United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER 
KHALSA UNITED STATES MAGISTRATE JUDGE.
THIS MATTER is before the Court on the
Social Security Administrative Record (Doc. 13) filed
December 2, 2016 in support of Plaintiff Elizabeth
Herrera's (“Plaintiff”) Complaint (Doc. 1)
seeking review of the decision of Defendant Nancy A.
Berryhill, Acting Commissioner of the Social Security
Administration, (“Defendant” or
“Commissioner”) denying Plaintiff's claim for
Title II disability insurance benefits and for Title XVI
supplemental security income benefits. On January 31, 2017,
Plaintiff filed her Motion to Reverse and Remand for
Rehearing With Supporting Memorandum (“Motion”).
(Doc. 16.) The Commissioner filed a Response in opposition on
April 3, 2017 (Doc. 17), and Plaintiff filed a Reply on April
17, 2017. (Doc. 19.) The Court has jurisdiction to review the
Commissioner's final decision under 42 U.S.C.
§§ 405(g) and 1383(c). Having meticulously reviewed
the entire record and the applicable law and being fully
advised in the premises, the Court finds the Motion is not
well taken and is DENIED.
Background and Procedural Record
Elizabeth Herrera (“Ms. Herrera”) alleges that
she became disabled on October 18, 2008, at the age of forty
because of major depressive disorder and migraine headaches.
(Tr. 366-67, 368-74, 424.) Ms. Herrera has one year of college,
and worked as a dental assistant. (Tr. 425, 430.)
November 14, 2008, Ms. Herrera protectively filed an
application for Social Security Disability Insurance Benefits
(“DIB”) under Title II of the Social Security Act
(the “Act”), 42 U.S.C. § 401 et
seq., and concurrently filed for Supplemental Security
Income (“SSI”) under Title XVI of the Act, 42
U.S.C. § 1381 et seq. (Tr. 366-67, 368-74, 432.) Ms.
Herrera's applications were initially denied on March 13,
2009. (Tr. 218-19, 243-46.) They were denied again at
reconsideration on February 18, 2010. (Tr. 221-22, 250-52,
253-56.) On August 16, 2010, Ms. Herrera requested a hearing
before an Administrative Law Judge (“ALJ”). (Tr.
261-62.) ALJ Ben Wilner conducted a hearing on December 8,
2011. (Tr. 147-76.) Ms. Herrera appeared in person at the
hearing and was represented by Attorney Michael Armstrong.
(Id.) The ALJ took testimony from Ms. Herrera (Tr.
152-76). On May 22, 2012, the ALJ issued a decision for which
the claimant sought review. (Tr. 240.) On March 14, 2013, the
Appeals Council remanded the case to the ALJ for resolution
of certain issues. (Tr. 240-41.)
Wilner conducted a second hearing on November 5, 2013. (Tr.
177-217.) Ms. Herrera appeared in person at the hearing and
was represented by Attorney Michael Armstrong. (Id.)
The ALJ took testimony from Ms. Herrera (Tr. 182-211), and
from an impartial vocational expert (VE), Thomas Greiner.
(Tr. 211-17.) On January 21, 2014, the ALJ issued a decision
denying Ms. Herrera's claims. (Tr. 123-140.) On May 13,
2016, the Appeals Council issued its decision denying Ms.
Herrera's request for review and upholding the ALJ's
final decision. (Tr. 1-4.)
15, 2016, Ms. Herrera timely filed a Complaint seeking
judicial review of the Commissioner's final decision.
Standard of Review
Court reviews the Commissioner's decision to determine
whether the factual findings are supported by substantial
evidence in the record and whether the correct legal
standards were applied. 42 U.S.C. § 405(g); Hamlin
v. Barnhart, 365 F.3d 1208, 1214 (10th Cir.
2004); Langley v. Barnhart, 373 F.3d 1116, 1118
(10th Cir. 2004). A decision is based on
substantial evidence where it is supported by “relevant
evidence . . . a reasonable mind might accept as adequate to
support a conclusion.” Langley, 373 F.3d at
1118. A decision “is not based on substantial evidence
if it is overwhelmed by other evidence in the record[,
]” Langley, 373 F.3d at 1118, or
“constitutes mere conclusion.” Musgrave v.
Sullivan, 966 F.2d 1371, 1374 (10th Cir.
1992). The Commissioner's decision must “provide
this court with a sufficient basis to determine that
appropriate legal principles have been followed.”
Jensen v. Barnhart, 436 F.3d 1163, 1165
(10th Cir. 2005). Therefore, although an ALJ is
not required to discuss every piece of evidence, “the
record must demonstrate that the ALJ considered all of the
evidence, ” and “the [ALJ's] reasons for
finding a claimant not disabled” must be
“articulated with sufficient particularity.”
Clifton v. Chater, 79 F.3d 1007, 1009-10
(10th Cir. 1996).
considering an application for disability insurance benefits,
the Commissioner uses a five-step sequential evaluation
process. 20 C.F.R. §§ 404.1520, 416.920; Bowen
v. Yuckert, 482 U.S. 137, 140 (1987). The claimant bears
the burden of establishing a prima facie case of disability
at steps one through four. 20 C.F.R. §§
404.1520(a)(4)(i-iv), 416.920(a)(4)(i-iv); Grogan v.
Barnhart, 399 F.3d 1257, 1261 (10th Cir.
2005). If the claimant successfully meets that burden, the
burden of proof shifts to the Commissioner at step five to
show that the claimant is able to perform other work in the
national economy, considering the claimant's RFC, age,
education, and work experience. 404.1520(a)(v),
416.920(a)(v); Grogan, 399 F.3d at 1261.
made his decision that Ms. Herrera was not disabled at step
five of the sequential evaluation. He found that Ms. Herrera
had the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b) except she could
work involving only simple tasks and requiring only simple
decisions; maintaining concentration, pace, and persistence
for two hours before taking a regularly scheduled break, and
then returning to work throughout the workday.
(Tr. 135.) Based on the RFC and the testimony of the VE, the
ALJ concluded that considering Ms. Herrera's age,
education, work experience, and residual functional capacity,
there were jobs that existed in significant numbers in the
national economy that she could perform and that she was
therefore not disabled. (Tr. 138-39.)
Herrera asserts three arguments in support of her Motion as
follows: (1) the ALJ failed to provide specific and
legitimate reasons for rejecting the medical source opinion
of treating physicians Dr. Donna Segarra, D.O., and Dr. E. B.
Hall, M.D.; (2) the ALJ failed to provide specific and
legitimate reasons for rejecting the other medical source
opinion of treating counselor Elizabeth Ewins, M.A., LPCC;
and (3) the ALJ failed to incorporate portions of the medical
opinion of state agency psychological consultant Dr. Alvin
Smith, M.D., into Ms. Herrera's RFC. For the reasons
discussed below, the Court finds that the ALJ applied the
correct legal standards in evaluating the treating physician
and other medical source opinions. The Court further finds
that the ALJ adequately incorporated the functional aspects
of Ms. Herrera's nonexertional limitations assessed by
nonexamining State agency psychological consultant Dr. Alvin
Smith. For these reasons, there is no reversible error.
Donna Segarra, D.O.
October 25, 2012, Ms. Herrera presented to Donna Segarra,
D.O., at Molina Medical and stated she wanted to establish
care and needed a flu vaccine. (Tr. 1057.) Dr. Segarra noted,
inter alia, Ms. Herrera's reported medical
history that included severe migraines, depression, anxiety,
fibromyalgia, and sleep apnea. (Id.) Ms. Herrera
reported her current medications as Cymbalta, Lithium,
Propranolol, Relpax and Sumatriptan. (Id.) Dr.
Segarra administered a flu vaccine, ordered lab work, and
instructed Ms. Herrera to continue on her current
medications. (Tr. 1054.) Ms. Herrera returned on December 19,
2012, to review her labs. (Tr. 1053.) The only other
treatment note by Dr. Segarra in the Administrative Record is
a partial note dated eleven months later on October 16, 2013.
October 23, 2013, Dr. Segarra completed a Medical Assessment
of Ability To Do Work-Related Activities (Non-Physical) and
indicated that Ms. Herrera suffered with moderate pain, and
had sleep disturbances due to sleep apnea that required her
to rest or lie down at regular intervals. (Tr. 1081.) Dr.
Segarra assessed that Ms. Herrera had slight
limitations in her ability to (1) maintain regular
attendance and be punctual within customary tolerance; (2)
work in coordination with/or proximity to others without
being distracted by them; and (3) to make simple work-related
decisions. (Id.) She assessed that Ms. Herrera had
moderate limitations in her ability to (1) maintain
attention and concentration for extended periods
(i.e., 2-hour segments); (2) perform activities
within a schedule; (3) maintain physical effort for long
periods without a need to decrease activity or pace, or to
rest intermittently; and (4) sustain an ordinary routine
without special supervision. (Id.) Dr. Segarra
assessed Ms. Herrera had marked limitations
in her ability to complete a normal workday and workweek
without interruptions from pain or fatigue based symptoms and
to perform at a consistent pace without unreasonable number
and length of rest periods. (Id.)
same date, Dr. Segarra also completed a Medical Assessment of
Ability To Do Work-Related Activities (Physical). (Tr. 1082.)
She indicated that due to pain and fatigue Ms. Herrera could
not maintain physical activities for long periods without a
need to decrease activity or pace, or to rest intermittently.
(Id.) She also assessed that pain limited Ms.
Herrera's ability to push and/or pull in her upper and
lower extremities. (Id.) Based on Ms. Herrera's
self-reported inability to lift,  Dr. Segarra assessed that
Ms. Herrera could lift less than five pounds. (Id.)
Based on Ms. Herrera's self-reported history and
symptoms, Dr. Segarra assessed that Ms. Herrera could stand
and/or walk for less than 2 hours in an 8-hour workday, must
periodically alternate sitting and standing to relieve pain
or discomfort, had limited ability to reach in all
directions, could occasionally kneel, stoop, and crouch, and
could never crawl. (Id.)
accorded little weight to Dr. Segarra's assessment. (Tr.
132.) He explained that it was highly inconsistent with her
treatment records, internally inconsistent, and inconsistent
with the medical evidence as a whole. (Tr. 132, 137.) Ms.
Herrera argues that the ALJ's explanation is inadequate
because he failed to identify the specific inconsistencies he
relied on in rejecting Dr. Segarra's assessment. (Doc. 16
at 13.) Ms. Herrera further argues that the ALJ improperly
rejected Dr. Segarra's physical assessment that included
pain associated with fibromyalgia,  because Dr. Segarra's
treatment notes support that Ms. Herrera had fibromyalgia,
and the ALJ listed Ms. Herrera's fibromyalgia as a severe
impairment. (Doc. 16 at 13-14.) The Commissioner contends
that the ALJ appropriately relied on the inconsistency of Dr.
Segarra's opinion with her treatment notes and the record
as a whole, and that the ALJ discussed certain medical
records to demonstrate the inconsistencies. (Doc. 17 at 5-6.)
Tenth Circuit has pointed out that an ALJ “must give
good reasons for the weight assigned to a treating
physician's opinion, ” and “[t]he reasons
must be sufficiently specific to make clear to any subsequent
reviewers the weight the [ALJ] gave to the treating
source's medical opinion and the reason for that
weight.” Allman v. Colvin, 813 F.3d 1326, 1332
(10thCir. 2016) (ellipses, citation and internal
quotation marks omitted). Further, if the treating
physician's opinion is “well supported by medically
acceptable clinical and laboratory diagnostic techniques and
is consistent with the other substantial evidence in the
record . . . the ALJ must give the opinion controlling
weight.” Id. at 1331. “But if the ALJ
decides that the treating physician's opinion is not
entitled to controlling weight, the ALJ must then consider
whether the opinion should be rejected altogether or assigned
some lesser weight.” Id. In making this
determination, the ALJ considers several factors provided in
20 C.F.R. §§ 404.1527(c) and
416.927(c). Id. at 1331-32. The ALJ is not
required to “apply expressly” every relevant
factor. Oldham v. Astrue, 509 F.3d 1254, 1258
(10th Cir. 2007).
provided specific and legitimate reasons for rejecting Dr.
Segarra's assessments. The ALJ explained that Dr.
Segarra's assessments were completed in “late
2013.” The ALJ also explained that they were
inconsistent with her own treatment records, internally
inconsistent, and inconsistent with other evidence in the
record. In doing so, the ALJ cited to specific
inconsistencies. For example, the ALJ explained that Dr.
Segarra “disqualified her own opinion” because
she noted that she relied only on Ms. Herrera's
subjective complaints,  as opposed to objective findings, in
assessing Ms. Herrera's physical limitations. (Tr. 137.)
The record supports this finding. (Tr. 1082.) The ALJ also
pointed out that Ms. Herrera was referred to physical therapy
in 2012 for pain related to her fibromyalgia (i.e.,
back pain) and migraine headaches, and that her symptoms
improved with physical therapy such that her headaches were
occurring inconsistently and less frequently. (Tr. 135-36.)
The record supports this finding. (Tr. 913.) Finally, the ALJ
noted that Ms. Herrera reported to Psychiatrist E. B. Hall on
August 24, 2012, that she was taking medication for migraines
only about once every two weeks. (Tr. 136.) The record
supports this finding. (Tr. 999.) These are legitimate
reasons for according less weight to a medical opinion.
See 20 C.F.R. §§ 404.1527(c)(2), (3), (4)
and (5) and 416.927(c)(2), (3), (4) and (5) (generally more
weight will be given to medical source opinions based on how
long treating sources have treated you, how frequently they
have examined you, the nature and extent of the treatment
relationship, whether their opinions are supported by
relevant evidence, particularly medical signs and laboratory
findings, whether their opinions are consistent with the
record as a whole, and if they are specialists providing
medical opinions about medical issues related to their area
of specialty); see also Pisciotta v. Astrue, 500
F.3d 1074, 1078 (10th Cir. 2007) (“Medical
evidence may be discounted if it is internally inconsistent
or inconsistent with other evidence.”) (quoting
Knight v. Chater, 55 F.3d 309, 314 (7th
Court is also not persuaded that the ALJ improperly ignored
Ms. Herrera's physical pain associated with fibromyalgia
in rejecting Dr. Segarra's physical assessment. First,
there is nothing in Dr. Segarra's three treatment notes
to support that she did anything beyond recording and
acknowledging Ms. Herrera's reported medical history of
fibromyalgia. (Tr. 1051, 1052-53, 1054-57.) In other words,
her treatment notes do not reflect any kind of independent
physical exam or assessment related to Ms. Herrera's
fibromyalgia. Dr. Segarra confirmed as much when she noted on
the medical source statement that her physical assessment was
based solely on Ms. Herrera's reported history and
subjective complaints. (Tr. 1082.) Second, Ms. Herrera's
argument that finding an impairment at step two should
automatically result in limitations at steps four and five is
misplaced. At step two, an ALJ considers the medical severity
of a claimant's impairments. 20 C.F.R. §§
404.1520(a)(4)(ii), 416.920(a)(4)(ii). An ALJ's findings
at step two require only a “de minimis” showing
of impairment. Hinkle v. Apfel, 132 F.3d 1349, 1352
(10th Cir. 1997); see also Williams v.
Bowen, 844 F.2d 748, 751 (10th Cir. 1988)
(stating that if a claimant is able to show that his
impairment would have more than a minimal effect on his
ability to do basic work activity he has made a de
minimus showing). When a claimant's impairments do
not meet or equal in severity the requirements of any
impairments in the Listings, as is the case here, the ALJ
uses his step two findings as a basis for his step four and
five findings. SSR 96-8p, 1996 WL 374184, at *2 (instructing
that an adjudicator must consider only limitations and
restrictions attributable to medically determinable
impairments). Thus, whether an identified impairment causes
physical or mental limitations or restrictions that affect a
claimant's capacity to do work-related physical and
mental activities at steps four and five is an entirely
separate and different analysis. Here, the ALJ considered Ms.
Herrera's fibromyalgia in his RFC assessment, as he was
required to do. SSR 96-8p, 1996 WL 374184, at *5 (the RFC
assessment must be based on all the relevant
evidence in the record) (emphasis in original); see also SSR
12-2p, 2012 WL 3104869, at *6 (guidance for determining the
RFC assessment for a person with fibromyalgia). He explicitly
stated that he had carefully considered the entire record in
assessing Ms. Herrera's RFC. (Tr. 134-35.) Elsewhere in
his determination, the ALJ stated he allowed for Ms.
Herrera's chronic pain, depression, migraines and sleep
problems in assessing her mental RFC, and considered Ms.
Herrera's obesity and limited motivation for exertion in
restricting her to light work. (Tr. 136.) The Tenth Circuit
has stated that it will take the ALJ at his word when the
entirety of the ALJ's discussion of the evidence and the
reasons for his conclusions demonstrate that he adequately
considered the claimant's impairments. Wall v.
Astrue, 561 F.3d 1048, 1070 (10th Cir. 2009).
The ALJ's discussion and the reasons for his conclusions
demonstrate he did so here.
foregoing reasons, the ALJ provided legitimate reasons for
rejecting Dr. Segarra's assessment and there is no
reversible error as to this issue.
2. E. ...