Hodges v. Social Security Administration
Filing
23
MEMORANDUM OPINION AND ORDER by Magistrate Judge Jerry H. Ritter denying 18 Motion to Remand to Agency. (mlt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
VALERIE KAY HODGES,
Plaintiff,
v.
CIV 17-0532 JHR
NANCY A. BERRYHILL,
Acting Commissioner, Social
Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Plaintiff Valerie Kay Hodges’ Brief in Support of
Motion to Remand or Reverse, filed December 18, 2017. [Doc. 18]. Pursuant to 28 U.S.C. §
636(c) and Federal Rule of Civil Procedure 73(b), the parties have consented to the undersigned
to conduct dispositive proceedings in this matter, including the entry of final judgment. [Docs.
10, 11, 12]. Having studied the parties’ positions, the relevant law, and the relevant portions of
the Administrative Record (“AR”), the Court denies Ms. Hodges’ Motion for the reasons set forth
below.
I)
INTRODUCTION
This Court’s institutional role is to ensure that an Administrative Law Judge’s (“ALJ’s”)
decision on the merits of a Social Security appeal is supported by substantial evidence and that
the correct legal standards have been applied. Ms. Hodges contends that neither standard was
met by the ALJ in her case. In support, she points to the ALJ’s alleged failure to consider her
migraines when determining her residual functional capacity. She also posits that the ALJ failed
to properly weigh the medical opinions in the file and assess her credibility. Thus, she asks the
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Court to reverse and remand the ALJ’s decision. However, for the reasons that follow, the Court
finds that Ms. Hodges has failed to demonstrate reversible error, and so affirms the ALJ’s denial
of disability insurance benefits in this case.
II)
BACKGROUND
Ms. Hodges filed an application with the Social Security Administration for disability
insurance benefits under Title II of the Social Security Act on June 28, 2013. AR at 158-59. She
alleged a disability onset date of February 15, 2010 due to “epilepsy, panic disorder with
agoraphobia, anxiety, depression, and vertigo.” AR at 175. The Administration denied Ms.
Hodges’ claim initially and upon reconsideration, and she requested a de novo hearing before an
administrative law judge (“ALJ”). AR at 68-109.
ALJ Janice L. Holmes held an evidentiary hearing on October 22, 2015. AR at 28-67. At
the hearing, Ms. Hodges amended her alleged onset date to August 21, 2012. AR at 31, 171. On
March 2, 2016, the ALJ issued an unfavorable decision, finding that Ms. Hodges has not been
under a disability from her alleged onset date through the date of her decision. AR at 8-27. In
response, Ms. Hodges filed a “Request for Review of Hearing Decision/Order” on May 5, 2016.
AR at 7. After reviewing her case, the Appeals Council denied Ms. Hodges’ request for review
on March 6, 2017. AR at 1-6. As such, the ALJ’s decision became the final decision of the
Commissioner. Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). This Court now has
jurisdiction to review the decision pursuant to 42 U.S.C. § 405(g) and 20 C.F.R. § 422.210(a).
A claimant seeking disability benefits must establish that she is unable 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); 20 C.F.R. §
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404.1505(a). The Commissioner must use a five-step sequential evaluation process to determine
eligibility for benefits. 20 C.F.R. § 404.1520(a)(4). 1
At Step One of the sequential evaluation process, the ALJ found that Ms. Hodges has not
engaged in substantial gainful activity since her alleged onset date. AR at 13. At Step Two, she
determined that Ms. Hodges has the severe impairments of “Non-epileptic Seizure Disorder;
Migraines; Degenerative Disc Disease of the Cervical Spine; Major Depressive Disorder; and
Panic Disorder[.]” AR at 13. At Step Three, the ALJ concluded that Ms. Hodges’ impairments,
individually and in combination, do not meet or medically equal the regulatory “listings.” AR at
14-15. Ms. Hodges does not challenge these findings on appeal.
When a claimant does not meet a listed impairment, the ALJ must determine her residual
functional capacity (“RFC”). 20 C.F.R. § 404.1520(e). RFC is a multidimensional description of
the work-related abilities a plaintiff retains in spite of her medical impairments. 20 C.F.R. §
404.1545(a)(1). “RFC is not the least an individual can do despite his or her limitations or
restrictions, but the most.” SSR 96-8p, 1996 WL 374184, at *1. In this case, the ALJ determined
that Ms. Hodges retains the RFC to:
perform less than a full range of light work as defined in 20 CFR 404.1567(b).
Specifically, the claimant can lift and/or carry twenty pounds occasionally and ten
pounds frequently, stand and/or walk six hours in an eight-hour workday, and sit
six hours in an eight-hour workday. However, the claimant is further limited to no
climbing of ladders, ropes or scaffolds, no exposure to unprotected heights or
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The Tenth Circuit summarized these steps in Allman v. Colvin, 813 F.3d 1326, 1333 n.1 (10th Cir. 2016):
At step one, the ALJ must determine whether a claimant presently is engaged in a substantially
gainful activity. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). If not, the ALJ then decides
whether the claimant has a medically severe impairment at step two. Id. If so, at step three, the
ALJ determines whether the impairment is “equivalent to a condition ‘listed in the appendix of the
relevant disability regulation.’” Id. (quoting Allen v. Barnhart, 357 F.3d 1140, 1142 (10th Cir.
2004)). Absent a match in the listings, the ALJ must decide at step four whether the claimant's
impairment prevents him from performing his past relevant work. Id. Even if so, the ALJ must
determine at step five whether the claimant has the RFC to “perform other work in the national
economy.” Id.
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moving mechanical parts, no operation of motor vehicles, and frequent overhead
reaching. Moreover, the claimant is limited to understanding, remembering, and
carrying out simple instructions and routine tasks, a low stress environment,
which I define as no production rate pace (e.g. no assembly line work), simple
work related decisions, no interactions with the general public, and occasional
interaction with co-workers.
AR at 16.
Employing this RFC at Steps Four and Five, and relying on the testimony of a Vocational
Expert, the ALJ determined that Ms. Hodges is unable to perform her past relevant work as a
paralegal, claims clerk, or administrative assistant. AR at 20, 64. However, the ALJ found that
there are jobs that exist in significant numbers in the national economy that Ms. Hodges can
perform despite her limitations. AR at 21. Specifically, the ALJ determined that Ms. Hodges
retains the functional capacity to work as a cleaner, classifier, or garment sorter. AR at 21-22.
Accordingly, the ALJ determined that Ms. Hodges is not disabled as defined in the Social
Security Act, and denied benefits. AR at 22.
III)
LEGAL STANDARDS
This Court “review[s] the Commissioner’s decision to determine whether the factual
findings are supported by substantial evidence and whether the correct legal standards were
applied.” Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (quoting Mays v. Colvin, 739
F.3d 569, 571 (10th Cir. 2014)). A deficiency in either area is grounds for remand. KeyesZachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012). “‘Substantial evidence’ means ‘such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Racette v. Berryhill, 734 F. App’x 592, 595 (10th Cir. May 22, 2018) (quoting Howard v.
Barnhart, 379 F.3d 945, 947 (10th Cir. 2004)). The Court reviews the record as a whole, does
not reweigh the evidence, and cannot substitute its judgment for that of the Agency. White v.
Berryhill, 704 F. App’x 774, 776 (10th Cir. 2017) (citing Bowman v. Astrue, 511 F.3d 1270,
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1272 (10th Cir. 2008)). “[M]erely technical omissions in the ALJ’s reasoning do not dictate
reversal. In conducting [my] review, [I] should, indeed must, exercise common sense.” KeyesZachary, 695 F.3d at 1166.
IV)
ANALYSIS
Ms. Hodges argues that the “ALJ failed to comply with the required technique for
determining [her] residual functional capacity, … failed to give controlling weight to [her]
treating sources[,] … and failed to assess [her] credibility[.]” [Doc. 18, p. 2]. The Court disagrees
with all of Ms. Hodges’ contentions.
A) The ALJ’s RFC Assessment Adequately Accounts for the Functional
Restrictions Stemming from Ms. Hodges’ Complaints of Migraines.
Ms. Hodges’ first argument is that the ALJ failed to incorporate the functional limitations
of her chronic migraines into the RFC. [See Doc. 18, p. 7]. Specifically, she argues that “the ALJ
failed to evaluate the intensity, persistence, and limiting effects that [her] migraines have on her
ability to perform sustained, full time, work activities as dictated by SSR 96-7p and SSR 96-8p.”
Id. Ms. Hodges’ argument is not supported by the record or pertinent law.
First, the ALJ did not ignore Ms. Hodges’ allegations of migraines when formulating her
RFC. To the contrary, while formulating Ms. Hodges’ RFC the ALJ makes reference to her
complaints of migraines and headaches to various medical providers. See AR at 17-19. After her
review of the record, the ALJ determined that Ms. Hodges’ “complaints of migraines” possibly
affected her concentration and memory. AR at 19. Nonetheless, the ALJ concluded that Ms.
Hodges’ physical exams were “substantially unremarkable, and mental status exam findings
were indicative or a residual ability to manage simple tasks in a low stress environment (and no
public interaction/occasional with co-workers).” Id. Thus, the ALJ did not fail to incorporate Ms.
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Hodges’ functional limitations of her chronic migraines into the RFC; rather, she found none
existed beyond those that were supported by the record.
Moreover, contrary to Ms. Hodges’ suggestion, the ALJ complied with SSR 96-7p 2 and
SSR 96-8p. SSR 96-7p deals with assessing the credibility of an individual’s statements. See
1996 WL 374186. Under it,
[w]hen the existence of a medically determinable physical or mental
impairment(s) that could reasonably be expected to produce the symptoms has
been established, the intensity, persistence, and functionally limiting effects of the
symptoms must be evaluated to determine the extent to which the symptoms
affect the individual’s ability to do basic work activities. This requires the
adjudicator to make a finding about the credibility of the individual’s statements
about the symptom(s) and its functional effects.
Id. at *1. Pertinent here, the ruling instructs that “[s]ymptoms cannot be measured objectively
through clinical or laboratory diagnostic techniques; however, their effects can often be clinically
observed.” Id. at *6.
Here, the ALJ reviewed the record and determined that Ms. Hodges’ migraines, though a
severe impairment under Step Two, caused little in the form of objective functional limitations
for the purposes of her RFC. AR at 19. The ALJ gave Ms. Hodges the benefit of the doubt,
finding that her migraines possibly affect her concentration and memory. Id. Nonetheless, the
ALJ found that the intensity and persistence of Ms. Hodges’ alleged pain and symptoms
resulting from her migraines to be inconsistent with her review of the record. AR at 20.
“Credibility determinations are peculiarly the province of the finder of fact, and we will not upset
such determinations when supported by substantial evidence.” Romo v. Comm'r, Soc. Sec.
Admin., --- F. App’x ----, 2018 WL 4212112, at *4 (10th Cir. Sept. 5, 2018) (quoting Cowan v.
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The Court notes that SSR 96-7p was superseded by SSR 16-3p effective March 28, 2016. However, because the
ALJ’s decision predates this change, the Court applies SSR 96-7p.
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Astrue, 552 F.3d 1182, 1190 (10th Cir. 2008)). Here, substantial evidence supports the ALJ’s
finding that Ms. Hodges’ migraines do not prevent her from working.
Likewise, SSR 96-8p discusses how an adjudicator is to assess residual functional
capacity. See 1996 WL 374184. Under it, an ALJ must consider an individual’s ability to
perform specific work-related functions when viewed through the lens of her impairments. See
id. at *1. Importantly, however, “[w]hen there is no allegation of a physical or mental limitation
or restriction of a specific functional capacity, and no information in the case record that there is
such a limitation or restriction, the adjudicator must consider the individual to have no limitation
or restriction with respect to that functional capacity.” Id.
Ms. Hodges supports her argument with citations to the record, arguing that she has
“persistently complained of migraines.” [Doc. 18, p. 5]. However, none of Ms. Hodges’ record
citations demonstrate restriction of specific functional capacity related to or caused by her
migraines. [See Doc. 18, pp. 5-6]. As the Commissioner rightly argues, “a diagnosis alone is not
disabling. Rather, the question is what limiting effects stemmed from her headaches.” [Doc. 20,
pp. 8-9]. Here, the ALJ’s RFC finding accounted for the limitations that could reasonably be
attributed to Ms. Hodges’ migraines, and the Court agrees with the Commissioner that Ms.
Hodges “has not and cannot identify what additional limitations she believes were warranted by
her headaches but not included in the very restrictive residual functional capacity assessment.”
[Doc. 20, p. 9]. As such, her argument that the ALJ should have incorporated more functional
limitations into the RFC due to her migraines is rejected.
B) The ALJ did not err in Weighing the Medical Opinion Evidence, and was not
required to give Controlling Weight to Ms. Hodges’ Treating Sources.
Next, Ms. Hodges argues that, contrary to controlling law, the “ALJ failed to state what
weight she assigned to [her] treating physicians.” [Doc. 18, p. 8]. Ms. Hodges then summarizes
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her treatment notes for Dr. Raul Jimenez and Atlantis Health Services, focusing specifically
upon her Global Assessment of Functioning (“GAF”) scores. 3 [See Doc. 18, p. 11]. Ms. Hodges
then shifts her focus to the ALJ’s decision to assign the opinion of Dr. Ashok Khushalani “great
weight.” [Doc. 18, pp. 10-11]. She argues that Dr. Khushalani ignored GAF scores that were
“primarily in the 40 range” 4 when determining that she is “stable,” rendering the ALJ’s reliance
on his opinion “in clear violation of 20 C.F.R. §§ 404.1527(c)-(d)[.]” Id. at 12. Unfortunately for
Ms. Hodges, her arguments are foreclosed by case law and the record.
In arguing that the ALJ failed to assign weight to the opinions of her treating physicians,
Ms. Hodges properly states that “[i]t is the ALJ’s duty to give consideration to all the medical
opinions in the record.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012).
However, that is precisely what the ALJ did in this case. See AR at 17-20. While it is true that the
ALJ did not recite the evidence that Ms. Hodges relies on, “an ALJ is not required to discuss
every piece of evidence in the record.” Holcomb v. Astrue, 389 F. App’x 757, 760 (10th Cir.
2010) (quoting Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996)). Rather, she “must
discuss the evidence supporting [her] decision, and in addition ‘must discuss the uncontroverted
evidence [s]he chooses not to rely upon, as well as the significantly probative evidence [s]he
rejects.” Id. Here, the evidence Ms. Hodges relies on is not significantly probative because, as
the Commissioner argues, it does not contain opinions as to her work-related functioning. [See
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“The GAF is a 100–point scale divided into ten numerical ranges, which permits clinicians to assign a single
ranged score to a person's psychological, social, and occupational functioning.” Keyes-Zachary v. Astrue, 695 F.3d
1156, 1162 (10th Cir. 2012) (citing American Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental
Disorders 32, 34 (Text Revision 4th ed.2000)).
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A GAF in the 41–50 range indicates “[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals,
frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends,
unable to keep a job).” Id. A GAF in the 31–40 range indicates “[s]ome impairment in reality testing or
communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such
as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects
family, and is unable to work; child beats up younger children, is defiant at home, and is failing at school).” Id.
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Doc. 20, p. 9]. “Medical opinion” is a term of art. It does not encompass all parts of a medical
record, but merely that which concerns a patient’s “symptoms, diagnosis and prognosis, what she
can still do despite the impairment(s), or her physical and mental restrictions.” Keyes-Zachary v.
Astrue, 695 F.3d 1156, 1164 (10th Cir. 2012) (quoting SSR 06–03p, 2006 WL 2329939, at *6
(Aug. 9, 2006)). Having reviewed the relevant 5 medical records Ms. Hodges relies on, the Court
cannot fault the ALJ for failing to weigh these providers’ “opinions.”
More to the point, “‘[w]hile a GAF score may be of considerable help to the ALJ in
formulating the RFC, it is not essential to the RFC’s accuracy’ and taken alone does not establish
an impairment serious enough to preclude an ability to work.” Holcomb v. Astrue, 389 F. App’x
757, 759 (10th Cir. 2010). This is especially true in Ms. Hodges’ case, where there are
conflicting GAF scores in the record. See AR at 18 (ALJ discussing Dr. James Schutte, Ph.D.’s
diagnosis of a GAF of 60). 6 To the extent that the record contains support for Ms. Hodges’
position, “[t]he ALJ was entitled to resolve such evidentiary conflicts and did so.” Allman v.
Colvin, 813 F.3d 1326, 1333 (10th Cir. 2016).
Ms. Hodges also challenges the ALJ’s reliance on Dr. Khushalani’s opinion because she
believes that he did not review all pertinent evidence. [Doc. 18, p. 10]. As the Commissioner
argues, Ms. Hodges’ “argument amounts to a claim that, because Dr. Khushalani did [not]
explicitly mention the remainder of the records, he did not receive or review them.” [Doc. 20, p.
11]. The Court agrees that Ms. Hodge’s argument is speculative, at best. Although he only
mentioned certain exhibits, Dr. Khushalani was provided with “a Compact Disc (CD) with
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Ms. Hodges relies on several records that post-date her date last insured. These records are irrelevant to the ALJ’s
analysis. “[P]ost-date last insured evidence, to the extent that it relates back, is relevant only if it is reflective of a
claimant’s limitations prior to the date last insured, rather than merely his impairments or condition prior to this
date.” Murphy v. Astrue, 2009 WL 10706708, at *4 (D.N.M. Dec. 11, 2009) (citation omitted).
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A GAF of 51–60 indicates “[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic
attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers
or co-workers).” Id.
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exhibits elected for inclusion in the record of this case[.]” AR at 877. Ms. Hodges admits this
much in her brief, [Doc. 18, p. 10], but argues that Dr. Khushalani’s opinion was nonetheless
inconsistent with other record evidence, including her low GAF scores. [Doc. 18, p. 11]. Ms.
Hodges’ argument would have more force if the ALJ had not tempered her RFC findings in Ms.
Hodges’ favor. See AR at 20 (“While the record suggests the claimant is slightly more limited
than Dr. Khushalani noted, his response were (sic) given considerable weight[.]”). In sum, the
Court discerns no harmful error in the ALJ’s treatment of the medical opinions in this case.
C) The ALJ Reasonably Found Ms. Hodges’ Claims of Disabling Limitations to be
Unsupported by the Record.
Ms. Hodges’ final argument is that “[t]he ALJ failed to assess [her] credibility based on
the record as a whole[.] [Doc. 18, p. 12]. Specifically, she argues that the ALJ “failed to
recognize [her] persistent and continuous efforts to obtain relief or recognize her long job
history.” Id. The Court is not persuaded that the ALJ erred.
As mentioned above, “[c]redibility determinations are peculiarly the province of the
finder of fact, and [the Court] will not upset such determinations when supported by substantial
evidence.” Romo, 2018 WL 4212112, at *4. In assessing a claimant’s symptoms, an ALJ must
consider the objective medical evidence, a claimant’s daily activities, the location, duration
frequency, and intensity of the pain or other symptom, precipitating and aggravating factors, the
type, dosage, effectiveness and side effects of medication taken to combat the symptom, and
“other factors concerning your functional limitations and restrictions due to pain and other
symptoms.” See 20 C.F.R. § 404.1529(c)(3). Contrary to Ms. Hodges’ position, the ALJ’s
credibility finding met this standard.
First, the ALJ recited Ms. Hodges’ allegations. AR at 16. Next, before reviewing the
medical evidence, the ALJ stated that “the medical evidence of record does not support the
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severity level of her symptoms as alleged.” Id. Finally, the ALJ stated that Ms. Hodges’
“activities of daily living, as alleged, are not in accord with the severity level of the impairments
or pain based on the objective findings. It is also significant that no physician reports that the
claimant is disabled.” AR at 20. In other words, the ALJ complied with the pertinent regulations
when assessing the effect Ms. Hodges’ symptoms have on her ability to work, despite failing to
explicitly recognize her efforts to find relief and job history. While the Court is sympathetic to
Ms. Hodges’ plight, it must remind her that, even though she “undoubtedly has chronic pain, []
‘to be disabling, the pain must be so severe, by itself or in conjunction with other impairments, as
to preclude any substantial gainful employment.’” Romo, 2018 WL 4212112, at *4 (emphasis
added) (quoting Brown v. Bowen, 801 F.2d 361, 362-63 (10th Cir. 1986)). Ms. Hodges has failed
to demonstrate that the ALJ ignored evidence showing she cannot perform any work, and so the
Commissioner’s decision must be affirmed.
V)
CONCLUSION
There is no denying that Ms. Hodges suffers from severe impairments that prevent her
from performing her past work as a paralegal. However, this does not mean she is precluded
from all work. So concluded the ALJ, and, on appeal, Ms. Hodges has failed to demonstrate that
the ALJ committed reversible error in formulating her RFC, considering the medical opinion
evidence, or assessing her credibility.
Wherefore, Plaintiff’s Motion (Doc. 18) is hereby denied. A Final Judgment pursuant to
Federal Rule of Civil Procedure 58 will be entered concurrently.
SO ORDERED.
_______________________________
Jerry H. Ritter
U.S. Magistrate Judge
Presiding by Consent
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