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Pacheco v. Berryhill

United States District Court, D. New Mexico

March 28, 2017

NANCY A. BERRYHILL, [1]Acting Commissioner of Social Security Administration, Defendant.


          STEPHAN M. VIDMAR, United States Magistrate Judge

         THIS MATTER is before the Court on Plaintiff's Motion to Remand or Reverse [Doc. 23] and her Brief in Support [Doc. 24] (collectively, “Motion”), filed on July 29, 2016. The Commissioner responded on October 26, 2016. [Doc. 28]. Plaintiff replied on November 21, 2016. [Doc. 31]. The parties have consented to the undersigned's entering final judgment in this case. [Doc. 16]. Having meticulously reviewed the entire record and being fully advised in the premises, the Court finds that Plaintiff fails to meet her burden as the movant to show that the Administrative Law Judge's (“ALJ”) decision did not apply the correct legal standards or was not supported by substantial evidence. Accordingly, the Motion will be denied and the Commissioner's final decision affirmed.

         Standard of Review

         The standard of review in a Social Security appeal is whether the Commissioner's final decision[2] 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 Commissioner's findings and the correct legal standards were applied, the Commissioner's decision stands and the plaintiff is not entitled to relief. 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. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214.

         “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214; Doyal, 331 F.3d at 760. The 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; Hamlin, 365 F.3d at 1214. 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 [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 v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).

         “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).

         Applicable Law and Sequential Evaluation Process

         In order to qualify for disability benefits, a claimant 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), 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 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 sequential process, the claimant has the burden to show that: (1) she is not engaged in “substantial gainful activity”; and (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 either (3) her impairment(s) either meet or equal one of the “Listings”[3] of presumptively disabling impairments; or (4) 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); 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 her residual functional capacity (“RFC”), age, education, and work experience. Grogan, 399 F.3d at 1261.

         Procedural Background

         Plaintiff applied for a period of disability, disability insurance benefits, and supplemental security income on May 27, 2009. Tr. 18. She alleged a disability-onset date of November 5, 2008. Id. Her claims were denied initially, on reconsideration, and by an ALJ. Id. The Appeals Council denied review, and Plaintiff appealed to this Court. Presiding by consent, the Honorable Gregory B. Wormuth, United States Magistrate Judge, granted Plaintiff's motion to reverse the ALJ's decision and remand the matter to the Commissioner. Tr. 529-51; Pacheco v. Colvin, No. 13-cv-0848 GBW (D.N.M. Oct. 6, 2014) (unpublished).

         Judge Wormuth held that remand was warranted because the ALJ had failed to apply the correct legal standards in evaluating the reports from Plaintiff's treating psychiatrist, Margaret Conolly, M.D. In particular, Dr. Connolly had assed Plaintiff's global assessment of functioning (“GAF”) scores at 45 and 35, [4] in 2008 and 2011, respectively. Tr. 330, 440. The ALJ had not even mentioned Dr. Conolly's treatment records at all, much less the GAF scores. The Commissioner argued that there was no error in the ALJ's failure to discuss the GAF scores. Judge Wormuth disagreed. He found that the GAF scores were significantly probative, and thus, it was reversible error for the ALJ not to address them. Tr. 544-49.

         Judge Wormuth also found that the ALJ had failed to apply the correct legal standard in evaluating the consultative opinion of Martin Trujillo, M.D. Tr. 549-50; see Tr. 351-53 (Dr. Trujillo's report). Dr. Trujillo had concluded, inter alia, that Plaintiff was “a poor candidate for routine employment, although should do well returning to school.” Tr. 353. The ALJ assigned limited weight to Dr. Trujillo's opinion because, the ALJ figured, “if she can return to school, she ought to be able to return to sedentary work.” Tr. 25. Judge Wormuth found error because, in rejecting Dr. Trujillo's opinion, the ALJ had relied on her own speculation instead of applying the six applicable regulatory factors. Tr. 549 (citing Social Security Ruling (“SSR”) 96-5p; 20 C.F.R. §§ 404.1527, 416.927). Judge Wormuth remanded the case to the Commissioner for further proceedings consistent with his opinion.

         Pursuant to Judge Wormuth's remand order, the Appeals Council vacated the decision of the first ALJ. Tr. 554-55. Because Plaintiff had filed subsequent claims for benefits, the Appeals Council ordered a new ALJ to consolidate the new claims with the ones remanded by Judge Wormuth. The new ALJ was to create a new, single administrative record and issue a new decision on the consolidated claims. Tr. 554; Tr. 476 (second ALJ's discussion of the procedural posture).

         ALJ Deborah Rose held a second hearing on August 4, 2015. Tr. 473. Plaintiff appeared with her attorney. Tr. 447, 475. The ALJ heard testimony from Plaintiff and an impartial vocational expert (“VE”), Mary Diane Weber. Tr. 447, 478-97.

         The ALJ issued her unfavorable decision on October 28, 2015. Tr. 466. She found that Plaintiff met the insured status requirements for disability insurance benefits through December 31, 2013. Tr. 450. At step one, she found that Plaintiff had not engaged in substantial gainful activity since November 5, 2008, the onset date of her alleged disability. Id. Because Plaintiff had not engaged in substantial gainful activity for at least 12 months, the ALJ proceeded to step two. Id. There, she found that Plaintiff suffered from the following severe impairments: “fibromyalgia, degenerative joint disease, obesity, bipolar disorder, panic disorder, and posttraumatic stress disorder[.]” Id. The ALJ further found that Plaintiff's sleep apnea and hypertension were not severe. Id. At step three, the ALJ found that none of Plaintiff's impairments, alone or in combination, met or medically equaled a Listing. Tr. 450-53.

         Because none of Plaintiff's impairments met or medically equaled a Listing, the ALJ went on to assess Plaintiff's RFC. Tr. 453-64. In doing so, the ALJ essentially rejected the opinions of Plaintiff's treating physician, Gilbert Aragon, D.O., and treating physician's assistant (“PA”), Lisa Wentling, PA-C. Tr. 460-62 (ALJ's rejection of Dr. Aragon's opinion), 442 (Dr. Aragon's opinion), 462-63 (ALJ's rejection of PA Wentling's opinion), 841-44 (PA Wentling's opinion). Instead, the ALJ accorded “significant weight” to the opinions of non-examining physicians Janice Kando, M.D., and N.D. Nickerson, M.D. Tr. 463. Drs. Kando and Nickerson had opined that Plaintiff could perform light work with some additional postural and environmental limitations. See Id . However, to accommodate Plaintiff's combination of impairments (including fibromyalgia, degenerative join disease, and obesity), the ALJ found that Plaintiff could only perform a limited range of sedentary work. Tr. 463 (ALJ's discussion of Dr. Kando and Dr. Nickerson's opinions), 453 (ALJ's RFC assessment).

         In further assessing Plaintiff's RFC, the ALJ considered the GAF scores assessed by Plaintiff's treating psychiatrist, Margaret Conolly, M.D. However, she found them to be “of limited evidentiary value” because she (the ALJ) believed GAF scores in general to be unreliable indicators of a claimant's ability to do work. Tr. 463-64. Further, the ALJ found that Dr. Conolly's GAF scores reflected “economic and environmental factors that [were] not intrinsic components of [Plaintiff's] mental functioning with respect to the ability to perform . . . simple, unskilled work.” Tr. 464. The ALJ found that the low GAF scores assessed by Dr. Conolly reflected Plaintiff's “lack of employment, unresolved grief issues, and homelessness . . . which are not necessarily factors in the disability evaluation.” Tr. 463. The ALJ gave significant weight to the non-examining opinion of Elizabeth Chiang, M.D., who opined that Plaintiff should be restricted to simple work. Id. (ALJ's evaluation of Dr. Chiang's opinion); see Tr. 412 (relevant portion of Dr. Chiang's opinion). However, to accommodate Plaintiff's combination of physical and mental impairments, including pain, the ALJ found that beyond a restriction to simple work, Plaintiff could only have superficial and incidental contact with coworkers and supervisors, and no interaction with the public. Tr. 463.

         The ALJ found that:

[Plaintiff] has the [RFC] to perform a range of sedentary work as defined in 20 [C.F.R. §§] 414.1547(a), 416.967(a). Specifically, [Plaintiff] can occasionally lift, carry, push, and/or pull 10 pounds, stand and/or walk (with normal breaks) for a total of about 2 hours in an 8-hour workday, sit (with normal breaks) for a total of about 6 hours in an 8[-]hour workday. [Plaintiff] can occasionally climb, balance, stoop, kneel, crouch, crawl, but never climb ladders, ropes, or scaffolds or tolerate exposure to hazards. She can understand and perform simple instructions, attend, and concentrate for 2 hours with superficial and incidental contact with coworkers and supervisors, but not public interaction.

Tr. 453. Based on this RFC and the testimony of the VE, the ALJ found at step four that Plaintiff was unable to perform any past relevant work. Tr. 464. At step five, the ALJ found that, based on Plaintiff's RFC, age, education, and work experience and the testimony of the VE, Plaintiff could perform work that exists in significant numbers in the national economy. Tr. 465. Ultimately, the ALJ found that Plaintiff had not been under a disability, as defined by the Act, during the relevant time period, and she denied the claims. Tr. 466. Plaintiff filed the instant action on January 27, 2016, rather than requesting review by the Appeals Council, as permitted by 20 C.F.R. §§ 404.984(d), 416.1484(d). [Doc. 1].


         Plaintiff makes numerous arguments attacking the second ALJ's decision. The Court finds that these arguments are either unpersuasive or inadequately developed for review. The ALJ's ...

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