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Jacquez v. Berryhill

United States District Court, D. New Mexico

March 27, 2017

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.



         THIS MATTER is before the Court on Plaintiff's Motion to Reverse and Remand for a Rehearing With Supporting Memorandum (Doc. 21), filed December 1, 2016 (hereinafter “motion”). On January 23, 2017, Defendant filed a response (Doc. 23) to Plaintiff's motion and, on February 7, 2017, Plaintiff filed a reply (Doc. 24). In accordance with 28 U.S.C. § 636(c)(1) and Fed.R.Civ.P. 73(b), the parties have consented to have the undersigned United States Magistrate Judge conduct all proceedings and enter a final judgment in this case. See [Doc. 25]. The Court has considered Plaintiff's motion, Defendant's response, Plaintiff's reply, and the relevant law. Additionally, the Court has meticulously reviewed and considered the entire administrative record. [Doc. 13]. For the reasons set forth below, the Court FINDS that Plaintiff's motion should be DENIED and the decision of the Commissioner of the Social Security Administration (hereinafter “Defendant”) should be AFFIRMED.

         I. Procedural History

         On April 20, 2009, Plaintiff protectively filed an application for Disability Insurance Benefits (hereinafter “DIB”), alleging disability that began on May 31, 2008. [Doc. 13-8 at 19]. Plaintiff's application was denied at the initial level on September 17, 2009 (Doc. 13-4 at 2) and, at the reconsideration level, on March 10, 2010 (id. at 3). Plaintiff requested a hearing to review the denial of her application (Doc. 13-5 at 13), and Administrative Law Judge Barry Robinson (hereinafter “ALJ Robinson”) conducted a hearing on October 12, 2011 (Doc. 13-3 at 27-65). Plaintiff appeared at the hearing, represented by her former attorney Michelle Vaca, and testified (id. at 29, 31-57), as did Vocational Expert Michael L. Driscoll (hereinafter “VE Driscoll”)[1] (id. at 58-64).

         On January 10, 2012, ALJ Robinson issued a decision (Doc. 13-3 at 12-22) finding that Plaintiff “has not been under a disability, as defined in the Social Security Act, from May 31, 2008, through the date of this decision.” Id. at 21. On February 24, 2012, Plaintiff requested that the Appeals Council review ALJ Robinson's decision. Id. at 7. On February 21, 2013, the Appeals Council denied Plaintiff's request for review on the ground that there was “no reason under our rules to review the [ALJ]'s decision.” Id. at 2. This decision was a final decision of the Commissioner. Plaintiff appealed that decision to this district court (Jacquez v. Colvin, Civ.-13-383 SMV) and, on September 16, 2016, the decision was reversed and the case was remanded to the agency for further proceedings.[2] [Doc. 13-14 at 3-17]. On December 10, 2014, after its receipt of the district court's decision, the Appeals Council issued a remand order that notified the not-yet-assigned ALJ that Plaintiff had filed subsequent DIB and Supplemental Security Income (hereinafter “SSI”) applications on March 15, 2013;[3] consolidated those claims with Plaintiff's previous DIB claim; and directed the ALJ to offer Plaintiff an opportunity for a new hearing to address additional evidence, to take any necessary additional action, and to issue a new decision. Id. at 20.

         Pursuant to that remand order, another hearing was held on October 20, 2015 (Doc. 13-13 at 2-31) by ALJ Ann Farris (hereinafter “ALJ Farris”), at which Plaintiff again appeared, represented by her current attorney, Michael Armstrong, and testified (id. at 4, 8-26). Also appearing and testifying at the hearing was Vocational Expert Karen Nixon Provine (hereinafter, “VE Provine”). Id. at 4, 27-30. On December 18, 2015, ALJ Farris issued a decision finding that Plaintiff “was not under a disability . . . at any time through December 31, 2013, the date last insured” for purposes of her DIB claims. [Doc. 13-12 at 15]. However, ALJ Farris also determined that Plaintiff became disabled “[b]eginning on September 9, 2014, the date [her] age category changed.”[4] Id. Plaintiff did not file exceptions to ALJ Farris' decision, and the Appeals Council did not assume jurisdiction within sixty days. Therefore, pursuant to 20 C.F.R. § 404.984(d), the ALJ's decision became the final decision of the Commissioner. On April 11, 2016, Plaintiff filed her complaint in this case. [Doc. 1].

         II. Standard of Review

         The standard of review in a Social Security appeal is whether the Commissioner's final decision is supported by substantial evidence and whether the correct legal standards were applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008) (citing Hamilton v. Sec'y of Health & Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992)). If substantial evidence supports the ALJ's findings and the correct legal standards were applied, the Commissioner's decision stands, and the plaintiff is not entitled to relief. See Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). A court should meticulously review the entire record but should neither re-weigh the evidence nor substitute its judgment for that of the Commissioner. Hamlin, 365 F.3d at 1214; Langley, 373 F.3d at 1118.

         “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118 (citation and quotation marks omitted); Hamlin, 365 F.3d at 1214 (citation and quotation marks omitted); Doyal, 331 F.3d at 760 (citation and quotation marks omitted). An ALJ's decision “is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting it.” Langley, 373 F.3d at 1118 (citation and quotation marks omitted); Hamlin, 365 F.3d at 1214 (citation and quotation marks omitted). While a court may not re-weigh the evidence or try the issues de novo, its examination of the record as a whole must include “anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met.” Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005) (citations omitted). “The possibility of drawing two inconsistent conclusions from the evidence does not prevent [the ALJ]'s findings from being supported by substantial evidence.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).

         III. Applicable Law and Sequential Evaluation Process

         For purposes of DIB and SSI, a person establishes a disability when he or 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), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). In light of this definition for disability, a five-step sequential evaluation process (hereinafter “SEP”) has been established for evaluating a disability claim. 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At the first four steps of the SEP, the claimant has the burden to show that: (1) the claimant is not engaged in “substantial gainful activity;” and (2) the claimant 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 either (3) the claimant's impairment(s) meet(s) or equal(s) one of the “Listings” of presumptively disabling impairments; or (4) the claimant is unable to perform his or her “past relevant work.” 20 C.F.R. §§ 404.1520(a)(4)(i-iv), 416.920(a)(4)(i-iv); Grogan, 399 F.3d at 1261. At the fifth step of the evaluation process, the burden of proof shifts to the Commissioner to show that the claimant is able to perform other work in the national economy, considering his or her residual functional capacity (hereinafter “RFC”), age, education, and work experience. Grogan, 399 F.3d at 1261.

         IV. Plaintiff's Age, Education, Work Experience, and Medical History; and the ALJ's Decision

         Plaintiff was born on September 10, 1964 (Doc. 13-7 at 2), and was 44 years old on May 31, 2008, the alleged date of disability onset. Plaintiff turned 50 years old on September 10, 2014. For the purposes of her disability claims, Plaintiff was considered to be a “younger person” until she turned 50, and was thereafter considered to be “closely approaching advanced age.”[5]Plaintiff reads and understands English, but has only a ninth grade education. [Doc. 13-8 at 2, 7]. Prior to filing her disability claims, Plaintiff had worked intermittently as a waitress, a cashier, and a housekeeper. [Doc. 13-13 at 8-9, 28]. She last worked on November 16, 2008, when her teller job at a race track job terminated due to the end of horse racing season. [Doc. 13-8 at 3]. In her 2013 DIB and SSI applications, Plaintiff claimed disability due to “Bilateral Knee Instability, Degenerative Joint Disease, Left Leg Shorter than the Right Leg[, ] Acid Reflux, Hernia, Anemia[;] Hip Dysplasia, [and] Chronic Back Pain.” [Doc. 13-20 at 7].

         Plaintiff's medical records include: treatment record, dated February 22, 2013, from Andrew J. Veitch, M.D. (Doc. 13-22 at 2-3); outpatient treatment records for the periods from October 3, 2011 to February 27, 2013 (id. at 9-28), from May 18, 2012 to September 12, 2013 (Doc. 13-23 at 5-44), from September 4, 2013 to September 10, 2015 (Doc. 13-24 at 10-21), and from October 1, 2013 to October 6, 2015 (Doc. 13-25 at 3 through Doc. 13-27 at 19), from the University of New Mexico Health Sciences Center; medical assessment of work-related abilities, physical (Doc. 13-22 at 29) and non-physical (id at 30), both dated May 1, 2013, from Dr. Andrew Veitch; medical assessments of work-related abilities, physical, dated September 3, 2013 (Doc. 13-24 at 6) and September 7, 2013 (id. at 3), listing 12.04 assessments, dated September 3, 2013 (id. at 7) and September 7, 2013 (id. at 4), and listing 12.06 assessment, dated September 3, 2013 (id. at 8) from Grace Mishkin, CFNP; and medical assessment of work-related abilities, physical, dated March 25, 2014, from Lesley Toser, DPT (id. at 5). Where relevant, Plaintiff's medical records are discussed in more detail below.

         At step one of the five-step evaluation process, ALJ Farris found that Plaintiff had not engaged in substantial gainful activity since the alleged onset date of disability. [Doc. 13-12 at 8]. At step two, she found that Plaintiff has had the following severe impairments since May 31, 2008: “scoliosis, anxiety, patellafemoral[6] instability, leg-length discrepancy, and a history of congenital hip dislocation.” Id. At the third step, ALJ Farris found that Plaintiff “has not had an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).” Id. at 9. In so finding, ALJ Farris considered Listing 1.02 Major Dysfunction of a Joint(s)), and concluded that: (1) because imaging of Plaintiff's hip “has revealed no joint-space narrowing, bony destruction or ankylosis”; and (2) because, “examiners regularly reported good range of motion [in Plaintiff's knees], despite complaints of pain, ” and Plaintiff “ambulates minus any assistive device beyond knee braces.” her hip and knee impairments were not of listing-level severity. Id.

         Prior to step four, ALJ Farris determined that, since May 31, 2008, Plaintiff had the RFC to:

perform sedentary work (lift 10 pounds occasionally, stand/walk for two hours out of an eight-hour day and sit for six hours out of an eight-hour day) as defined in 20 CFR 404.1567(a) and 416.967(a) except she cannot kneel, crouch or crawl. She can occasionally climb, balance and stoop. [Plaintiff] can make simple decisions in a work environment with few changes.

Id. In support of this RFC assessment, ALJ Farris found that Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, [Plaintiff]'s statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible for the reasons explained in this decision.” Id. at 12.

         At step four, ALJ Farris found that Plaintiff “has been unable to perform any past relevant work” since May 31, 2008, because the requirements of Plaintiff's previous work exceed her present RFC. Id. at 13. At step five, ALJ Farris found that, prior to September 9, 2014, jobs existed in significant numbers in the national economy that Plaintiff could have performed. Id. at 14. ALJ Farris indicated that, “if [Plaintiff] had the [RFC] to perform the full range of sedentary work, a finding of ‘not disabled' would be directed by Medical-Vocational Rule 201.19, ” but that Plaintiff's ability to perform sedentary work “was impeded by additional limitations.” Id. Therefore, ALJ Farris relied on VE Provine's testimony that an individual with Plaintiff's work history, education, and RFC could have performed the following representative jobs: stuffer (DOT 731.685-014), table worker (DOT 739.687-182), and addresser (DOT 209.587-010). [Doc. 13-12 at 14]. Based on that testimony, ALJ Farris concluded that a finding of “not disabled” was appropriate for the period prior to September 9, 2014. Id. However, ALJ Farris then found that, “[b]eginning on September 9, 2014, the date [Plaintiff]'s age category changed, considering [Plaintiff]'s age, education, work experience, and [RFC], there are no jobs that exist in significant numbers in the national economy that she could perform.” Id. at 15.

         V. Analysis

         In her current motion to remand, Plaintiff argues that ALJ Farris: (1) failed to provide specific, legitimate reasons for rejecting the medical opinions of treating physician, Andrew Veitch, M.D.; (2) breached her administrative duty to develop the record concerning whether Plaintiff has additional mental health impairments; and (3) failed to properly analyze VE Provine's testimony and, therefore, her step five determination is not supported by substantial evidence. [Doc. 21 at 2]. Defendant responds that: (1) ALJ Farris reasonably weighed Dr. Veitch's opinion; (2) the record regarding Plaintiff's mental condition was adequately developed; and (3) ALJ Farris appropriately relied on VE Provine's testimony. [Doc. 23 at 5, 8, and 10, respectively]. In reply, Plaintiff argues that: (1) Defendant failed to respond to the arguments in her motion and, instead, offered impermissible post hoc explanations; (2) ALJ Farris relied on medical sources that never offered “true medical opinions”; (3) that Defendant is “imputed with the knowledge” that VEs have been providing jobs numbers that are unreliable; and (4) the case should be remanded for an immediate award of benefits.[7] [Doc. 24 at 2, 3, 4, and 5, respectively].

         A. ALJ Farris' Consideration of the ...

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