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O'Mary v. Berryhill

United States District Court, D. New Mexico

May 26, 2017

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


         THIS MATTER comes before the Court on Plaintiff's Motion to Reverse and Remand for Rehearing, with Supporting Memorandum (Doc. 21), filed November 16, 2016. Pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73(b), the parties have consented to me serving as the presiding judge and entering final judgment. Doc. 9. Having reviewed the parties' submissions, the applicable law, and the relevant portions of the Administrative Record, the Court will deny the Motion.

         I. Procedural History

         This is Plaintiff's second appeal. On June 29, 2011, Plaintiff protectively filed an application with the Social Security Administration for disability insurance benefits under Title II of the Social Security Act. AR at 148-49.[2] Plaintiff alleged a disability onset date of October 20, 2007, due to “Fibromyalgia, Arthritis, and Compressed Dics (sic) in neck.” AR at 148, 173. However, Plaintiff continued to work full time until February 18, 2011. AR at 173.

         The agency denied Plaintiff's claims initially and upon reconsideration. AR at 74-83. Plaintiff requested review and, after holding a de novo hearing, Administrative Law Judge Myriam C. Fernandez Rice (“the ALJ”) issued an unfavorable decision on May 3, 2013. AR at 42-50. The Appeals Council denied Plaintiff's request for review of the ALJ's decision on November 12, 2013. AR at 1-6. As such, the ALJ's decision became the final decision of the Commissioner. Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003).

         Plaintiff then appealed the ALJ's decision to this Court. AR at 491-94. The Acting Commissioner of Social Security requested voluntary remand of the case pursuant to sentence four of 42 U.S.C. § 405(g), see AR at 497-98, and the case was accordingly remanded. AR at 495-96. On remand, the Appeals Council instructed the ALJ to review new and material evidence submitted by Plaintiff (specifically mentioning a consultative examination conducted by John Vigil, M.D.) and to weigh a fibromyalgia questionnaire submitted by Kathy Finch, M.D., one of Plaintiff's treating providers. AR at 502-03.

         Purporting to do just that, the ALJ held a second de novo hearing and, ultimately, issued another unfavorable decision on December 8, 2015. AR at 424-37. The Appeals Council did not assume jurisdiction over the case, and so the ALJ's second decision became the final decision of the Commissioner. 20 C.F.R. § 404.984. This Court now has jurisdiction to review that decision pursuant to 42 U.S.C. § 405(g) and 20 C.F.R. § 422.210(a).

         A claimant seeking disability benefits 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. § 1382c(a)(3)(A); 20 C.F.R. § 404.1505(a). The Commissioner must use a five-step sequential evaluation process to determine eligibility for benefits. 20 C.F.R. § 404.1520(a)(4).[3]

         At Step One of the process, the ALJ found that Plaintiff engaged in substantial gainful activity from October 20, 2007 through February 18, 2011, but that she had not engaged in substantial gainful activity since that time. AR at 426. However, the ALJ did note that Plaintiff continues to work for six hours per week and that “[a]lthough this work does not rise to the level of substantial gainful activity, it does illustrate her ability to find and maintain some employment.” AR at 427. At Step Two, she determined that Plaintiff suffers from the severe impairments of “cervical spondylosis, fibromyalgia, osteoarthritis, chronic pain, depression, anxiety, and obesity.” AR at 427. At Step Three, the ALJ concluded that Plaintiff's impairments, individually and in combination, did not meet or medically equal the regulatory “listings.” AR at 427-30.

         When a claimant does not meet a listed impairment, the ALJ must determine her residual functional capacity (“RFC”). 20 C.F.R. § 404.1520(e). RFC is a multidimensional description of the work-related abilities a plaintiff retains in spite of his medical impairments. 20 C.F.R. § 404.1545(a)(1). “RFC is not the least an individual can do despite his or her limitations or restrictions, but the most.” SSR 96-8P, 1996 WL 374184, at *1 (emphasis in original). In this case, the ALJ determined that Plaintiff retains the RFC to “perform light work as defined in 20 C.F.R. § 404.1567(b) except that she cannot climb ladders, ropes, or scaffolds and is limited to occasional overhead reaching. She is able to maintain, understand, and remember simple work instructions with occasional changes in work setting.” AR at 430.

         Employing this RFC at Steps Four and Five, the ALJ determined that Plaintiff is unable to perform her past relevant work as a court clerk. AR at 435. Relying upon the testimony of a vocational expert (“VE”), however, the ALJ found that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform despite her limitations. AR at 436. Specifically, the ALJ determined that Plaintiff maintains the RFC to work as an electronics worker, press operator, or fruit distributer. AR at 436. Thus, the ALJ determined that Plaintiff is not disabled and denied benefits. AR at 437.

         II. Legal Standard

         This Court “review[s] the Commissioner's decision to determine whether the factual findings are supported by substantial evidence and whether the correct legal standards were applied.” Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (quoting Mays v. Colvin, 739 F.3d 569, 571 (10th Cir. 2014)). A deficiency in either area is grounds for remand. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012). In making this determination, however, this Court “cannot reweigh the evidence or substitute [its] judgment for the administrative law judge's.” Smith v. Colvin, 821 F.3d 1264, 1266 (10th Cir. 2016) (citation omitted).

         III. Analysis

         Plaintiff argues that the ALJ improperly rejected the opinions of her treating physician, Kathy Finch, M.D., other treating sources Nancy Stockton, PA-C, Debra Jaccard, CNP, and Marissa Romero, CFNP, and consultative examiner John Vigil, M.D. See Doc. 21 at 1. Plaintiff also contends that the ALJ's Step Five finding is not supported by substantial evidence because the VE testimony as to the number of jobs in the national economy is unreliable. Id. The Court addresses each argument in turn.

         A) Treating Physician Finch

         Kathy Finch, M.D., treated Plaintiff from September 2008 until at least April 2012. See AR at 249, 381. During her initial appointment, on September 30, 2008, Plaintiff presented to Dr. Finch with complaints of increasing neck pain and a history of Fibromyalgia. AR at 365. At that time, Plaintiff described her pain as “moderate.” AR at 365. Dr. Finch confirmed Plaintiff's Fibromyalgia diagnosis, increased her dosage of hydrocodone, and started her on Lyrica. AR at 366.

         On December 23, 2008, Plaintiff presented for a recheck of her neck pain and again described her pain as “moderate.” AR at 364. On November 5, 2009, Dr. Finch increased Plaintiff's hydrocodone prescription for a month. AR at 355. On November 11, 2009, Plaintiff presented for an annual exam. She reported that the extra hydrocodone “really helps” and her dosage was permanently increased. AR at 352.

         On March 18, 2010, Plaintiff sought FMLA paperwork from Dr. Finch's office. AR at 295. She reported that she was having more bad days than good and was taking a lot of time off of work. AR at 295. On May 27, 2011, however, Plaintiff presented for a physical and at that time reported that she felt well with “minor complaints, ” including a decreased energy level. AR at 290. On August 1, 2011, and again on September 1, 2011, Plaintiff presented with complaints of depression. AR at 339. Of note, Dr. Finch reported that Plaintiff was “on a good mix of meds for fibromyalgia.” AR at 340.

         Dr. Finch completed a Fibromyalgia Questionnaire on September 30, 2011 at the request of the Administration. AR at 247-49. Dr. Finch indicated that she had been treating Plaintiff since September 30, 2008, but that Plaintiff suffered from fibromyalgia prior to establishing treatment with her. AR at 249. Dr. Finch noted that Plaintiff had 12 of 18 tender points, opined that Plaintiff would be unable to sustain an 8-hour workday or 40-hour workweek and that the pain, fatigue, and other fibromyalgia symptoms would interfere with Plaintiff's ability to focus attention on work-related tasks in a competitive work environment for increments of at least 2 hours at a time. AR at 249. Dr. Finch indicated that Plaintiff would have variations from day-to-day in terms of her ability to function and that she would have both good and bad days. AR at 249. Dr. Finch indicated that Plaintiff had suffered from this degree of functional limitation even before becoming Dr. Finch's patient in 2008. AR at 249. Dr. Finch stated that she reached her conclusions through a combination of clinical interviews, objective clinical observations, consultation with other members of treatment staff, and objective testing. AR at 249.

         On April 13, 2012, at Plaintiff's last appointment with Dr. Finch, she presented with symptoms of “myalgias, arthralgias, generalized fatigue, widespread pain and morning stiffness” that had begun about six months prior. AR at 382. Plaintiff described her pain as “moderate” in severity and “unchanged, ” but was unsure whether the pain was “worsening from actual fibromyalgia or recent stress.” AR at 382.

         The ALJ addressed these visits and Dr. Finch's Fibromyalgia Questionnaire in her decision, see AR at 431, 433-34, and ultimately found that Dr. Finch's conclusions as to the severity of Plaintiff's impairments “reduces the credibility of her opinion, as the claimant was able to continue working full time until February 2011.” AR at 434 (citing AR at 249). The ALJ also gave the “opinion little weight because treatment notes from Dr. Finch document that the claimant felt well and had a normal attention span and ability to concentrate and at another visit describe (sic) herself as having moderate pain.” AR at 434 (citing AR at 290, 382).

         By assigning Dr. Finch's opinions as to the functional limitations imposed by Plaintiff's fibromyalgia “little weight” the ALJ effectively rejected those opinions. Chapo v. Astrue, 682 F.3d 1285, 1291 (10th Cir. 2012) (equating “according little weight” to an opinion with “effectively rejecting” it); Crowder v. Colvin, 561 F. App'x 740, 742 (10th Cir. 2014) (unpublished) (citing Chapo for this proposition); Ringgold v. Colvin, 644 F. App'x 841, 844 (10th Cir. 2016) (unpublished) (same). It was certainly the ALJ's prerogative to do so, if warranted. However, the Tenth Circuit has cautioned that “[i]f the ALJ rejects the opinion completely, [s]he must then give specific, legitimate reasons for doing so.” Robinson v. Barnhart, 366 F.3d 1078, 1082 (10th Cir. 2004) (quoting Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003)). Moreover, “[i]n choosing to reject the treating physician's assessment, an ALJ may not make speculative inferences from medical reports and may reject a treating physician's opinion outright only on the basis of contradictory medical evidence and not due to his or her own credibility judgments, speculation or lay opinion.” Id. (quoting McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002)).

         Thus, in order to ensure that an ALJ properly evaluates a treating physician's opinions “case law, the applicable regulations, and the Commissioner's pertinent Social Security Ruling (SSR) all make clear that in evaluating the medical opinions of a claimant's treating physician, the ALJ must complete a sequential two-step inquiry, each step of which is analytically distinct.” Krauser v. Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011). First, the ALJ should determine whether the opinion is entitled to “controlling weight.” Watkins, 350 F.3d at 1300. An ALJ is required to give the opinion of a treating physician controlling weight if it is both: (1) “well-supported by medically acceptable clinical and laboratory diagnostic techniques”; and (2) “consistent with other substantial evidence in the record.” Id. (quotation omitted). “[I]f the opinion is deficient in either of these respects, then it is not entitled to controlling weight.” Id.

         Because the ALJ does not affirmatively state whether Dr. Finch's opinions are entitled to controlling weight, it appears that the ALJ may have skipped the first step under the treating physician analysis and leapt directly to the second. In the past, this Court has held that skipping the first step in the analysis constitutes reversible error. Wellman v. Colvin, CIV 13-1122 KBM, Doc. 19 (D.N.M. Dec. 3, 2014). In fact, this result appeared mandatory under Tenth Circuit law. See Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (“A finding at this stage (as to whether the opinion is either unsupported or inconsistent with other substantial evidence) is necessary so that we can properly review the ALJ's determination on appeal.”) (emphasis added); see also Robinson, 366 F.3d at 1083 (noting that the ALJ failed to expressly state whether an opinion would be afforded controlling weight); Daniell v. Astrue, 384 F. App'x 798, 801 (10th Cir. 2010) (unpublished) (quoting Watkins, 350 F.3d at 1300).

         However, more recently the Tenth Circuit has indicated that where a reviewing court can determine that an ALJ “implicitly declined to give the opinion controlling weight” there is no ground for remand. Mays v. Colvin, 739 F.3d 569, 575 (10th Cir. 2014).[4] Here, the ALJ's decision to ascribe Dr. Finch's opinion “little weight” shows that she implicitly declined to give it controlling weight because she specifically found it the opinion to be both unsupported by her treatment notes and, more importantly, inconsistent with the fact that Plaintiff was able to work full-time from 2008 through 2011. Therefore, the Court hesitates to reverse the ALJ solely for failing to discuss explicitly whether Dr. Finch's opinion was entitled to controlling weight. See Perez v. Colvin, CIV 15-0429 MCA-KBM, 2016 WL 8229939, at *6 (D.N.M. Oct. 12, 2016), report and recommendation adopted, 2016 WL 8229937 (D.N.M. Nov. 7, 2016).

         Even if a treating physician's opinion is not entitled to controlling weight, “[t]reating source medical opinions are still entitled to deference and must be weighed using all of the factors provided in 20 C.F.R. § 404.1527” at the second step of the ALJ's analysis. Watkins v, 350 F.3d at 1300 (quoting SSR 96-2p, 1996 WL 374188, at *4). The Tenth Circuit has summarized these factors as:

(1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship, including the treatment provided and the kind of examination or testing performed; (3) the degree to which the physician's opinion is supported by relevant evidence; (4) consistency between the opinion and the record as a whole; (5) whether or not the physician is a specialist in the area upon which an opinion is rendered; and (6) other factors brought to the ALJ's attention which tend to support or contradict the opinion.

Krauser, 638 F.3d at 1331 (quoted authority omitted). An ALJ is “not required ‘to apply expressly each of the six relevant factors in deciding what weight to give a medical opinion.'” Razo v. Colvin, 663 F. App'x 710, 715 (10th Cir. 2016) (unpublished) (quoting Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007)). Rather, an ALJ must simply provide ...

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