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Herrera v. Berryhill

United States District Court, D. New Mexico

September 14, 2017

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



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.

         I. Background and Procedural Record

         Claimant 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.[3]) Ms. Herrera has one year of college, and worked as a dental assistant. (Tr. 425, 430.)

         On 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.[4] (Tr. 240-41.)

         ALJ 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.)

         On July 15, 2016, Ms. Herrera timely filed a Complaint seeking judicial review of the Commissioner's final decision. (Doc. 1.)

         II. Standard of Review

         The 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).

         In 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.

         III. Analysis

         The ALJ 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 do

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.)

         Ms. 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.

         A. Treating Physicians

         1. Donna Segarra, D.O.

         On 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. (Tr. 1051.)

         On 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.)

         On the 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, [5] 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.)

         The ALJ 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, [6] 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.)

         The 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).[7] 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).

         The ALJ provided specific and legitimate reasons for rejecting Dr. Segarra's assessments. The ALJ explained that Dr. Segarra's assessments were completed in “late 2013.”[8] 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, [9] as opposed to objective findings, in assessing Ms. Herrera's physical limitations. (Tr. 137.) The record supports this finding.[10] (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.[11] (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.[12] (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 Cir. 1995)).[13]

         The 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.

         For the 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. ...

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