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Feary v. Berryhill

United States District Court, D. New Mexico

September 20, 2017

PATRICK FEARY, Plaintiff,
v.
NANCY A. BERRYHILL, [1]Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER [2]

          KIRTAN KHALSA UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER is before the Court on the Social Security Administrative Record (Doc. 12) filed November 25, 2016 in support of Plaintiff Patrick Feary'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 February 6, 2017, Plaintiff filed his Motion to Reverse and Remand for Rehearing With Supporting Memorandum (“Motion”). (Doc. 17.) The Commissioner filed a Response in opposition on April 7, 2017 (Doc. 19), and Plaintiff filed a Reply on April 21, 2017. (Doc. 20.) 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 Patrick Feary (“Mr. Feary”) alleges that he became disabled on February 3, 2011, at the age of thirty-three because of severe rheumatoid arthritis and obesity. (Tr. 95-96, 97-102, 142.[3]) Mr. Feary is a high school graduate, and worked as a laborer and laborer/forklift driver. (Tr. 143.)

         On May 26, 2011, Mr. Feary 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. (Tr. 95-96, 138.) On June 22, 2011, Mr. Feary filed for Supplemental Security Income (“SSI”) under Title XVI of the Act, 42 U.S.C. § 1381 et seq. (Tr. 97-102.) Mr. Feary's applications were initially denied on August 19, 2011. (Tr. 53, 54, 60-63.) They were denied again at reconsideration on October 11, 2011. (Tr. 55, 56, 67, 68.) On October 21, 2011, Mr. Feary requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 69-70.) ALJ Daniel Dadabo conducted a hearing on October 11, 2012. (Tr. 20-52.) Mr. Feary appeared in person at the hearing and was represented by Attorney Stephen McCarty.[4] (Id.) The ALJ took testimony from Mr. Feary (Tr. 24-42), and an impartial vocational expert (“VE”), Craig Johnston (Tr. 42-51). On December 11, 2012, the ALJ issued an unfavorable decision. (Tr. 8-18.) On January 31, 2014, the Appeals Council issued its decision denying Mr. Feary's request for review and upholding the ALJ's final decision. (Tr. 1-5.)

         On June 26, 2014, Mr. Feary timely filed a Complaint seeking judicial review of the Commissioner's final decision. (USDC Civ. No. 14-301 CG, Doc. 1.) The parties fully briefed the issues raised for judicial review. (Id., Docs. 15, 17, 18.) On February 23, 2015, Magistrate Judge Carmen Garza, presiding by consent, entered an Order Granting Plaintiff's Motion to Reverse and Remand. (Id., Doc. 20, Tr. 523-37.) Judge Garza held that the ALJ erred in failing to expressly address Dr. Lucio Martinez's opinion. (Tr. 536.)

         On January 20, 2016, ALJ D'Lisa Simmons conducted a second hearing pursuant to the Appeals Council's order remanding the case.[5] (Tr. 470-502.) Mr. Feary appeared in person at the hearing with his attorney Michael Armstrong. (Id., Tr. 589.) The ALJ took testimony from Mr. Feary (Tr. 476-489), and from an impartial VE, Diane Webber (Tr. 490-501). On March 4, 2016, the ALJ issued an unfavorable decision. (Tr. 444-463.) Because this case had already been remanded following judicial review, Mr. Feary did not file written exceptions with the Appeals Council and instead timely filed the instant action before this Court as permitted by 20 C.F.R. §§ 404.984(d), 416.1484(d).

         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 her decision that Mr. Feary was not disabled at step five of the sequential evaluation. She found that Mr. Feary had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except

he can sit, stand, or walk a total of 6 hours each, intermittently, throughout the 8-hour workday; frequently reach; frequently handle bilaterally; frequently finger bilaterally; no job requiring use of scaffolding, ropes, or ladders; should avoid hazardous work environments involving use of dangerous machinery or exposure to unprotected heights; no exposure to environments with extreme cold; and should alternate between sitting and standing every 30 to 35 minutes.

(Tr. 451.) Based on the RFC and the testimony of the VE, the ALJ concluded that considering Mr. Feary's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that he could perform and that he was therefore not disabled. (Tr. 461.)

         Mr. Feary asserts three arguments in support of his Motion as follows: (1) the ALJ improperly rejected Dr. Lucio Martinez's medical opinion; (2) the ALJ's RFC findings were internally inconsistent; and (3) the ALJ failed to resolve the conflict between the DOT and the VE's testimony regarding Mr. Feary's need to alternate between sitting and standing for short periods of time. (Doc. 17 at 15-24.) For the reasons discussed below, the Court finds that the ALJ applied the correct legal standards in determining that Mr. Feary is not disabled and that her determination is supported by substantial evidence.

         A. Treating Physician Dr. Lucio Martinez

         Mr. Feary saw Dr. Lucio Martinez eight times over thirteen months from January 7, 2010, through February 24, 2011. (Tr. 890, 892, 895, 898, 900, 904-05, 913, 918.) Mr. Feary's chief complaints at those appointments were hypertension and diverticulitis, although he also complained at some visits of increased arthritic pain in his hands, knees and left ankle for which Dr. Martinez referred him to rheumatologist Dr. Rovinder Singh Saini. (Id.) Dr. Martinez performed brief physical exams at each of the eight visits and noted for each exam, inter alia, that Mr. Feary had no extremity cyanosis, clubbing or edema.[6] (Id.) On August 23, 2011, Dr. Martinez completed an Arthritic Report (Degenerative or Inflammatory) on Mr. Feary's behalf. (Tr. 272-73.) He noted that Mr. Feary complained of pain, tenderness, stiffness, redness, warmth and swelling in his ankles, knees, hips, fingers and wrists, due to rheumatoid arthritis and morbid obesity. (Tr. 272.) Dr. Martinez indicated physical findings of edema and swelling in Mr. Feary's fingers and toes, mild redness, and no warmth. (Id.) Dr. Martinez did not measure Mr. Feary's grip, but noted some swelling in his thumbs. (Id.) Dr. Martinez also noted that Mr. Feary had loss of joint motion in his fingers and toes. (Tr. 273.) Dr. Martinez indicated that Mr. Feary had normal ambulation and gait, and did not need an assistive device. (Id.) Dr. Martinez assessed that Mr. Feary had (1) significant limitations in his ability to do repetitive reaching, handling or fingering; (2) significant limitations in his ability to grasp, turn and twist objects; (3) occasional difficulties with holding utensils and turning a door knob; (4) ...


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