Oklahoma Cases May 25, 2023: Cravens v. Kijakazi

Case Description

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REPORT AND RECOMMENDATION

GARY M. PURCELL UNITED STATES MAGISTRATE JUDGE

Plaintiff seeks judicial review pursuant to 42 U.S.C. § 405(g) of the final decision of Defendant denying her application for disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. § 423. Defendant has answered the Complaint and filed the administrative record (hereinafter AR), and the parties have briefed the issues. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended Defendant's decision be affirmed.

I. Administrative History and Final Agency Decision

Plaintiff filed an application for DIB on August 31, 2020, alleging disability beginning on September 1, 2015. AR 15. The Social Security Administration denied her application initially and on reconsideration. Id. An Administrative Law

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Judge (“ALJ”) then held a hearing during which Plaintiff and a vocational expert (“VE”) testified. AR 30-55. On May 20, 2022, the ALJ issued a decision finding Plaintiff was not disabled within the meaning of the Social Security Act. AR 1225.

Following the agency's well-established sequential evaluation procedure, the ALJ found Plaintiff had not engaged in substantial gainful activity from September 1, 2015 through the date of last insured, December 31, 2020. AR 17. At the second step, the ALJ found Plaintiff had severe impairments of degenerative disc disease and osteoarthritis. Id. At the third step, the ALJ found these impairments were not per se disabling as Plaintiff did not have an impairment or combination of impairments meeting or medically equaling the requirements of a listed impairment. AR 19.

At step four, the ALJ found that, through the date last insured, Plaintiff had the following residual functional capacity (“RFC”):

[Plaintiff could] perform light work . . . except the claimant is limited to occupations which can be performed while using a hand-held assistive device, required at all times when standing.

AR 20. Based on the RFC finding and the VE testimony, the ALJ determined Plaintiff could perform her past relevant work as an administrative assistant. AR 24-25. As a result, the ALJ concluded Plaintiff had not been under a disability, as

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defined by the Social Security Act, from September 1, 2015 through the date of last insured, December 31, 2020. AR 25.

The Appeals Council denied Plaintiff's request for review, and therefore the ALJ's decision is the final decision of the Commissioner. Wall v. Astrue , 561 F.3d 1048, 1051 (10th Cir. 2009); 20 C.F.R. § 416.1472.

II. Issues Raised

On appeal, Plaintiff contends the RFC is not supported by substantial evidence. Doc. No. 8 (“Op. Br.”) at 3-9. Specifically, Plaintiff contends the ALJ erred by including a hand-held assistive device in the RFC. Id. at 3-5. Plaintiff further contends the ALJ misstated the medical evidence regarding Plaintiff's back impairment and treatment for the same. Id. at 5-8. Finally, Plaintiff asserts the ALJ erred by not including a sit-stand requirement in the RFC. Id. at 8-9.

III. General Legal Standards Guiding Judicial Review

The Act authorizes payment of benefits to an individual with disabilities. 42 U.S.C. § 401, et seq . A disability is an “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); see 20 C.F.R. § 416.909 (duration requirement). Both the

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“impairment” and the “inability” must be expected to last not less than twelve months. Barnhart v. Walton , 535 U.S. 212 (2002).

The Court must determine whether Defendant's decision is 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); Doyal v. Barnhart , 331 F.3d 758, 760 (10th Cir. 2003). “[W]hatever the meaning of ‘substantial' in other contexts, the threshold for such evidentiary sufficiency is not high.” Biestek v. Berryhill , __U.S.__, 139 S.Ct. 1148, 1154 (2019). Substantial evidence “means-and means only-such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quotations omitted).

The “determination of whether the ALJ's ruling is supported by substantial evidence must be based upon the record taken as a whole. Consequently, [the Court must] remain mindful that evidence is not substantial if it is overwhelmed by other evidence in the record.” Wall , 561 F.3d at 1052 (citation, quotations, and alteration omitted) . The Court must also be mindful that reviewing courts may not create post-hoc rationalizations to explain Defendant's treatment of evidence when that treatment is not apparent from the decision itself. Grogan v. Barnhart , 399 F.3d 1257, 1263 (10th Cir. 2005) (citing, e.g., Allen v. Barnhart , 357 F.3d 1140, 1145 (10th Cir. 2004); SEC v. Chenery Corp. , 318 U.S. 80, 87 (1943)).

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IV. Hand-Held Assistive Device Requirement in RFC

Plaintiff contends the ALJ erred by including in the RFC a requirement for a hand-held assistive device when standing. Op. Br. at 3-5. As Plaintiff and Defendant agree, the medical record does not contain any evidence that Plaintiff required a hand-held assistive device. Additionally, neither of the state agency physicians, whose opinions the ALJ found persuasive, concluded Plaintiff required such a device.

Nevertheless, the ALJ gave Plaintiff's subjective complaints of pain the benefit of the doubt and concluded that she did indeed require such a device when standing. AR 20. Plaintiff complains that the ALJ's inclusion of a limitation and/or requirement that is not supported by the medical evidence renders his RFC faulty or corrupt. Op. Br. at 3-5. It is well established, however, that an ALJ may assign a greater limitation than a medical opinion opines. Terwilliger v. Comm'r, Soc. Sec'y Admin ., 801 Fed.Appx. 614, 628 n.9 (10th Cir. 2020) (“‘[W]e are aware of no controlling authority holding that the full adverse force of a medical opinion cannot be moderated favorably' to the claimant.” (quoting Chapo v. Astrue , 682 F.3d 1285, 1288 (10th Cir. 2012) (“[I]f a medical opinion adverse to the claimant has properly been given substantial weight, the ALJ does not commit reversible error by electing to temper its extremes for the claimant's benefit”)).

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Plaintiff does assert, in conclusory fashion, that without the hand-held assistive device requirement, the ALJ would have limited her to sedentary work and as such, he would have found Plaintiff disabled under the Medical Vocational Guidelines. Op. Br. at 3. However, as Defendant notes, had the ALJ limited Plaintiff to sedentary work, Plaintiff would still be considered capable of performing her past relevant work as an administrative assistant. The Dictionary of Occupational Titles (“DOT”) classifies the administrative assistant position as a skilled position requiring only sedentary exertion levels. DOT § 169.167-010, 1991 WL 647424. The Medical Vocational Guidelines only apply when a plaintiff's “impairment(s) prevents the performance of his or her vocationally relevant past work.” 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00. Because Plaintiff could still perform the job of administrative assistant had the ALJ limited her to sedentary work, the Medical Vocational Guidelines would not apply. Thus, Plaintiff's assertion of error in this regard is without merit.

V. Medical Evidence Related to Plaintiff's Back Impairment

Plaintiff also complains that the ALJ misstated the evidence regarding the progression of her degenerative disc disease. Op. Br. at 6-8. Specifically, Plaintiff challenges the ALJ's characterization of MRIs performed in 2018 and 2019 and whether physicians recommended back surgery related to the same. Id.

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Plaintiff's 2018 MRI revealed, in relevant part, a narrowing on the right side of the LS-S1 where her nerve root was displaced laterally. AR 413-14. By contrast, the 2019 MRI revealed “[m]ild bilateral lateral recess narrowing. Material contacts both exiting L5 nerve roots. The findings are slightly progressed since the prior exam.” AR 411 (emphasis added).

In his decision, the ALJ specifically addressed the 2019 MRI result, noting:

Despite some contact with both existing L5 nerve roots, there was no surgical intervention as of yet. Further, the claimant had a normal gait. She had no difficulty with heel and toe walking. The claimant had normal musculoskeletal strength. No atrophy was noted. Moreover, her sensation was intact. Although the claimant used a walker after her hip replacement surgery, that only lasted for a few weeks and she did not use any assistive device at several exams.

AR 22 (citations omitted). Thus, the ALJ accurately summarized and considered the record with regard to Plaintiff's 2019 MRI and the state of her degenerative disc disease.

On appeal, Plaintiff characterizes the difference between the 2018 and 2019 MRIs as revealing a “significant worsening of her condition.” Op. Br. at 7. She contends the ALJ did not fully appreciate this a allegedly severe deterioration. However, as noted above, the MRI results specifically describe the 2019 MRI as revealing a slight, rather than significant or severe, progression since her previous MRI. AR 411.

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Plaintiff further complains the ALJ failed to consider the reason she had not undergone back surgery, claiming that it was only because she had an outstanding bill from her hip replacement surgery. Op. Br. at 7. She further contends that her physician, Dr. Christopher S. Hume, referred her to physical therapy and stated, “[I]f you fail at that come back for surgery.” Op. Br. at 7. Plaintiff contends this directive is evidence that of her worsening condition and need for surgery.

However, Plaintiff's characterization of Dr. Hume's recommendation in this regard is simply inaccurate. Dr. Hume stated,

The patient complains mostly of axial lumbosacral junction pain.

There is intermittent left posterior leg numbness but no constant radicular symptoms. I recommend physical therapy transitioning to home exercise program and treatment with anti-inflammatory medication as needed.

We discussed if she were to have significant debilitating worsening pain or develop worsening radicular symptoms after failing conservative treatment she would be a candidate to discuss surgical options likely L4-5 laminectomy with L5-S1 decompression and fusion.

AR 501. Thus, Dr. Hume recommended surgery only if Plaintiff developed significantly worsening pain. Id.

Additionally, while Plaintiff did indicate throughout most of 2019 that she did not want a surgical consult due to already existing medical bills, AR 610, 612, 614, 616, 618, 620, 626, following her return to work in 2021, she reported that she did not want to undergo a lumbar fusion and further wanted to wait until her

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symptoms worsened to undergo more conservative treatment, such as “another epidural steroid injection left L5-S1.” AR 678, 680, 682, 691, 693.

In his decision, the ALJ accurately summarized Plaintiff's medical history regarding Plaintiff's back impairment, including but not limited to her pain before and after her hip replacement surgery, relatively strong and/or normal physical examination findings following recovery from said surgery, reported back pain, and conservative treatment through the date of last insured. AR 21-22. Accordingly, Plaintiff's assertion that the ALJ misstated the evidence of record pertaining to her back impairment, resulting symptoms, and treatment is inaccurate and does not provide a basis for reversing the administrative decision in this matter.

VI. Sit-Stand Requirement

Finally, Plaintiff argues the ALJ erred by not including a sit-stand requirement in the RFC. Op. Br. at 8-9. Plaintiff specifically cites to portions of the record to support her claim that such a requirement was noted therein. AR 8 (citing AR 622, 641, 643, 646, 650). However, the cited portions of the record do not include such a requirement. AR 622, 641, 643, 646, 650. Moreover, within the examination records cited, she is observed during every visit except one as rising from a seated position with no difficulty. AR 622-23, 641-42, 643-44, 645-46, 649

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50. Thus, the ALJ's decision to not include a sit-stand requirement in the RFC is supported by substantial evidence.

RECOMMENDATION

In view of the foregoing findings, it is recommended that judgment enter affirming the decision of the Commissioner. Plaintiff is advised of her right to file an objection to this Report and Recommendation with the Clerk of this Court on or before June 14 , 2023, in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States , 950 F.2d 656 (10th Cir. 1991); cf., Marshall v. Chater , 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).

This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter.