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Apodaca v. Berryhill

United States District Court, D. New Mexico

May 9, 2017

TRESHA APODACA, 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. 12) filed August 1, 2016 in support of Plaintiff Tresha Apodaca'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 insurance benefits and for Title XVI supplemental security income benefits. On October 10, 2016, Plaintiff filed his Motion to Reverse and Remand for Rehearing With Supporting Memorandum (“Motion”). (Doc. 18.) The Commissioner filed a Response in opposition on January 4, 2017 (Doc. 22), and Plaintiff filed a Reply on January 27, 2017. (Doc. 24.) 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 Tresha Apodaca (“Ms. Apodaca”) alleges that she became disabled on June 28, 2012, [3] at the age of forty-eight because of membranous neuropathy, nephrotic syndrome, pulmonary embolism, heart murmur, blood clots in lungs, and arthritis in hands and feet. (Tr. 48-49, 86.[4]) Ms. Apodaca has two years of college (Tr. 286), and worked as a manufacturing technician. (286, 334-38.)

         On March 14, 2012, Ms. Apodaca filed 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. 208-11.) On May 2, 2012, Ms. Apodaca filed for Supplemental Security Income (“SSI”) under Title XVI of the Act, 42 U.S.C. § 1381 et seq. (Tr. 224-29.) Ms. Apodaca's applications were initially denied on October 3, 2012. (Tr. 84, 85, 86-96, 97-107, 148-51.) They were denied again at reconsideration on July 10, 2013. (Tr. 108-24, 125-41, 142, 143, 152-57.) On July 27, 2013, Ms. Apodaca requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 158-59.) The ALJ conducted a hearing on August 6, 2014. (Tr. 36-79.) Ms. Apodaca appeared in person at the hearing with attorney Michael Armstrong. (Id.) The ALJ took testimony from Ms. Apodaca (Tr. 43-69), and an impartial vocational expert (“VE”), Leslie White. (Tr. 70-79.)

         On October 17, 2014, the ALJ issued an unfavorable decision. (Tr. 15-29.) In arriving at his decision, the ALJ determined that Ms. Apodaca met the insured status requirements of the Act through December 31, 2017, [5] and that Ms. Apodaca had not engaged in substantial gainful activity since her alleged disability onset date.[6] (Tr. 20-21.) The ALJ found that Ms. Apodaca suffered from severe impairments of obesity, right knee problems/pain, plantar fasciitis/calcaneal spur, major depressive/episodic mood disorder, attention deficit/attention deficit hyperactivity disorder, post-traumatic stress disorder, explosive disorder NOS, and personality disorder NOS. (Tr. 21.) The ALJ also determined that Ms. Apodaca suffered from non-severe impairments of acute sinusitis, status post kidney problems/nephropathy, status post pulmonary embolism, fatigue, and left upper extremity weakness/paresthesia. (Id.) 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. 21-23.)

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

[a]fter careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(a) and 416.967(a) except she is able to perform work that allows her to sit or stand alternatively at 30 to 45 minute intervals for 2 to 3 minutes at a time, during which period she may remain on task. She may occasionally climb ramps and stairs, balance, stoop, and crouch, but may never climb ladders/ropes/scaffolds, kneel, or crawl. She may occasionally push, pull and engage in foot pedal operations with her right lower extremity. She must avoid more than occasional exposure to extreme cold and vibration, and must avoid all exposure to hazards like dangerous machinery and unsecured heights. She is able to learn, remember, and perform simple, routine, and repetitive work tasks, involving simple work instructions, which are performed in a routine, predictable, and low stress work environment, defined as one in which there is a regular pace, few work place changes, and no “over-the-shoulder” supervision. She can adjust to routine changes in the workplace. She can maintain concentration, persistence and pace for 2 to 3 hours at a time with normal breaks. She may interact appropriately with supervisors, coworkers, and the public on an occasional and superficial basis.

(Tr. 23.) Based on the RFC and the testimony of the VE, the ALJ concluded that Ms. Apodaca was not capable of performing her past relevant work, but that considering Ms. Apodaca's age, education, work experience, and RFC, there were jobs that existed in significant numbers in the national economy that she could perform, and she was therefore not disabled. (Tr. 27-29.)

         On December 30, 2015, the Appeals Council issued its decision denying Ms. Apodaca's request for review and upholding the ALJ's final decision. (Tr. 1-3.) On March 2, 2016, Ms. Apodaca timely filed a Complaint seeking judicial review of the Commissioner's final decision. (Doc. 1.)

         II. Standard of Review

         The Court will not disturb the Commissioner's denial of disability benefits if the final decision[7] is supported by substantial evidence and 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 conducting its review, the Court meticulously examines 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, and the Court “may not displace the agency's choice between two fairly conflicting views, ” even if it 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); see also Sisco v. U.S. Dep't. of Health & Human Servs., 10 F.3d 739, 741 (10th Cir. 1993).

         A decision is based on substantial evidence where it is supported by “relevant evidence . . . 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[, ]” Langley, 373 F.3d at 1118, or “constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). Substantial evidence is “more than a scintilla but less than a preponderance.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).

         The Commissioner's decision must “provide this court with a sufficient basis to determine that appropriate legal principles have been followed.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005). Therefore, although an ALJ is not required to discuss every piece of evidence, “the record must demonstrate that the ALJ considered all of the evidence, ” and “the [ALJ's] reasons for finding a claimant not disabled” must be “articulated with sufficient particularity.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). The ALJ's decision should 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

         A claimant is disabled under the Social Security Act if that individual has a severe medically determinable physical or mental impairment or impairments which can be expected to result in death or have lasted or can be expected to last for a continuous period of twelve months and that render the claimant unable to engage in any substantial gainful work in the national economy. 42 U.S.C. § 423(d)(1)(A) & (2)(A); Thompson v. Sullivan, 987 F.2d 1482, 1486 (10thCir. 1993). In considering an application for disability insurance benefits, the Commissioner uses a five-step sequential evaluation process. 20 C.F.R. §§ 404.1520 and 416.920; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). The claimant bears the burden of proof at the first four steps and must 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 (3) her impairment(s) meet or equal one of the Listings[8] 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 v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). If the claimant can show that her impairment meets or equals a listed impairment at step three, the claimant is presumed disabled. However, if at step three the claimant's impairment does not meet or equal 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 the claimant's residual functional capacity (“RFC”) which the ALJ uses to determine whether the claimant can perform his past relevant work. 20 C.F.R. §§ 404.1545(a)(1) & (a)(3), 404.1520(a)(4), 404.1520(e), 416.945(a)(1) & (a)(3); 416.920(a)(4), 416.920(e). If the claimant establishes that he cannot perform his past relevant work, 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 her 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

         Ms. Apodaca asserts five arguments in support of her Motion as follows: (1) the ALJ failed to give proper reasons for rejecting the opinion of treating psychiatrist E. B. Hall, M.D.; (2) the ALJ offered no explanation for ignoring the State agency nonexamining psychological consultant Donald Gucker, M.D.'s opinion; (3) the ALJ should have applied SSR 83-12 when making his decision; (4) the ALJ's step five finding is not supported by substantial evidence because the VE's testimony regarding the number of available jobs is not reliable; and (5) the ALJ failed to resolve the conflict between the DOT and the VE's testimony regarding Ms. Apodaca's need to alternate between sitting and standing. (Doc. 18 at 14-26.) The Court will address each argument in turn.

         A. The ALJ Satisfied Both Parts of the Treating Physician Inquiry

         Ms. Apodaca argues that the ALJ rejected Dr. Hall's opinion and failed to provide good and legitimate reasons for doing so. (Doc. 18 at 14-18.) The Commissioner contends the ALJ provided several good reasons which were grounded in substantial evidence. (Doc. 22 at 11-14.) The Court is satisfied that the ALJ applied correct legal principles in declining to give controlling weight to Dr. Hall's opinion, and his decision was supported by substantial evidence.

         Ms. Apodaca saw treating psychiatrist, Dr. E. B. Hall, six times from April 8, 2014, through July 14, 2014, for her reported mood disorder. (Tr. 533-37, 541-44, 546-49, 552-55, 580-83, 588-91.) On July 14, 2014, Dr. Hall completed Listing 12.04 Affective Disorder and 12.06 Anxiety-Related Disorder forms on Ms. Apodaca's behalf and indicated that she met the A, B and C criteria for each (Tr. 524-25). See 20 C.F.R. pt. 404, subpt. P. app. 1, 12.00.A, 12.04 and 12.06 (explaining the criteria and required level of severity to meet a listing). Dr. Hall also completed a Medical Assessment of Ability To Do Work-Related Activities (Mental) and assessed that Ms. Apodaca had slight limitations in her ability (1) to remember locations and work-like procedures; (2) to carry out very short and simple instructions; and (3) to set realistic goals or make plans independently of others. (Tr. 521-22.) He assessed that she had moderate limitations in her ability (1) to understand and remember very short and simple instructions; (2) to understand and remember detailed instructions; (3) to maintain attention and concentration for extended periods of time, (4) to perform activities within a schedule, (5) to sustain an ordinary routine without special supervision, and (6) to make simple work-related decisions; (7) to ask simple questions or request assistance; (8) to accept instructions and respond appropriately to criticism from supervisors; (9) to get along with coworkers or peers without distracting them or exhibiting behavior extremes; (10) to maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness; (11) to respond appropriately to changes in the work place; and (12) to be aware of normal hazards and take adequate precautions. (Id.) Dr. Hall further assessed that Ms. Apodaca had marked limitations in her ability (1) to carry out detailed instructions; (2) to complete a normal workday and workweek without interruptions from psychological based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; (3) to interact appropriately with the general public; and (4) to travel in unfamiliar places or use public transportation. (Id.)

         According to what has become known as the treating physician rule, an ALJ will generally give more weight to medical opinions from treating sources than those from non-treating sources. Langley, 373 F.3d at 1119 (citing 20 C.F.R. § 404.1527(d)(2)). An ALJ is required to conduct a two-part inquiry with regard to treating physicians. Krauser v. Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011). First, the ALJ must decide whether a treating doctor's opinion commands controlling weight. Id. A treating doctor's opinion must be accorded controlling weight “if it is well-supported by medically acceptable clinical or laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the record.” Id. (citing Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (applying SSR 96-2p, 1996 WL 374188, at *2)).[9] If a treating doctor's opinion does not meet this standard, the opinion is still entitled to deference to some extent as determined under the second step of the process. Id. In this second step, the ALJ must determine the weight to accord the treating physician by analyzing the treating doctor's opinion against the several factors provided in 20 C.F.R. §§ 404.1527(c) and 416.927(c).[10] Id. The ALJ is not required to “apply expressly” every relevant factor. Oldham, 509 F.3d at 1258. “Under the regulations, the agency rulings, and our case law, an ALJ must give good reasons . . . for the weight assigned to a treating physician's opinion, ” that are “sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reason for that weight.” Langley, 373 F.3d at 1119 (quoting Watkins, 350 F.3d at 1300). Finally, if the ALJ rejects the opinion completely, he must then give “῾specific, legitimate reasons'” for doing so. Watkins, 350 F.3d at 1301 (citing Miller v. Chater, 99 F.3d 972, 976 (10th Cir. 1996) (quoting Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987)).

         The ALJ satisfied both parts of the two-part inquiry Krauser requires. 638 F.3d at 1330. First, although the ALJ did not explicitly state that Dr. Hall's opinion was not entitled to controlling weight, his finding was implicit in his decision. (See e.g. Tr. 25, 26, 27, according “virtually no weight” to opinion that claimant is disabled and “no weight” to portion of opinion that claimant “has a complete inability to function outside her home, ” and noting lack of supporting documentation and inconsistency with the record as a whole.) Next, in determining that Dr. Hall's opinion was entitled to virtually no weight, the ALJ did not expressly apply the regulatory factors, but his decision considered them, and provided specific and legitimate reasons for the weight accorded Dr. Hall's opinion. The ALJ's reasons for the weight he accorded Dr. Hall's opinion are supported by substantial evidence.

         In his decision, the ALJ correctly identified Dr. Hall's psychiatric specialty and the length of the treatment relationship from April 2014 through July 2014 during which Ms. Apodaca saw Dr. Hall for her reported mood disorder.[11] (Tr. 25, 533-37, 541-44, 546-49, 552-55, 580-83, 588-91.) See 20 C.F.R. 404.1527(c)(2)(i), 416.927(c)(2)(i) (the longer a treating source has treated a claimant and the more times a claimant has been seen are bases for more weight). The ALJ explained that Dr. Hall's assessment was not supported by his treatment notes. (Tr. 25, 26-27.) He discussed that Dr. Hall's treatment notes documented normal psychiatric and cognitive functioning and that Dr. Hall had not submitted any medical records to support his assessment that Ms. Apodaca had marked limitations in her ability to do work-related mental activities. (Tr. 25, 26.) The record supports that Dr. Hall performed mental status/physical exams during five of Ms. Apodaca's six appointments, all of which indicated a normal mental status other than having a sad and/or depressed mood.[12] (Tr. 534-35, 542-43, 547-48, 553-54, 581-82.) The ALJ also discussed that Dr. Hall consistently assigned Ms. Apodaca a GAF score of 66, [13] which was indicative of good overall functioning.[14] (Tr. 25, 27.) The record supports this finding. (Tr. 535, 543, 548, 554, 582.) See 20 C.F.R. §§ 404.1527(c)(3) and 416.927(c)(3) (more weight will be given to medical source opinions that are supported by relevant evidence, particularly medical signs and laboratory findings).

         The ALJ also explained that Dr. Hall's listing evaluations and function assessment were internally inconsistent. (Tr. 26-27.) The ALJ discussed that Dr. Hall completed forms related to Listing 12.04 Affective Disorders and Listing 12.06 Anxiety-Related Disorders and indicated that Ms. Apodaca met the criteria for both listings. (Tr. 26-27, 524-25.) On both listing forms Dr. Hall checked that Ms. Apodaca had marked restriction in her activities of daily living, in maintaining social functioning, and in maintaining concentration, persistence, or pace. (Id.) Dr. Hall also checked that Ms. Apodaca had experienced repeated episodes of decompensation. (Id.) As the ALJ noted, however, on the mental assessment form Dr. Hall checked that Ms. Apodaca had marked limitations in only two of the eight areas listed under sustained concentration and persistence, and in only one of the five areas listed under social interaction. (Tr. 27, 521-22.) The record supports the ALJ's finding. (Tr. 521-22, 524-25.)

         The ALJ further explained that Dr. Hall's assessment was inconsistent with the record as a whole. (Tr. 26.) The ALJ noted and the record supports that Ms. Apodaca testified she was attending college two days a week for four to six hours each day since August 2012. (Tr. 27, 52-53.) The ALJ explained that Dr. Hall's assessment that Ms. Apodaca was unable to function outside her home was belied by the fact that she had been actively attending college for two years. (Tr. 27.) The record also reflects that prior to seeking care from Dr. Hall, Ms. Apodaca's mental health care history and treatment was minimal. On February 1, 2013, Ms. Apodaca saw healthcare provider Benjamin Buxton, M.D., and complained of, inter alia, depression.[15] (Tr. 464.) Ms. Apodaca explained that her father had recently passed away, and that issues with her son and daughter-in-law necessitated her taking custody of her granddaughter. (Tr. 464.) Dr. Buxton prescribed Celexa and saw Ms. Apodaca in follow up on February 8, 2013, March 8, 2013, and April 4, 2013. (Tr. 460, 462, 463.) Ms. Apodaca reported on March 8, 2013, that her depression was improving. (Tr. 462.) One year later, on March 5, 2014, Ms. Apodaca complained to CNP Myrna Gallegos that she had experienced episodes of depression for the past three years. (Tr. 513-16.) Ms. Apodaca explained that her symptoms were made worse by fatigue and family stressors. (Tr. 514.) CNP Gallegos noted that Ms. Apodaca's affect and mood seemed normal, and that there was no decrease in her concentrating ability. (Tr. 516.) CNP Gallegos assessed depression, encouraged counseling, and prescribed Bupropion. (Tr. 513-14.) Ms. Apodaca followed up with CNP Gallegos on May 7, 2014, but in the meantime had started treatment with Dr. Hall. (Tr. 517-19.) CNP Gallegos noted that Ms. Apodaca's patient health questionnaire reflected severe depression, but assessed that her depressed mood was stable with no changes. (Tr. 518-19.) CNP Gallegos instructed Ms. Apodaca to continue the same medication and encouraged her continued attempts to lose weight and engage in daily exercise. (Tr. 517.)

         “Medical evidence may be discounted if it is internally inconsistent or inconsistent with other evidence.” Pisciotta v. Astrue, 500 F.3d 1074, 1078 (10th Cir. 2007) (quoting Knight v. Chater, 55 F.3d 309, 314 (7th Cir. 1995)); see also 20 C.F.R. §§ 404.1527(c)(3) and 416.927(c)(3) (more weight will be given to medical source opinions that are supported by relevant evidence). The lack of internal consistency and consistency between Dr. Hall's assessment and the record as a whole were valid reasons for the ALJ to accord minimal to no weight to Dr. Hall's opinion. Pisciotta, 1074 F.3d at 1078; 20 C.F.R. §§ 404.1527(c)(4) and 416.927(c)(4). The ALJ's determination that Dr. Hall's opinion was not entitled to controlling weight was implicit in his decision, and the ALJ provided good reasons supported by substantial evidence for the weight he ultimately accorded Dr. Hall's opinion. See Armijo v. Astrue, 385 F. App'x 789, 795 (10th Cir. 2010) (finding that ALJ's implicit determination that treating physician's opinion was not entitled to controlling weight was supported by substantial evidence); see also Tarpley v. Colvin, 601 F. App'x 641, 643-44 (10th Cir. 2015) (finding ALJ's failure to explicitly state whether treating physician was entitled to controlling weight was harmless where ALJ adequately explained weight given); Watkins, 350 F.3d at 1300 (an ALJ's decision must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight). As such, there is no reversible error on this point.

         B. The ALJ's Failure To Expressly Discuss Dr. ...


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