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Tucker v. Berryhill

United States District Court, D. New Mexico

March 8, 2017

JOHN TUCKER, Plaintiff,
v.
NANCY A. BERRYHILL, [1]Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER [2]

          KIRTAN KHALSA, United States Magistrate Judge

         THIS MATTER is before the Court on the Social Security Administrative Record (Doc. 11), filed April 1, 2016, in support of Plaintiff John Tucker's (“Plaintiff”) Complaint (Doc. 1) seeking review of the decision of Defendant Nancy A. Berryhill, Acting Commissioner of the Social Security Administration, (“Defendant” or “Commissioner”) denying Plaintiff's claim for Title II disability benefits. On June 29, 2016, Plaintiff filed his Amended Motion to Remand for Rehearing, With Supporting Memorandum (“Motion”). (Doc. 18.) The Commissioner filed a Response in opposition on August 25, 2016 (Doc. 19), and Plaintiff filed a Reply on September 8, 2016. (Doc. 20.) The Court has jurisdiction to review the Commissioner's final decision under 42 U.S.C. §§ 405(g) and 1383(c). Having meticulously reviewed the entire record and the applicable law and being fully advised in the premises, the Court finds the Motion is not well taken and is DENIED.

         I. Background and Procedural Record

         Claimant John Tucker (“Mr. Tucker”) alleges that he became disabled on March 1, 2012, at the age of fifty-one because of diabetes, neuropathy, depression, sleep apnea, high blood pressure, body aches, right knee problems, high cholesterol, memory loss and ADHD. (Tr. 229, 232.[3]) Mr. Tucker has two bachelor degrees, and worked in sales and management for various flooring companies. (Tr. 233, 234, 354.)

         On June 21, 2012, Mr. Tucker protectively filed[4] an application for Social Security Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (the “Act”), 42 U.S.C. § 401 et seq. (Tr. 191-92, 229.) Mr. Tucker's application was initially denied on November 28, 2012. (Tr. 96, 97-109, 128-30.) Mr. Tucker's application was denied again at reconsideration on June 28, 2013. (Tr. 110, 111-25, 132-33.) On July 18, 2013, Mr. Tucker requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 134-35.) The ALJ conducted a hearing on June 23, 2014. (Tr. 29-95.) Mr. Tucker appeared in person at the hearing with his non-attorney representative John Bishop.[5] (Tr. 29.) The ALJ took testimony from Mr. Tucker (Tr. 35-70) and an impartial vocational expert (“VE”), Diane Weber. (Tr. 70-92.)

         On September 9, 2014, the ALJ issued an unfavorable decision. (Tr. 8-22.) In arriving at his decision, the ALJ determined that Plaintiff met the insured status requirements of the Act through December 31, 2018, [6] and that Mr. Tucker had not engaged in substantial gainful activity since his alleged disability onset date. (Tr. 13.) The ALJ found that Mr. Tucker suffered from severe impairments of “diabetes mellitus type II, with neuropathy and bilateral peripheral neuropathy; obesity; post-operative changes to right knee; [and] history of left shoulder trauma, with arthritis.” (Id.) The ALJ also determined that Mr. Tucker suffered from non-severe impairments of actinic keratosis, seborrheic keratosis, skin tags, benign angiomas, hypertension, microalbuminuria, hepatomegaly and fatty liver, renal cysts, cholelithiasis, diabetic retinopathy, obstructive sleep apnea, restless leg syndrome, depression, anxiety, and adult attention deficit hyperactivity disorder. (Tr. 14.) However, the ALJ found that these impairments, individually or in combination, did not meet or medically equal one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. (Tr. 16.)

         Because he found that Mr. Tucker's impairments did not meet a Listing, the ALJ then went on to assess Mr. Tucker's residual functional capacity (“RFC”). The ALJ stated that

[a]fter careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except that he must be allowed to sit or stand at 30-45 minute intervals for two to five minutes, during which time he can remain on task. The claimant can occasionally climb ramps and stairs, stoop, kneel, crouch, and crawl. The claimant cannot climb ropes, ladders or scaffolds. The claimant can occasionally push, pull, and operate foot pedals with his lower extremities. The claimant can occasionally reach overhead with his non-dominant left upper extremity. The claimant can occasionally be exposed to extreme cold, vibration, and hazards such as dangerous machinery and unprotected heights.

(Tr. 17.) Based on the RFC and the testimony of the VE, the ALJ concluded that Mr. Tucker was not capable of performing his past relevant work, but that considering his age, education, work experience, and RFC, there were jobs that existed in significant numbers in the national economy that Mr. Tucker could perform and he was therefore not disabled. (Tr. 20-22.)

         On August 21, 2015, the Appeals Council issued its decision denying Mr. Tucker's request for review and upholding the ALJ's final decision. (Tr. 1-5.) On October 19, 2015, Mr. Tucker timely filed a Complaint seeking judicial review of the Commissioner's final decision. (Doc. 1.)

         II. Standard of Review

         Judicial review of the Commissioner's denial of disability benefits is limited to whether the final decision[7] is supported by substantial evidence and whether the Commissioner applied the correct legal standards to evaluate the evidence. 42 U.S.C. § 405(g); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004). In making these determinations, the Court must meticulously examine the entire record, but may neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007). In other words, the Court does not reexamine the issues de novo. Sisco v. U.S. Dep't. of Health & Human Servs., 10 F.3d 739, 741 (10th Cir. 1993). The Court will not disturb the Commissioner's final decision if it correctly applies legal standards and is based on substantial evidence in the record.

         “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118. Substantial evidence is “more than a scintilla, but less than a preponderance.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). A decision “is not based on substantial evidence if it is overwhelmed by other evidence in the record[, ]” Langley, 373 F.3d at 1118, or “constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). The Court's examination of the record as a whole must include “anything that may undercut or detract from the [Commissioner's] findings in order to determine if the substantiality test has been met.” Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005). “The possibility of drawing two inconsistent conclusions from the evidence does not prevent [the] findings from being supported by substantial evidence.” Lax, 489 F.3d at 1084 (quoting Zoltanski v. Fed. Aviation Admin., 372 F.3d 1195, 1200 (10th Cir. 2004)). Thus, the Court “may not displace the agency's choice between two fairly conflicting views, ” even if the Court would have “made a different choice had the matter been before it de novo.” Oldham v. Astrue, 509 F.3d 1254, 1257-58 (10th Cir. 2007).

         “The failure to apply the correct legal standard or to provide this court with a sufficient basis to determine that appropriate legal principles have been followed is grounds for reversal.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (internal quotation marks omitted). As such, even if a reviewing court agrees with the Commissioner's ultimate decision to deny benefits, it cannot affirm that decision if the reasons for finding a claimant not disabled were arrived at using incorrect legal standards, or are not articulated with sufficient particularity. Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). “[T]he record must demonstrate that the ALJ considered all of the evidence, but an ALJ is not required to discuss every piece of evidence.” Id. at 1009-10. Rather, the ALJ need only discuss the evidence supporting his decision, along with any “uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence he rejects.” Id.; Mays v. Colvin, 739 F.3d 569, 576 (10th Cir. 2014).

         III. Applicable Law and Sequential Evaluation Process

         Disability under the Social Security Act is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment.” 42 U.S.C. § 423(d)(1)(A). A claimant is disabled under the Act if his “physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work in the national economy.” 42 U.S.C. § 423(d)(2)(A). To qualify for disability insurance benefits, a claimant must establish a severe physical or mental impairment expected to result in death or to last for a continuous period of twelve months, which prevents the claimant from engaging in substantial gainful activity. 42 U.S.C. §423(d)(1)(A); Thompson v. Sullivan, 987 F.2d 1482, 1486 (10th Cir. 1993).

         When considering a disability application, the Commissioner uses a five-step sequential evaluation process. 20 C.F.R. §§ 404.1520; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At the first four steps of the evaluation process, the claimant must show that: (1) he is not engaged in “substantial gainful activity”; and (2) he 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) his impairment(s) meet or equal one of the Listings[8] of presumptively disabling impairments; or (4) he is unable to perform his “past relevant work.” 20 C.F.R. § 404.1520(a)(4)(i-iv); Grogan 399 F.3d at 1261. If the claimant can show that his impairment meets or equals a Listing at step three, the claimant is presumed disabled and the analysis stops. If at step three, the claimant's impairment is not equivalent to a listed impairment, before moving on to step four of the analysis, the ALJ must consider all of the relevant medical and other evidence, including all of the claimant's medically determinable impairments whether “severe” or not, and determine what is the “most [the claimant] can still do” in a work setting despite his physical and mental limitations. 20 C.F.R. § 404.1545(a)(1)-(3). This is called the claimant's residual functional capacity (“RFC”). 20 C.F.R. §§ 404.1545(a)(1) & (a)(3). The claimant's RFC is used at step four to determine if he can perform the physical and mental demands of his past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 404.1520(e). If the claimant establishes that he is incapable of meeting those demands, the burden of proof then shifts to the Commissioner, at step five of the sequential evaluation process, to show that the claimant is able to perform other work in the national economy, considering his residual functional capacity (“RFC”), age, education, and work experience. Id., Grogan, 399 F.3d at 1261.

         Although the claimant bears the burden of proving disability in a Social Security case, because such proceedings are nonadversarial, “[t]he ALJ has a basic obligation in every social security case to ensure that an adequate record is developed during the disability hearing consistent with the issues raised.” Henrie v. U.S. Dep't of Health & Human Servs., 13 F.3d 359, 360-61 (10th Cir. 1993); Madrid v. Barnhart, 447 F.3d 788, 790 (10th Cir. 2006). “This is true despite the presence of counsel.” Henrie, 13 F.3d at 361. “The duty is one of inquiry and factual development, ” id., “to fully and fairly develop the record as to material issues.” Hawkins v. Chater, 113 F.3d 1162, 1167 (10th Cir. 1997). This may include, for example, an obligation to obtain pertinent medical records or to order a consultative examination. Madrid, 447 F.3d at 791-92. The duty is triggered by “some objective evidence in the record suggesting the existence of a condition which could have a material impact on the disability decision requiring further investigation.” Hawkins, 113 F.3d at 1167.

         IV. Analysis

         Mr. Tucker asserts five arguments in support of reversing and remanding his case as follows: (1) the ALJ's RFC determination erroneously negated the effects of the sit-stand option and ignored the combined effects of the Mr. Tucker's non-severe impairments (Doc. 18 at 11-15); (2) the ALJ failed to engage in a complete function-by-function assessment of Mr. Tucker's work-related abilities (Id. at 15-17); (3) the ALJ's RFC ignored portions of Stage agency examining medical consultant Dr. Raul Neftali Young-Rodriguez's assessment (Id. at 17-19); (4) the ALJ failed to incorporate the functionally limiting effects of Mr. Tucker's obesity (Id. at 19-23); and (5) the ALJ's step five findings are not based on substantial evidence (Doc. 20 at 6).[9]The Court finds there are no grounds for remand as discussed below.

         A. RFC Assessment

         Mr. Tucker argues that the ALJ erroneously negated the effects of a sit/stand option in his RFC assessment when he stated that Mr. Tucker could stay on task while standing and/or sitting, and that he ignored the combined effects of the claimant's non-severe limitations on his ability to concentrate. (Doc. 18 at 11-15.) Mr. Tucker argues that assessing a sit-stand option implies per se that an individual cannot remain on task. (Id. at 12-13.) In other words, the pain that necessitates changing positions from sitting to standing or vice versa necessarily affects a claimant's ability to stay on task for some period of time. Mr. Tucker further argues that even disregarding the impact of Mr. Tucker's pain, his non-severe impairments would prevent him from remaining on task while sitting and standing throughout a workday. (Id. at 13-14.) The Commissioner contends that the evidence does not support Mr. Tucker's inability to stay on task, and that the ALJ specifically considered all of Mr. Tucker's impairments when determining the RFC. (Doc. 19 at 12.) The Court agrees with the Commissioner.

         Assessing a claimant's residual functional capacity is an administrative determination left solely to the Commissioner. 20 C.F.R. §§ 404.1546(c) and 416.946(c) (“If your case is at the administrative law judge hearing level or at the Appeals Council review level, the administrative law judge or the administrative appeals judge at the Appeals Council . . . is responsible for assessing your residual functional capacity.”); see also SSR 96-5p, 1996 WL 374183, at *2 (stating that some issues are administrative findings, such as an individual's RFC). In assessing a claimant's RFC, the ALJ must consider the combined effect of all of the claimant's medically determinable impairments, and review all of the evidence in the record. Wells v. Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013); see 20 C.F.R. §§ 404.1545(a)(2) and (3) and 416.945(a)(2) and (3). The ALJ must consider and address medical source opinions and must always give good reasons for the weight accorded to a treating physician's opinion. 20 C.F.R. § 404.1527(c)(2); SSR 96-8p, 1996 WL 374184, at *7. If the RFC assessment conflicts with an opinion from a medical source, the ALJ must explain why the opinion was not adopted. SSR 96-8p, 1996 WL 374184 at *7. Most importantly, the ALJ's “RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts . . . and nonmedical evidence.” Wells, 727 F.3d at 1065 (quoting SSR 96-8p, 1996 WL 374184, at *7). When the ALJ fails to provide a narrative discussion describing how the evidence supports each conclusion, citing to specific medical facts and nonmedical evidence, the court will conclude that her RFC conclusions are not supported by substantial evidence. See Southard v. Barnhart, 72 F. App'x 781, 784-85 (10th Cir. 2003). The ALJ's decision must be sufficiently articulated so that it is capable of meaningful review. See Spicer v. Barnhart, 64 F. App'x 173, 177-78 (10th Cir. 2003) (unpublished).

         The ALJ's RFC assessment is sufficiently articulated and is supported by substantial evidence. “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118. Here, the ALJ's RFC assessment included an organized and thorough narrative of Mr. Tucker's severe and non-severe impairments, medical history and records, medical source statements, hearing testimony, and third-party statement. (Tr. 13-20.) The ALJ applied the correct legal standards in evaluating the medical evidence by properly evaluating and explaining the weight he accorded to the State agency examining and nonexamining medical consultants.[10] See Hamlin, 365 F.3d at 1215 (“If an ALJ intends to rely on a nontreating physician or examiner's opinion, he must explain the weight he is giving to it.”) The ALJ's RFC did not conflict with any opinion from a medical source.[11] Finally, the ALJ thoroughly explained how the evidence supported his conclusions. (Tr. 19-20.) To that end, the ALJ ultimately determined that Mr. Tucker's knee, [12] shoulder, [13]and symptoms from obesity[14] and diabetes[15] would prevent him from being able to lift or carry at more than a light exertional level. (Tr. 19.) The ALJ determined that the bilateral neuropathy in Mr. Tucker's feet, along with his knee pain, would limit him to employment that would allow him to sit and/or stand for a few minutes every 30 to 45 minutes. (Tr. 18-19.) The ALJ also determined that Mr. Tucker's knee pain and history of surgery would limit the amount of climbing, balancing, kneeling, crouching, and crawling he could do, while his left shoulder injury and arthritis would keep him from more than occasional lifting overhead. (Tr. 19.)

         1. Sit-Stand Option

         The ALJ did not negate the effect of the sit-stand option by concluding that Mr. Tucker could stay on task while standing or sitting. As an initial matter, Mr. Tucker fails to point to any case law, regulation or ruling to support his proposition that a sit-stand option implies per se an inability to stay on task. The purpose of incorporating an individual's need to alternate between sitting and standing in the RFC assessment is to address symptoms, including pain, that may have an impact on an occupation's strength demands. SSR 96-8p, 1996 WL 374184, at *6.

         SSR 83-12 states in pertinent part that

[i]n some disability claims, the medical facts lead to an assessment of RFC which is compatible with the performance of either sedentary or light work except that the person must alternate periods of sitting and standing. The individual may be able to sit for a time, but must then get up and stand or walk for awhile before returning to sitting. Such an individual is not functionally capable of doing either the prolonged sitting contemplated in the definition of sedentary work (and for the relatively few light jobs which are performed primarily in a seated position) or the prolonged standing or walking contemplated for most light work. (Persons who can adjust to any need to vary sitting and standing by doing so at breaks, lunch periods, etc., would still be able to perform a defined range of work.)
There are some jobs in the national economy - typically professional and managerial ones - in which a person can sit or stand with a degree of choice. If an individual had such a job and is still capable of performing it, or is capable of transferring work skills to such jobs, he or she would not be found disabled. However, most jobs have an ongoing work processes which demand that a worker be in a certain place or posture for at least a certain length of time to accomplish a certain task. Unskilled types of jobs are particularly structured so that a person cannot ordinarily sit or stand at will. In cases of unusual limitation of ability to sit or stand, a VS [vocational specialist] should be consulted to clarify the implications for the occupational base.

         SSR 83-12, 1983 WL 31253, at *4. SSR 96-9p instructs that the extent of the erosion to the occupational base would depend on the facts in the case record, and that the RFC assessment must be specific as to the frequency of the individual's need to alternate sitting and standing. SSR 96-9p, 1996 WL 374185, at *7; see also Vail v. Barnhart, 84 F. App'x 1, 5 (10th Cir. 2003) (unpublished) (holding that an ALJ's failure to define how often a claimant would need to change positions is a critical omission). In compliance with these rulings, the ALJ properly defined how often Mr. Tucker would need to change positions, and consulted a VE who testified there were certain jobs available in the national economy that would accommodate the sit-stand option he described in his hypothetical. (Tr. 75-80.) For these reasons, there was no error in the ALJ's RFC assessment as to the sit-stand option.

         2. Non-Severe Impairments

         The ALJ did not ignore the combined effects of Mr. Tucker's non-severe impairments in his RFC determination. To the contrary, the ALJ discussed at length Mr. Tucker's non-severe impairments, of which there were many; i.e., actinic keratosis, seborrheic keratosis, skin tags, benign angiomas, hypertension, microalbuminuria, hepatomegaly and fatty liver, renal cysts, cholelithiasis, diabetic retinopathy, obstructive sleep apnea, restless leg syndrome, depression, anxiety, and adult attention deficit hyperactivity disorder. (Tr. 14.) The ALJ explained that Mr. Tucker's actinic keratosis was treated with liquid nitrogen therapy and that all his other skin conditions were benign with no treatment indicated. (Tr. 14, 315-16, 372, 403-04.) The ALJ explained that Mr. Tucker's hypertension was stated to be well-controlled with medication and that Mr. Tucker was also taking medication for the microalbuminuria. (Tr. 14, 318, 375, 378, 383, 412, 413, 417.) The ALJ explained that CT scans of Mr. Tucker's abdomen and pelvis obtained in response to Mr. Tucker's recent complaints of upper quadrant pain revealed hepatomegaly, fatty liver, renal cysts, and cholelithiasis.[16] (Tr. 14, 417-20.) The ALJ discussed that Mr. Tucker used a CPAP machine most nights due to sleep apnea and reported that although he is up two to three times per night for nocturia, his daytime energy level was good. (Tr. 15, 389.) The ALJ discussed Mr. Tucker's restless leg syndrome and that he reported his wife massaged his legs with oil, which he stated was very helpful, and that he did not want medication to treat this condition. (Tr. 15, 391.) Finally, the ALJ discussed Mr. Tucker's mental impairments. (Tr. 15.) He explained that Mr. Tucker was diagnosed with ADHD in 2008 by a nurse practitioner, [17] and that Mr. Tucker treated his ADHD with tea.[18] (Tr. 15, 317, 348, 349.) The ALJ explained that Mr. Tucker reported to Dr. Valle that his depression ...


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