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Surles v. Berryhill

United States District Court, W.D. Oklahoma

February 23, 2017

SHIRLEY LAHOMA SURLES, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.[1]

          MEMORANDUM OPINION AND ORDER

          SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE

         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 applications for supplemental security income and 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

         Plaintiff's applications for supplemental security income and disability insurance was denied initially and on reconsideration. Following a hearing, an Administrative Law Judge (ALJ) issued an unfavorable decision. (TR. 23-33). 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 & 416.920. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since March 1, 2011, the alleged disability onset date. (TR. 25). At step two, the ALJ determined Ms. Surles had the following severe impairments: degenerative disc disease of the back and depressive disorder. (TR. 25). 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. 26).

         At step four, the ALJ found that Plaintiff could not perform her past relevant work. (TR. 31). The ALJ further concluded that Ms. Surles had the residual functional capacity (RFC) to:

[P]erform sedentary work as defined in 20 C.F.R. 404.1567(a) and 416.967(a) except she cannot balance or climb ladders, ropes, or scaffolds. She can occasionally climb stairs and ramps, kneel, crouch, crawl, and stoop. She can understand, remember, and carry out simple tasks with routine supervision. She cannot have public contact or perform customer service work. She is able to interact appropriately with supervisors and coworkers on a superficial work basis. She is able to adapt to work situations.

(TR. 28).

         Based on the finding that Ms. Surles had no past relevant work, the ALJ proceeded to step five. There, she presented several limitations to a vocational expert (VE) to determine whether there were other jobs in the national economy that Plaintiff could perform. (TR. 66-67). Given the limitations, the VE identified three jobs from the Dictionary of Occupational Titles (DOT). (TR. 67). The ALJ adopted the testimony of the VE and concluded that Ms. Surles was not disabled based on her ability to perform the identified jobs. (TR. 32-33).

         III. ISSUES PRESENTED

         On appeal, Plaintiff alleges the ALJ: (1) failed to develop the record, (2) erred in the RFC determination, (3) erred in the credibility analysis, and (4) erred at step five. (ECF No. 16).[2]

         IV. NO ERROR IN FAILING TO DEVELOP THE RECORD

         Ms. Surles alleges the ALJ failed to develop the record concerning both her physical and mental impairments. (ECF No. 16:2-5). The Court disagrees.

         A. ALJ's Duty to Develop the Record

         It is beyond dispute that the burden to prove disability in a social security case is on the claimant.” Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997); 20 C.F.R. § 404.1512(a) & 416.912(a) (“[Y]ou must bring to our attention everything that shows that you are . . . disabled.”). Nevertheless, because a social security disability hearing is a non-adversarial proceeding, the ALJ is “responsible in every case to ensure that an adequate record is developed during the disability hearing consistent with the issues raised.” Hawkins, 113 F.3d at 1164 (internal citation and quotation marks omitted). Generally, this means that the “ALJ has the duty to . . . obtain [ ] pertinent, available medical records which come to his attention during the course of the hearing.” Carter v. Chater, 73 F.3d 1019, 1022 (10th Cir. 1996).

         A. Physical Impairments

         Regarding Plaintiff's physical limitations, the ALJ opined that Ms. Surles had the RFC to:

[P]erform sedentary work as defined in 20 C.F.R. 404.1567(a) and 416.967(a) except she cannot balance or climb ladders, ropes, or scaffolds. She can occasionally climb stairs and ramps, kneel, crouch, crawl, and stoop.

(TR. 28). Ms. Surles alleges that the ALJ “created [the] functional limitations out of thin air” because “[t]here were no opinions of record as to Plaintiff's functional limitations stemming from her ‘severe' physical impairments of degenerative disc disease of the lumbar spine.” (ECF No. 16:2). Due to the alleged lack of evidence, Ms. Surles states: “[T]he ALJ should have fulfilled her duty to develop the record fully and fairly and obtained some medical opinion from an examining or treating physician as to Plaintiff's functional limitations.” (ECF No. 16:2). For three reasons, the Court rejects this argument.

         First, a written opinion outlining specific functional limitations is not necessary for an ALJ to make an RFC determination. See Howard v. Barnhart, 379 F.3d 945, 949 (10th Cir. 2004) (noting that the ALJ “is charged with determining a claimant's RFC from the medical record” and rejecting an argument “that there must be specific, affirmative, medical evidence on the record as to each requirement of an exertional work level before an ALJ can determine RFC within that category”). Ms. Surles cites Baker v. Barnhart, 84 F. App'x 10, 14 (2003) suggesting otherwise, but in that case, the only pieces of evidence concerning the claimant's functional limitations were the claimant's testimony, which the ALJ rejected, and a check-the-box form, without an accompanying narrative discussion, which was completed by a non-examining physician. See Baker, 84 F. App'x at 14. Under those circumstances, the Court remanded, concluding that the record contained insufficient evidence on which the ALJ could have based his RFC. Id.

         Here, however, the record contained ample evidence on which the ALJ could have based her RFC determination regarding the functional effects of Plaintiff's back impairment. See TR. 445 (MRI of Plaintiff's lumbar spine); 458, 459, 460, 464, 465484-493, (records from Jackson County Memorial Hospital where Ms. Surles was treated for lower back pain); 494 (second MRI of Plaintiff's lumbar spine); 536, 546-549 (records from treating physician Dr. Patrick Felicitas who treated Plaintiff for lower back pain); 550-553 (records from treating physician Dr. Kathleen Murray who treated Plaintiff for lower back pain); 600-607 (records from PHS Indian Clinic where Ms. Surles was treated for lower back pain); 876-880, 891-894, 900-903, 908-930 (records from Indian Health Center where Plaintiff was treated for lower back pain).

         Second, the duty to further develop the record was not triggered because at the hearing, Plaintiff's attorney did not identify any issues requiring further development. See TR. 42-69; Hawkins v. Chater, 113 F.3d 1162, 1168 (10th Cir. 1997) (“[I]n a counseled case, the ALJ may ordinarily require counsel to identify the issue or issues requiring further development. . . . In the absence of such a request by counsel, we will not impose a duty on the ALJ to order a consultative examination unless the need for one is clearly established in the record.”)

         Finally, as noted by the commissioner, the SSA did order a consultative examination for January 26, 2012, but Ms. Surles failed to keep the appointment. See ECF No. 20:6 TR. 661.

         B. Mental Impairments

         Regarding Plaintiff's mental limitations, the ALJ opined that Ms. Surles could:

[U]nderstand, remember, and carry out simple tasks with routine supervision. She cannot have public contact or perform customer service work. She is able to interact appropriately with supervisors and coworkers on a superficial work basis. She is able to adapt to work situations.

(TR. 28). As noted by Plaintiff, the ALJ based these findings on the opinion of non-examining State Agency physician, Dr. E. Czarnecki, whose opinion the ALJ accorded “great weight.” (TR. 31). Plaintiff also correctly notes that Dr. Czarnecki appeared to have based his opinion on the findings from consulting examiner Dr. Reda Rasco. See TR. 659 (Dr. Czarnecki's summary of Dr. Rasco's findings). Dr. Rasco performed her examination on January 20, 2012 and Dr. Czarnecki rendered his findings on March 16, 2012. (TR. 594-598, 644-659). Ms. Surles' administrative hearing was on July 1, 2014. (TR. 42).

         Plaintiff challenges the ALJ's reliance on Dr. Czarnecki's opinion as a basis for his mental RFC findings, arguing that the opinion was “stale” as it was completed almost 28 months prior to the hearing. (ECF No. 16:3). According to Ms. Surles, the ALJ should have further developed the record “and obtained some medical opinion as to Plaintiff's functional limitations stemming from her ‘severe' mental impairments.” (ECF No. 16:4). The Court rejects this argument.

         In addition to reports from Dr. Czarnecki and Dr. Rasco, the record contained other evidence concerning Plaintiff's mental health treatment. See TR. 502-520 (records from Red Rock Behavioral Health Services); 526-529 (records from Jackson County Memorial Hospital Medical Clinic); 971-973 (records from Jackson County Memorial Hospital Counseling Center). Although the records from Red Rock and Jackson County Memorial Hospital Medical Clinic pre-dated Dr. Czarnecki's report, the ALJ was still entitled to rely on them in formulating the RFC as they occurred during the disability ...


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