McCall v. Colvin, Case No. CIV-15-639-D

• Decision Date: 29 January 2016
• Docket Number: Case No. CIV-15-639-D
• Parties: DIANA MCCALL, Plaintiff, v. CAROLYN W. COLVIN, acting Commissioner Social Security Administration, Defendant.
• Court: U.S. District Court — Western District of Oklahoma

DIANA MCCALL, Plaintiff, v. CAROLYN W. COLVIN,acting Commissioner Social Security Administration, Defendant.

Case No. CIV-15-639-D

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

January 29, 2016

REPORT AND RECOMMENDATION

Defendant Acting Commissioner Carolyn W. Colvin (Commissioner) issued a final decision denying Diana McCall's (Plaintiff) application for disability insurance benefits under the Social Security Act, and Plaintiff seeks judicial review under 42 U.S.C. § 405(g). United States District Judge Timothy D. DeGiusti referred this matter for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (b)(3) and Fed. R. Civ. P. 72(b), and it is now before the undersigned Magistrate Judge. The undersigned has reviewed the pleadings, the administrative record (AR), and the parties' briefs, and recommends the court affirm the Commissioner's decision.

I. Background and administrative proceedings.

Plaintiff filed her application for disability insurance benefits on February 21, 2012, alleging she became disabled on June 1, 2007. AR 158-60. The Social Security Administration (SSA) denied Plaintiff's claim, and at her request, an Administrative Law Judge (ALJ) conducted a hearing. Id. at 25-61. In his December 2013 decision, the ALJ found Plaintiff was not disabled through June 30, 2012, within the Social Security Act's meaning. Id. at 10-20. Plaintiff now seeks review in this Court. Doc. 1.

II. The ALJ's findings.

Following the well-established five-step inquiry to determine whether a claimant is disabled, the ALJ found Plaintiff last met her insured status requirements on June 30, 2012, and through that date: (1) had severe "lumbar degenerative disc disease; left hip osteoarthritis; right shoulder tendonitis/bursitis; major depressive disorder, recurrent, severe; and post-traumatic stress disorder"; (2) had the residual functional capacity (RFC)² to perform light work with exertional and nonexertional limitations; and (3) could perform work in the national economy. AR 12-19; see also 20 C.F.R. § 404.1520(b)-(f); Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (describing five steps).

III. Plaintiff's claims.

In her first proposition, Plaintiff alleges the ALJ: (1) ignored her gastrointestinal impairment at step two; (2) failed to order a consultativeexam to explore the impairment; and (3) erroneously gave great weight to the state agency physicians' opinions. Doc. 12, at 7-12.³ In proposition two, Plaintiff claims the ALJ: (1) formulated Plaintiff's RFC without specific work-related limitations; (2) failed to incorporate into the RFC the state agency psychologist's opinions involving Plaintiff's "moderate" limitations; and (3) did not include all Plaintiff's limitations in his hypothetical question to the vocational expert (VE). Id. at 12-21. In her third proposition, Plaintiff argues the ALJ did not perform a "function-by-function assessment" of Plaintiff's RFC. Id. at 21. Finally, in her fourth proposition, Plaintiff alleges the ALJ: (1 ) improperly considered Plaintiff's pain allegations; and (2) failed to account for Plaintiff's pain in his RFC assessment. Id. at 22-23.⁴

IV. Standard for review.

This Court's review is limited to whether "substantial evidence" supports the ALJ's factual findings and whether the ALJ applied "the correct legal standards." See 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. (citation omitted). Indetermining whether substantial evidence exists, the court "will not reweigh the evidence." Howard v. Barnhart, 379 F.3d 945, 947 (10th Cir. 2004). As the Tenth Circuit has cautioned, "common sense, not technical perfection, is [the court's] guide." Keyes-Zachary v. Astrue, 695 F.3d 1156, 1167 (10th Cir. 2012). Finally, the court may find an ALJ's error harmless, if "based on material the ALJ did at least consider (just not properly), [the court] could confidently say that no reasonable administrative factfinder, following the correct analysis, could have resolved the factual matter in any other way[.]" Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004).

V. Analysis.

After reviewing Plaintiff's many allegations, the undersigned finds no grounds for reversal.

A. Plaintiff's first proposition.

In her first proposition, Plaintiff alleges the ALJ: (1) ignored her gastrointestinal impairment at step two; (2) failed to order a consultative exam to develop the record on her gastrointestinal impairment; and (3) erroneously gave the state agency physicians' opinions great weight. Doc. 12, at 7-12.

Relevant to the following arguments, "[Plaintiff] had to show [s]he was disabled on or before" June 30, 2012 - the date she last met her insuredstatus requirements. Vititoe v. Colvin, 549 F. App'x 723, 728 (10th Cir. 2013) (claimant had to establish on or before his date last insured he could not engage in any substantial gainful activity for a continuous twelve-month period); see Potter v. Sec'y of Health & Human Servs., 905 F.2d 1346, 1348-49 (10th Cir. 1990) (holding "the relevant analysis is whether the claimant was actually disabled prior to the expiration of her insured status").

1. The ALJ's alleged failure to consider Plaintiff's gastrointestinal impairment at step two.

Step two requires the ALJ to consider whether a claimant has a medically severe impairment or combination of impairments. 20 C.F.R. § 404.1520(a)(4)(ii),(c). Plaintiff alleges "the severe impairments included physical and mental limitations, but lacking was any mention of [Plaintiff's] gastrointestinal problems." Doc. 12, at 7. The undersigned finds no grounds for reversal in this argument.

First, Plaintiff's argument is simply incorrect. At step two the ALJ discussed all the evidence, including: (1) Plaintiff's April 2012 complaint of "vague abdominal pain," her denial of diarrhea, and Dr. S.A. Chaudry's diagnosis of "history of abdominal pains but normal during examination"; and (2) Plaintiff's April 2013 complaints of diarrhea and weight loss. AR 13-14. The ALJ specifically noted Plaintiff's "8-month history of nausea and vomiting with weight loss" "did not begin until months after her date of lastinsured of June 30, 2012." Id. at 14. Applying common-sense, the undersigned finds the ALJ's opinion sufficiently explained his reason for not finding Plaintiff's gastrointestinal impairment severe before June 30, 2012. See Keyes-Zachary, 695 F.3d at 1167 (holding an ALJ's failure to "explicitly state" his finding is not reversible error where the court, applying "common sense," can discern his finding in the opinion).

Second, any error the ALJ may have committed at step two in not specifically stating he was finding Plaintiff's gastrointestinal impairment non-severe through June 30, 2012, is harmless. See Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008) ("[A]ny error here became harmless when the ALJ reached the proper conclusion that [claimant] could not be denied benefits conclusively at step two and proceeded to the next step of the evaluation sequence.").

So, the court should reject Plaintiff's request for reversal on this ground.

2. The ALJ's failure to order a consultative examination to develop the record on Plaintiff's gastrointestinal impairment.

Plaintiff next complains the ALJ erred in not ordering a consultative examination in order to fully develop the record regarding Plaintiff'sgastrointestinal impairment. Doc. 12, at 9-10. Again, the undersigned disagrees.

In explaining the duty placed upon an ALJ regarding record development, the Tenth Circuit has emphasized the Commissioner "has broad latitude in ordering consultative examinations." Hawkins v. Chater, 113 F.3d 1162, 1166 (10th Cir. 1997); see also Duncan v. Colvin, 608 F. App'x 566, 570 (10th Cir. 2015). Considering the relevant regulation's older version, the Tenth Circuit held a consultative examination is often, but not always, required in the following circumstances: (1) "there is a direct conflict in the medical evidence requiring resolution"; (2) "the medical evidence in the record is inconclusive"; or (3) "additional tests are required to explain a diagnosis already contained in the record." Hawkins, 113 F.3d at 1166 (citing prior version of 20 C.F.R. § 404.1519a).

In its current form, § 404.1519a prescribes:

(b) Situations that may require a consultative examination. We may purchase a consultative examination to try to resolve an inconsistency in the evidence, or when the evidence as a whole is insufficient to allow us to make a determination or decision on your claim. Some examples of when we might purchase a consultative examination to secure needed medical evidence, such as clinical findings, laboratory tests, a diagnosis, or prognosis, include but are not limited to:

(1) The additional evidence needed is not contained in the records of your medical sources;(2) The evidence that may have been available from your treating or other medical sources cannot be obtained for reasons beyond your control, such as death or noncooperation of a medical source;

(3) Highly technical or specialized medical evidence that we need is not available from your treating or other medical sources; or

(4) There is an indication of a change in your condition that is likely to affect your ability to work, but the current severity of your impairment is not established.

20 C.F.R. § 404.1519a(b).

Under these guidelines, Plaintiff's case warranted no consultative examination. Plaintiff alleges no evidence was missing or otherwise unavailable and the relevant evidence was not inconsistent or inconclusive. The record establishes Plaintiff's impairment did not develop until eight months prior to April 2013 - or approximately August 2012. AR 406 (physician's April 25, 2013 note stating Plaintiff presented with "weight loss, vomiting, and nausea for 8 months"); 408 (medical notation dated March 8, 2013, stating Plaintiff had...