Lemley-Vusirikapalli v. Astrue
Filing
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REPORT AND RECOMMENDATION the undersigned Magistrate Judge recommends the Commissioner's decision be affirmed. This Report and Recommendation disposes of all issues referred to the Magistrate Judge in this matter. re 1 Complaint Social Security filed by Katrina Lemley-Vusirikapalli Objections to R&R due by 1/22/2014. Signed by Magistrate Judge Suzanne Mitchell on 1/2/2014. (sr)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
KATRINA LEMLEY-VUSIRIKAPALLI,
Plaintiff,
vs.
CAROLYN W. COLVIN,1 acting
Commissioner Social Security
Administration,
Defendant.
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) Case No. CIV-13-45-R
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REPORT AND RECOMMENDATION
Katrina Lemley-Vusirikapalli (Plaintiff) brought this action pursuant to
42 U.S.C. § 405(g) seeking judicial review of Defendant Acting Commissioner’s
(Commissioner) final decision denying Plaintiff’s applications for disability
insurance benefits and supplemental security income payments under the Social
Security Act. United States District Court Judge David L. Russell referred the
matter for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C), and it is now
before the undersigned Magistrate Judge. Upon review of the pleadings, the
administrative record (AR), and the parties’ briefs, the undersigned recommends
the Commissioner’s decision be affirmed.
1
Effective February 14, 2013, Carolyn W. Colvin became the Acting
Commissioner of Social Security. Pursuant to Rule 25(d)(1) of the Federal Rules
of Civil Procedure, Carolyn W. Colvin is substituted for Michael J. Astrue as
Defendant in this action.
I.
Administrative proceedings.
In documents supporting her October 2010 applications, Plaintiff alleged
disability since July 26, 2010, claiming she suffered from bipolar disorder,
personality disorder, carpal tunnel and hand conditions that resulted in surgery,
and tennis elbow. AR 211. During an administrative review hearing following
the initial denial of Plaintiff’s claims, an Administrative Law Judge (ALJ) heard
testimony from Plaintiff – represented by Miles Mitzner, an attorney, at the
hearing and here on judicial review – and a vocational expert. Id. at 42-61. That
ALJ subsequently determined Plaintiff was severely impaired by “Bi-polar
disorder, personality disorder, carpal tunnel syndrome with surgery on both
hands, and tennis elbow . . . .” Id. at 22. Though he found Plaintiff could not
perform her past relevant work because of functional limitations resulting from
these impairments, the ALJ concluded Plaintiff could perform other substantial
gainful activity, and, as a result, was not disabled. Id. at 36, 37. The Appeals
Council of the Social Security Administration denied Plaintiff’s request for
review, id. at 1-3, and Plaintiff ultimately sought review of the Commissioner’s
final decision in this Court. Doc. 1.
II.
Determination of disability.
The Social Security Act defines “disability” as the “inability to engage in
any substantial gainful activity by reason of any medically determinable
2
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). The Commissioner applies a five-step inquiry
to determine whether a claimant is disabled. See 20 C.F.R. §§ 404.1520(b)-(f),
416.920(b)-(f); see also Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988)
(describing five steps). Under this sequential procedure, Plaintiff bears the
initial burden of proving she has one or more severe impairments. See 20 C.F.R.
§§ 404.1512; 416.912. Turner v. Heckler, 754 F.2d 326, 328 (10th Cir. 1985).
Then, if Plaintiff shows she can no longer engage in prior work activity, the
burden of proof shifts to the Commissioner to show Plaintiff retains the capacity
to perform a different type of work and that such a specific type of job exists in
the national economy. See Turner, 754 F.2d at 328; Channel v. Heckler, 747 F.2d
577, 579 (10th Cir. 1984).
III.
Analysis.
A.
Standard of review.
This Court reviews the Commissioner’s final “decision to determin[e]
whether the factual findings are supported by substantial evidence in the record
and whether the correct legal standards were applied.” Wilson v. Astrue, 602
F.3d 1136, 1140 (10th Cir. 2010).
“Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a
3
conclusion.” Id. (quotation omitted). “A decision is not based on substantial
evidence if it is overwhelmed by other evidence in the record or if there is a mere
scintilla of evidence supporting it.” Bernal v. Bowen, 851 F.2d 297, 299 (10th
Cir. 1988).
B.
Plaintiff’s claims of error.
Plaintiff brings four claims of error: (1) the ALJ relied on nonexistent
medical evidence in reaching his decision;2 (2) the ALJ failed to properly analyze
Plaintiff’s credibility; (3) the ALJ erred in finding Plaintiff had only a moderate
limitation in her social functioning; and (4) the ALJ failed to include Plaintiff’s
physical impairments in his assessment of her residual functional capacity
(RFC).3 Doc. 11, at 2-12.
1.
The medical evidence of record.
a.
Evidence of physical impairment.
At the outset, it is necessary to address what Plaintiff is actually
challenging through her first claim of error. Id. at 3-6. She labels the claim as
“treating physician error,” id. at 3, but the only doctor she refers to in her
argument on the claim is Dr. Metcalf. Id. at 4. The record shows that Dr.
2
Plaintiff raises this claim of error under the heading, “The Treating
Physician Error.” Doc. 12, at 3-6.
3
Residual functional capacity “is the most [a claimant] can still do despite
[a claimant’s] limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).
4
Metcalf examined Plaintiff’s hands, wrists, arms, and elbows for purposes of
providing a workers’ compensation evaluation in June 2008, some two years
before Plaintiff’s July 2010 onset of disability. AR 256-58. Plaintiff does not
explain how performing this one-time consultative examination somehow
elevated Dr. Metcalf to the status of a treating physician whose opinions, when
properly supported, command controlling weight. Doc. 12, at 6; see 20 C.F.R. §§
404.1527(d)(2), 416.927(d)(2).
Perhaps Plaintiff intended to differentiate
between Dr. Metcalf and the non-examining State agency medical consultants
including Charles Clayton, M.D., and Luther Woodcock, M.D., who reviewed the
medical evidence in this case and opined on the severity of Plaintiff’s physical
impairments. AR 342, 343.
These State consultants arrived at their opinions after reviewing Dr.
Metcalf’s report as well as the report of Dennis Brennan, D.O., who, like Dr.
Metcalf, examined Plaintiff, but did so in December 2010 at the request of the
Social Security Administration.4 Id. at 311-17. Based on their reviews of the
reports of the two examining doctors, the State agency medical experts reported:
37 yo [claimant] with allegations of a Bipolar disorder with CTS
with previous surgery and tennis elbow.
4
In her reply brief, Plaintiff identifies Drs. Metcalf and Brennan as her
treating physicians. Doc. 14, at 6. This is not correct. These physicians saw and
examined Plaintiff only one time – they did not treat her within the meaning of
the regulations. See 20 C.F.R. §§ 404.1527(d)(1), (2), 416.927(d)(1), (2).
5
Dr. letter from Dr. Metcalf 6/12/08, mentions 12/18/07 CTS release
surgery physical exam of the R hand revealed positive Tinel’s sign,
median nerve compression test and Phalen’s test. There was some
tenderness to palpation of the radiocarpal joint and the central
carpal joints of the wrist with decrease[d] sensation of the little
finger. L hand was positive for T[i]nel’s sign, median nerve
compression test and Phalen’s test. Also tenderness to palpation of
the radiocarpal joint/central joints of the wrist with decrease[d]
sensation in thumb. Bilateral elbows had normal ROM with
tenderness to palpation of the medial epicondyle and biceps tendon
and antecubital fossa. Bilat elbow Tinel sign negative.
ICE performed [by Dr. Brennan on] 12/8/10 stated vitals: HT:63.5,
WT: 152.61bs, BP: 121/81. Focus exam showed normal ROM of
shoulders, elbows, wrists and hands, hips, knees, and ankles.
[Claimant] has a well healed surgical cicatrix on palmar surface of
both hands. [Claimant] had negative Tinel’s/Phalen’s sign
bilaterally with grip strength 4/5 and symmetrical bilaterally.
Radial pulses satisfactory bilaterally. Cranial nerves intact, DTR’s
2+ and symmetrical. [Claimant] had normal hand skills with finger
to thumb opposition adequate and fine tactile manipulation normal.
It is determined that [claimant’s] physical allegations are
non-severe.
AR 342, 343.
The ALJ summarized the reports of both examining consultants, id. at 23,
and both non-examining State agency experts, id. at 24-25, and concluded that
Plaintiff was severely impaired by “carpal tunnel syndrome with surgery on both
hands, and tennis elbow . . . .” Id. at 22. Then, after assessing Plaintiff’s
credibility, the ALJ limited her to light work, finding she was “able to work with
her fingers picking, pinching and otherwise work with her hands.” Id. at 28.
6
Thus, the ALJ weighed the conflicting evidence5 and determined that Plaintiff’s
physical impairments were severe and that they functionally limit her ability to
perform any work exceeding the light exertional level.
Plaintiff, apart from making the erroneous, unsupported claim that Dr.
Metcalf was a treating physician, Doc. 12, at 3, 6, then implicitly challenges the
ALJ’s RFC for light work by inviting the court to question Dr. Clayton’s case
analysis, AR 342, first, because “[t]his one page document is not even evidence,
it’s only one page.” Doc. 12, at 4. She continues, claiming the physician’s
analysis only “recites other, real physician’s, notes and then simply finds
‘physical allegations are non-severe.’ (TR 342) That finding is nothing more
than a cruel joke when one reads the second paragraph of the document which
contains Dr. Metcalf’s notes.” Doc. 12, at 4 (emphasis added). In this vein,
Plaintiff contends in her reply brief “that the ALJ’s RFC was corrupted because
5
Dr. Metcalf found Plaintiff had a 30% permanent impairment to each hand
and a 20% impairment to each arm. AR 256-58. Consequently, as the ALJ
found, Dr. Metcalf concluded Plaintiff had “sustained an anatomical alteration
that was permanent.” Id. at 23, 258.
In contrast, Dr. Brennan – on examination several years after Plaintiff’s
carpal tunnel and trigger thumb release procedures – found that she had
“normal [range of motion] of the shoulders, elbows, wrists and hands as noted
on the [range of motion] flow sheet.” Id. at 312. And, as the ALJ noted, Dr.
Brennan further found that Plaintiff “had normal hand skills, finger to thumb
opposition was adequate, [and] fine tactile manipulation of objects was normal
. . . .” Id. at 23.
7
[Plaintiff’s] hands carry a 30% impairment from her treating physicians . . . [t]he
ALJ also failed to identify any argument as to why such uncontradicted evidence
wasn’t reliable, another violation of the treating physician rule.” Doc. 14, at 6-7
(emphasis added).
Dr. Metcalf’s evidence,6 of course, was not “uncontradicted,” id. at 6, and
Plaintiff offers no rationale challenging the correctness of the ALJ’s
consideration of the conflicting evidence provided by Dr. Brennan, AR 311-17,
the other examining physician. Doc. 12, at 3-6. Instead, she simply ignores both
Dr. Brennan and his opinions in her briefing on this claim of error. Similarly,
Plaintiff dismisses the contradictory evidence of record from the State medical
experts, Drs. Clayton and Woodcock, concluding their opinions are “nothing;
certainly not substantial evidence to support the ALJ opinion.” Id. at 5. As
support, in addition to arguing that the written case analyses of the nonexamining physicians are not actually evidence because they are only one page
long, id. at 4, Plaintiff maintains these opinions are “suspect” under Tenth
Circuit law. Id. at 6. To the contrary, with regard to the opinions of State
agency experts, Social Security regulations provide that
6
Plaintiff testified that Dr. Metcalf imposed an eight-pound lifting
restriction. AR 47. This claim is not supported by the doctor’s report. Id. at
256-58.
8
Administrative law judges are not bound by any findings made by
State agency medical or psychological consultants, or other program
physicians or psychologists. State agency medical and psychological
consultants and other program physicians, psychologists, and other
medical specialists are highly qualified physicians, psychologists,
and other medical specialists who are also experts in Social Security
disability evaluation. Therefore, administrative law judges must
consider findings and other opinions of State agency medical and
psychological consultants and other program physicians,
psychologists, and other medical specialists as opinion evidence
....
20 C.F.R. §§ 404.1527(f)(2)(i), 416.927(f)(2)(i).
Plaintiff has failed to establish error by the ALJ in his consideration of the
evidence relating to Plaintiff’s physical impairments and functional limitations.
b.
Evidence of mental impairment.
Consistent with her physical impairment arguments, and despite having
identified her claim as “treating physician error,” Doc. 12, at 3, Plaintiff, once
again, neither identifies a treating mental health physician nor any opinion
authored by such a physician that she claims was improperly considered by the
ALJ. Id. at 3-6. The closest she comes is in connection with her third claim of
error where, with regard to her social functioning, she states that “[h]er treating
doctor said this was a severe area. (TR 277)” Id. at 9. Nonetheless, there is no
indication on the referenced page, AR 277, or in the document as a whole that
any physician, treating or otherwise, was responsible for the assessment. Id. at
275-87.
9
Rather than actually asserting error by the ALJ as to the opinions of a
treating physician, Plaintiff instead points to Exhibit 5F, id. at 324-27, a Mental
Residual Functional Capacity Assessment. Doc. 12, at 4. She correctly notes
that the document is neither signed nor dated and argues, “It is not evidence,
and certainly not substantial evidence. It could have been completed by anyone.
In any form of measure it is not ‘medical’ evidence. It is without foundation or
author.” Id. She repeats these same arguments in connection with Exhibit 6F,
AR 328-41, a Psychiatric Review Technique. Id. She then challenges Exhibit
10F, id. at 363, and Exhibit 11F, id. at 364, both signed by non-examining State
agency psychologists, confirming their agreement with the unsigned, undated
assessments. Doc. 12, at 5. Plaintiff concludes, “So that’s it. There is no more
evidence to support the ALJ decision.” Id.
In response, the Commission appended a “tracking sheet” as Attachment
A to her brief in an effort to match the unsigned, undated assessments with the
subsequent statements from the State agency psychologists. Doc. 13, at 4.
Because the Commissioner’s attachment is not a part of the record on review, the
undersigned has not considered it.7
Nonetheless, Plaintiff, through counsel, had the opportunity to object to
7
The undersigned notes that the record contains case development sheets
which reflect the links between the various exhibits. AR 64, 70.
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the admission of Exhibits 5F and 6F into the record and she failed to do so. AR
45. The objections she now voices could, and should, have been raised by counsel
at that time. Moreover, when Plaintiff argues that there is no evidence of record
to support the ALJ’s assessment of her mental impairments and resulting
functional limitations because of anomalies in various exhibits, she ignores, once
again, the findings of a consultative examiner in this case, this time the findings
made by R. Keith Green, Ph.D. Id. at 321-23. The ALJ summarized Dr. Green’s
findings as follows:
R. Keith Green, Ph.D., conducted a consultative Mental Status
Examination on January 7, 2011 (Exhibit 4F). The claimant
present with complaints of auditory hallucinations, orthopedic
problems and anxiety. Her concentration and numerical reason was
adequate although attention and past were impaired. She
demonstrated the ability to retain and carry out simple, detailed
and more complex situations. Her social relationships appeared to
fall within normal limits except that she avoids heterosexual
relationships. The claimant’s activities of daily living also appeared
to fall within normal limits. The doctor said that one would
estimate the severity of impairment of functional psychological
capacity for work to be mild to moderate. She can handle her own
funds. Dr. Green found the claimant had Psychotic Disorder, Not
otherwise specified, generalized anxiety disorder and Dysthymic
disorder, personality disorder (with avoidant and borderline
features[)]. Her prognosis was found to be poor. The claimant feels
she was deteriorating psychologically and seems committed to
biomedical explanations of her problems in living with no insight as
to psychosocial precipitants.
Id. at 24.
This evidence from Dr. Green supports the ALJ’s findings consistent with
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the requirements of 20 C.F.R. §§ 404.1520a(c), (e)(4); 416.920a(c), (e)(4), AR 2628, as well as his assessment of Plaintiff’s retained ability “to sustain
concentration necessary for unskilled work,” id. at 28, despite her mental
impairments. Plaintiff has raised no objection to the ALJ’s consideration of Dr.
Green’s analysis in either her opening brief or in reply to the Commissioner’s
argument regarding this evidence. She has failed to establish error by the ALJ
in his consideration of the evidence relating to her mental impairments and
functional limitations.
2.
Plaintiff’s credibility.
Plaintiff maintains the ALJ “briefly summarized the medical evidence
(including the testimony of the claimant), but did not affirmatively link any of
the factors to specific evidence.” Doc. 12, at 6. In this regard, an ALJ’s
credibility findings reflect his consideration of Plaintiff’s allegations of disabling
symptoms in order to “decide whether he believe[d them].”
Thompson v.
Sullivan, 987 F.2d 1482, 1489 (10th Cir. 1993) (quotation omitted). In making
this determination, an ALJ should consider factors such as the following:
the levels of medication and their effectiveness, the extensiveness
of the attempts (medical or nonmedical) to obtain relief, the
frequency of medical contacts, the nature of daily activities,
subjective measures of credibility that are peculiarly within the
judgment of the ALJ, the motivation of and relationship between the
claimant and other witnesses, and the consistency or compatibility
of nonmedical testimony with objective medical evidence.
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Hargis v. Sullivan, 945 F.2d 1482, 1489 (10th Cir. 1991) (quotation omitted).
Likewise, an ALJ’s “[f]indings as to credibility should be closely and
affirmatively linked to substantial evidence and not just a conclusion in the
guise of findings.” Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (quotation
omitted).
Contrary to Plaintiff’s assertion, the ALJ plainly provided the
requisite linkage in this case. See AR 29, 35.
Next, Plaintiff points to the ALJ’s finding that “the claimant’s statements
concerning the intensity, persistence and limiting effects of these symptoms are
not credible to the extent they are inconsistent with the above residual
functional capacity assessment.” AR 35; see Doc. 12, at 7. She maintains that
it evidences “an improper approach to credibility.” Doc. 12, at 7. Relying on the
Seventh Circuit’s decision in Bjornson v. Astrue, 671 F.3d 640, 644-45 (7th Cir.
2012), Plaintiff contends that
[t]he problem with the ALJ’s analysis of the claimant’s credibility
(apart from vagueness) is that she should have first evaluated the
claimant’s testimony (along with all the other evidence) according
to the guidelines and only then formulated an appropriate RFC, not
the other way around, i. e., the ALJ apparently judged the
credibility of the claimant’s testimony by comparing it to a predetermined RFC.
Id. (footnote omitted).
The ALJ’s decision reflects otherwise.
In proceeding through the
sequential process, the ALJ set out his RFC finding – a finding reached “[a]fter
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careful consideration of the entire record,” AR 28 – and then detailed how he had
arrived at such an assessment, specifically stating that “[i]n making this finding”
he had considered Plaintiff’s symptoms. Id. The ALJ noted he was required to
evaluate whether Plaintiff had shown by objective medical evidence that she
suffered from a pain-producing impairment and, if so, whether such an
impairment could reasonably be expected to produce Plaintiff’s pain and, if so,
whether Plaintiff’s pain was disabling in the light of the entire record. Id.; see
also Luna v. Bowen, 834 F.2d 161, 163-64 (10th Cir. 1987). To this end, the ALJ
thoroughly summarized Plaintiff’s testimony with regard to her subjective
complaints, AR 26, and then determined that Plaintiff’s complaints regarding
the extent of her symptoms were not fully credible, id. at 35, a determination
that was linked to evidence in the record. Id. at 29, 35. Notwithstanding the
ALJ’s use of language suggesting that the RFC had been formulated before
Plaintiff’s credibility was assessed, id. at 35, his decision plainly reflects that the
opposite occurred.
Finally, Plaintiff suggests the ALJ’s credibility assessment is somehow
faulty because (1) she is in so much pain she attempted suicide, (2) she has
consistently received Global Assessment of Functioning (GAF) scores of 50 and
“[s]uch consistency reflects an inability to sustain employment,” and (3) the
vocational expert “made a big deal” out of the fact that Plaintiff had held
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numerous jobs. Doc. 12, at 8. Simply put, Plaintiff’s arguments do not undercut
the ALJ’s credibility determination because (1) Plaintiff’s reported suicide
attempt was in 2004, some six years before her alleged onset of disability date
and does not reflect on the believability of her current subjective complaints, AR
267; (2) Plaintiff fails to direct the court to specific GAF scores with findings
suggesting error in the ALJ’s evaluation of her subjective complaints, Doc. 12,
at 8; and (3) the vocational expert merely stated that Plaintiff had approximately
forty job entries and asked the ALJ if he should list them, and declined to
speculate on a possible reason that an individual could have had this number of
jobs. AR 57, 59-60.
Plaintiff’s claims of error with regard to the ALJ’s assessment of her
credibility are unavailing.
3.
Plaintiff’s social functioning limitation.
As has been previously reported, supra § III.B.1.b, Plaintiff argues that
with regard to the ALJ’s finding that she has a moderate limitation in social
functioning, AR 26-27, “[h]er treating doctor said this was a severe area. (TR
277)” Doc. 12, at 9. But, there is no indication on the referenced page, AR 277,
or in the document as a whole, id. at 275-87, that any physician, treating or
otherwise, was responsible for the assessment. Moreover, Plaintiff has cited no
authority for her claim that “if the ALJ had checked ‘marked’ then [Plaintiff]
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meets a listing.” Doc. 12, at 10.
4.
Plaintiff’s physical RFC.
Here, Plaintiff maintains the ALJ’s RFC assessment did not account for
all of her physical impairments. Id. She does not, however, advise the court
what limitations the ALJ omitted nor does she provide a supported argument to
demonstrate that any such omission was improper.8 See supra § III.B.1.a.
Neither does she provide support – evidentiary or legal – for her suggestion that
the ALJ improperly questioned the vocational expert. Doc. 12, at 10. And, as to
those questions, Plaintiff raises a claim with regard to the ALJ’s failure to ask
the vocational expert about the use of her hands but does so for the first time in
her reply brief. Doc. 14, at 6. This Court declines to consider issues raised in
this manner. See Montoya v. Apfel, No. 99-2156, 2000 WL 556582, at *1 n.3
(10th Cir. May 8, 2000) (unpublished op.) (recognizing district court’s refusal to
consider an issue raised for the first time in a reply brief and holding the issue
waived “because the issue was not before the district court”).
IV.
Recommendation and notice of right to object.
For the reasons stated, the undersigned Magistrate Judge recommends
the Commissioner’s decision be affirmed.
8
Plaintiff does not appear to acknowledge that the ALJ found she had a
severe physical impairment and a resulting limitation to work at no greater than
the light exertional level. AR 28.
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The parties are advised of their right to object to this Report and
Recommendation by January 22, 2014, in accordance with 28 U.S.C. § 636 and
Fed. R. Civ. P. 72. The parties are further advised that failure to make timely
objection to this Report and Recommendation waives their right to appellate
review of both factual and legal issues contained herein. Moore v. United States,
950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the
Magistrate Judge in this matter.
ENTERED this 2nd day of January, 2014.
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