Johnson v. Commissioner of Social Security Administration
Filing
17
MEMORANDUM OPINION AND ORDER -- The Court has reviewed the medical evidence of record, the transcript of the administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties. Based on the forgoing analysis, the Court AFFIRMS the Commissioner's decision. Signed by Magistrate Judge Shon T. Erwin on 5/24/18. (mc)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JENNIFER JOHNSON,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,
Defendant.
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Case No. CIV-17-1004-STE
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the
final decision of the Commissioner of the Social Security Administration denying Plaintiff’s
application for disability insurance benefits under the Social Security Act. The
Commissioner has answered and filed a transcript of the administrative record
(hereinafter TR. ____). The parties have consented to jurisdiction over this matter by a
United States magistrate judge pursuant to 28 U.S.C. § 636(c).
The parties have briefed their positions, and the matter is now at issue. Based on
the Court’s review of the record and the issues presented, the Court AFFIRMS the
Commissioner’s decision.
I.
PROCEDURAL BACKGROUND
Initially and on reconsideration, the Social Security Administration denied Plaintiff’s
application for benefits. Following an administrative hearing, an Administrative Law Judge
(ALJ) issued an unfavorable decision. (TR. 15-27). The Appeals Council denied Plaintiff’s
request for review. (TR. 1-3). Thus, the decision of the ALJ became the final decision of
the Commissioner.
II.
THE ADMINISTRATIVE DECISION
The ALJ followed the five-step sequential evaluation process required by agency
regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R.
§ 404.1520. At step one, the ALJ determined that Plaintiff had not engaged in substantial
gainful activity since April 1, 2013, her alleged onset date. (TR. 17). At step two, the ALJ
determined Ms. Johnson had the following severe impairments: degenerative disc
disease; narcolepsy; seizures; status post hip disorder; status post thyroidectomy; chronic
pain syndrome; major depressive disorder; posttraumatic stress disorder (PTSD); and
anxiety disorder. (TR. 17). At step three, the ALJ found that Plaintiff’s impairments did
not meet or medically equal any of the presumptively disabling impairments listed at 20
C.F.R. Part 404, Subpart P, Appendix 1 (TR. 19).
At step four, the ALJ concluded that Ms. Johnson retained the residual functional
capacity (RFC) to:
[P]erform light work as defined in 20 CFR 404.1567(b) except the claimant:
can occasionally stoop, kneel, and crawl; can understand and remember
simple instructions; and perform work related to simple, routine, and
repetitive tasks.
(TR. 21). With this RFC, the ALJ concluded that Plaintiff was unable to perform any past
relevant work. (TR. 25). As a result, the ALJ made additional findings at step five. There,
2
the ALJ presented several limitations to a vocational expert (VE) to determine whether
there were other jobs in the national economy that Plaintiff could perform. (TR. 53-54).
Given the limitations, the VE identified three jobs from the Dictionary of Occupational
Titles. (TR. 54). The ALJ adopted the testimony of the VE and concluded that Ms. Johnson
was not disabled based on her ability to perform the identified jobs. (TR. 26-27).
III.
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 conclusion.” Id. (quotation omitted).
While the court considers whether the ALJ followed the applicable rules of law in
weighing particular types of evidence in disability cases, the court will “neither reweigh
the evidence nor substitute [its] judgment for that of the agency.” Vigil v. Colvin, 805
F.3d 1199, 1201 (10th Cir. 2015) (internal quotation marks omitted).
IV.
ISSUES PRESENTED
On appeal, Plaintiff alleges the ALJ erred in evaluating: (1) the RFC, (2) a
consultative examiners’ opinion, and (3) Plaintiff’s subjective allegations.
V.
NO ERROR IN THE RFC
As stated, the ALJ determined Ms. Johnson had the following severe impairments:
degenerative disc disease; narcolepsy; seizures; status post hip disorder; status post
3
thyroidectomy; chronic pain syndrome; major depressive disorder; posttraumatic stress
disorder (PTSD); and anxiety disorder. (TR. 17). Ms. Johnson alleges that the ALJ failed
to include limitations in the RFC stemming from these severe impairments, along with
limitations related to non-severe impairments involving constipation, migraine headaches,
and a Vitamin D deficiency. (ECF No. 15:6-27). The Court disagrees.
A.
ALJ’s Duty in Assessing the RFC
Once a claimant’s impairments are deemed severe at step two, the ALJ has a duty
to discuss their impact throughout the remainder of the disability determination. 20 C.F.R.
§ 404.1545(a)(2). Indeed, in formulating the RFC, the ALJ must discuss the combined
effect of all the claimant’s medically determinable impairments, both severe and
nonsevere. See Wells v. Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013). However, “a finding
that an impairment is severe at step two is not determinative of the claimant’s RFC.”
Johnson v. Berryhill, 679 F. App’x 682, 687 (10th Cir. 2017).
“The question is not whether the RFC recounts or lists the ‘severe’ impairments
found at step two, but whether the RFC accounts for the work-related limitations that
flow from those impairments.” Cavalier v. Colvin, 13-CV-651-FHM, 2014 WL 7408430, at
*2 (N.D. Okla. Dec. 30, 2014). In assessing an individual’s RFC, the ALJ must consider
the limitations and restrictions imposed by a claimant’s severe impairments and express
any limitations in terms of specific, work-related activities he or she is able to perform.
See SSR 96-8p, 1996 WL 374184, at *6-7 (July 2, 1996).
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B.
Degenerative Disc Disease
Plaintiff argues that her degenerative disc disease caused her chronic pain and
difficulty sitting and standing “for any prolonged period of time.” (ECF No. 15:7).
According to Ms. Johnson “it does not support the light RFC and the ability to stand and
walk most of the day” and “at a minimum, a sit-stand option should have been considered
by the ALJ.” (ECF No. 15:7).
Plaintiff’s argument lacks merit because she has failed to meet her burden of proof
that her degenerative disc disease would interfere with her ability to perform light work
or that she would require a sit-stand option. “The burden to prove disability in a social
security case is on the claimant, and to meet this burden, the claimant must furnish
medical and other evidence of the existence of the disability.” Branum v. Barnhart, 385
F.3d 1268, 1271 (10th Cir. 2004); see 20 C.F.R. § 404.1512(c) (explaining, in context of
DIB, that claimant bears responsibility for identifying or submitting evidence that relates
to finding of disability).
In support of her argument regarding her difficulty sitting and standing and the
need for a “sit-stand” option, Plaintiff cites: (1) her own testimony and (2) a single
medical record from Dr. Bruce Mackey. (ECF No. 15:7).
At the hearing, Ms. Johnson stated that her chronic pain was aggravated by sitting
or standing “for any prolonged period of time.” (TR. 37). The ALJ considered the
testimony and then discounted it, stating “[Ms. Johnson’s] . . . chronic pain and back
impairments, while painful, [were] not as functionally limiting as alleged.” (TR. 22). In
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reaching this conclusion, the ALJ cited “little evidence of chronic debilitating pain, such
as repeated episodes of muscle atrophy, spasms, or reduced range of motion.” (TR. 22).
Ms. Johnson also cites a medical record from Dr. Mackey, wherein the physician
diagnosed “chronic pain syndrome with intervertebral disc disorder with myelopathy,
lumbar region.” But “[t]he mere diagnosis of a condition does not establish its severity or
any resulting work limitations.” Paulsen v. Colvin, 665 F. App’x 660, 668 (10th Cir. 2016).
Ms. Johnson does not specifically challenge the ALJ’s treatment of her testimony,
but only argues that she could not perform light work and the RFC should have included
a sit-stand option. (ECF No. 15:7). But Plaintiff’s testimony, which the ALJ had discounted,
and a diagnosis, without more, are insufficient bases on which to disturb the RFC
determination. See McNally v. Astrue, 241 F. App’x. 515, 518 (10th Cir. 2007) (“with
regard to [her severe impairments], the claimant has shown no error by the ALJ because
she does not . . . discuss any evidence that would support the inclusion of any
limitations.”) (citation omitted). Accordingly, the Court rejects Plaintiff’s argument that
the RFC should have included additional limitations related to her degenerative disc
disease.
C.
Narcolepsy, Status Post Thyroidectomy, and Vitamin D Deficiency
Plaintiff states that her narcolepsy causes her to “fall asleep” and she suffers
fatigue owing to her narcolepsy, her thyroidectomy, and a Vitamin D deficiency. (ECF No.
15:7-10, 14-16). As a result, Plaintiff alleges error through the ALJ’s failure to account for
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these conditions in the RFC or explain the lack of related limitations. (ECF No. 15:7-10,
14-16).
In support of her argument that “sleep limitations” ought to have been included in
the RFC, Plaintiff cites: (1) her own testimony, (2) a Google search, and (3) a scholarly
article. (ECF No. 15:7-10, 11-12).
At the hearing, Ms. Johnson stated:
•
she had “severe fatigue,”
•
she could “fall asleep even sitting there driving,”
•
her thyroid condition and medication made her “extremely tired,”
•
her sleeping patterns were reversed, causing her to sleep all day and be
alert at night, and
•
she believed the “falling asleep” would get her fired.
(TR. 37, 39-41, 49-50).
The ALJ considered the testimony and discounted it, stating:
[Plaintiff] had intermittently complained of ongoing fatigue associated with
her resultant hypothyroidism, but the record indicates that these symptoms
have been at least partially alleviated with medication. . . . Likewise, the
claimant’s narcolepsy has been helped “significantly” with Adderall and
melatonin has dramatically improved her sleep quality.
(TR. 23-24). Ms. Johnson acknowledges that the ALJ cited Plaintiff’s use of medication to
alleviate some of her sleep-related issues. (ECF No. 15:8, 15). Even so, Plaintiff states:
“‘[h]elped’ and cured are two different things; [Ms. Johnson] still has ‘narcolepsy +
cataplexy’ symptoms.” (ECF No. 15:8). But the ALJ considered Plaintiff’s testimony, and
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explained why, in light of other evidence, he did not believe that the RFC required
limitations related to sleepiness or fatigue. Plaintiff does not specifically challenge the
ALJ’s treatment of her testimony and the Court finds the ALJ’s explanation sufficient. See
Wall v. Astrue, 561 F.3d 1048, 1068 (10th Cir. 2009) (“The ALJ properly discounted
Claimant’s testimony regarding her fatigue based on the substantial evidence in the
record—which the ALJ thoroughly discussed in his decision[.]”).
Plaintiff also relies on a Google search and a scholarly article in support of her
allegations of fatigue, but the arguments are not persuasive. (ECF No. 15:9-10). First,
Plaintiff states “a quick GOOGLE search of fatigue and thyroid cancer (TC) returns
numerous results reflecting what a widespread problem fatigue is for TC survivors[.]”
(ECF No. 15:9). But the Court is not concerned with the widespread phenomenon
involving fatigue in general for thyroid cancer survivors, only with how fatigue affected
Ms. Johnson.
Second, Ms. Johnson references a single medical record documenting her low
Vitamin D, and then cites an article which links low levels of Vitamin D to fatigue. (ECF
No. 15:10). But again, the generalization is of no concern to the Court, especially in light
of the fact that the physician who diagnosed Ms. Johnson’s low Vitamin D did not link it
to fatigue or otherwise opine that the condition would somehow impact Plaintiff’s ability
to work. See TR. 1059. Accordingly, the Court rejects Plaintiff’s challenge to the RFC for
failing to include certain limitations relating to her narcolepsy, thyroidectomy, or low
Vitamin D.
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D.
Seizures
At the hearing, Plaintiff testified that she suffered from seizures which occurred
weekly and left her fatigued. (TR. 37). Plaintiff’s mother, who had witnessed the seizures,
testified that after a seizure, it took her daughter “approximately a day” to recover. (TR.
47). The ALJ acknowledged the testimony from Plaintiff and her mother, and stated:
[T]here is little if any objective evidence of ongoing seizure activity. The
claimant alleges that her seizures are ongoing, but there is no mention of
continuing seizure activity in her 2015 treatment notes, and her 2016
treatment notes reflect a diagnosis of narcolepsy with cataplexy, rather than
a seizure disorder. In addition, the claimant’s husband, Jason Bell, stated in
January 2015 that the claimant had not had any seizures since starting
Keppra in late 2014. Given the degree of control evidenced by the medical
record, the undersigned . . . finds that the claimant’s seizure disorder is
adequately accounted for with the [RFC].
(TR. 23-24). Ms. Johnson alleges: (1) she is still having seizures and the RFC should have
included related limitations and (2) the ALJ should have recontacted one of Plaintiff’s
physicians regarding her seizures. Neither argument has merit.
First, the ALJ has no duty to include limitations in the RFC which are not supported
by the record. See Kirkpatrick v. Colvin, 663 F. App’x. 646, 650 (10th Cir. 2016) (“Clearly,
an ALJ doesn’t commit error by omitting limitations not supported by the record”); Arles
v. Astrue, 438 F. App’x 735, 740 (10th Cir. 2011) (rejecting plaintiff’s claim a limitation
should have been included in his RFC because “such a limitation has no support in the
record”). Here, the ALJ explained why he believed the record did not support the inclusion
of any limitations related to Plaintiff’s seizures. (TR. 23-24). Thus, the Court finds no error
in the ALJ’s failure to incorporate any seizure-related limitations in the RFC.
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Second, Plaintiff argues that records from her treating neurologist, Amer Nouh:
(1) contradict the ALJ’s rationale for discounting Plaintiff’s testimony and (2) are largely
unreadable, triggering a duty in the ALJ to recontact the physician for clarification. (ECF
No. 15:10-11). The Court disagrees. First, Ms. Johnson identifies a record from Dr. Nouh
dated November 6, 2014 and argues: “[the ALJ’s] subjective assertion that there were
no records is patently false.” (ECF No. 15:11). But the ALJ’s assertion regarding the
absence of evidence documenting continuing seizure activity concerned treatment notes
in 2015, not 2014—the year of the record cited by Plaintiff. Second, Ms. Johnson argues
that the bulk of Dr. Nouh’s records are illegible and the ALJ should have recontacted the
physician for clarification of his opinion. (ECF No. 15:10-11). Plaintiff is wrong.
In White v. Barnhart, 287 F.3d 903, 907–08 (10th Cir. 2001), the court held that
the ALJ has a duty to “recontact a treating physician when the information the doctor
provides is inadequate to . . . . determine whether you [the claimant] are disabled.”
(alteration in original) (internal citation omitted). In White, the plaintiff argued that the
ALJ had a duty to recontact a physician for clarification of an opinion that the ALJ had
rejected. Id. at 908. The Court disagreed, noting “it is not the rejection of the treating
physician’s opinion that triggers the duty to recontact the physician; rather it is the
inadequacy of the “evidence” the ALJ “receive[s] from [the claimant’s] treating physician”
that triggers the duty. See id. The ALJ in White believed the information he received from
the treating physician was “adequate” for consideration; that is, it was not so incomplete
that it could not be considered. See id. However, the ALJ also believed that the conclusion
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the physician had reached was insufficiently supported by the record as a whole. Id.
White is controlling.
Here, the ALJ did not reject Dr. Nouh’s records because he deemed them
inadequate, but instead, due to the lack of records documenting seizures in 2015 and
2016 and evidence that the seizures had been effectively treated through medication.
See supra. These reasons are valid bases for the ALJ to discount Plaintiff’s testimony. See
Luna v. Bowen, 834 F.2d 161, 165 (10th Cir. 1987) (noting that in evaluating a plaintiff’s
subjective symptoms, an ALJ must consider various factors, including: (1) levels of
medication and their effectiveness, (2) the frequency of medical contacts, and (3) the
consistency or compatibility of nonmedical testimony with objective medical evidence).
Based on the forgoing, the Court rejects Plaintiff’s allegations regarding the
inclusion of limitations into the RFC related to seizures and a duty to recontact Dr. Nouh.
E.
Status Post Hip Disorder
Plaintiff argues that “[w]alking or sitting 6 hours a day is just going to exacerbate
her hip . . . condition” 1 and that the RFC “is simply wrong and against common sense.”
(ECF No. 15:14). In support, Plaintiff cites: (1) a single record from Dr. Mackey and (2)
her hearing testimony. (ECF No. 15:13-14). Plaintiff’s arguments are not persuasive.
First, the only notation on the record from Dr. Mackey concerning Plaintiff’s hip is
a diagnosis of: “Enthesopathy of Hip Region.” (TR. 680). Dorland’s Medical Dictionary
Plaintiff actually states that her hip and back condition would be exacerbated by performing
light work. See ECF No. 15:14. But the Court has already addressed Plaintiff’s degenerative disc
disease. See supra.
1
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defines “enthesopathy” as a “disorder of the muscular or tendinous attachment to bone.”
See Dorland’s Medical Dictionary. At step two, the ALJ acknowledged that Plaintiff had a
“severe” hip disorder, which correlates with the diagnosis from Dr. Mackey. But as noted,
a diagnosis, alone, does not require a finding of resulting limitations in the RFC. See
supra, Paulsen.
But Plaintiff does not cite any medical evidence, either in this particular record
from Dr. Mackey, or otherwise, that her hip disorder had caused any specific limitations
in walking. Thus, her reliance on Dr. Mackey’s record is insufficient. See McNally, supra.
Next, Plaintiff relies on her testimony at the hearing, where she had stated:
•
one leg was shorter than the other, which caused to her walk with an
abnormal gait,
•
she was born without a hip socket which affected her ability to walk, and
•
her surgeon had recommended a revision surgery on her right hip.
(TR. 40-41). The ALJ considered Plaintiff’s testimony, but ultimately found that it did not
require limitations beyond those found in the RFC, citing:
•
evidence documenting Plaintiff’s ability to move “with ease,”
•
treatment notes indicating “no significant limitation in gait or posture,”
•
evidence documenting Plaintiff’s “normal gait,” and
•
a notation from Plaintiff’s treating physician stating that although Plaintiff
walked with a “slight antalgic gait,” she did not require an assistive device.
(TR. 22-23). Plaintiff does not acknowledge the ALJ’s findings, but instead only argues
that the RFC did not properly account for her hip disorder. But without supporting
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evidence, the Court cannot reach the same conclusion. See Kirkpatrick, at 648–49
(affirming the RFC because the plaintiff had failed to show that his alleged impairments
had limited his functioning beyond that which was set forth in the RFC). Plaintiff presented
no evidence in support of her allegations, and the ALJ properly discounted Ms. Johnson’s
testimony. Thus, the Court rejects Plaintiff’s challenge to the RFC involving limitations
related to her hip disorder.
F.
Chronic Pain Syndrome
Plaintiff references her chronic pain syndrome and need for hip surgery and then
argues that the ALJ performed an “understated” pain analysis. (ECF No. 15:16). When
evaluating Plaintiff’s chronic pain, the ALJ stated that the impairment “while painful, [was]
not as functionally limiting as [Plaintiff] alleged.” (TR. 22). In support, the ALJ relied on:
(1) the absence of evidence of chronic debilitating pain, including “repeated evidence of
muscle atrophy, spasms, or reduced range of motion” and (2) “inconsistent treatment
notes” concerning her ability to walk. (TR. 22). Ms. Johnson challenges both rationales,
but neither argument has merit.
First, regarding the ALJ’s statement that the Plaintiff’s chronic pain was “not as
functionally limiting as [Plaintiff] alleged,” 2 Ms. Johnson states:
Where is the ALJ getting that information? There is nothing in the file that
supports that ridiculous pain analysis. It is as if pulled from whole cloth,
because she needs a back fusion and hip surgery and would have had it if
she had not lost her insurance. She is in chronic pain management for
2
(TR. 22).
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heaven’s sake, and has been since 2011. She has been on numerous pain
drugs that failed or that she was allergic to the[m].
(ECF No. 15:16). In answer to Plaintiff’s question, the ALJ answered the same by
providing evidentiary support for his conclusions. See supra. And regarding Ms. Johnson’s
alleged need for hip surgery, this fact does not necessarily translate to a finding that
Plaintiff required more restrictive walking limitations than were outlined in the RFC.
Finally, the ALJ acknowledged the fact that Plaintiff had received pain management from
two physicians. (TR. 17). But that fact alone, does not render the ALJ’s pain analysis
deficient.
Second, the ALJ had relied on “inconsistent treatment notes” concerning Plaintiff’s
ability to walk. (TR. 22). In challenging this rationale, Ms. Johnson states: “The ALJ also
mentions in this paragraph that [Plaintiff] was on a walker, then not on a walker, and
that makes her treatment notes ‘inconsistent.’” (ECF No. 15:16). But Plaintiff has misread
the ALJ’s analysis, as the “inconsistency” he noted concerned the fact that treatment
records from January through July 2013 indicated both that Plaintiff needed a walker to
ambulate, and that she also had no significant limitations in gait or posture. (TR. 22).
Plaintiff does not specifically challenge this rationale or attempt to disprove it, but only
states “there is no substantial evidence supporting the ALJ’s statement.” (ECF No. 15:17).
But Ms. Johnson fails to elaborate on her cursory statement, or otherwise explain why
the ALJ’s statement lacked substantial evidence. This the Court will not do for her. See
Kirkpatrick at 649 (noting that “it isn’t [the Court’s] obligation to search the record and
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construct a party’s arguments.”). Based on the forgoing, the Court rejects Plaintiff’s
challenge to the ALJ’s analysis of her chronic pain.
G.
Mental Impairments
At step two, the ALJ opined that Plaintiff suffered from “severe” impairments
involving: major depressive disorder; PTSD; and anxiety disorder. (TR. 17). In the RFC,
the ALJ accounted for the mental impairments by limiting Ms. Johnson to work which
involved only the ability to understand and remember simple instructions and perform
work related to simple, routine, and repetitive tasks. (TR. 21).
According to Ms. Johnson, the ALJ erred in: (1) failing to consider the combination
of her mental and physical impairments, (2) his consideration of Plaintiff’s mental
impairments, and (3) failing to incorporate specific limitations into the RFC to reflect the
mental impairments. (ECF No. 15:17-20). The Court disagrees.
First, in the opinion, the ALJ specifically stated that in assessing the RFC, he had
considered all of claimant’s medically determinable impairments, both physical and
mental, and both severe and non-severe. (TR. 19). Thus, the Court rejects Plaintiff’s first
argument. See Wall v. Astrue, 561 F.3d 1048, 1070 (10th Cir. 2009) (“Where, as here,
the ALJ indicates he has considered all the evidence our practice is to take the ALJ at
[his] word.”) (alteration in original).
Second, Ms. Johnson acknowledges that the ALJ had discounted Plaintiff’s mental
impairments, citing only minimal support in the records, but Plaintiff argues that the ALJ
provided only “vague references” in support and “there is ample MER and testimony to
15
consider and analyze Ms. Johnson’s mental impairments and the related functionally
distinct limitations therefrom.” (ECF No. 15:18). Two problems exist with Plaintiff’s
arguments. First, the ALJ did more than provide “vague references” in evaluating
Plaintiff’s mental impairments. Instead, the ALJ cited records from 2013-2015 which
noted:
•
“increased anxiety” owing to incorrect medication dosing,
•
Normal mood, affect, concentration, and attention span,
•
Appropriate mood and affect with intact memory, attention span, and
concentration, and
•
that Plaintiff’s mental condition did not cause more than “minimal
limitation.”
(TR. 24). Second, although Plaintiff references “ample” medical evidence of record and
her “several efforts” to receive mental health treatment, Ms. Johnson does not identify
the medical evidence, nor explain her efforts in seeking treatment. (ECF No. 15:18). As
noted, the burden is on Ms. Johnson “to furnish medical and other evidence of the
existence of the disability.” See supra, Branum. But Plaintiff has failed in this regard and
the Court will not do this job for her. See supra, Kirkpatrick.
Finally, Ms. Johnson argues that the ALJ erred in failing to incorporate specific
limitations into the RFC to reflect the mental impairments. But the ALJ explained why he
believed the RFC did not warrant the inclusion of such limitations, and that is all he was
required to do. See Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007) (remand
required for ALJ to explain the evidentiary support for his RFC determination). Thus, the
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Court rejects Plaintiff’s argument regarding the inclusion of additional limitations in the
RFC related to Plaintiff’s mental impairments. See Arles, at 740 (rejecting plaintiff’s claim
a limitation should have been included in his RFC because “such a limitation has no
support in the record”).
H.
Non-Severe Impairments
Ms. Johnson alleges that the RFC “does not include consideration of the alleged
non-severe impairments” including constipation and migraine headaches. (ECF No.
15:20-24). 3 The Court disagrees.
At the hearing, Plaintiff testified:
•
she would sometimes go days without a bowel movement and her
constipation required her to “dig out” her stools which caused bleeding and
pain, and
•
she had suffered migraine headaches for approximately one year which
lasted for 2-3 days and caused vomiting.
(TR. 44, 50-51). In evaluating the impact of these impairments, the ALJ noted that
Plaintiff had reported using medication, as needed, to help with her constipation and that
medical records documenting Plaintiff’s denial of migraines conflicted with her report of
the same. See TR. 18-19. Ms. Johnson challenges both rationales, arguing that the
evidence the ALJ had relied on was insufficient. See ECF No. 15:23 (arguing that the ALJ’s
reliance on a “stale” report about Plaintiff’s constipation “could not constitute substantial
The Court has already addressed the non-severe impairment involving Plaintiff’s alleged Vitamin
D deficiency. See supra.
3
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evidence on which the ALJ could rely in formulating his RFC.”); ECF No. 15:24 (arguing
that the ALJ’s reliance on evidence documenting the lack of migraine headaches “flies in
the face of the record as a whole and significant evidence otherwise.”).
But the problem with Ms. Johnson’s argument is that she has once again failed to
satisfy her burden of proof. In her argument, Plaintiff refers to “significant evidence” in
the record which she believes contradicts the ALJ’s findings, but Plaintiff does not identify
the evidence or any limitations she believed the ALJ should have included in the RFC
owing to either condition. As noted, the mere diagnosis of a condition—either constipation
or migraine headaches—is insufficient—the focus is on whether the impairment caused
any work-related limitations. See supra.
If Plaintiff believed that the ALJ’s treatment of the conditions was insufficient or
that he failed to account for limitations related to either condition, she needed to have
explained why and/or identified what evidence would support a different conclusion or
what limitations she believed flowed from the impairments. As noted, the Court will not
construct Plaintiff’s arguments for her, and once again, Plaintiff’s failure to meet her
burden of proof is fatal to her claims. Thus, the Court concludes that the ALJ adequately
considered and evaluated Ms. Johnson’s constipation and migraine headaches and rejects
Plaintiff’s contrary argument.
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VI.
NO ERROR IN THE CONSIDERATION OF A CONSULTATIVE EXAMINER’S
OPINION
On June 25, 2015, consultative psychologist Dr. Stephanie Crall examined Plaintiff
and made two pertinent findings:
1. Plaintiff’s ability to engage in work-related mental activities such as
sustaining attention, understanding, and remembering and to persist at
such activities was likely adequate for simple and complex tasks and
2. The presence of Plaintiff’s various mental and physical impairments would
“likely interfere with her ability to adapt to a competitive workplace.”
(TR. 908).
In evaluating Dr. Crall’s opinion, the ALJ stated:
Having reviewed the claimant’s records, including Dr. Crall’s report, the
State agency consultative physicians opined that the claimant could perform
simple and complex tasks commensurate with her training and intellectual
abilities, could relate to others on a superficial work basis, and could adapt
to work situations. In weighing the forgoing, the undersigned has
considered that Dr. Crall had the opportunity to examine the claimant while
the State agency consultative physicians did not. However, the consultative
physicians also had the opportunity to review the claimant’s remaining
records. Those records, to the extent that they contain relatively benign
mental examination findings, support the consultative examiners’
conclusions regarding the claimant’s ability to adapt to the work
environment. Moreover, the claimant’s own descriptions of her limitations—
that she can shop in stores and go to church—indicate that her abilities are
not as limited as implied by Dr. Crall, as such, Dr. Crall’s opinions are given
only partial weight, while the consultative physician’s opinions are given
some weight.
(TR. 25). Ms. Johnson argues: (1) the ALJ improperly relied on Plaintiff’s daily activities
as a basis for discounting Dr. Crall’s opinion, (2) improperly accorded more weight to the
19
State Agency physicians’ opinions and (3) the ALJ’s treatment of Dr. Crall’s opinion was
“vague and conclusory.” (ECF No. 15:27-29). The Court disagrees.
First, although sole reliance on daily activities might have been improper, see
Thompson v. Sullivan, 987 F.2d 1482, 1491 (10th Cir. 1993), here, the ALJ did not rely
only on Ms. Johnson’s daily activities in evaluating Dr. Crall’s opinion. See TR. 25. Indeed,
it appears that the ALJ’s primary reason for discounting the consultative examiner’s
opinion was reliance on the State Agency physicians’ opinions, which was valid. See
Chapo v. Astrue, 682 F.3d 1285, 1291 (10th Cir. 2012) (in evaluating a consultative
examiner’s opinion, the ALJ may rely on consistency between the opinion and the record
as a whole).
Next, Plaintiff contends that the ALJ improperly relied on the State Agency
opinions, arguing essentially, that in the hierarchy of medical opinions, State Agency
opinions are to be given the least amount of weight. (ECF No. 15:29). As a general rule,
“[t]he opinion of an examining physician is generally entitled to less weight than that of
a treating physician, and the opinion of an agency physician who has never seen the
claimant is entitled to the least weight of all. Robinson v. Barnhart, 366 F.3d 1078, 1084
(10th Cir. 2004). However, the Social Security Administration has stated:
In appropriate circumstances, opinions from State agency medical and
psychological consultants and other program physicians and psychologists
may be entitled to greater weight than the opinions of treating or examining
sources. For example, the opinion of a State agency medical or
psychological consultant or other program physician or psychologist may be
entitled to greater weight than a treating source’s medical opinion if the
State agency medical or psychological consultant's opinion is based on a
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review of a complete case record that includes a medical report from a
specialist in the individual’s particular impairment which provides more
detailed and comprehensive information than what was available to the
individual’s treating source.
SSR 96-6P, 1996 WL 374180, at *3 (July 2, 1996). Here, the State Agency physicians
specifically stated that they had considered Dr. Crall’s opinion in formulating their
opinions. (TR. 59, 75). Thus, in this case, the Court deems appropriate the exception to
the general rule as set forth in SSR 96-6p and rejects Plaintiff’s challenge to the ALJ’s
reliance on the State Agency opinions in favor of that offered by Dr. Crall.
Finally, citing Ringgold v. Colvin, 644 F. App’x 841 (10th Cir. 2016), Plaintiff argues
that “this particular ‘case’ issue has already been decided.” (ECF No. 15:28). In Ringgold,
the Court had concluded that the ALJ had provided “vague and conclusory” reasoning in
discounting an opinion from Dr. Crall when the ALJ had discounted the physician’s opinion
by relying on “medical evidence of record and the claimant’s reported activities of daily
living.” Ringgold, at 845. Plaintiff cites that portion of the opinion and then states: “This
ALJ decision compares the claimant’s daily activities to Dr. Crall’s opinion and the
determination of the amount of weight it should receive, and Judge West says that is
vague and conclusory reasoning.” (ECF No. 15:29). This is the extent of Plaintiff’s
argument and the Court finds it lacking for two reasons.
First, Plaintiff has not explained how, exactly, Ringgold is relevant to the instant
case beyond the fact that both ALJs had discounted Dr. Crall’s opinion by relying, in part,
on the claimant’s daily activities. But as discussed, this reliance was not improper. See
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supra. Second, to the extent Plaintiff is attempting to argue that the ALJ had given “vague
and conclusory” reasoning to discount Dr. Crall’s opinions, the Court disagrees. The ALJ
explained that the rejection was based on: (1) contrary opinions from State Agency
physicians (who had reviewed Dr. Crall’s opinion in reaching their conclusions) and (2)
specific evidence of daily activities. (TR. 25). Neither of these rationales were “vague
and conclusory” and the Court rejects Plaintiff’s reliance on Ringgold.
VII.
NO ERROR IN
ALLEGATIONS
THE
EVALUATION
OF
PLAINTIFF’S
SUBJECTIVE
During the pendency of Plaintiff’s appeal, the Social Security Administration issued
SSR 16-3p: Evaluations of Symptoms in Disability Claims, 2016 WL 1119029 (Mar. 16,
2016). SSR 16-3p superseded SSR 96-7p: Evaluation of Symptoms in Disability Claims:
Assessing the Credibility of an Individual’s Statements, 1996 WL 374186 (July 2, 1996).
See SSR 16-3p. Ms. Johnson alleges that the ALJ erred in evaluating her subjective
allegations, because “[t]here is no mention of the new policy [16-3p] being followed in
this decision. And in fact it was not followed.” (ECF No. 15:30). The Court disagrees.
“Generally, if an agency makes a policy change during the pendency of a claimant’s
appeal, the reviewing court should remand for the agency to determine whether the new
policy affects its prior decision.” Frantz v. Astrue, 509 F.3d 1299, 1302 (10th Cir. 2007)
(internal quotation marks omitted). Here, although the ALJ did not expressly cite either
SSR 96-7p or 16-3p, the Court finds no “meaningful distinction between the two
rulings[.]” Wagner v. Berryhill, No. CIV-16-154-CG, 2017 WL 3981147, at *8 (W.D. Okla.
22
Sept. 11, 2017). 4 Thus, the only issue is whether the ALJ followed the proper analysis,
despite the lack of citation to either ruling. The Court answers this question affirmatively.
Compare SSR 96-7p & 16-3p with TR. 21-24. “Because the Court’s determination would
be the same under either standard, remand is not required for the sole purpose of
evaluation under SSR 16-3p.” Wagner, at *8; see Lee v. Berryhill, CIV-16-483-R, 2017
WL 2892338, at *4 n.10 (W.D. Okla. June 15, 2017) (R & R), adopted, 2017 WL 2880862
(W.D. Okla. July 6, 2017) (Order).
Ms. Johnson argues that the new policy “was not followed,” but she fails to explain
how or why. Instead, Ms. Johnson seems to go off-task and argue that ALJs in general
tend to credit subjective allegations at step two, but then later discredit the same
statements at step four when evaluating the RFC. (ECF No. 15:30). Plaintiff states that
“ALJs have been doing this for years” and then makes a conclusory statement that “[a]t
the very least, the ALJ should have explained why some of Ms. Johnson’s statements
were true while others were not.” (ECF No. 15:30). But Ms. Johnson has failed to develop
this argument, and the Court has no idea which statements Plaintiff believes the ALJ had
improperly discredited. As discussed, this deficiency is fatal to any further consideration
of Plaintiff’s argument. See supra.
The purpose of the new ruling is to remove the term “credibility” in order to remain consistent
with the regulations which do not use the term and to clarify that an evaluation of symptoms is
not a character evaluation. See SSR 16-3p, at *1.
4
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ORDER
The Court has reviewed the medical evidence of record, the transcript of the
administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties.
Based on the forgoing analysis, the Court AFFIRMS the Commissioner’s decision.
ENTERED on May 24, 2018.
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