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Barber v. Berryhill

United States District Court, D. New Mexico

March 23, 2017

ALLEN KENT BARBER, Plaintiff,
v.
NANCY A. BERRYHILL, [1] 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 for a Rehearing with Supporting Memorandum (Doc. 15) filed on November 2, 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, 8, 9. Having considered the record, submissions of counsel, and relevant law, the Court finds Plaintiff's motion is not well-taken and will be DENIED.

         I. Procedural History

         On November 6, 2012, Mr. Allen Kent Barber (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[2] (AR) at 211-24, 239. Plaintiff alleged a disability onset date of April 29, 2011.[3] AR at 15, 279. Disability Determination Services determined that Plaintiff was not disabled both initially (AR at 70-87) and on reconsideration (AR at 88-116). Plaintiff requested a hearing with an Administrative Law Judge (“ALJ”) on the merits of his SSI application. AR at 133-34.

         Plaintiff appeared pro se and testified at the de novo hearing. See AR at 15, 37-56. ALJ Christopher H. Juge issued an unfavorable decision on August 6, 2014. AR at 12-35. Plaintiff requested that the Appeals Council review the ALJ's decision (AR at 10); the Appeals Council denied the request for review on February 11, 2016 (AR 1-5). 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 he 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) he is not engaged in “substantial gainful activity”; (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 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), he is unable to perform his 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 [his] medical impairments.” Ryan v. Colvin, Civ. 15-0740 KBM, 2016 WL 8230660, at *2 (D.N.M. Sept. 29, 2016) (citing 20 C.F.R. § 404, Subpt. P, App. 1 § 12.00(B); 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” Plaintiff retains sufficient RFC “to perform work in the national economy, given his 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, [4] ALJ Juge found that Plaintiff had not engaged in substantial gainful activity since his alleged onset date of April 29, 2011. AR at 17 (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 impairment[s]: large Hill-Sachs lesion and labral tear of the left shoulder status post arthroscopic Bankart repair, and degenerative disc disease . . . .” AR at 18 (citing 20 C.F.R. §§ 404.1520(c), 416.920(c)). The ALJ discussed Plaintiff's history of anxiety, depression, and the psychiatric treatment he received from various providers and found that any “medically determinable mental impairments cause[d] no more than [a] ‘mild' limitation in any of the first three functional areas and ‘no' episodes of decompensation which have been of extended duration in the fourth area . . . .” AR at 18-21. Consequently, the ALJ determined Plaintiff's mental impairments are non-severe. AR at 21 (citing 202 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 21 (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 “has severe impairments that could reasonably be expected to produce some of the symptoms he alleges and which would affect his ability to perform work related activities[, ]” the ALJ did not find Plaintiff's “allegations that he is incapable of all work activity to be credible.” AR at 25. The ALJ considered the evidence of record, including a thoughtful and well-reasoned discussion of the treatment notes and impressions of Dr. Paul Mattox (treating psychiatrist) and the examination and Mental RFC Assessment performed by Dr. John Koewler (consultative psychologist), as well as the treatment notes and Physical RFC Assessment of Plaintiff's treating physician, Dr. Carletta Thompson, along with records and evaluations from other medical providers. AR at 18-27. Ultimately, the ALJ found that Plaintiff “has the residual functional capacity to perform the full range of light work . . . .” AR at 21 (citing 20 C.F.R. §§ 404.1567(b) and 416.967(b)).

         ALJ Juge found that Plaintiff is unable to perform his past relevant work as an automobile mechanic. AR at 28. The ALJ considered Plaintiff's “age, education, work experience, and residual functional capacity, ” and upon application of the Medical-Vocational Guidelines (colloquially known as the “Grids”), found “there are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform . . . .” AR at 28 (citing 20 C.F.R. §§ 404.1569, 404.1569(a), 416.969, 416.969(a)). The ALJ ultimately determined that Plaintiff “has not been under a disability, as defined in the Social Security Act, from April 29, 2011, through the date of the [ALJ's] decision . . . .” AR at 28 (citing 20 C.F.R. §§ 404.1520(g), 416.920(g)).

         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 quotations omitted)).

         IV. Discussion

         Plaintiff asserts that the ALJ: (1) improperly rejected the medical opinion of treating physician Carletta Thompson, M.D., and (2) ignored findings from Administrative Examining Psychologist John Koewler, Ph.D. and Non-Examining State Agency Medical Consultant, Renate Wewerka, Ph.D. Doc. 15 at 15-25.

         A. Treating Physician Carletta Thompson, M.D.

         Plaintiff first argues that the ALJ improperly rejected the opinion of Plaintiff's treating physician, Dr. Carletta Thompson. Doc. 15 at 15-21. Specifically, Plaintiff argues first that ALJ Juge did not perform the two-step treating physician analysis as required by law, and second that the ALJ's reasoning for rejecting Dr. Thompson's opinion is conclusory and fails to reference the portions of the record with which the ALJ found the opinion was inconsistent. Doc. 15 at 17.

         1. ALJs must follow a two-step inquiry when evaluating a treating physician's opinion.

         An ALJ must consider all medical opinions found in the record. Padilla v. Colvin, No. CV 14-495 CG, 2015 WL 10383109, at *4 (D.N.M. June 29, 2015) (citing 20 C.F.R. §§ 404.1527(b), 416.927(b)). “Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about” a plaintiff's impairments. 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). An opinion from a treating physician is generally entitled to more weight than either an examining or an agency physician. Padilla, 2015 WL 10383109, at *4 (citing Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004) (internal citations omitted)).

         “The ALJ should accord opinions of treating physicians controlling weight when those opinions are well-supported by medically acceptable clinical and laboratory diagnostic techniques and not inconsistent with other substantial evidence in the record; this is known as the ‘treating physician rule.'” Id. (citing 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004) (internal citations omitted)). “A treating physician's opinion is accorded controlling weight because the treating physician has a ‘unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations.'” Id. (quoting Doyal, 331 F.3d at 762 (internal quotation omitted)).

         Where the “treating physician's opinion is not supported by medical evidence or consistent with the record, ” id. (citation omitted), it is “still entitled to deference and must be weighed using all of the factors provided in 20 C.F.R. [§§] 404.1527 and 416.927.” Robinson, 366 F.3d at 1082 (quoting Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (quoting Soc. Sec. Ruling, SSR 96-2p, Policy Interpretation Ruling Titles II & XVI: Giving Controlling Weight to Treating Source Medical Opinions, 1996 WL 374188, at *4 (July 2, 1996))). The factors include:

(1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship, including the treatment provided and the kind of examination or testing performed; (3) the degree to which the physician's opinion is supported by relevant evidence; (4) consistency between the opinion and the record as a whole; (5) whether or not the physician is a specialist in the area upon which an opinion is rendered; and (6) other factors brought to the ALJ's attention which tend to support or contradict the opinion.

Id. (quoting Watkins, 350 F.3d at 1300 (internal quotations omitted)). “When evaluating any medical opinion in the record, the ALJ must give good reasons - reasons that are ‘sufficiently specific to make clear to any subsequent reviewers' - for the weight that he ultimately assigns to” those opinions. Padilla, 2015 WL 10383109, at *4 (quoting Langley, 373 F.3d at 1119 (internal quotations omitted)). The ALJ's ...


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