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Kerr v. Berryhill

United States District Court, D. New Mexico

August 16, 2017

CLINTON T. KERR, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          ORDER

          HONORABLE GREGORY J. FOURATT, UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER is before the Court on Plaintiff's “Motion to Reverse and Remand for A Rehearing with Supporting Memorandum” (“Motion”), filed on December 5, 2016. ECF No. 15. The Commissioner responded on February 6, 2017. ECF No. 17. Plaintiff replied on February 21, 2017. ECF No. 18. Having meticulously reviewed the briefing and the entire record, the Court concludes that the Commissioner followed the correct legal standards and supported her decision with substantial evidence. Therefore, and for the further reasons articulated below, the Court will DENY Plaintiff's Motion.

         I. PROCEDURAL BACKGROUND

         On March 24, 2015, Plaintiff applied for disability insurance benefits (“DIB”) and supplemental security income (“SSI”), alleging disability beginning October 10, 2014. AR 210-22. Plaintiff alleged disability due to a broken right leg, diabetes, attention deficit hyperactivity disorder, and eye problems. AR 210-22. Plaintiff's applications were denied initially on May 28, 2015 and upon reconsideration on September 9, 2015. AR 78-79, 138-39. Plaintiff requested a hearing before an ALJ, which was held on March 16, 2016, before Administrative Law Judge (“ALJ”) Eric Weiss. AR 158-59. Plaintiff testified at the hearing, along with Leslie J. White, an impartial vocational expert (“VE”). AR 40-77. Michelle Baca, an attorney, represented Plaintiff at the hearing. AR 19, 40.

         On April 27, 2016, ALJ Weiss issued his decision finding Plaintiff not disabled and therefore not entitled to either DIB or SSI. AR 16-31. Plaintiff requested review by the Appeals Council, which was denied on June 14, 2016, making the ALJ's decision the Commissioner's final decision for purposes of this appeal. AR 1-3. Through new counsel, Francesca J. MacDowell, Plaintiff timely appealed to this Court. ECF No. 1.

         II. APPLICABLE LAW

         A. Standard of Review

         When the Appeals Council denies a claimant's request for review, the ALJ's decision becomes the final decision of the agency.[1] The Court's review of that final agency decision is both factual and legal. See 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)) (“The standard of review in a social security appeal is whether the correct legal standards were applied and whether the decision is supported by substantial evidence.”).

         The factual findings at the administrative level are conclusive “if supported by substantial evidence.” 42 U.S.C. § 405(g) (2012). “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); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). An ALJ's 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; Hamlin, 365 F.3d at 1214. Substantial evidence does not, however, require a preponderance of the evidence. See Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).

         “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, 489 F.3d at 1084. A court should meticulously review the entire record but should neither re-weigh the evidence nor substitute its judgment for that of the Commissioner. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214.

         As for the review of the ALJ's legal decisions, the Court examines “whether the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases.” Lax, 489 F.3d at 1084. The Court may reverse and remand if the ALJ failed “to apply the correct legal standards, or to show . . . that she has done so.” Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996). Ultimately, 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. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214, Doyal, 331 F.3d at 760.

         B. 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). 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. 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). In phase two, the ALJ determines the physical and mental demands of the claimant's past relevant work, and in the third phase, compares the claimant's RFC with the functional requirements of his past relevant work to determine 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 able to perform 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 nonetheless 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).

         III. SUMMARY OF ARGUMENTS

         Plaintiff advances three arguments with several sub-arguments in favor of reversing and remanding. First, Plaintiff argues the ALJ erred by failing to include moderate limitations assessed by consultative examiner B. Rudnick, M.D., in the RFC. Pl.'s Mot. 5-8. Second, Plaintiff contends the ALJ's RFC is contrary to law and not supported by substantial evidence.

         Pl.'s Mot. 8-19. Specifically, Plaintiff argues: (1) the ALJ's finding that Plaintiff can stand and walk for six hours is not supported by substantial evidence; (2) the ALJ legally erred by not including a vision limitation in the RFC; (3) the ALJ legally erred by failing to include Dr. Rudnick's assessed moderate limitations, which Plaintiff argues are supported by other evidence; (4) the ALJ legally erred by failing to take into account the combined effect of Plaintiff's limitations; and (5) the ALJ legally erred by relying on improper factors, i.e. Plaintiff's noncompliance with prescribed treatment and Plaintiff's daily activities. Pl.'s Mot. 8-19. Finally, Plaintiff argues the ALJ erred by adopting the VE's testimony, which Plaintiff contends conflicted with Dr. Rudnick's assessed limitations. Pl.'s Mot. 19-22.

         The Commissioner first responds that, because the ALJ's RFC was consistent with Dr. Rudnick's narrative opinion, the ALJ did not commit reversible error. Def.'s Resp. 5-6. Second, the Commissioner argues the ALJ's RFC, including the ALJ's determination of Plaintiff's non-severe impairments, is supported by substantial evidence. Def.'s Resp. 7-12. Regarding the VE testimony, the Commissioner disputes whether the ALJ was required to do more than ask the VE if his testimony conflicted with the DOT and denies there is a conflict between the RFC and the VE's testimony. Def.'s Resp. 12-18.

         IV. ALJ'S DECISION

         On April 27, 2016, the ALJ issued his decision finding Plaintiff not disabled. AR 16-31. In so doing, the ALJ followed the five-step sequential evaluation. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since his alleged disability onset date. AR 20. At step two, the ALJ determined Plaintiff has the following severe impairments: right femur fracture status post open reduction internal fixation; right ankle fracture; right knee instability; mild bilateral knee osteoarthritis; attention hyperactivity disorder; anxiety; and a bipolar disorder, not otherwise specified. AR 20. The ALJ acknowledged Plaintiff has several other impairments, but found them not severe. AR 20-21. These include: diabetes melitis; proliferative diabetic retinopathy in both eyes following laser surgery; hypertension; gastroesophageal reflux disease; and amphetamine use in remission. AR 21.

         At step three, the ALJ determined Plaintiff's impairments, both singly and in combination, do not meet or medically equal the severity of a Listing impairment. AR 22. At this step, the ALJ found Plaintiff has only mild restrictions in daily living and social functioning, and moderate limitations with regard to concentration, persistence or pace. AR 23. Regarding activities of daily living, the ALJ discussed evidence from Plaintiff's friend Dana Romero, Plaintiff's own statements, and the opinion of state agency consultant B. Rudnick, M.D., that Plaintiff has only mild limitations in this area of functioning. AR 22. Similarly, the ALJ considered evidence of Plaintiff's social functioning from Ms. Romero, Plaintiff's own reporting, and notes by Mauricio Tohen, M.D., that Plaintiff exhibited a “cheerful mood and a full affect.” AR 23. As for persistence and pace, the ALJ again relied on Ms. Romero's report, as well as notes from Drs. Tohen and Rudnick. AR 23.

         Prior to proceeding to step four, the ALJ found Plaintiff has the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b). AR 23. The ALJ found Plaintiff capable of lifting 20 pounds occasionally and 10 pounds frequently, as well as pushing and pulling the same. AR 23. According to the ALJ, Plaintiff can both stand and walk for up to six hours in an eight hour work-day while taking normal breaks. Plaintiff may frequently stoop, but only occasionally climb ramps or stairs, balance, kneel, crouch, or crawl, and never climb ladders, ropes, or scaffolds. AR 23. Plaintiff must also avoid more than occasional exposure to extreme cold, heat, and unprotected heights. AR 23. Finally, the ALJ found Plaintiff capable of understanding, remembering, and carrying out simple instructions and making commensurate work-related decisions, adjusting to routine changes in work setting, frequently interacting with supervisors, co-workers, and the public, and maintaining concentration, persistence, and pace for two hours at a time with normal breaks. AR 23.

         The ALJ based his RFC on Plaintiff's statements as well as the objective medical evidence. AR 24. The ALJ began his discussion with the events of October 10, 2014, when Plaintiff injured his knee after falling off a mechanical bull. AR 24. Plaintiff was hospitalized for four days, during which he underwent open reduction internal fixation of his right femur fracture. AR 24. On November 11, 2014, examination showed no evidence of either a superficial or deep obstruction. AR 24. Then, on January 5, 2015, Plaintiff went to the emergency room complaining of right ankle pain after falling at Wal-Mart. AR 24. The ER attending noted tenderness up and down Plaintiff's leg and ankle, and x-rays showed an ankle fracture. AR 25. Plaintiff was discharged with medication and instructions to use a walker. AR 25. January 2015 x-rays of Plaintiff's femur showed no acute abnormalities. AR 25.

         The ALJ next discussed treatment records from Michael W. Foutz, M.D. AR 25. Plaintiff saw Dr. Foutz from November 13, 2014, through January 8, 2015, primarily regarding his diabetes. Plaintiff presented with complaints of left and right leg swelling, difficulty sleeping, urinary retention, and both low and high blood sugar readings. AR 25. On November 13, 2014, Dr. Foutz diagnosed Plaintiff with cellulitis, an abscess on his foot, and diabetes. AR 25. On November 24, 2014, Plaintiff's blood pressure decreased on a diuretic and the redness on his foot had resolved. AR 25. Further records show Plaintiff reported feeling better despite problems with his eye, good results with Clonazepam, and no physical abnormalities on examination. AR 25.

         Next, the ALJ discussed medical evidence of Plaintiff's eye impairment. The ALJ noted Plaintiff's long history of bilateral proliferative retinopathy and chronic vitreous hemorrhage in his right eye. AR 25. Once again, the ALJ noted Plaintiff's subjective complaints, treatment, and results. AR 25-26. Following surgery, Plaintiff's uncorrected vision in his right eye improved from 20/200 to 20/100, and by October 20, 2015, Plaintiff suffered only mild vitreous hemorrhage in his right eye. AR 26.

         The ALJ then considered records from Abhishek Ahuja, M.D., for treatment rendered from July 2014 to October 2015. AR 26. Plaintiff presented with high blood sugar and right leg, knee, and ankle pain. AR 26. On April 2, 2015, Dr. Ahuja performed a physical examination and noted no acute distress or pain with movements at the knee. AR 26. On October 2, 2015, Plaintiff walked with a normal gait and without ...


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