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Osborn v. Colvin

United States District Court, D. New Mexico

December 19, 2016

EVELYN OSBORN, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER is before the Court on Plaintiff's Motion to Reverse and Remand to Agency for Rehearing with Supportive Memorandum (Doc. 18) filed on May 4, 2016. Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73(b), the parties have consented to me serving as the presiding judge and entering final judgment. See Docs. 5, 10. Having considered the record, submissions of counsel, and relevant law, the Court finds Plaintiff's motion is well-taken and will be granted.

         I. Procedural History

         On September 22, 2011, Ms. Evelyn Osborn (Plaintiff) protectively filed applications with the Social Security Administration for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) under Titles II and XVI of the Social Security Act. Administrative Record[1] (AR) at 245-58. Plaintiff alleged a disability onset date of March 15, 2008. AR at 245, 253. Disability Determination Services determined that Plaintiff was not disabled both initially (AR at 119-36) and on reconsideration (AR at 137-66). Plaintiff requested a hearing with an Administrative Law Judge (“ALJ”) on the merits of her SSI application. AR at 184-86.

         Both Plaintiff and a vocational expert (VE) testified during the de novo hearing. See AR at 55-95. ALJ Michelle K. Lindsay issued an unfavorable decision on December 23, 2013. AR at 35-54. Plaintiff submitted a Request for Review of Hearing Decision/Order to the Appeals Council (AR at 34), which the council denied on May 28, 2015 (AR at 7-10). Consequently, the ALJ's decision became the final decision of the Commissioner. Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003).

         II. Applicable Law and the ALJ's Findings

         A claimant seeking disability benefits must establish that she is unable “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 also 20 C.F.R. § 404.1505(a). The Commissioner must use a five-step sequential evaluation process to determine eligibility for benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).

         The claimant has the burden at the first four steps of the process to show: (1) she is not engaged in “substantial gainful activity”; (2) she has a “severe medically determinable . . . impairment . . . or a combination of impairments” that has lasted or is expected to last for at least one year; and (3) her impairment(s) meet or equal one of the listings in Appendix 1, Subpart P of 20 C.F.R. Pt. 404; or (4) pursuant to the assessment of the claimant's residual functional capacity (RFC), she is unable to perform her past relevant work. 20 C.F.R §§ 404.1520(a)(4)(i-iv), 416.920(a)(4)(i-iv); see also Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005) (citations omitted). “RFC is a multidimensional description of the work-related abilities [a claimant] retain[s] in spite of her medical impairments.” 20 C.F.R. § 404, Subpt. P, App. 1 § 12.00(B); see also 20 C.F.R. §404.1545(a)(1). If the claimant meets “the burden of establishing a prima facie case of disability[, ] . . . the burden of proof shifts to the Commissioner at step five to show that the claimant retains sufficient . . . RFC to perform work in the national economy, given [her] age, education, and work experience.” Grogan, 399 F.3d at 1261 (citing Williams v. Bowen, 844 F.2d 748, 751 & n.2 (10th Cir. 1988) (internal citation omitted)); see also 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).

         At Step One of the process, [2] ALJ Lindsay found that while Plaintiff is currently working part-time as a middle school lunch room monitor, her earnings of approximately $324/month do not reach substantial gainful activity levels. AR at 41. The ALJ found, therefore, that Plaintiff had not engaged in substantial gainful activity since her alleged onset date, March 15, 2008. AR at 41 (citing 20 C.F.R. §§ 404.1571 et seq., 416.971 et seq.). At Step Two, the ALJ concluded that Plaintiff “has the following severe impairments: history of herniated discs in cervical spine, status-post fusion; history [of] carpal tunnel syndrome, status-post surgical release bilaterally; diabetes mellitus, and hypertension . . . .” AR at 41 (citing 20 C.F.R. §§ 404.1520(c), 416.920(c)). The ALJ found that Plaintiff's chronic cholecystitis and cholelithiasis without biliary obstruction, fatty liver disease, and obesity did not “have the requisite limiting effects on [Plaintiff's] ability to perform basic work activities” and were non-severe impairments. AR at 41. And while the Plaintiff alleged “limitations due to shoulder and back conditions, ” the ALJ noted “the record is devoid of any such documented conditions[, ] ongoing symptoms[, ]” or diagnoses. AR at 43. Thus, the ALJ found that such limitations were not medically determinable. AR at 43.

         The ALJ also noted that while the record evidence “supports [diagnoses] of depression and anxiety, ” the treatment has been conservative, Plaintiff “has received no ongoing counseling or psychiatric care with no more than basic medication management[, ]” and the conditions appear to be “more situational than persistent.” AR at 41 (citing AR at 535-66, 645). The ALJ found that neither ongoing treatment records nor consultative examinations demonstrated significant psychological or cognitive abnormalities, and Plaintiff is frequently non-compliant with her medications. AR at 41 (citing AR at 382-91, 523-25, 535-67, 569-81, 586-89, 595-607, 640-49, 657-79). Finally, the ALJ considered the fact that while Plaintiff “originally alleged significant mental problems, at the time of the hearing, she had no mental complaints at all” and “testified that going out and going to work was her ‘social-time.'” AR at 42. In the ALJ's opinion, “[t]here seems to be no evidence of any mental impairment-related functional limitations, based on [Plaintiff's] own testimony.” AR at 42.

         In making her determination regarding Plaintiff's mental impairments, ALJ Lindsay considered the “paragraph B” criteria - “four broad functional areas set out in the disability regulations for evaluating mental disorders . . . .” AR at 42 (citing 20 C.F.R. Part 404, Subpart P, Appx. 1). The ALJ found that Plaintiff has no limitations in either the first functional area (activities of daily living) or in the second functional area (social functioning). AR at 42. Plaintiff has a mild limitation in the third functional area (concentration, persistence or pace). AR at 42. The ALJ found that Plaintiff has experienced no episodes of decompensation of extended duration, because there is no evidence of hospitalization related to Plaintiff's mental conditions. AR at 42. The ALJ ultimately found that Plaintiff's mental impairments are non-severe, because they cause no more than mild limitations in the first three functional areas, and there were no episodes of decompensation of extended duration in the fourth area. AR at 42 (citing 20 C.F.R. §§ 404.1520a(d)(1), 416.920a(d)(1)).

         At Step Three, the ALJ found that Plaintiff “does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 [C.F.R.] Part 404, Subpart P, Appendix 1.” AR at 43 (citing 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926). At Step Four, the ALJ found that while Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms[, ] . . . [Plaintiff's] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible . . . .” AR at 44. The ALJ considered the evidence of record as well as the opinions of Plaintiff's treating physician, the consultative psychologist and physicians, and Plaintiff's sisters and brother. AR at 44-48. Ultimately, the ALJ found that Plaintiff “has the residual functional capacity to perform the full range of light work as defined in 20 [C.F.R. §§] 404.1567(b) and 416.967(b).” AR at 43.

         ALJ Lindsay concluded that Plaintiff is able to perform her past relevant work as an educational assistant, which “does not require the performance of work-related activities precluded by” Plaintiff's RFC. AR at 48 (citing 20 C.F.R. §§ 404.1565, 416.965). The ALJ ultimately determined that Plaintiff “has not been under a disability, as defined in the Social Security Act, [since] March 15, 2008 . . . .” AR at 49 (citing 20 C.F.R. §§ 404.1520(f), 416.920(f)).

         III. Legal Standard

         The Court must “review the Commissioner's decision to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005) (internal citation omitted)). A deficiency in either area is grounds for remand. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161, 1166 (citation omitted). “Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Lax, 489 F.3d at 1084 (quoting Hackett, 395 F.3d at 1172 (internal quotation omitted)). “It requires more than a scintilla, but less than a preponderance.” Id. (quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004) (internal quotation omitted) (alteration in original)). The Court will “consider whether the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases, but [it] will not reweigh the evidence or substitute [its] judgment for the Commissioner's.” Id. (quoting Hackett, 395 F.3d at 1172 (internal quotation marks and quotations omitted)).

         “The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence.” Id. (quoting Zoltanski, 372 F.3d at 1200 (internal quotation omitted)). The Court “may not ‘displace the agenc[y's] choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.'” Id. (quoting Zoltanski, 372 F.3d at 1200 (internal quotation omitted)).

         IV. Discussion

         Plaintiff asserts that the ALJ failed to properly evaluate the opinions and statements of (1) treating physician Ann S. Mercer, M.D.; (2) consultative psychologist Michael R. Pitts, Psy. D.; (3) consultative examining physician Carlos Pastrana, M.D.; (4) consultative nonexamining physician Elizabeth Chiang, M.D.; and (5) Plaintiff's sisters and brother. Doc. 18 at 4.

         A. Treating Physician Ann S. Mercer, M.D.

         Plaintiff first argues that the ALJ improperly considered the opinion of Plaintiff's treating physician, Dr. Ann Mercer. Id. at 8-12. Plaintiff presents two main points of contention: first, Plaintiff contends it was error for the ALJ to find that Dr. Mercer's opinion was unsupported by medical evidence or inconsistent with substantial evidence in ...


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