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Racette v. Berryhill

United States District Court, D. New Mexico

June 12, 2017

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



         THIS MATTER is before the Court on Plaintiff's “Motion to Reverse and Remand for Payment of Benefits, or in the Alternative, for Rehearing with Supporting Memorandum” (“Motion”) [ECF No. 19]. Having meticulously reviewed the entire record, considered the parties' arguments, and being otherwise fully advised, the Court concludes that substantial evidence supports the Commissioner's decision to deny benefits and that proper legal standards were applied. Therefore, and for the following reasons, the Court will deny Plaintiff's Motion.


         On February 16, 2010, Plaintiff applied for disability insurance benefits, alleging that his disability began on February 15, 2010. Administrative R. (“AR”) 202-05. Plaintiff's application was initially denied on July 9, 2012 [AR 83-84], and upon reconsideration on May 3, 2012. AR 125-26. Plaintiff then filed a written request for a hearing, and, on July 8, 2014, Administrative Law Judge (“ALJ”) Michelle Lindsay held a hearing in Albuquerque, New Mexico. Plaintiff testified at the hearing and was represented by non-attorney representative John Bishop. The ALJ also heard testimony from Judith Beard, an impartial vocational expert. AR 26-65.

         On September 22, 2014, the ALJ issued a decision, concluding that Plaintiff had not been under a disability within the meaning of the Social Security Act (“the Act”) since the date his application was filed. AR 12-20. Plaintiff requested the ALJ's decision be reviewed by the Appeals Council, and, on March 3, 2016, the Appeals Council denied his request. AR 1-5. Consequently, the ALJ's decision became the final decision of the Commissioner. Plaintiff timely filed his appeal in this Court on April 8, 2016.


         Pursuant to 42 U.S.C. § 405(g), a court may review a final decision of the Commissioner only to determine whether the decision is supported by substantial evidence and whether the correct legal standards were applied. See 42 U.S.C. § 405(g) (2015); see also Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008) (citing Hamilton v. Sec'y of Health & Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992)). If substantial evidence supports the ALJ's findings and the correct legal standards were applied, the Commissioner's decision stands, and the plaintiff is not entitled to relief. See Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); see also Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004). “The failure to apply the correct legal standards 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 omitted). “In reviewing the ALJ's decision, ‘we neither reweigh the evidence nor substitute our judgment for that of the agency.'” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)); see also Hamlin, 365 F.3d at 1214 (“[B]ecause our review is based on the record taken as a whole, [the Court] will meticulously examine the record in order to determine if the evidence supporting the agency's decision is substantial …”).

         Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003) (quoting Fowler v. Bowen, 876 F.2d 1451, 1453 (10th Cir. 1989)). “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.” Langley, 373 F.3d at 1118 (quoting Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir. 1988)). “The record must demonstrate that the ALJ considered all of the evidence, but an ALJ is not required to discuss every piece of evidence.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996) (citation omitted). “Rather, in addition to discussing the evidence supporting his decision, the ALJ also must discuss the uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence he rejects.” Id. at 1010. “The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's 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)).


         Plaintiff argues that the ALJ committed reversible legal error for three primary reasons: (i) the ALJ improperly concluded that Plaintiff's severe impairments did not meet the Listing of Impairments, (ii) the ALJ omitted key limitations from Plaintiff's residual functional capacity (“RFC”) and erred in making credibility findings in calculating the RFC, and (iii) the positions identified by vocational expert (“VE”) as ones that Plaintiff could occupy consistent with the RFC do not exist in significant enough numbers in the national economy. See Pl.'s Mot. 1, ECF No. 19, passim. In opposition, the Commissioner contends that (i) the ALJ properly found that Plaintiff's impairments did not meet or medically equal a listed impairment, (ii) the ALJ's finding that Plaintiff's RFC permitted him to perform a limited range of sedentary work was based on substantial evidence and otherwise properly calculated, and (iii) the VE committed no error in identifying positions that exist in sufficient numbers in our national economy that Plaintiff could perform consistent with his RFC. See Def.'s Br. in Resp. to Pl.'s Mot. (“Def.'s Resp.”), ECF No. 21, passim.


         A. Legal Standard

         For purposes of Social Security disability insurance benefits, the term “disability” means “inability 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) (2012). To determine if an individual is disabled, the Social Security Administration utilizes a five-step sequential evaluation process, 20 C.F.R. § 404.1520 (2015), with each step being followed in order. Id. § 404.1520(4). If it is conclusively determined that the individual is or is not disabled at any step of the evaluation process, the evaluation does not go on to the next step. Id.

         The claimant bears the burden of establishing a prima facie case of disability at steps one through four. Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988).

At step one, the claimant must show “that he is not presently engaged in substantial gainful activity;” at step two “that he has a medically severe impairment or combination of impairments;” at step three that the impairment is “equivalent to a listed impairment;” and, at step four, “that the impairment or combination of impairments prevents him from performing his past work.”

Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005) (quoting Williams, 844 F.2d at 750-52). At step five, “the burden shifts to the Commissioner to show the claimant retains sufficient residual functional capacity (RFC) to perform work in the national economy, given his age, education, and work experience.” Id. (quoting Williams, 844 F.2d at 751).

         B. ALJ Decision

         On September 22, 2014, the ALJ issued a decision denying Plaintiff's application for benefits. In doing so, the ALJ conducted the five-step sequential evaluation process. AR 12-20. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since February 15, 2010, the date of his alleged disability onset. At step two, the ALJ determined Plaintiff had the following severe impairments: immunoglobulin deficiency and recurrent pneumonia. The ALJ found these impairments to be severe because “they cause more than a minimal limitation on the [Plaintiff's] ability to perform basic work activities.” AR 14.

         At step three, the ALJ concluded that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ evaluated Plaintiff's impairments under Listings 3.02 and 14.07 to reach this conclusion. Focusing first on Plaintiff's recurrent pneumonia, the ALJ found that the “available medical evidence did not demonstrate chronic obstructive pulmonary disease.” AR 14-15.[1] Next, the ALJ found that Plaintiff's condition did not satisfy the paragraph A criteria for Listing 14.07 (immune deficiency disorders) because there was no medical evidence to illustrate that Plaintiff had an infection that was resistant to treatment.[2] The ALJ also determined that there was insufficient medical evidence upon which to conclude that Plaintiff had satisfied the criteria for either paragraphs B or C of Listing 14.07.[3]AR 15.

         Before step four, the ALJ determined Plaintiff had the following residual functional capacity (“RFC”): “[T]o perform sedentary work as defined in 20 C.F.R. 404.1567(a) and 416.967(a) except he is never able to climb ladders, ropes[, ] or scaffolds and he must avoid frequent exposure to pulmonary irritants such as fumes, odors, dusts, gases[, ] and poor ventilation.” AR 15. In support of this RFC assessment, the ALJ found that “[Plaintiff's] medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, [Plaintiff's] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible . . . .” AR 16. In reaching this determination, the ALJ adopted portions of two state agency medical consultants' opinions. AR 18. Additionally, although the ALJ considered opinions from Plaintiff's treating physician, a consultative examiner, and Plaintiff's wife, she assigned “little weight” to each of these three opinions for reasons that the ALJ explained. AR 17.

         At the fifth and final step, the ALJ noted that Plaintiff was born on December 24, 1966, and was therefore 43 years old as of the alleged disability onset date, which is considered to be a “younger individual” pursuant to 20 C.F.R. §§ 404.1563 and 416.963. The ALJ further noted that Plaintiff has at least a high school education, is able to communicate in English, and that he “has acquired work skills from past relevant work.” AR 18. The ALJ determined that Plaintiff would not be able to perform any past relevant work as a karate instructor, desk clerk, satellite installer, or a sales clerk. AR 18. Thereafter, the ALJ asked the vocational expert “if any occupations exist which could be performed by an individual with the same age, education, past relevant work experience, and residual functional capacity as [Plaintiff], and which require skills acquired in the [Plaintiff's] past relevant work but no additional skills.” AR 19. The VE testified that such an individual would be capable of working in the following jobs: appointment clerk (DOT 237.367-010), document preparer (DOT 249.587-018), and jewelry preparer (DOT 700.687-062). Subsequently, the ALJ concluded that Plaintiff was not disabled under the meaning of the Act from February 15, 2010, through the date of the decision. AR 20.

         V. ANALYSIS

         A. Listing of Impairments

         Plaintiff first challenges the ALJ's finding at step three that his impairments, either individually or in combination, do not meet or equal Listed Impairment 14.07 (immune deficiency disorders). Pl.'s Mot. 15-17. According to Plaintiff, the ALJ failed to describe which paragraphs of that listing she considered, which he claims has hindered his ability to challenge the finding. Id. Additionally, Plaintiff asserts that he presented medical evidence that was sufficient to prove that he does meet the requirement of both paragraphs A and C of Listing 14.07. Id. The Commissioner argues that Plaintiff cannot show that he satisfied the criteria either for Listing 14.07(A) or (C). Def.'s Resp. 6-7. Therefore, the ALJ reasonably concluded that the evidence failed to document the criteria from Listing 14.07 and proceeded with the sequential evaluation process. Id. at 7.

         At step three of the sequential evaluation process, the ALJ must determine whether a claimant's impairment is “equivalent to one of a number of listed impairments that the Secretary acknowledges as so severe as to preclude substantial gainful activity.” Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1997) (quoting Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988)). To do so in a manner that sufficiently permits meaningful judicial review, the Tenth Circuit has held that an ALJ is “required to discuss the evidence and explain why [the ALJ] found that [the claimant] was not disabled at step three.” Id. Statements containing summary conclusions that a claimant's impairments do not meet or equal a Listed Impairment are considered to be “bare conclusions” that do not permit meaningful judicial review. Id. Instead, an ALJ is required to discuss the evidence that both supports her decision as well as the evidence that she chose not to rely upon. Id. at 1010. It is not required, however, that an ALJ discuss every piece of evidence. Id. at 1009.

         The ALJ's analysis of whether Plaintiff's immune deficiency disorder satisfied Listing 14.07(A)-(C) was set forth in a single paragraph:

With regard to the claimant's autoimmune disorder, I gave particular attention to Listing 14.07, Immune Deficiency Disorders. The available medical evidence does not demonstrate sepsis, meningitis, pneumonia, septic arthritis, endocarditis or sinusitis that was resistant to treatment; or stem cell transplantation; or repeated manifestations of an immune deficiency disorder with at least two of the constitutional symptoms and one of the following at the marked level: limitation of activities of daily living, maintaining social functioning or completing tasks in a timely manner due to deficiencies in concentration, persistence and pace. Specifically, the evidence failed to document any of the above criteria.

AR 15.

         Although this analysis is thin, it is not impermissibly threadbare, for it still provides this Court with the material it needs to meaningfully review this claim.[4] In its own plain language, Listing 14.07 provides three separate, alternative, and distinct ways by which a claimant can demonstrate that his immune deficiency disorder is sufficiently serious to automatically qualify as disabling. It is clear to this Court that the ALJ evaluated whether Plaintiff's evidence met the criteria of any of the three paragraphs, and concluded that it did not. This Court agrees.

         To satisfy the criteria of Listing 14.07(A), a claimant must demonstrate that (1) he has one or more of a list of six infections, and (2) that the infection is either resistant to treatment or “require[s] hospitalization or intravenous treatment three or more times in a 12-months period.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1, Pt. A2 (2016). In neither his Motion nor his Reply does Plaintiff argue that the ALJ should have found that he had one or more of the six listed infections. See Pl.'s Mot. 15-17; Pl.'s Reply 1-2. This omission is puzzling, as the Court's own review of the evidence reflects that Plaintiff at the very least has suffered from recurrent pneumonia, one of the six enumerated infections. Indeed, recurrent pneumonia is one of the two severe impairments that the ALJ ascribed to Plaintiff. AR 14.

         Nonetheless, even if Plaintiff had asserted that his recurrent pneumonia matched or medically equaled the “pneumonia” enumerated in Listing 14.07(A), his proof still would have fallen short, for that provision requires more. To satisfy subparagraph A, Plaintiff would also have to show that his pneumonia was either resistant to treatment or that the treatment for it “require[s] hospitalization or intravenous treatment three or more times in a 12-month period.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1, Pt. A2 (2016). To this point, Plaintiff contends only that his regular intravenous treatment should meet that test. After all, he receives such treatment as often as weekly. See Pl.'s Mot. 15-16.[5] But the record makes clear that he receives that treatment for his immune deficiency rather than for pneumonia. See, e.g., AR 337 (reflecting that immunotherapy prescribed for antibody production deficiency). Plaintiff points to no evidence in the record (nor did the Court locate any) demonstrating that his intravenous injections were or are prescribed to treat pneumonia. Consequently, this Court concludes that the ALJ did not err in finding that Plaintiff did not satisfy his burden under Listing 14.07(A).[6]

         Whether the ALJ was correct in finding that Plaintiff also did not satisfy the criteria under Listing 14.07(C) is a closer question but one the Court answers in a similar manner. That subparagraph requires the following:

Repeated manifestations of an immune deficiency disorder, with at least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss) and one of the following at the marked level:
1. Limitation of activities of daily living.
2. Limitation in maintaining social function.
3. Limitation in completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace.

20 C.F.R. § Pt. 404, Subpt. P, App. 1, Pt. A2 (2016).

         To this point, Plaintiff contends only that he “provided ample evidence of marked limitation in his activities of daily living due to severe fatigue and malaise.” Pl.'s Mot. 16 (citing his treating physician's notes at ¶ 316, 318, 362, as well as his own testimony and other reports at ¶ 40-41, 240, 253, 288). In so doing, Plaintiff has limited his claim to whether the evidence showed severe fatigue and malaise as his two “constitutional symptoms or signs” and a “marked” limitation in his activities. For her part, the Commissioner responds only by ...

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