Sadongei v. Commissioner of Social Security

Filing 22

MEMORANDUM OPINION AND ORDER. The court AFFIRMS the Commissioner's decision. Signed by Magistrate Judge Suzanne Mitchell on 1/6/17.(lb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
SONDRA L. SADONGEI,
Plaintiff,
vs.
CAROLYN W. COLVIN, acting
Commissioner Social Security
Administration,
Defendant.

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Case No. CIV-16-407-SM

MEMORANDUM OPINION AND ORDER
Sondra L. Sadongei (Plaintiff) brings this action for judicial review of
the Defendant Acting Commissioner of Social Security’s (Commissioner) final
decision that she was not “disabled” under the terms of the Social Security
Act. See 42 U.S.C. §§ 405(g), 423(d)(1)(A). The parties have consented under
28 U.S.C. § 636(c) to proceed before a United States Magistrate Judge. Doc.
13.

Following a careful review of the parties’ briefs, the administrative

record (AR), and the relevant authority, the court affirms the Commissioner’s
decision.
I.

Administrative determination.
A.

Disability standard.

The Social Security Act defines “disability” as the “inability to engage
in any substantial gainful activity by reason of any medically determinable

physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not less
than 12 months.” 42 U.S.C. § 423(d)(1)(A). “This twelve-month duration
requirement applies to the claimant’s inability to engage in any substantial
gainful activity, and not just h[er] underlying impairment.” Lax v. Astrue,
489 F.3d 1080, 1084 (10th Cir. 2007) (citing Barnhart v. Walton, 535 U.S.
212, 218-19 (2002)).
B.

Burden of proof.

Plaintiff “bears the burden of establishing a disability” and of “ma[king]
a prima facie showing that [s]he can no longer engage in h[er] prior work
activity.” Turner v. Heckler, 754 F.2d 326, 328 (10th Cir. 1985). If Plaintiff
makes that prima facie showing, the burden of proof then 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. Id.
C.

Relevant findings.

The ALJ assigned to Plaintiff’s case applied the standard regulatory
analysis and concluded Plaintiff had not met her burden of proof. AR 17-23;
see 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4); see also Wall v. Astrue, 561

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F.3d 1048, 1052 (10th Cir. 2009) (describing the five-step analysis).
Specifically, the ALJ found Plaintiff:
(1)
was severely impaired, first, by obesity, second, by migraines,
third by cervical disc disease, fourth by asthma, and fifth by
hypertension;
(2)
did not have an impairment or combination of impairments that
met or medically equaled the severity of a listed impairment;
(3)
had the residual functional capacity (RFC)1 to perform light work
and could occasionally balance, stoop, kneel, crouch, crawl and climb
ramps and stairs; can occasionally reach overhead and frequently
engage in all other reaching; could not climb ladders, ropes, and
scaffolds; must avoid concentrated exposure to dusts, fumes, gases,
odors, and poor ventilation; and is limited to unskilled work;
(4) could not perform any past relevant work;
(5) could perform jobs that exist in significant numbers in the national
economy, such as electronics worker, small product assembler II, and
machine tender; and so,
(6)
had not been under a disability, as defined in the Social Security
Act, from February 1, 2009 through the November 18, 2014, the date of
the ALJ’s decision.
AR 18-24.
2. Appeals Council action.
The Social Security Administration’s (SSA) Appeals Council found no
reason to review that decision, so the ALJ’s decision is the Commissioner’s

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).
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final decision in this case. AR 1-6; see Krauser v. Astrue, 638 F.3d 1324, 1327
(10th Cir. 2011).
II.

Judicial review of the Commissioner’s final decision.
A.

Review standards.

A court reviews the Commissioner’s final “decision to determine
whether the factual findings are supported by substantial evidence and
whether the correct legal standards were applied.” Mays v. Colvin, 739 F.3d
569, 571 (10th Cir. 2014) (internal quotation marks omitted). Substantial
evidence is “more than a scintilla, but less than a preponderance.” Lax, 489
F.3d at 1084.

A decision is not based on substantial evidence “if it is

overwhelmed by other evidence in the record.”
(internal quotation marks omitted).

Wall, 561 F.3d at 1052

The court will “neither reweigh the

evidence nor substitute [its] judgment for that of the agency.” Newbold v.
Colvin, 718 F.3d 1257, 1262 (10th Cir. 2013) (internal quotation marks
omitted).
B.

Plaintiff’s claim of error.

Plaintiff argues “[n]othing in the ALJ’s decision indicates he gave any
consideration to [Plaintiff’s] anxiety” and notes the ALJ is required to
consider all the relevant medical and non-medical evidence of record when
assessing RFC. Doc. 17, at 9-11. In response, the Commissioner maintains
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the ALJ found Plaintiff’s mental impairment to be nonsevere and considered
it in the RFC assessment. Doc. 21, at 7-11.
C.

Analysis.
1.

The ALJ’s step-two analysis.

As the Commissioner points out, Plaintiff testified at the hearing her
“depression and bipolar disorder” July 3, 2014 diagnosis stemmed from
“anxiety attacks.” Id. at 41-42. In his opinion, the ALJ discussed Plaintiff’s
bipolar disorder, without specifically mentioning anxiety. Id. at 18. The ALJ
then applied the Commissioner’s psychiatric review technique and stated
“[b]ecause the claimant’s medically determinable mental impairment causes
no more than ‘mild’ limitation in any of the first three functional areas and
‘no’ episodes of decompensation of extended duration in the fourth area, it is
nonsevere.” Id. at 19.2
To the extent Plaintiff alleges the ALJ ignored her anxiety diagnosis,
the court finds no reversible error. That is, it is clear the ALJ considered
Plaintiff’s anxiety as an aspect of her mental impairment (bipolar disorder)—
as she presented it—and his failure to specifically mention “anxiety” is

Though not clearly argued, the undersigned agrees with the
Commissioner that any step-two error is harmless here. Allman v. Colvin,
813 F.3d 1326, 1330 (10th Cir. 2016) (stating “the failure to find a particular
impairment severe at step two is not reversible error when the ALJ finds that
at least one other impairment is severe”).
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harmless error. See also Osborn v. Colvin, No. 14-cv-00966-LTB, 2015 WL
9186177, at *5 (D. Colo. Dec. 17, 2015) (unpublished order) (holding the ALJ’s
failure to discuss plaintiff’s “anxiety or personality disorder” as a separate
mental impairment from that of plaintiff’s “severe mental impairments of
bipolar disorder and cannabis dependence” was harmless error where the
ALJ considered whether plaintiff’s mental impairments as a whole satisfied
the listings); see also Bales v. Colvin, 576 F. App’x 792, 799 (10th Cir. 2014)
(“[T]here is no indication that, despite not expressly mentioning [Plaintiff’s]
other medical problems, the ALJ did not take them into account.”).
2.

The ALJ’s step-four analysis.

Because the ALJ found Plaintiff's mental impairment to be medically
determinable, but not severe, he was required to consider it in his RFC
assessment. He did, and the court finds no error in the assessment.
First, the ALJ considered “all of [plaintiff’s] impairments individually
and in combination” and gave “careful consideration [to] the entire record” in
making the RFC assessment. AR 19, 20. “Where, as here, the ALJ indicates
he has considered all the evidence our practice is to take the ALJ at his
word.”

Wall, 561 F.3d at 1070 (alteration and internal quotation marks

omitted). So, the court declines to find the ALJ ignored Plaintiff’s anxiety in
making his RFC assessment.
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Further, the ALJ specifically noted that “the mental residual functional
capacity assessment used at steps 4 and 5 of the sequential evaluation
process requires a more detailed assessment . . . .”

Id.at 19; cf. Wells v.

Colvin, 727 F.3d 1061, 1069 (10th Cir. 2013) (The ALJ may not “rely on his
step-two findings to conclude that [plaintiff] had no limitation based on her
mental impairments.”).

He then considered the appropriate findings in

making the RFC assessment. AR 19; see also Madrid v. Astrue, 243 F. App’x
387, 392 (10th Cir. 2007) (noting that the “diagnosis of a condition does not
establish disability,” as the question is whether an “impairment significantly
limits” the ability to work). Clearly, while the discussion was brief, the ALJ
considered Plaintiff’s mental impairments in making an RFC determination
and did not rely on the step-two assessment in place of an RFC analysis. See
Suttles v. Colvin, 543 F. App’x 824, 826 (10th Cir. 2013) (determining proper
RFC assessment where ALJ discussed evidence relating to plaintiff's
nonsevere mental impairment and, “[s]ignificantly, the ALJ did not make any
ancillary statement, like that made by the ALJ in Wells, affirmatively
suggesting

an

improper

conflation

of

the

step-two

and

step-four

assessments”); cf. Alvey v. Colvin, 536 F. App’x 792, 794 (10th Cir. 2013)
(finding that ALJ failed to adequately consider plaintiff's nonsevere mental
impairments at step four when ALJ apparently conflated the step-two and
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step-four findings and “did not engage in any analysis” of mental functions or
impairments but holding the error harmless “[b]ecause the evidence in this
case does not support assessing any functional limitations from mental
impairments”).
Second, “[t]he RFC assessment considers only functional limitations
and restrictions that result from an individual’s medically determinable
impairments or combination of impairments . . . .” SSR 96-8p, 1996 WL
374184, at *1 (July 2, 1986).

“The mere presence of a condition is not

necessarily disabling. Rather, a condition, alone or in combination with other
impairments, must render claimant unable to engage in any substantial
gainful employment.” Walters v. Colvin, 604 F. App’x 643, 648 (10th Cir.
2015) (alterations and internal quotation marks omitted). The record reveals
Plaintiff’s anxiety does not render her unable to engage in substantial gainful
employment.
For example, Plaintiff fails to explain specifically what additional
limitations were needed based on her anxiety or any other mental
impairment. She did not mention anxiety attacks at all in the paperwork she
submitted to the agency. See e.g., AR 157, 162, 170, 173, 391, 406-11, 415,
423-30, 433, 444-51; cf. id. at 86-115. No doubt she received numerous refills
of prescriptions of medication to treat anxiety on a fairly regular basis since
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2010 through the May 2014 visit where Plaintiff “admit[ted] depression since
death of son 1 ½ years ago.” Id. at 550, 634, 654, 656, 665-66, 667, 671, 674,
687, 710, 714-15, 719, 728, 734, 739, 765, 775, 785-86, 791, 767-97, 807, 809,
836.

However, in no other instance predating May 2014 were anxiety

symptoms a chief or lesser complaint. Further, those same medical records
indicate Plaintiff was mentally alert and in no apparent distress, and mood
and affect were consistently normal. Id. at 549, 552, 636, 651, 654, 654, 658,
665, 673, 686, 703, 718, 727, 738, 774, 794, 802, 835.

Also, depression

screenings on July 18, 2012, October 15, 2012, October 30, 2102, February 28,
2103, June 21, 2013, and February 12, 2014, were “normal/negative.” Id. at
669, 682, 692, 698, 708, 778, 830. Depression screenings dated August 27,
2013 and July 23, 2014 were “positive.” Id. at 723, 819. The October 24,
2014 depression screening was again “normal/negative.” Id. at 830.
On July 3, 2014, Plaintiff’s chief complaints were “depression,” “mood
instability,” “feeling hyper,” and “anxiety.” Id. at 809, 810. She received a
diagnosis of bipolar affective disorder. Id. at 811. She reported she had not
been taking her prescribed diazepam, Paxil, or hydroxyzine and her treating
physician suggested discontinuing these medications. Id. at 812. Though
there are sporadic reports of mental health related complaints, this instance
appears to be the only mental health treatment record. Id. at 763-64, 783-94,
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804, 806, 809, 819, 859-60. The ALJ noted Plaintiff’s July 2014 diagnosis and
stated “she has received little treatment for this condition.” Id. at 18.
In sum, the ALJ considered plaintiff’s nonsevere mental impairment—
which included her anxiety—at step four and concluded plaintiff had no
functional limitations resulting from it. Id. at 20. The ALJ was not required
to impose any limitations in the RFC unless the record bore out those
limitations.

Plaintiff cites no evidence indicating her anxiety causes any

functional limitations, and based upon the medical evidence in the record, the
court can find none. Accordingly, her argument that she cannot do unskilled
work fails for these reasons as well.

SSR 96-8p, 1996 WL 374184, at *1

(when there is no allegation of a specific functional limitation, and no
information in the record regarding any such limitation, “the adjudicator
must consider the individual to have no limitation or restriction with respect
to that functional capacity”); see Miller v. Astrue, 496 F. App’x 853, 859-60
(10th Cir. 2012) (affirming notwithstanding ALJ’s failure to discuss severe
mental impairment as part of his RFC determination, where “claimant was
not markedly impaired in any functional areas” for purposes of Paragraph B
criteria, and claimant failed to provide any additional record evidence of
mental functional limitations resulting from personality disorder (emphasis
omitted)); Grede v. Astrue, 443 F. App’x 323, 325-26 (10th Cir. 2011)
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(affirming where the ALJ found mental impairment non-severe, made no
further findings concerning a mental impairment at step four, but stated he
had considered all of claimant’s symptoms and the medical evidence); Barrett
v. Astrue, 340 F. App’x 481, 485 (10th Cir. 2009) (finding no reversible error
where ALJ concluded mental impairments were non-severe and therefore
included no mental limitation in RFC, but also “indicated that he had . . .
considered the entire record and all of [the] claimant’s symptoms to the
extent . . . they were reasonably consistent with the evidence, including the
objective medical evidence”); see also McAnally v. Astrue, 241 F. App’x 515,
518 (10th Cir. 2007) (when Plaintiff did not “identify any additional”
limitations that should have been included or discuss any evidence that
would support the inclusion of additional limitations, the RFC stands).
III.

Conclusion.
The court AFFIRMS the Commissioner’s decision.
ENTERED this 6th day of January, 2017.

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