BYBEE v. BERRYHILL

Case No. CIV-16-1138-R.

ELLEN BYBEE, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

United States District Court, W.D. Oklahoma.

Editors Note
Applicable Law: 42 U.S.C. § 405
Cause: 42 U.S.C. § 405 Review of HHS Decision (SSID)
Nature of Suit: 864 Social Security: SSID Tit. XVI
Source: PACER


Attorney(s) appearing for the Case

Ellen Bybee, Plaintiff, represented by Miles L. Mitzner , Mitzner Law Firm.

Commissioner of Social Security, Defendant, represented by Keeya M. Jeffrey , Social Security Administration.


REPORT AND RECOMMENDATION

BERNARD M. JONES, Magistrate Judge.

Plaintiff, Ellen Bybee, seeks judicial review of the Social Security Administration's denial of disability insurance benefits (DIB). This matter has been referred by United States District Judge David L. Russell for proposed findings and recommendations. See 28 U.S.C. §§ 636(b)(1)(B), 636(B)(3); Fed. R. Civ. P. 72(b). The Commissioner has filed the Administrative Record (AR), and both parties have briefed their respective positions.2 For the reasons set forth below, it is recommended that the Commissioner's decision be affirmed.

I. Procedural Background

On March 19, 2015, an Administrative Law Judge (ALJ) issued an unfavorable decision finding Plaintiff was not disabled and, therefore, not entitled to DIB. AR 12-21. The Appeals Council denied Plaintiff's request for review. AR 1-3. Accordingly, the ALJ's decision constitutes the final decision of the Commissioner. Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011). Plaintiff timely commenced this action for judicial review. See Compl. [Doc. No. 1] (filed Sept. 30, 2016).3

II. The ALJ's 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) (explaining process); see also 20 C.F.R. § 404.1520. The ALJ first determined that Plaintiff met the insured status requirements of the Social Security Act through December 31, 2018, and had not engaged in substantial gainful activity since May 22, 2013, the alleged onset date. AR 14.

At step two, the ALJ determined that Plaintiff suffers from the following severe impairments: chronic back and leg pain and numbness secondary to degenerative disc disease and neurogenic claudication aggravated by December 2011 motor vehicle accident injuries; hypertension controlled; and mild obesity. AR 17. At step three, the ALJ found that Plaintiff's impairments do not meet or medically equal any of the impairments listed at 20 C.F.R. Part 404, Subpart P, App. 1. AR 17-18.

The ALJ next determined Plaintiff's residual functional capacity (RFC), concluding that she could perform less than the full range of light work.4 Specifically, the ALJ found Plaintiff can only do the following:

[L]ift and carry 10 pounds occasionally and 20 pounds frequently; sit 6 hours in an 8-hour workday; stand 6 hours in an 8-hour workday; walk 6 hours in an 8-hour workday; and occasionally stoop, crouch, crawl, and climb ladders, ropes and scaffolds.

AR 18.5

At step four, the ALJ determined Plaintiff is capable of performing her past relevant work as an elementary school teacher. AR 21. Therefore, the ALJ concluded that Plaintiff was not disabled for purposes of the Social Security Act. Id.

III. Claims Presented for Judicial Review

Plaintiff brings the following claims for judicial review: (1) the ALJ failed to properly consider Plaintiff's credibility; (2) the ALJ improperly rejected the treating physician opinions of Dr. Self and Dr. Nasr; and (3) the ALJ did not conduct a proper step-four analysis. For the reasons set forth below, the Court finds no grounds for reversal of the Commissioner's decision.

IV. Standard of Review

Judicial review of the Commissioner's final decision is limited to determining whether the factual findings are supported by substantial evidence in the record as a whole and whether the correct legal standards were applied. See Poppa v. Astrue, 569 F.3d 1167, 1169 (10th Cir. 2009). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003) (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. Branum v. Barnhart, 385 F.3d 1268, 1270 (10th Cir. 2004). The court "meticulously examine[s] the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met." Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (citations 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 does not reweigh the evidence or substitute its own judgment for that of the Commissioner. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quotations and citations omitted).

Plaintiff bears the burden of proof at steps one through four of the sequential evaluation process to establish a prima facie case of disability. Wells v. Colvin, 727 F.3d 1061, 1064 n. 1 (10th Cir. 2013). If Plaintiff meets this burden, the burden of proof shifts to the Commissioner at step five to show that Plaintiff retains a sufficient RFC to perform other work that exists in significant numbers in the national economy. Id.

V. Analysis

A. Credibility Analysis

Plaintiff claims the ALJ did not conduct a proper credibility analysis, relying primarily on the adult function reports completed by Plaintiff and her husband. AR 173-181; 183-190. According to Plaintiff, the ALJ "cherry-picked" from these reports. Plaintiff contends the "totality of the reports reflects a very limited lifestyle." See Pl.'s Br. at p. 5. Plaintiff then recites verbatim the majority of Plaintiff's function report. See id. at pp. 5-11. Plaintiff argues that "disability claimants should not be penalized for attempting to lead normal lives in the face of their limitations." Id. at p. 11.

1. Governing Law

"Credibility determinations are peculiarly the province of the finder of fact, and [the court] will not upset such determinations when supported by substantial evidence. However, findings as to credibility should be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings." Newbold v. Colvin, 718 F.3d 1257, 1267 (10th Cir. 2013) (quotations and citation omitted).

2. The ALJ's Findings

The ALJ engaged in a thorough credibility analysis. AR 18-21. He specifically referenced the restrictions set forth by both Plaintiff and her husband in the adult function reports. AR 19. He also referenced Plaintiff's testimony at the hearing where she "reported that she m[u]st schedule and pick and choose her day activities and that she must plan and divide/limit her activities of daily living up and not perform a full day of such activities." Id. He then identified the various types of daily activities in which Plaintiff engages including: "personal grooming, taking medications, cooking, performing household chores, hobbies, using computer and checking emails, reading, stretching, walking, and etc." Id.

The ALJ recited the applicable factors governing the credibility analysis. AR 19 (citing Soc. Sec. Rul. 96-7p); see also 20 C.F.R. § 303.1529(c)(3). In addition to addressing the nature of Plaintiff's daily activities, the ALJ discussed the nature of Plaintiff's treatment and the following facts: (1) she had not been referred back to the neurosurgeon for additional surgical evaluation; (2) she had not required any "crisis treatment"; (3) her treating physician had not required "significant courses of physical therapy, steroidal injections, or a prescribed home exercise program"; and (4) she was prescribed "the limited use of [a] TENS unit." AR 19-20. He additionally noted that Plaintiff had not been prescribed use of any assistive devices and had presented at two consultative examinations with normal and unassisted ambulation. AR 20. The ALJ also relied on Plaintiff's hearing testimony that at times "she can walk several blocks to up to at least a mile." Id.

The ALJ additionally noted that in the "contemporaneous treatment notes and reports," Plaintiff's treating physician "did not describe [Plaintiff] as suffering totally disabled [sic] impairments and did not prescribe work restrictions and limitations consistent with totally disabling impairments." AR 20. The ALJ further relied on the fact that "[i]n December 2013/January 2014, it was reported that the claimant traveled to Italy and that this trip went well." Id.

The ALJ cited a number of factors, tied to evidence, for his adverse credibility determination. The ALJ did not "cherry-pick" the evidence regarding Plaintiff's daily activities, but fully addressed those daily activities and Plaintiff's testimony that she had to limit those activities. The ALJ determined that Plaintiff's allegations of disabling pain were not fully credible based on the nature, scope and extent of those activities. It was proper for the ALJ to rely on those daily activities and make findings based on those activities. See Newbold, 718 F.3d at 1267 (citing Wilson v. Astrue, 602 F.3d 1136, 1146 (10th Cir. 2010) (claimant's "description of her daily activities [that] did not indicate significant limitations" — she could "care for herself, her home and her children[,]" and also "drive, shop, and handle finances," garden, visit friends, and go out to eat — supported ALJ's determination that claimant's "testimony of disabling pain was not credible"); Huston v. Bowen, 838 F.2d 1125, 1132 (10th Cir. 1988) ("[I]n determining the credibility of pain testimony" ALJ may consider "the nature of [claimant's] daily activities")).

The ALJ also appropriately relied on the nature, scope and extent of the treatment Plaintiff received, the contemporaneous treatment records of her treating physician, and observations made by the consultative examiners to find Plaintiff's complaints of disabling pain were not entirely credible. Cf. Barnhill-Stemley v. Colvin, 607 F. App'x 811, 817 (10th Cir. 2015) (ALJ properly discounted claimant's descriptions of the severity and disabling effect of her limitations based on "lack of medical evidence to support the subjective nature of her reported symptoms and discrepancies between her statements and the medical evidence").

In sum, the ALJ applied the correct legal standards to evaluate Plaintiff's credibility and substantial evidence supports the ALJ's credibility determination. See Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir.2000) ("[T]he ALJ did not simply recite the general factors he considered, he also stated what specific evidence he relied on in determining that [the claimant's] allegations of disabling pain were not credible."). Plaintiff's claim that the ALJ "cherry-picked" from the record is not borne out. To the contrary, Plaintiff simply disagrees with the conclusions drawn by the ALJ. This Court cannot weigh the evidence or substitute its judgment for that of the ALJ. Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005). This claim of error, therefore, should be denied.

B. Evaluation of Treating Physician Opinions

Related to Plaintiff's challenge to the ALJ's credibility determination, Plaintiff claims the ALJ did not give proper weight to the opinions of Plaintiff's treating physicians. Plaintiff references two treating physicians: Kristi Self, M.D.6 and Fadi F. Nasr, M.D., a neurosurgeon. It is difficult to pinpoint specifically what treating physician evidence Plaintiff contends the ALJ ignored or improperly evaluated. Plaintiff claims she reported symptoms to both Dr. Self and Dr. Nasr which the ALJ improperly ignored. See Pl.'s Br. at p. 12. She specifically references reports to her physicians of loss of balance or dizziness, and more limited physical activity. Id.

Plaintiff also states the consultative examiner noted extreme palpatory tenderness of the lumbar spine, a finding consistent with the findings of the treating physician. Id. at p. 13. Plaintiff contends the ALJ's findings regarding the treating physician's records are inaccurate. Id. For example, she states Dr. Nasr concluded that "surgery was not indicated because he considered it to be a `huge trade off.'" Id. (citing AR 242, 245). She also faults the ALJ for relying on the opinion of "the CE" because that physician was a "non-specialist" and did not have the benefit of objective testing or a longitudinal record. See id. at pp. 14-15. But it appears Plaintiff's claim of error is primarily centered on Dr. Self's opinion, which she contends is supported by the treatment records of Dr. Nasr. See id. at pp. 15-16 (noting longitudinal treatment, status as board-certified specialists and objective testing by Dr. Nasr confirming "MSS findings at Exhibit 6F" by Dr. Self). Dr. Self's opinion is the only opinion which sets forth any functional limitations resulting from Plaintiff's impairments.

1. Governing Law

A sequential, two-step inquiry governs an ALJ's evaluation of the medical opinions of a claimant's treating physician. Krauser, 638 F.3d at 1330. The two-step inquiry is mandatory and each step of the inquiry is "analytically distinct." Id. at 1330. First, the ALJ must decide whether the opinion is entitled to "controlling weight." If the opinion is "well-supported by medically acceptable clinical or laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the record," then the opinion must be given controlling weight. Id. A deficiency in either of these areas requires that the opinion not be given controlling weight. Id.

When a treating physician opinion is not entitled to controlling weight, the inquiry does not end. The opinion is still entitled to deference. Thus, at the second step of the inquiry, "the ALJ must make clear how much weight the opinion is being given (including whether it is being rejected outright) and give good reasons, tied to the factors specified in the cited regulations for this particular purpose, for the weight assigned." Id. As the Tenth Circuit has made clear: "[i]f this is not done, a remand is required." Id. The relevant factors governing the second step of the inquiry include: "(1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship, including the treatment provided and the kind of examination or testing performed; (3) the degree to which the physician's opinion is supported by relevant evidence; (4) consistency between the opinion and the record as a whole; (5) whether or not the physician is a specialist in the area upon which an opinion is rendered; and (6) other factors brought to the ALJ's attention which tend to support or contradict the opinion." Id. at 1331 (citation omitted).

The treating physician rule is founded on the treating physician's unique perspective to the medical evidence due to both the duration and frequency of the treatment relationship. Doyal, 331 F.3d at 762. The rule "is based on the assumption that a medical professional who has dealt with a claimant and his maladies over a long period of time will have a deeper insight into the medical condition of the claimant than will a person who has examined a claimant but once, or who has only seen the claimant's medical records." Id. (citation omitted); see also 20 C.F.R. § 404.1527(c)(2) (addressing weight given to treating source due to his or her "unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations").

2. Dr. Self's Opinion Regarding Plaintiff's Functional Limitations

The record includes treatment records from Dr. Self for the time period February 2012 through November 2014. Although it appears Dr. Self treated Plaintiff for pain management prior to February 2012, those records are not included.7

On September 23, 2013, Dr. Self completed a Medical Statement Regarding Physical Abilities and Limitations (Medical Statement). AR 288-89. Dr. Self opined that Plaintiff had significant limitations that would preclude Plaintiff from performing even sedentary work. Id. The opinion, therefore, conflicts with the ALJ's RFC assessment.

3. The ALJ's Rejection of Dr. Self's Opinion

The ALJ stated that he "considered [Dr. Self's] opinion/assessment in accordance with the requirements of Regulation 20 CFR 404.1527." AR 18. The ALJ then addressed (1) the opinions of the consultative examiners; (2) statements Plaintiff made in her August 2013 Disability Report; (3) Plaintiff's credibility; and (4) Dr. Self's treating physician records. AR 19-20. Following that discussion, the ALJ concluded: "[Dr. Self's] September 2013 assessment/opinion is not entitled to controlling weight or more than limited weight." AR 21.

The ALJ deemed Dr. Self's opinion inconsistent with her own treatment notes and the other medical evidence of record. He found that Plaintiff's spinal disorders "have not deteriorated or progressed to the point [Dr. Self] has referred her back to the neurosurgeon, Dr. Nasr, for additional surgical evaluation and diagnostic workup." AR 19 (citing Exhibits 2F, 7F and 8F). He further found that Dr. Self "has not found [Plaintiff's] spinal disorders to be [of] such severity and intensity as to require significant courses of physical therapy, steroidal injections, or a prescribed home exercise program." AR 20. The ALJ further noted that Dr. Self had prescribed "the limited use of TENS unit." Id.

The ALJ next found that although Plaintiff reported falling and decreased sensation in her lower extremities, Dr. Self had not "prescribed the use of wheelchairs, walkers, crutches, canes, or other assistive devices." Id. He then found further support for this finding based on Plaintiff's failure to present complaints of "poor balance/coordination resulting in falls" during the consultative examinations in September 2013 and her neurosurgical evaluations in November 2012 and January 2013. Id. In addition, he noted that during her examinations, Plaintiff exhibited "good balance and safe and stable gait" and the consultative examiner described Plaintiff as having "normal posture and motor behavior and normal and unassisted ambulation." Id. Finally, the ALJ pointed to Plaintiff's hearing testimony that "she can walk several blocks to up to at least a mile." Id.

4. Analysis

The ALJ's findings are supported by substantial evidence. In November 2012, Dr. Nasr, Plaintiff's neurosurgeon, completed a "10 system checklist" and noted Plaintiff suffers from "paralysis or weakness of limbs" and "loss of balance." AR 244, 245, 254. Upon examination, however, Dr. Nasr noted that Plaintiff's gait was normal and that she could walk on her heels and toes. AR 245. He ordered testing, including x-rays and MRI scans and scheduled a follow-up appointment after the test results were obtained. Id.

Dr. Nasr then saw Plaintiff on January 23, 2013 and had the results of the testing for review. He again noted her paralysis or weakness of limbs and loss of balance based on a review of her systems. But Dr. Nasr further noted on neurologic examination that Plaintiff "stands with good sagittal and coronal balance." AR 242. He then stated: "I am not completely clear that surgical intervention is going to be the answer for her" and that "[c]urrently, what I think would be in her best interest would be a referral to [a] physiatrist." Id. (emphasis added). He further stated: "[c]ertainly if she does not improve or gets worse we could plan on doing something surgical, but for now I am going to try to avoid surgical intervention." Id. (emphasis added).

The ALJ correctly found that no later treatment records, including those from Dr. Self, recommended surgical intervention. Moreover, eight months later on September 23, 2013, Cody A. Motley, M.D., completed a consultative examination of Plaintiff. At that time Plaintiff did not report any issues with balance and upon examination, Dr. Motley found that Plaintiff "ambulates in a safe and stable gait at a normal speed without the use of any assistive device." AR 281. He also found that Plaintiff's "[t]oe and heel walking were normal bilateraly." Id.

On the same day as Dr. Motley's consultative examination, Plaintiff saw Dr. Self for a routine follow up. AR 292. Dr. Self also completed the Medical Statement, setting forth her opinion, on that same date. AR 288-89.

In October 2013, Myron Watkins, M.D., a non-examining state agency consultant opined that Plaintiff had the RFC to perform her past relevant work. AR 59-60.

In November 2013, Plaintiff reported to Dr. Self that she would be travelling to Italy. Dr. Self prescribed a TENS unit. Id. In December 2013, Plaintiff reported to Dr. Self that she was "better" and that she "[d]id well overseas." AR 301. Also in December 2013, John Pataki, M.D., a non-examining state-agency consultant, affirmed the findings of Dr. Watkins. AR 70-71. Dr. Pataki took into account "new treatment since the initial decision" but opined that "this information does not change or alter the original RFC rating." AR 71.

In February 2014, Dr. Self discontinued use of the TENS unit. AR 305. In March 2014, Plaintiff reported to Dr. Self that she had "fallen on the ice" and "now has fallen again." AR 309 (emphasis added). In June 2014 Plaintiff reported to Dr. Self that she was "doing pretty well" but "has to rest more" and "doesn't get as much done as she would like." AR 311. In August 2014 Dr. Self indicated she would refer Plaintiff to a neurologist. AR 313. In October 2014 Plaintiff reported to Dr. Self that she had seen the neurologist and it was "a very bad experience." AR 315.8 The final treatment record from Dr. Self is from November 2014. AR 317. Plaintiff reported that the cramps in her back had returned. Id. Otherwise her treatment remained constant. Id.

At the hearing before the ALJ Plaintiff testified that at times she can walk up to a mile. AR 32. She also testified that she can do housework but must pick and choose her activities for the day. AR 33, 34. She testified that she does not do any physical therapy. AR 35.

The ALJ's findings that the functional limitations set forth in Dr. Self's Medical Statement were not supported by the medical and other evidence of record are supported by substantial evidence. The ALJ complied with the treating physician rule. He did not give Dr. Self's opinion controlling weight on grounds that the limitations in the Medical Statement were not fully supported by Dr. Self's treatment records. He also discussed the other evidence of record that supported his reasons for giving limited weight to Dr. Self's opinion. See Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007) ("The ALJ provided good reasons in his decision for the weight he gave to the treating sources' opinions. Nothing more was required in this case.") (citation omitted).

Plaintiff disagrees with the conclusions drawn by the ALJ, but her disagreement is centered on arguments that would impermissibly require this court to reweigh the evidence. White v. Barnhart, 287 F.3d 903, 909 (10th Cir. 2001) (recognizing that much of the medical evidence was in conflict but the ALJ weighed all the evidence in reaching his decision, including rejection of treating physician opinion, and the court could not "now reweigh that evidence and substitute [its] judgment for his"). See also Alarid v. Colvin, 590 F. App'x 789, 795 (10th Cir. 2014) ("In citing what he contends is contrary evidence [to the ALJ's conclusion regarding the severity of the claimant's impairments] Mr. Alarid is asking us to reweigh the evidence, which we cannot do."); Lately v. Colvin, 560 F. App'x 751, 754 (10th Cir. 2014) (finding ALJ properly rejected treating physician opinion due to its inconsistency and rejecting claimant's attempt to have the court reweigh the evidence); Taylor v. Astrue, 266 F. App'x 771, 777 (10th Cir. 2008) (recognizing that case was not "clear-cut" and that the claimant "certainly adduced evidence consistent with [treating physician's] functional limitations" but the ALJ complied with the regulations in weighing the treating physician opinion, his decision to reject that opinion was supported by sufficient evidence and "it is not the province of th[e] court to reweigh the evidence"). Therefore, this claim of error should be denied.

C. The ALJ's Step-Four Analysis

Plaintiff next challenges the ALJ's step-four findings. She states: "[t]he medical evidence and Mr. & Ms. Bybee's own statements do not reflect that she can perform her past work of picking up and nurturing first graders again like the ALJ believes she can perform at step four. That is why Ms. Bybee believes that the ALJ analysis is flawed at the phases of step four." See Pl.'s Br. at p. 17.

1. Three Phases at Step Four of the Sequential Evaluation Process

Step four of the sequential evaluation process is comprised of three phases. Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996). First, the ALJ must determine the claimant's physical and mental RFC. Id. (citing SSR 86-8). Second, the ALJ must determine the physical and mental demands of the claimant's past relevant work. Id. (citing 20 C.F.R. § 404.1520(e)). Third, the ALJ must determine whether the claimant can "meet the job demands found in phase two despite the mental and/or physical limitations found in phase one." Id. (citing SSR 82-62; Henrie v. United States Dep't of Health & Human Servs., 13 F.3d 359, 361 (10th Cir. 1993)). "At each of these phases, the ALJ must make specific findings." Id. (citing Henrie, 13 F.3d at 361).

2. The ALJ's Step-Four Findings

As demonstrated below, the ALJ made the findings required at each of the three phases of the step-four analysis. The Court finds no reversible error with respect to these findings. Therefore, the Commissioner's decision should be affirmed.

a. Phase One: Plaintiff's RFC

Plaintiff claims the ALJ should have included in the RFC a restriction based on her "severe impairment of neurologic claudication." See Pl.'s Br. at p. 17. According to Plaintiff, "she relieves this condition by laying in a recliner with a hot pad, elevating her legs." Id. at p. 18. Thus, "[t]he light RFC with occasional postural is insufficient. It fails to account for leg swelling requiring elevation to relieve pain." Id. Plaintiff also faults the ALJ's RFC determination because it did not include limitations related to her "bad back" which necessitates "use of a tens unit, powerful medications which would present a danger to children while teaching, or the need to recline with a heating pad." Id.

"Nonexertional impairments may or may not affect a person's capacity to carry out the primary strength requirements of jobs, and they may or may not significantly narrow the range of work a person can do." SSR 85-15, 1985 WL 56857 at *2. As discussed previously, the ALJ's RFC determination is supported by objective medical evidence of record. Both the state agency consultative examiners opined that Plaintiff could perform light work.

In assessing Plaintiff's credibility, the ALJ considered, but rejected Plaintiff's subjective complaints and Dr. Self's opinion regarding Plaintiff's need to elevate her feet or recline in a chair. AR 18, 19-20. As set forth above, the ALJ's credibility finding is supported by substantial evidence. Also, the medical record supports the ALJ's finding that use of the TENS unit was limited. See discussion, supra. And, Plaintiff's allegation that use of pain medications would constitute a danger to children is unexplained, wholly speculative and not based on any record evidence.9

In essence, Plaintiff's RFC challenge is based on essentially the same arguments as those relied upon to challenge the ALJ's findings as to credibility and weighing of the treating physician opinion. The Court has addressed those findings by the ALJ and determined they are supported by substantial evidence and are not contrary to the law. Plaintiff has failed to identify reversible error with respect to the ALJ's RFC determination.

b. Phase Two: Demands of Plaintiff's Past Relevant Work

Plaintiff faults the ALJ for allegedly failing to make specific findings concerning the physical and mental demands of her past relevant work. See Pl.'s Br. at p. 21. Plaintiff further claims the ALJ's "written decision findings regarding [her past relevant work] are simply a reiteration of the [vocational expert's] testimony, and information from the DOT regarding the exertional level, and skill level of [Plaintiff's past relevant work]." Id. at p. 22. Plaintiff then points to the ALJ's purported failure to address that "[a] first grader generally weighs about 30-40 pounds, much more than just light work which ends at 20 pounds." Id.10 Plaintiff also contends the ALJ erred because he found she has "some postural limitations, including no climbing of ladders, ropes, or scaffolds, and only occasionally other posturals" but the ALJ "did not inquire of [her] or the [vocational expert] about the physical or mental demands of her PRW that would have a bearing on these limitations." Id.

Plaintiff is correct that an ALJ may not delegate his duty to make the requisite findings at each of the three phases of the step four analysis. Doyal, 331 F.3d at 761. But an ALJ is permitted to rely on information supplied by the vocational expert (VE) at step four. Id.

At the hearing, the VE identified Plaintiff's past work as elementary school teacher, and identified the Dictionary of Occupational Titles (DOT) code as #092.227-010. AR 42. Further, the ALJ posed a hypothetical to the VE incorporating Plaintiff's RFC and in response, the VE testified that the past relevant work could be performed. AR 43. Thus, the ALJ fully explored with the VE the demands of Plaintiff's past relevant work. The Tenth Circuit has found "nothing improper" with this approach. See Best-Willie v. Colvin, 514 F. App'x 728, 738 (10th Cir. 2013).11

Based on this testimony, the ALJ made the following findings pertinent to the second and third phases of the step-four analysis:

The vocational expert testified that the claimant's past relevant work falls within definitions of skilled work performed at the light exertional level. The vocational expert also testified that an individual possessing the [RFC] listed above would be able to perform the demands and requirements of the claimant's past relevant work. Based [on] the vocational expert's credible testimony, the undersigned is convinced that the claimant can perform the demands and requirements of her past relevant work as she performed it and as it is routinely performed in the economy.

AR 21.

The record clearly demonstrates the ALJ did not improperly delegate his duties at phase two of the step-four analysis and Plaintiff's argument, therefore, is meritless. The regulations expressly permit the ALJ to rely on VE testimony and the DOT to determine whether a claimant can do his or her past relevant work. See 20 C.F.R. §§ 404.1560(b), 416.960(b). And, as the Tenth Circuit explained in Doyal, an ALJ may satisfy his step-four responsibilities by "quot[ing] the VE's testimony approvingly[] in support of his own findings at phases two and three of the analysis." Id., 331 F.3d at 761.

Moreover the DOT code accompanying the identification of Plaintiff's past relevant work as elementary school teacher, #092.227-010, describes the demands of the job. The DOT's description of the job makes clear that the postural limitations identified by Plaintiff in support of her claim of error are either not required for this job or are consistent with Plaintiff's RFC. See DOT #092.227-010, 1991 WL 646895 (listing the postural limitations of the job). Specifically, the DOT description states with respect to climbing, balancing, kneeling, crouching and crawling, that those requirements are "Not Present — Activity or condition does not exist." Id. And, the DOT description states that stooping is required only occasionally. Id.

The record demonstrates that the ALJ appropriately relied on the VE's testimony in making his own findings at phase two of the step-four analysis. Plaintiff fails to demonstrate any error in the ALJ's phase-two findings.

c. Phase Three: Plaintiff's Ability to Perform Her Past Relevant Work

Plaintiff's challenge to the ALJ's phase-three finding is nothing more than a reiteration of the challenge to the ALJ's phase-two findings. See Pl.'s Br. at p. 24. Because those phase-two findings are legally correct and supported by substantial evidence, Plaintiff's challenge to the ALJ's phase-three finding necessarily fails.

In sum, Plaintiff fails to carry her burden at step four. For the reasons set forth, the ALJ's step-four determination is supported by substantial evidence and Plaintiff fails to demonstrate any reversible legal error by the ALJ.

RECOMMENDATION

It is recommended that the Commissioner's decision be affirmed.

NOTICE OF RIGHT TO OBJECT

The parties are advised of their right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by August 7, 2017. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. Moore v. United States, 950 F.2d 656 (10th Cir. 1991).

STATUS OF REFERRAL

This Report and Recommendation terminates the referral by the District Judge in this matter.

FootNotes


1. Nancy A. Berryhill is the Acting Commissioner of the Social Security Administration and is substituted as the proper Defendant. See Fed. R. Civ. P. 25(d).
2. Citations to the parties' submissions reference the Court's ECF pagination.
3. The regulations governing judicial review provide that a civil action must be instituted within sixty days after the claimant receives the Appeals Council's notice of denial of request for review and that the date of receipt is "presumed to be 5 days after the date of such notice." 20 C.F.R. § 422.210(c). The Appeals Council's Notice in this action is dated August 3, 2016. AR 1.
4. See 20 C.F.R. § 404.1567(b) (setting forth requirements for light work).
5. It appears the ALJ intended to find Plaintiff could lift and carry 20 pounds occasionally and 10 pounds frequently. See 20 C.F.R. § 104.1567(b) ("Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds."). No claim of error pertains to the lifting and carrying components of the RFC.
6. The ALJ refers to Dr. Self as Plaintiff's "physicial medicine/rehabilitative specialist."
7. Another doctor, Kim King, D.O., treated Plaintiff for a period of time from December 2011 through March 2012. Dr. King's treatment related to Plaintiff's December 4, 2011 motor vehicle accident. Dr. King's treatment notes reflect that Dr. Self treated Plaintiff prior to her motor vehicle accident. AR 219 ("I will release [Plaintiff] from my care regarding this accident effective 03/28/12 and will refer the patient back to Dr. Self, who was treating the patient prior to this accident.").
8. The treatment records from the neurologist are not included in the record.
9. At the hearing, Plaintiff testified that she would not "feel comfortable teaching" when she was "under the influence" of her medication. AR 39. She did not offer further explanation or specify which medications would cause her to feel this way. She also testified that she takes her "most hard hitting pain medication" at night. AR 34-35.
10. Plaintiff does not support this statement with any evidence of record, citation to regulatory definitions or other sources with respect to the requirements of her past relevant work. Such speculative assertions are insufficient to establish factual or legal error as to the ALJ's findings.
11. In Best-Willie, the plaintiff asserted, like Plaintiff does here, that "the ALJ erroneously relied on the expert's testimony to determine, without sufficient analysis, that the demands of her previous jobs were compatible with her RFC." Id. at 738. The Tenth Circuit rejected this argument: At the hearing, the ALJ posed a hypothetical to the expert, including Best-Willie's postural limitations and mental limitations, and asked whether such an individual could perform Best-Willie's past relevant work. The expert responded in the affirmative. In concluding that Best-Willie could perform that past relevant work, the ALJ notes the expert's testimony. We perceive nothing improper with the ALJ's analysis.

Id.


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