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Curry v. Berryhill

United States District Court, D. New Mexico

March 31, 2017

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


          Laura Fashing, United States Magistrate Judge

         THIS MATTER comes before the Court on plaintiff Tracy Curry's Motion to Reverse and Remand for Rehearing (Doc. 16), which was fully briefed June 9, 2016 (Docs. 20, 21, 22). The parties consented to my entering final judgment in this case. Docs. 6, 8. Having meticulously reviewed the entire record and being fully advised in the premises, I find that Ms. Curry's motion to reverse and remand is not well-taken, and it will be DENIED.

         I. 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). 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). “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 and brackets omitted). The Court must meticulously review 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).

         “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118. A 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.” Id. While the Court may not reweigh 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). “‘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) (quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).

         II. Applicable Law and Sequential Evaluation Process

         To qualify for disability benefits, a claimant must establish that 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); 20 C.F.R. §§ 404.1505(a), 416.905(a).

         When considering a disability application, the Commissioner is required to use a five-step sequential evaluation process. 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At the first four steps of the evaluation process, the claimant must show: (1) the claimant is not engaged in “substantial gainful activity;” (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 (3) the impairment(s) either meet or equal one of the Listings[3] 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 1260-61. If the claimant cannot show that his or her impairment meets or equals a Listing but proves that he or she is unable to perform his or her “past relevant work, ” the burden of proof shifts to the Commissioner, at step five, to show that the claimant is able to perform other work in the national economy, considering the claimant's residual functional capacity (“RFC”), age, education, and work experience. Id.

         III. Background and Procedural History

         Ms. Curry was born on June 15, 1965, completed two years of college, and has past relevant work as a bus driver, bus cleaner, car rental clerk, inventory clerk, hardware clerk, and assistant manager. AR 137, 162, 830.[4] On November 21, 2006, Ms. Curry suffered a stroke. AR 686.

         Ms. Curry filed an application for disability insurance benefits (“DIB”) on October 23, 2009-alleging disability since November 6, 2006 due to a stroke, memory problems, left side paralysis, and high blood pressure. AR 137-40, 161. Ms. Curry was insured for disability benefits through March 31, 2008.[5] AR 141, 775. On January 23, 2009, while her claim was pending, Ms. Curry suffered a second stroke. AR 323-33. The Social Security Administration (“SSA”) denied her claims initially on January 19, 2010. AR 83-86. The SSA denied her claims on reconsideration on July 7, 2010. AR 93-95. Ms. Curry requested a hearing before an Administrative Law Judge (“ALJ”). AR 96-97. On June 9, 2011, ALJ Barry Robinson held a hearing. AR 28-79. ALJ Robinson issued an unfavorable decision on February 22, 2012. AR 11-25. Ms. Curry requested review by the Appeals Council, which denied her request. AR 3-7, 9-10. Ms. Curry submitted additional evidence, but, on September 21, 2012, the Appeals Council declined to reopen or change the decision. AR 1-2. Ms. Curry filed her first appeal to this Court on October 18, 2012. See Curry v. Social Security Administration, No. 12-cv-1074 WJ/SMV, Doc. 1 (D.N.M. Oct. 18, 2012). On April 22, 2013, while her first appeal was pending, Ms. Curry filed a subsequent application for supplemental security income (“SSI”). AR 1021-29. On November 1, 2013, the Honorable District Judge William P. Johnson remanded Ms. Curry's case based on two errors: (1) the ALJ's failure to conduct a proper function-by-function analysis and (2) the ALJ's failure to explore the physical and mental demands of Ms. Curry's past relevant work. Curry, No. 12-cv-1074 WJ/SMV, Doc. 24 at 4-9.

         On remand, the Appeals Council remanded the case to an ALJ for a new hearing. AR 883-86. ALJ Ann Farris held a hearing on February 10, 2015. AR 802-39. At the hearing, Ms. Curry agreed to consolidate her subsequent application for SSI with her remanded case for DIB. AR 773, 804-05. ALJ Farris issued her partially favorable decision on March 13, 2015. AR 769-801.

         The ALJ found that Ms. Curry was insured for DIB through March 31, 2008. AR 777. At step one, the ALJ found that Ms. Curry had not engaged in substantial, gainful activity since November 6, 2006. Id. Because Ms. Curry had not engaged in substantial gainful activity for at least twelve months, the ALJ proceeded to step two. AR 777-79. At step two, the ALJ found that Ms. Curry suffered from the following severe impairments since November 6, 2006: status post cerebral vascular accident with residual left-hand weakness and hypertension, AR 777-78, and the following severe impairments since January 23, 2009: status post two cerebral vascular accidents with no functional use of her left arm and left leg weakness, hypertension, and a mental impairment “variously diagnosed to include schizophrenia, anxiety, PTSD, and a cognitive disorder, ” AR 778. At step three, the ALJ found that none of Ms. Curry's impairments, alone or in combination, met or medically equaled a Listing. AR 779. Because the ALJ found that none of the impairments met a Listing, the ALJ assessed Ms. Curry's RFC-both before and after January 23, 2009. AR 779-82, 782-88. The ALJ found that, prior to January 23, 2009, Ms. Curry had the RFC to “perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that she was limited to occasional handling and fingering with her left upper extremity.” AR 779. The ALJ found that, after January 23, 2009, Ms. Curry had the RFC “to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that she has no functional use of her left arm. She also would be limited to simple and unskilled work.” AR 782.

         At step four, the ALJ concluded that Ms. Curry was unable to perform any of her past relevant work. AR 789. At step five, relying on the testimony of a vocational expert (“VE”), the ALJ found that, prior to January 23, 2009, Ms. Curry was not disabled, concluding that she still could perform jobs that exist in significant numbers in the national economy such as school bus monitor, bakery worker, and counter clerk. AR 789-90. She further found that, after January 23, 2009, Ms. Curry was disabled, as there were no jobs that exist in significant numbers in the national economy that she could perform. AR 790-91. Because this Court previously remanded Ms. Curry's case, Ms. Curry was not required to seek Appeals Council review again, and the ALJ's decision stands as the final decision of the Commissioner. See 20 C.F.R. § 404.984(a). Ms. Curry timely appealed to this Court on July 10, 2015.[6] Doc. 1.

         IV. Ms. Curry's Claims

         Ms. Curry raises several arguments for reversing and remanding this case: (1) the ALJ failed to follow and apply SSR 83-20; (2) the ALJ failed to do a function-by-function assessment as required by SSR 96-8p; (3) the ALJ's step five findings are not supported by substantial evidence; and (4) the ALJ committed legal error at step five by applying the “Grids.” Doc. 16 at 2. For the reasons discussed below, none of these claims merits remand.

         VI. Analysis

         A. The ALJ did not err by failing to follow and apply SSR 83-20; the ALJ was not required to consult a medical advisor.

         Ms. Curry argues that the ALJ erred by not following SSR 83-20 in determining the onset date of her “post 2006 cerebral vascular accident with residuals and late effects, schizophrenia, and cognitive disorder, which are impairments of non-traumatic origin.” Doc. 16 at 11-12. She says that she has a “slowly progressive impairment” where the “onset date must be inferred”- thereby requiring the ALJ to call on the services of a medical advisor. Id. at 12.[7] I disagree.

         An ALJ must determine whether a claimant is disabled, as well as an onset date of disability. SSR 83-20, 1983 WL 31249, at *1. SSR 83-20 establishes guidelines for determining the onset of disability dates in DIB and SSI[8] cases, and it

sets forth an analytical framework for assessing the date of onset for a disability of traumatic or non-traumatic origin. It provides that a disability is of “traumatic origin, ” where after the date of injury, “the individual is thereafter expected to die as a result or expected to be unable to engage in substantial gainful activity (SGA) (or gainful activity) for a continuous period of at least 12 months.” SSR 83-20, at 2. Where a disability is of traumatic origin, the date of onset is the date of the traumatic injury. Id.
Additionally, SSR 83-20 provides a framework for examining injuries that are not considered of “traumatic origin” under the regulation. SSR 83-20 states that “[i]n disabilities of nontraumatic origin, the determination of onset involves consideration of the applicant's allegations, work history, if any, and the medical and other evidence concerning impairment severity.” Id. The date alleged by the claimant is the starting point for determining disability onset, and the date the claimant stopped working is also of significance in selecting the onset date. Id. Medical evidence, however, is the “primary element” for the onset determination, as the onset date “can never be inconsistent with the medical evidence of record.” Id. at 2-3.
SSR 83-20 also provides that, when medical evidence does not establish the precise onset date, the ALJ may have to “infer the onset date from the medical and other evidence that describe the history and symptomatology of the disease process.” Id. at 2. The regulation provides two examples of situations where it may be necessary to infer an onset Dated: (1) in the case of a slowly progressing impairment, “when, for example, the alleged onset and the date last worked are far in the past and adequate medical records are not available, ” and (2) when “onset of a disabling impairment(s) occurred some time prior to the date of the first recorded medical examination.” Id. at 3. “At the hearing, the [ALJ] should call on the services of a medical advisor when onset must be inferred.” Id.

Blea v. Barnhart, 466 F.3d 903, 909-10 (10th Cir. 2006).

         “[A] medical advisor need be called only if the medical evidence of onset is ambiguous.” Reid v. Chater, 71 F.3d 372, 374 (10th Cir. 1995) (internal citation and quotation omitted). If a disability is of traumatic origin, the onset date will be self-evident, and there is no need for the ALJ to consult a medical advisor. Blea, 466 F.3d at 910. In addition,

whether a medical advisor is required under SSR 83-20 does not turn on whether the ALJ could reasonably have determined that [the claimant] was not disabled before [her last insured date]. Rather, when there is no contemporaneous medical documentation, we ask whether the evidence is ambiguous regarding the possibility that the onset of her disability occurred before the expiration of her insured status. If the medical evidence is ambiguous and a retroactive inference is necessary, SSR 83-20 requires the ALJ to call upon the services of a medical advisor to insure that the determination of onset is based upon a “legitimate medical basis.”

Id. at 911 (quoting Grebenick v. Chater, 121 F.3d 1193, 1200-01 (8th Cir. 1997)).

         In this case, the ALJ was not required to consult a medical advisor because the onset date was not ambiguous. Ms. Curry's 2006 stroke is an injury of nontraumatic origin.[9] As such, in determining an onset date for disability, the ALJ was required to consider “the applicant's allegations, work history, if any, and the medical and other evidence concerning impairment severity.” Blea, 466 F.3d at 909. The ALJ thoroughly discussed all of these factors in her step two and RFC findings. See AR 777-82. Other than asserting that the ALJ did not conduct an adequate function-by-function analysis-an argument the Court does not find persuasive, see discussion in section B, infra-Ms. Curry does not challenge any of the ALJ's step two or RFC findings. The ALJ thoroughly examined Ms. Curry's limitations after her first stroke, and supported her RFC finding that she could perform light work, with the additional limitation to occasional handling and fingering, with substantial evidence. See discussion in section B, infra. Ms. Curry's unsupported allegations that the onset date was ambiguous and that her 2006 stroke was a slowly progressive impairment are without merit. The Court finds no error in the ALJ's decision not to consult a medical advisor about this impairment.

         Ms. Curry's only support for her claim that the record is ambiguous and that the ALJ was therefore required to consult a medical advisor is that “there is . . . a question about what triggered Ms. Curry's second stroke, ” and that “[h]er severe problems did not develop overnight.” Doc 16 at 14. The medical evidence Ms. Curry offers, however, does not support this assertion. See Id. Ms. Curry argues that the fact that Dr. Craig Jensen, a doctor treating her after her January 23, 2009 stroke, found that she had “acute renal failure, an acute cerebrovascular accident, anemia and profound hyponatremia, ” and that “the etiologies of her such severe decompensation [were] unclear” creates an ambiguity in the medical record about whether she was disabled by her 2006 stroke, and whether she was disabled before March 31, 2008, her date last insured. Doc. 16 at 14. I disagree.

         Ms. Curry repeatedly characterizes her 2006 stroke as a “cerebrovascular accident with residuals and late effects.” E.g., Doc. 16 at 11. But she cites no medical or other evidence to support her assertion that she got progressively worse after her first stroke. As the Commissioner argues, “[Ms. Curry] appears to suggest in her brief that her stroke residuals were ‘slowly progressive, ' but the record simply fails to support such a suggestion.” Doc. 20 at 5. Instead of showing a “slowly progressing impairment, ” the record evidence shows that Ms. Curry's symptoms gradually improved after her first stroke. See AR 227 (2009 Progress Note Report stating, “Individual had a previous CVA [“cerebrovascular accident”] ¶ 2006 which involved slurred speech, dysarthria and some weakness to her lower extremities. She gradually improved and gained complete control of her functions following that CVA.”).

         Ms. Curry also argues that “the medical evidence regarding the onset of Ms. Curry's schizophrenia, and cognitive disorder is ambiguous and there is a dearth of medical information regarding its progress.” Doc. 16 at 12. The Commissioner argues that Ms. Curry's mental impairments/schizophrenia was not a slowly progressive impairment which required the ALJ to infer a disability onset date. Doc. 20 at 6.[10] I agree with the Commissioner.

         Ms. Curry admits that she did not receive psychological care during the relevant time period (between November 2006, the date of alleged onset, and March 31, 2008, the date last insured). She argues, however, that, because there are medical records from before and after this period, the ALJ was required to consult a medical advisor to determine the onset date of disability from these impairments. Doc. 16 at 12-14. In support of her argument, Ms. Curry states that she has a history of delusions between 1997 and 2000. Id. at 12-13. She also cites the mental health treatment she received in 2010. Id. at 13.

         The ALJ thoroughly analyzed her reasons for concluding that Ms. Curry did not have a severe mental impairment prior to January 23, 2009. See AR 778-79. The record shows that the ALJ considered all of the medical records about Ms. Curry's treatment for mental impairments. AR 778. The ALJ also reviewed the paragraph B criteria for evaluating mental disorders: activities of daily living, social functioning, concentration/persistence/pace, and episodes of decompensation. AR 778-79. The ALJ concluded that “the record does not contain any treatment notes, diagnosis, or complaints to establish any limitations due to these conditions between November 2006 and March 2008.” AR 778. The ALJ acknowledged that Ms. Curry stated that she could not afford care during this time, but she also found that Ms. Curry did not “require any psychiatric emergency care and was able to work above substantial gainful levels after April 2000.” Id. The ALJ also noted that Ms. Curry's mental health treatment was many years after her alleged onset date, and that the treatment notes “indicate on several occasions that the claimant sought mental health treatment at her attorney's request.” Id. The ALJ further noted that “the lack of treatment between 2006 and March 2008 suggests that these conditions did not impair her ability to work at that time.” Id. Ms. Curry does not specifically challenge any of the ALJ's reasons for concluding ...

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