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Garcia v. Berryhill

United States District Court, D. New Mexico

May 23, 2017

STEVEN E. GARCIA, Plaintiff,
v.
NANCY A. BERRYHILL, [1]Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          William P. Lynch United States Magistrate Judge.

         Steven Garcia applied for disability insurance benefits on August 3, 2012 (Administrative Record “AR” 205), and supplemental security income on August 15, 2012 (AR 208), alleging disability beginning on March 1, 2010 (AR 254), from “Severe gout heart problems sleep apnea hearing loss, ” “severe Gout Elbows Knees Fingers DAILY ATTACKS, ” “Heart Problems, ” “Sleep Apnea, ” “Hearing Loss 50 percent on each ear Ringing noise at time, ” and “Arthritis Knees both hands fingers lock” [sic] (AR 253). After his application was denied at all administrative levels, he brought this proceeding for judicial review. The case is before me now on his Motion to Reverse and Remand, a response filed by the Commissioner of the Social Security Administration (“SSA”), and Garcia's reply. (Docs. 21, 25, 28.) For the reasons explained below, I deny Garcia's motion and affirm the judgment of the SSA.

         Standard of Review

         In reviewing the Administrative Law Judge's (“ALJ”) decision, I must determine whether it is supported by substantial evidence in the record and whether the correct legal standards were applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004) (quotation omitted). A decision is not based on substantial evidence if other evidence in the record overwhelms it or if there is a mere scintilla of evidence supporting it. Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004). Substantial evidence does not, however, require a preponderance of the evidence. U.S. Cellular Tel. of Greater Tulsa, L.L.C. v. City of Broken Arrow, Okla., 340 F.3d 1122, 1133 (10th Cir. 2003). I must meticulously examine the record, but I may neither reweigh the evidence nor substitute my discretion for that of the Commissioner. Hamlin, 365 F.3d at 1214. I may reverse and remand if the ALJ failed “to apply the correct legal standards, or to show us that []he has done so . . . .” Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996).

         Sequential Evaluation Process

         The SSA has devised a five-step sequential evaluation process to determine disability. See Barnhart v. Thomas, 540 U.S. 20, 24 (2003); 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (2017). If a finding of disability or nondisability is directed at any point, the ALJ will not proceed through the remaining steps. Thomas, 540 U.S. at 24. At the first three steps, the ALJ considers the claimant's current work activity, the medical severity of the claimant's impairments, and the requirements of the Listing of Impairments. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4), & Pt. 404, Subpt. P, App'x 1. If a claimant's impairments are not equal to one of those in the Listing of Impairments, then the ALJ proceeds to the first of three phases of step four and determines the claimant's residual functional capacity (“RFC”). See Winfrey, 92 F.3d at 1023; 20 C.F.R. §§ 404.1520(e), 416.920(e). The ALJ then determines the physical and mental demands of the claimant's past relevant work in phase two of the fourth step and, in the third phase, compares the claimant's RFC with the functional requirements of his past relevant work to see if the claimant is still capable of performing his past work. See Winfrey, 92 F.3d at 1023; 20 C.F.R. §§ 404.1520(f), 416.920(f). If a claimant is not prevented from performing his past work, then he is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). The claimant bears the burden of proof on the question of disability for the first four steps, and then the burden of proof shifts to the Commissioner at step five. See Bowen v. Yuckert, 482 U.S. 137, 146 (1987); Talbot v. Heckler, 814 F.2d 1456, 1460 (10th Cir. 1987). If the claimant cannot return to his past work, then the Commissioner bears the burden, at the fifth step, of showing that the claimant is capable of performing other jobs existing in significant numbers in the national economy. See Thomas, 540 U.S. at 24-25; see also Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988) (discussing the five-step sequential evaluation process in detail).

         Factual Background

         Garcia is forty-one years old. (AR 80.) He graduated from high school and previously worked as a security officer, cook, fast food worker, custodian, and parking lot attendant. (AR 38-39, 231, 241-242, 244.)

         I do not address everything in the record but rather target my factual discussion to those facts necessary to the disposition of this case.

         Between 2007 and 2009, which was before the alleged onset of disability on March 1, 2010, Garcia went to the emergency room (“ER”) at least seven times for pain in various joints caused by gout. (AR 311-316, 317-322, 323-330, 331-338, 379-384, 385-391, 461-476.) The treatment was usually non-steroidal anti-inflammatory and narcotic medications. (See, e.g., AR 320.) It appears as though Garcia had no primary care provider (“PCP”) from 2007-2009. (See, e.g., AR 461 (medical note from ER visit on May 10, 2007, stating “NO, PCP”); AR 313 (medical note from ER visit on December 4, 2009, stating “Patient has no PCP”).)

         From the alleged onset of disability on March 1, 2010, to the end of 2010, Garcia went to the emergency room five times and had two appointments with a PCP, Richard Aries, M.D., mostly for pain from gout. (AR 298-304, 305-310, 346, 347, 348, 369-371, 372-374, 375-378, 432-433, 434-435, 436-437.) The progression was as follows: an ER visit on March 7, 2010, for pain in the right elbow from gout (AR 308-310), for which he was given an injection of methylprednisolone (AR 310); an ER visit on September 24, 2010, for pain in the right foot that was “not consistent with gout” (AR 299); an ER visit and imaging on September 25, 2010, for pain in the right foot from gout (AR 375-378, 432-433), for which he was given a prescription for indomethacin and Percocet (AR 376); a visit with Dr. Aries to establish a PCP on September 30, 2010 (AR 347-348), during which Dr. Aries prescribed allopurinol for gout (AR 347); an ER visit and imaging on October 18, 2010, for pain in the right foot from gout (AR 372-374, 434-435), for which he was prescribed indomethacin (AR 373); an ER visit on October 25, 2010, for pain in the left elbow from gout (AR 369-371), for which he was prescribed allopurinol (AR 370); and a follow-up visit with Dr. Aries on December 3, 2010, during which Garcia was not experiencing gout symptoms (AR 346).

         In 2011, Garcia went to the ER twice and saw Dr. Aries three times for gout related pain. (AR 344, 345, 361-363, 364-66, 448.) The progression was as follows: a visit with Dr. Aries on February 18, 2011, where Dr. Aries noted that Garcia should use Percocet when his pain is too severe (AR 345); a visit with Dr. Aries on February 21, 2011, during which Dr. Aries increased the dose of allopurinol (AR 448); an ER visit on September 5, 2011, for an “acute gout flare” (AR 365), for which he was prescribed indomethacin and oxycodone (id.); a visit with Dr. Aries on November 22, 2011, where Garcia reported that he had not taken his medication for a few months and had not had any gout flares (AR 344); and an ER visit on December 26, 2011, for pain in his left elbow from gout (AR 361-363), for which he was prescribed indomethacin and oxycodone and instructed “about important need for PCP [illegible] [and] refill of meds to decrease recurrence of subsequent gout attacks” (AR 362).

         In 2012, Garcia had two ER visits, underwent a polysomnogram, a pulmonary function test, and an audiological test, and had a consultative examination with Kea Ann Parker, M.D. (AR 352-354, 358-360, 392-393, 395-412, 413-421, 422-425, 430-431, 442-445, 451-453.) The progression was as follows: an ER visit on March 12, 2012, for pain in his right knee from gout (AR 358-360), for which he was prescribed indomethacin and oxycodone (AR 359); a nocturnal polysomnogram on May 21, 2012, to evaluate claims of insomnia and sleep apnea (AR 395-399, 413-425), which Frank M. Ralls, M.D., interpreted to “demonstrate[] severe obstructive sleep apnea” (AR 397); a pulmonary diagnostic test on May 25, 2012, for difficulty breathing, which returned a normal result (AR 392-393); an ER visit on June 7, 2012, for hand pain after a fall (AR 352-354, 430-431), for which he was prescribed Motrin and Percocet (AR 353); an audiometric hearing test on October 19, 2012, which contains no narrative analysis (AR 451-453); and a consultative examination with Dr. Parker on October 20, 2012 (AR 442-445), where Dr. Parker noted, among other things, that “[f]or his severe gout, he is not currently on medication and had no signs of joint erythema or tenderness on today's exam, no functional limitations” (AR 444).

         These records constitute the relevant evidence the ALJ considered when he entered his decision on November 5, 2014.

         Garcia later appealed the ALJ's denial of benefits to the Appeals Council and submitted additional records, which span from September 2012 to June 2014. (AR 6.) The Appeals Council made the evidence part of the record. (Id.) The evidence is as follows.

         In 2012, Garcia had two ER visits and one urgent care visit for various types of pain. (AR 503-505, 505-507, 515-517, 542.) The progression was as follows: an ER visit on September 19, 2012, for back pain after sleeping “in an awkward position” (AR 506), with a diagnosis of “back pain” and prescription for Percocet (AR 507); an ER visit on October 28, 2012, for back pain after a fall at work (AR 503), for which he was prescribed ibuprofen (AR 504); and a visit to Urgent ...


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