctate foci of T2 signal
abnormality in the cerebral white matter bilaterally, but was otherwise unremarkable (Tr. 882-83).
21
with previous visits. (Tr. 544.) Dr. Westbrook discontinued all of Ms. Morro’s medications and
referred her to Carlsbad for services. (Tr. 545.) No follow up appointment was made. (Id.)
(4)
Texas Tech Physicians
On January 9, 2015, Ms. Morro presented to Bennett Boyd, M.D., of Texas Tech
Physicians, having been referred for ovarian cysts and pain. (Tr. 1101.) Ms. Morro reported
lower abdominal/left sided pain for the past three years that often left her debilitated. (Id.) She
reported that birth control pills and codeine provided no relief, but that she used a heating pad to
reduce the pain, and that she had “never missed daily activities of life” due to her pain. (Id.)
Ms. Morro reported smoking since age 8, at most ten packs per days, but currently one and a half
packs per day. (Id.) Dr. Boyd’s treatment notes indicated that Ms. Morro was in no acute
distress, and that her genitourinary exam revealed some external bilateral condyloma. (Tr.
1103.) Dr. Boyd planned to obtain an ultrasound to evaluate Ms. Morro’s ovaries.28 (Id.) On
January 13, 2015, Dr. Boyd informed Ms. Morro by letter that her pap smear results showed mild
cellular cervical changes likely secondary to HPV. (Tr. 1112.) He assured Ms. Morro there was
no immediate cervical cancer risk, but that she should be followed up with a colposcopy for
additional evaluation. (Tr. 1112-113.)
On March 11, 2015, Ms. Morro presented for colposcopy. (Tr. 1065-67.) She was
ultimately diagnosed with moderate and severe dysplasia (Tr. 1064), and scheduled for a CKC
(cold knife cone) procedure on April 14, 2015. (Tr. 703-04.) Ms. Morro experienced some
post-op bleeding one week after the CKC procedure, but reported on May 14, 2015, that she had
no further bleeding and no pain. (Tr. 1028.) On July 30, 2015, Ms. Morro returned to Texas
Tech Physicians and saw Amy Richards, M.D. (Tr. 1015-1017.) She underwent excision of
28
The results of Ms. Morro’s pelvic ultrasound demonstrated normal uterus, ovaries, tubes, and kidneys, and no
large cysts present. (Tr. 1084, 1097-98.)
22
lesions that were determined to be squamous cell carcinoma in-situ and likely related to HPV.
(T. 1003-1005.) Ms. Morro was referred to Sarah Hosford, M.D., at Southwest Cancer Center
for gynecological care. (Id.) On September 17, 2015, Ms. Morro saw Dr. Hosford for evaluation
of vulva dysplasia, (Tr. 501-04), and on September 30, 2015, she underwent a partial
vulvectomy. (Tr. 510-12.) Ms. Morro was discharged following the surgery without any postop complications. (Tr. 764-65.)
(5)
American Medical Group – 2015
Ms. Morro continued to see CFNP Morris throughout 2015 for various health-related
issues, including abdominal pain, anxiety, joint/soft tissue pain, upper respiratory infections,
headaches, and urinary tract infections. (Tr. 528-30, 585-89, 589-94, 594-99, 607-12, 612-15,
615-18, 619-23, 623-27, 627-31, 631-35, 953-54, 957-61, 961-65, 965-70, 970-75, 975-80, 98094.) On January 16, 2015, Ms. Morro sought medication for her abdominal pain and reported
that her pain was relieved with medication. (Tr. 529.) On March 18, 2015, Ms. Morro sought an
increase in pain medication following her colposcopy procedure. (Tr. 618.) On March 26, 2015,
Ms. Morro sought a higher dose of Percocet for pain related to her colposcopy procedure. (Tr.
614.)
Following Ms. Morro’s cold knife cone procedure and vulvectomy, Ms. Morro’s
complaints of abdominal pain were associated with urinary tract infections. (Tr. 589-94, 965-70,
975-80, 980-84.)
b.
Relevant Medical Opinion Evidence
(1)
State
Agency
Examining
Psychological
Consultant Marianne Westbrook, Ph.D.
On October 3, 2013, Ms. Morro presented to State agency examining psychological
consultant Marianne Westbrook, Ph.D., for a mental status evaluation. (Tr. 275-79.) Ms. Morro
alleged mental health problems of multiple personalities, aggression, bad temper, and OCD. (Tr.
23
275.) Ms. Morro reported symptoms of sadness, insomnia, poor appetite, poor concentration,
fatigue, frustration, aggression, panic attacks, and flashbacks. (Tr. 276.) Ms. Morro reported
that her aggression had interfered with her work in the past, and that she became unable to work
beginning June 2013 because she “cannot handle” being told what to do. (Id.) Ms. Morro stated
she tried to keep busy during the week and that her daily activities included spending time with
her aunt, playing computer games (puzzles especially), having meals with her family, taking her
son (for whom she does have custody) to school or other functions, cleaning her mother-in-law’s
house five days a week, and helping take care of her six year old niece when her sister is at work.
(Id.) Ms. Morro reported quitting school in the ninth grade when she gave birth to her son.
(Tr. 277.)
On mental status exam, Dr. Westbrook observed that (1) Ms. Morro’s speech was
relevant, logical, and coherent with grossly normal rate, tone, and volume; (2) her thought
process appeared to be intact; (3) her mood was anxious and somewhat depressed, although she
smiled and laughed easily and interacted in a comfortable manner; (4) she displayed a full range
of emotions; (5) she was well oriented; (6) she displayed no evidence of mania; (7) her cognitive
functions appeared to be grossly intact; and (8) she displayed limited task persistence. (Tr. 27778.) Dr. Westbrook estimated Ms. Morro’s intelligence to be low average and that her judgment
was likely to be impulsive and her insight limited. (Tr. 278.)
Dr. Westbrook’s Axis I diagnostic impression was Post Traumatic Stress Disorder; Major
Depression Disorder, Recurrent, Moderate; Panic Disorder without Agoraphobia; and rule out
Obsessive-Compulsive Disorder. (Tr. 278.) Dr. Westbrook assigned a GAF score of 50.29
29
The GAF is a subjective determination based on a scale of 100 to 1 of “clinician’s judgment of the individual’s
overall level of functioning.” Am. Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders (4th ed.
2000) at 32. A GAF score of 41-50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals,
24
Dr. Westbrook assessed that Ms. Morro was moderately impaired in her ability to
(1) understand and remember very short and simple instructions; (2) sustain concentration and
persist in (i) carrying out instructions (depending on situation) and (ii) working without
supervision (depending on task, as she is able to clean house and provide child-care
independently); and (3) adapt to travel to unfamiliar places. (Tr. 278-79.) She assessed that Ms.
Morro was moderately to severely impaired in her ability to (1) sustain concentration and persist
in attending and concentrating; and (2) adapt to (i) normal hazards and (ii) using public
transportation. (Id.) Dr. Westbrook assessed that Ms. Morro was severely limited in her ability
to (1) understand and remember detailed or complex instructions; (2) interact with the public,
coworkers and supervisors; and (3) adapt to changes in the workplace. (Id.)
Dr. Westbrook summarized that Ms. Morro reported some information that was difficult
to corroborate, but that Ms. Morro was likely to be explosive in many situations, although that
does not prevent her from doing house cleaning or providing childcare on a limited basis. (Tr.
279.) Dr. Westbrook observed that more information about Ms. Morro’s substance abuse would
be useful, and that Ms. Morro’s medical doctor should be consulted by DDS to determine to
what extent her medical conditions prevent her from gainful employment. (Id.)
(2)
State Agency Nonexamining Psychological
Consultant Elizabeth Chiang, M.D.
On October 11, 2013, State agency nonexamining psychological consultant Elizabeth
Chiang, M.D., reviewed Ms. Morro’s medical evidence record.
(Tr. 75-81.)
Dr. Chiang
reviewed Dr. Westbrook’s consultative examiner’s report, a third-party function report prepared
by Ms. Morro’s aunt, and the field officer observations. (Tr. 77-78.) Dr. Chiang prepared a PRT
and rated Ms. Morro’s restriction of activities of daily living as mild; her difficulties in
frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends,
unable to keep a job). Id. at 34.
25
maintaining social functioning as moderate; and her difficulties in maintaining concentration,
persistence and pace as moderate. (Tr. 76-78.) Dr. Chiang assessed that Ms. Morro had
moderate limitations in her ability to (1) carry out detailed instructions; (2) maintain attention
and concentration for extended periods; (3) perform activities within a schedule, maintain regular
attendance, and be punctual within customary tolerances; (4) complete a normal workday and
workweek without interruptions from psychologically based symptoms and to perform at a
consistent pace without an unreasonable number and length of rest periods; (5) interact
appropriately with the general public; (6) accept instructions and respond appropriately to
criticism from supervisors; (7) get along with coworkers or peers without distracting them or
exhibiting behavioral extremes; (8) respond appropriately to changes in the work setting; and
(9) set realistic goals or make plans independently of others. (Tr. 79-80.) In support of her
assessment, Dr. Chiang explained that Dr. Westbrook’s opinion was not corroborated by any
longitudinal medical evidence, and that Dr. Westbrook had observed on mental status exam that
Ms. Morro was cooperative, made appropriate eye contact, interacted in a comfortable manner
and laughed easily, and demonstrated no mood swings or aggression during the exam. (Tr. 80.)
Dr. Chiang further explained that Ms. Morro’s aunt reported that Ms. Morro was social on the
computer and phone, had one-on-one contact every day when she felt like it, and reported taking
her son to school and school functions. (Tr. 80-81.)
Dr. Chiang concluded that Ms. Morro was able to perform work where interpersonal
contact was incidental to the work performed, the complexity of tasks was learned and
performed by rote, there were few variables, where little judgment was required, and where the
supervision required was simple, direct and concrete. (Tr. 81.) She further concluded that
Ms. Morro could “understand, remember, and carry out simple instructions, make simple
26
decisions, attend and concentrate for 2 hours at a time, interact adequately with co-workers and
supervisors, and respond appropriately to changes in a routine work setting.” (Id.)
(3)
State Agency Nonexamining
Consultant Julian Lev, Ph.D.
Psychological
On June 18, 2014, Dr. Lev reviewed Ms. Morro’s medical evidence record at
reconsideration. (Tr. 91-97.) Dr. Lev noted that Ms. Morro only reported at reconsideration
more difficulty with functioning due to her physical impairment, and that there was no other
evidence of mental health impairment provided. (Tr. 94.) Dr. Lev further noted that she
reviewed all available evidence and that Dr. Chiang’s discussion and write-up were confirmed as
accurate and supported by evidence. (Tr. 97.)
2.
The ALJ Properly Evaluated Ms. Morro’s Relevant Medical
Evidence
The regulations provide that all evidence in a claimant’s case record will be considered
when making a determination or decision whether a claimant is disabled. 20 C.F.R. § 920(a)(3);
see also Ray v. Bowen, 865 F.2d 222, 226 (10th Cir. 1989) (“[t]he ALJ must determine the
claimant's eligibility for disability benefits in light of the entire record”); Herbert v. Heckler, 783
F.2d 128, 130 (8th Cir. 1986) (it is insufficient that there are inconsistencies in objective medical
evidence to support the Secretary's denial of benefits, “[t]he Secretary must demonstrate that she
evaluated all the evidence”).
Ms. Morro’s argument that the ALJ “overlooked the medical opinions, provided in the
record, regarding the severity and pain associated with [her] ovarian cysts” (Doc. 20 at 7) is
misplaced because none of Ms. Morro’s various healthcare providers rendered such medical
opinions.
Medical opinions are statements from an acceptable medical source that reflect
judgments about the nature and severity of [a claimant’s] impairments, including
27
[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. 416.927(a)(1).30 Ms. Morro points to certain evidence wherein she complained of
severe pain (Doc. 20 at 8-9), however, the Court has found no medical opinions in the record
regarding the severity and pain associated with Ms. Morro’s cysts, and the record clearly
establishes that the ALJ thoroughly reviewed and evaluated all the medical record evidence
related to Ms. Morro’s cysts during the relevant time period. In discussing this evidence, the
ALJ concluded that:
[t]he record documents a history of abdominal pain due to the claimant’s ovarian
cysts (2F, 3F, 4F, 5F, 6F, 8F, 9F, 10F, 13F, 14F, 16F, 18F). However, the
objective record does not support greater physical limitations that those outlined
in the residual functional capacity above. The claimant’s treatment has been
essentially conservative, and the physical exams have generally been relatively
benign (2F, 3F, 4F, 5F, 6F, 8F, 9F, 10F, 13F, 14F, 16F, 18F).
(Tr. 26.) Although the ALJ did not discuss Ms. Morro’s treatment history related to her cysts
record-by-record, the Court’s careful and meticulous review of the record, demonstrates that the
ALJ’s findings regarding Ms. Morro’s treatment history and the generally benign nature of her
physical exams related to her ovarian cysts are supported by substantial evidence. See Section
III.B.1.a., supra. Moreover, the State agency nonexamining medical consultants determined that
Ms. Morro’s alleged physical impairments were non-severe and provided no assessment limiting
her ability to do work-related physical activities.31 The ALJ, however, having the benefit of all
30
For all claims filed on or after March 27, 2017, 20 C.F.R. § 404.1527 was rescinded and replaced with 20 C.F.R.
§ 404.1520c. 82 Fed. Reg. 5844, 5869. Further, the Social Security Administration rescinded SSR 96-2p effective
March 27, 2017, to the extent it is inconsistent with or duplicative of final rules promulgated related to Giving
Controlling Weight to Treating Source Medical Opinions found in 20 C.F.R. § 404.1527. 82 Fed. Reg. 5844, 5845.
31
On October 29, 2013, State agency nonexamining medical consultant John Pataki, M.D., reviewed Ms. Morro’s
medical records and summarized that Ms. Morro’s alleged pancreatitis was ruled out as a diagnosis, that her seizures
occurred during alcohol withdrawal, and that as long as Ms. Morro stayed compliant with her treatment of right
ovary cyst her symptoms should resolve and be non-severe 12 months after onset. (Tr. 75-76.) On June 6, 2014,
State agency nonexamining consultant Karen Schnute, M.D., reviewed Ms. Morro’s medical records at
reconsideration and concluded that Ms. Morro’s seizures were non-severe; her ovarian cysts did not pose more than
28
of Ms. Morro’s medical evidence record, limited Ms. Morro to light work. (Tr. 25.) The ALJ
then ultimately relied on two sedentary level jobs that she could perform in the national economy
to determine that she was not disabled. The ALJ, therefore, tempered his findings to Ms.
Morro’s benefit. See Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012) (finding that an ALJ
does not commit reversible error by electing to temper findings for the claimant’s benefit).
To the extent that Ms. Morro’s argument asks the Court to reweigh the evidence, it will
not do so. See Oldham v. Astrue, 509 F.3d 1254, 1257-58 (10th Cir. 2007) (“We review only the
sufficiency of the evidence, not its weight . . . . Although the evidence may also have supported
contrary findings, we may not displace the agency’s choice between two fairly conflicting views
. . . .”). Because the ALJ correctly applied the law and his evaluation of the medical evidence
record related to Ms. Morro’s ovarian cysts is supported by substantial evidence, there is no
reversible error as to this issue.
3.
The ALJ Properly Evaluated Dr. Westbrook’s Medical
Opinion
Ms. Morro argues that the reasons the ALJ cited for according Dr. Westbrook’s medical
opinion only some weight are not supported by the medical evidence in the record. (Doc. 20 at
10.)
Ms. Morro explains that her family history and social difficulties as reported to
Dr. Westbrook were similarly reported in 2008 records from Guidance Center of Lea County,
and therefore support according more weight to Dr. Westbrook’s assessed limitations. (Id.) The
Commissioner contends that the ALJ properly evaluated Dr. Westbrook’s opinion because he
found that Dr. Westbrook’s mental status exam findings were relatively normal, the only
treatment during the relevant period of time was in the form of medication, and mental status
exams performed for CFNP Morris were consistently normal.
(Doc. 22 at 12-13.)
The
a non-severe limitation in function; and there was no evidence of limitation of function due to heart or liver
problems. (Tr. 91-92.)
29
Commissioner further contends that any alleged failure of the ALJ to rely on evidence outside of
the relevant time period is not grounds for remand. (Id. at 13.)
“An ALJ must evaluate every medical opinion in the record, although the weight given
each opinion will vary according to the relationship between the disability claimant and the
medical professional.” Hamlin, 365 F.3d at 1215.
Specifically, when assessing a claimant’s
RFC, an ALJ must explain what weight is assigned to each opinion and why. SSR 96-5p, 1996
WL 374183 at *5.32 “An ALJ must also consider a series of specific factors in determining what
weight to give any medical opinion.” Hamlin, 365 F.3d at 1215 (citing Goatcher v. United
States Dep’t of Health & Human Servs., 52 F.3d 288, 290 (10th Cir. 1995)).33 An ALJ need not
articulate every factor; however, 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.” Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir.
2007).
Ultimately, ALJs are required to weigh medical source opinions and to provide
“appropriate explanations for accepting or rejecting such opinions.” SSR 96-5p, 1996 WL
374183 at *5 (emphasis added); see Keyes-Zachary v Astrue, 695 F.3d 1156, 1161 (10th Cir.
2012) (citing 20 C.F.R. § 416.927(e)(2)(ii))).
The ALJ provided appropriate explanations for the weight he accorded Dr. Westbrook’s
consultative examiner opinion and his findings are supported by substantial evidence. The ALJ
accorded Dr. Westbrook’s opinion some weight and explained that the medical record evidence
32
The Social Security Administration rescinded SSR 96-5p effective March 27, 2017, only to the extent it is
inconsistent with or duplicative of final rules promulgated related to Medical Source Opinions on Issues Reserved to
the Commissioner found in 20 C.F.R. §§ 416.920b and 416.927 and applicable to claims filed on or after March 27,
2017. 82 Fed. Reg. 5844, 5845, 5867, 5869.
33
These factors include the examining relationship, treatment relationship, length and frequency of examinations,
the degree to which the opinion is supported by relevant evidence, the opinion’s consistency with the record as a
whole, and whether the opinion is that of a specialist. See 20 C.F.R. § 416.927(c)(2)-(6) (evaluating opinion
evidence for claims filed before March 27, 2017).
30
as a whole and Dr. Westbrook’s examinations notes supported the moderate social and
concentration limitations she opined, but that they did not support the severe limitations she
assessed. (Tr. 26.) These are appropriate reasons for discounting a medical source opinion. See
20 C.F.R. 416.927(c)(3) and (4) (explaining that the more a medical source presents relevant
evidence to support a medical opinion, particularly medical signs and laboratory findings, and
the more consistent a medical opinion is with the record as a whole, the more weight will be
accorded).
Further, the ALJ’s finding that the medical record evidence as a whole did not support the
severe limitations Dr. Westbrook assessed is supported by substantial evidence. Prior to seeing
Dr. Westbrook, the only record evidence of Ms. Morro’s mental impairments consisted of
records outside the relevant period of time from Guidance Center of Lea County, Inc. (Tr. 82430.) “Evidence outside the relevant time period may be considered to the extent that it assists the
ALJ in determining disability during the relevant time period.” Overstreet v. Astrue, 2012 WL
996608, at *9 (N.D. Okla. Mar. 23, 2012) (unpublished) (citing Hamlin v. Barnhart, 365 F.3d
1208, 1215 (10th Cir. 2004)).
Ms. Morro argues that the 2008 Guidance Center records
corroborate her family history and social difficulties as she reported to Dr. Westbrook. (Doc. 20
at 10.) However, Ms. Morro fails to explain how the 2008 records, generated five years before
her alleged onset date, demonstrate that her mental health impairments rendered her disabled
during the relevant time period. To the contrary, the 2008 records, although documenting
Ms. Morro’s reported history of sexual, physical, and emotional abuse, indicate a diagnostic
impression/conclusion that Ms. Morro “seems motivated to be a nurturing mother to her son, and
to raise him in a healthy emotional environment. Client denies using drugs or alcohol. Her
31
SASSI34 results indicate ‘low probability of substance dependence.’” (Tr. 830.) The medical
record does not contain evidence of any treatment that followed Ms. Morro’s 2008 intake
assessment.
Evidence of specific treatment for Ms. Morro’s mental impairments during the relevant
time period is sparse. After seeing Dr. Westbrook for a consultative exam on October 3, 2013,
Ms. Morro did not seek care related to her mental impairments for a full year. In doing so, she
returned to Dr. Westbrook, who saw her four times from October 29, 2014 through December 2,
2014. (Tr. 543-45, 555-57, 558-60, 560-63.) At each of those four visits, Dr. Westbrook’s
mental status exams, but for noting some motoric restlessness and anxious and depressed mood,
were essentially normal. (Tr. 544, 556, 559, 562.) Further, although Dr. Westbrook initiated
treatment with prescribed medications for Ms. Morro’s intermittent explosive disorder,
Ms. Morro either had difficulty with and/or discontinued the various prescribed medications at
will, such that on December 2, 2014, Dr. Westbrook discontinued all medications and referred to
Carlsbad for any future mental health services.
There is no medical record evidence that
Ms. Morro followed up on Dr. Westbrook’s referral or sought mental health care elsewhere.
Medical record evidence from 2015, as the ALJ noted (Tr. 26), demonstrates that CFNP
Morris noted essentially normal mental status exams throughout the entire year. (Tr. 588, 593,
630, 657, 665, 670, 674, 678, 682, 686, 956, 960, 969, 974, 979, 984.) CFNP Morris prescribed
various medications to treat Ms. Morro’s anxiety during this time, including Sertraline,
Diazepam and Alprazolam. (Tr. 604, 633, 961.) On November 14, 2015, CFNP Morris noted
that Ms. Morro’s anxiety was well controlled with Alprazolam. (Tr. 960.)
The ALJ’s finding that Dr. Westbrook’s examination notes did not support the severe
limitations she opined is also supported by substantial evidence.
34
Substance Abuse Subtle Screening Inventory
32
(Tr. 26.)
Psychological
opinions may rest either on observed signs and symptoms or on psychological tests.
See
Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004); see also Beard v. Colvin, 642 F.
App’x 850, 852 (10th Cir. 2015) (unpublished) (explaining that when an ALJ finds a claimant not
credible, the ALJ may discount a psychological examiner’s findings to the extent they rely on a
claimant’s self-reporting).
Here, Dr. Westbrook did not administer any psychological tests
during her consultative exam. Further, the ALJ discussed Dr. Westbrook’s observations based
on her mental status exam, and determined that her notes supported only moderate social and
concentration limitations, and incorporated those limitations in his mental RFC assessment. (Tr.
26.) The Court finds no error in the ALJ’s analysis. To the extent the ALJ discounted certain of
Dr. Westbrook’s findings because he determined they relied on Ms. Morro’s subjective
self-reporting, he could properly do so having found Ms. Morro not credible.
For the foregoing reasons, the Court finds that the ALJ provided appropriate explanations
for the weight he accorded Dr. Westbrook’s opinion and that his explanations are supported by
substantial evidence. As such, there is no reversible error as to this issue.
4.
Credibility Assessment
Finally, Ms. Morro argues that the ALJ failed to address the measures Ms. Morro took to
alleviate her long history of ongoing pain when he found her statements concerning the intensity,
persistence and limiting effects of his symptoms were not entirely credible. (Doc. 20 at 11.) The
Commissioner contends that the ALJ considered whether the record as a whole was consistent
with Ms. Morro’s allegations of disabling symptoms, and whether her subjective reports were
supported by the medical evidence, and for valid reasons determined that her allegations of
disabling symptoms were not consistent with the record as a whole. (Doc. 22 at 8-11.)
33
“Credibility determinations are peculiarly the province of the finder of fact, and we will
not upset such determinations when supported by substantial evidence.” Wilson v. Astrue, 602
F.3d 1136, 1144 (10th Cir. 2010) (quoting Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995)
(internal quotation omitted)). Nevertheless, an ALJ’s credibility finding “should be closely and
affirmatively linked to substantial evidence and not just a conclusion in the guise of findings.”
Id.; see also SSR 16-3p, 2016 WL 1119029, at *9 (“it is not sufficient for our adjudicators to
make a single, conclusory statement that ‘the individual’s statements about his or her symptoms
have been considered’ or that ‘the statements about the individual’s symptoms are (or are not)
supported or consistent.’”); Thompson v. Sullivan, 987 F.2d 1482, 1489 (10th Cir. 1993) (in
determining the credibility of pain testimony, the ALJ should consider the extensiveness of the
attempts to obtain relief, the frequency of medical contacts, the nature of daily activities, and the
consistency or compatibility of nonmedical testimony with objective medical evidence).
Here, the ALJ’s credibility findings are closely and affirmatively linked to substantial
evidence. The ALJ found that despite Ms. Morro’s allegedly disabling impairments, Ms. Morro
engaged in a somewhat normal level of daily activity and interaction. (Tr. 27.) The ALJ
discussed Ms. Morro’s testimony about her daily activities, and as she reported them in her Adult
Function Report and to Dr. Westbrook, and as reported by her aunt in the Third-Party Adult
Function Report. (Tr. 23-26.) The ALJ specifically noted that Ms. Morro reported and/or
testified about spending time with her aunt and family, playing computer games (puzzles
especially), eating with her family, taking her son to school and school functions, helping take
care of her six year old niece, performing chores around her house, and cleaning her mother-inlaw’s house five days each week. (Id.) The record supports these findings. (Tr. 47-49, 191-95,
231-34, 276-77.) The record also demonstrates that Ms. Morro testified she does laundry, could
34
vacuum if she had to, cares for her dog, has no difficulty driving, provides transportation for her
aunt as needed, and drives by herself to take her dog to the lake or to pick up food. (Tr. 47-49.)
The Court’s review of the record shows that Ms. Morro also reported to Dr. Westbrook that she
enjoys drawing, crocheting, cross stitching, watching television, and visiting with friends and
family. (Tr. 277.) Ms. Morro reported in her Adult Function Report she takes care of a cat,
irons, drives a truck, shops in stores for food and personal items, pays bills, does word search,
regularly goes to the library and to parks, and can walk 4.3 miles before having to rest. (Tr. 23134.) Ms. Morro also reported to Dr. Boyd of Texas Tech Physicians that she had never missed
daily activities of life due to her pain. (Tr. 1101.) In addition to citing Ms. Morro’s activities of
daily living, the ALJ also discussed the objective medical evidence which supported his finding
that Ms. Morro’s history of treatment for abdominal pain due to ovarian cysts, albeit extensive,
was essentially conservative and the associated physical exams were relatively benign. The
record supports this finding. See Section III.B.2., supra. See Bainbridge v. Colvin, 618 F. App’x
384, 387 (10th Cir. 2015) (unpublished) (finding that the ALJ did not err in his credibility finding
where even though claimant was seen 28 times in less than two years for respiratory ailments, his
treatment was conservative, thereby concluding that frequency says little about the intensity of
treatment).
For the foregoing reasons, the Court finds the ALJ’s findings concerning the intensity,
persistence, and limiting effects of her symptoms are closely and affirmatively linked to
substantial evidence. As such, there is no reversible error as to this issue.
35
IV. Conclusion
For the reasons stated above, Ms. Morro’s Motion to Reverse and Remand
Administrative Agency Decision (Doc. 19) is DENIED.
_____________________________________
KIRTAN KHALSA
United States Magistrate Judge,
Presiding by Consent
36
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?