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Lopez v. Berryhill

United States District Court, D. New Mexico

May 31, 2017

NENA CHRISTINE LOPEZ, Plaintiff,
v.
NANCY A. BERRYHILL, [1]Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on Plaintiff's Motion to Reverse and Remand for Rehearing with Supporting Memorandum (Doc. 23), filed January 11, 2017. 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 relevant law, and the relevant portions of the Administrative Record, the Court will deny the Motion.

         I. Introduction

         Plaintiff, who elected to appear at her administrative hearing without counsel, contends that the Administrative Law Judge (“ALJ”) who held that hearing failed to fully inquire into the effects of her headaches and obesity, resulting in his failure to consider them in concluding that she is not disabled. After careful review of the record, however, the Court is confident that the ALJ considered these impairments. Even assuming he did not, the Court finds any such error to be harmless, as Plaintiff has failed to demonstrate any further limiting effects these impairments may impose beyond those recognized by the ALJ.

         II. Procedural History

         Plaintiff filed applications with the Social Security Administration for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act on August 3 and 31, 2010. AR at 171-78.[2] In these applications, Plaintiff alleged two different disability onset dates: August 1, 2008, and August 3, 2010. AR at 171, 175. Regardless, Plaintiff stopped working full-time on August 3, 2010, due to osteoarthritis in her knees, migraines, obesity, high blood pressure, and thyroid problems. AR at 205. Prior to claiming disability, Plaintiff worked as a receptionist at a doctor's office, janitor at a school, and cashier at a gas station. AR at 72-73, 206. Plaintiff testified that she can no longer work as a cashier because of the standing and lifting requirements of that job. AR at 72-73. However, Plaintiff continues to work part-time as an assistant librarian. AR at 66.

         The agency denied Plaintiff's claims initially and upon reconsideration, and she requested a de novo hearing before an administrative law judge. AR at 87-116. ALJ Barry O'Melinn held an evidentiary hearing on March 12, 2014, at which Plaintiff appeared via video teleconference. AR at 61. Although ALJ O'Melinn advised her of her right to be represented by counsel, Plaintiff elected to proceed on her own. AR at 62-63.

         Ultimately, the ALJ issued an unfavorable decision on August 29, 2014. AR at 41-53. Plaintiff, now represented by counsel, submitted a Request for Review of the ALJ's Decision to the Appeals Council, which the Council declined on April 22, 2016. AR at 1-7, 36-37. As such, the ALJ's decision became the final decision of the Commissioner. Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). This Court now has jurisdiction to review the 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. § 423(d)(1)(A); 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). The Commissioner must use a five-step sequential evaluation process to determine eligibility for benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).[3]

         At Step One of the sequential evaluation process, the ALJ found that while Plaintiff continues to work part-time as an assistant librarian, she has not engaged in substantial gainful activity during the relevant time period. AR at 43. At Step Two, he determined that Plaintiff has the severe impairments of “bilateral knee disorder, morbid obesity, hypertension, hypothyroidism, back/hip pain, diabetes mellitus type 2, bipolar panic, and post-traumatic stress disorder (‘PTSD').” AR at 43. 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 43-44.

         When a plaintiff does not meet a listed impairment, the ALJ must determine her residual functional capacity (“RFC”). 20 C.F.R. §§ 404.1520(e), 416.920(a)(4). RFC is a multidimensional description of the work-related abilities a plaintiff retains in spite of her medical impairments. 20 C.F.R. §§ 404.1545(a)(1), 416.945(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. In this case the ALJ determined that Plaintiff retained the RFC to

perform sedentary work activity, as defined in 20 CFR 404.1567(a) and 416.967(a), except that she could balance, stoop, kneel, crouch, crawl, and climb ramps/stairs only occasionally. She would need to avoid concentrated exposure to moving machinery, hazardous machinery, and unprotected heights. She could understand, carry out, and remember detailed but not complex instructions and make commensurate work-related decisions, responding appropriately to supervision, coworkers, and work situations, deal with routine changes in work setting, maintain concentration, persistence, and pace for up to and including two hours at a time with normal breaks throughout the workday.

AR at 44-45. Employing this RFC at Step Four, the ALJ determined that Plaintiff is able to return to her past relevant work as a receptionist. AR at 53. Accordingly, the ALJ did not proceed to Step Five, having determined that Plaintiff was not disabled from her alleged onset date through the date of his decision, and he denied benefits. AR at 47.

         III. 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 order to determine whether the [Commissioner's] decision is supported by substantial evidence, [this Court] must meticulously examine the record.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). 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).

         I. Analysis

         Plaintiff argues that the ALJ committed reversible error by failing to fully explore the facts regarding her headaches, migraines and obesity during the administrative hearing. Doc. 23 at 4 (citing Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992)). Plaintiff quotes Musgrave for the proposition that a social security disability hearing is nonadversarial, imparting upon an ALJ the duty to “inform himself about the facts relevant to his decision and to learn the claimant's own version of the facts.” Doc. 23 at 4. The Musgrave Court went on to note that this duty “to develop the record is heightened when a claimant is unrepresented.” Musgrave, 966 F.2d at 1374.

         However, permitting an unrepresented claimant to proceed before an ALJ is not improper. To the contrary, an ALJ will still meet his duty of inquiry in an unrepresented case if he asks “sufficient questions to ascertain (1) the nature of a claimant's alleged impairments, (2) what on-going treatment and medication the claimant is receiving, and (3) the impact of the alleged impairment on a claimant's daily routine and activities.” Id. (citation omitted). That said, “[t]he ALJ does not have to exhaust every possible line of inquiry in an attempt to pursue every potential line of questioning.” Hawkins v. Chater, 113 F.3d 1162, 1168 (10th Cir. 1997). “The standard is one of reasonable good judgment. The duty to develop the record is limited to ‘fully and fairly develop[ing] the record as to material issues.'” Id. (quoting Baca v. Dep't of Health & Human Servs., 5 F.3d 476, 479-80 (10th Cir. 1993)).

         Plaintiff posits that ALJ O'Melinn failed to adequately question her about the impact of her migraines, headaches and obesity. She contends that this alleged error led to the ALJ's subsequent failure to discuss and consider her migraines and headaches in his Step Two analysis and Step Four findings, and to his failure “to discuss and assess the effect of [Plaintiff's] obesity on the RFC.” See Doc. 23 at 7-9. For the reasons that ...


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