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Lopez-Martinez v. Berryhill

United States District Court, D. New Mexico

September 20, 2017

LORETTA L. LOPEZ-MARTINEZ, 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. 10) filed October 24, 2016 in support of Plaintiff Loretta L. Lopez-Martinez'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. On December 20, 2016, Plaintiff filed her Motion to Reverse or Remand Administrative Agency Decision and Memorandum in Support (“Motion”). (Doc. 13.) The Commissioner filed a Response in opposition on March 21, 2017 (Doc. 17), and Plaintiff filed a Reply on April 5, 2017. (Doc. 18.) 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 well taken and is GRANTED.

         I. Background and Procedural Record

         Claimant Loretta L. Lopez-Martinez (“Ms. Lopez-Martinez”) alleges that she became disabled on November 15, 2009, at the age of forty-two because of fibromyalgia, depression, glaucoma, migraine headaches, post-traumatic stress disorder (PTSD), and kidney problems. (Tr. 123, 128, 163, 171-172.[3]) Ms. Lopez-Martinez completed twelfth grade, and worked as a greenhouse supervisor, retail lead sales person, and public school kitchen manager. (Tr. 130.) Ms. Lopez-Martinez last met the insured status requirements of the Social Security Act on December 31, 2013. (Tr. 475.)

         On April 8, 2010, Ms. Lopez-Martinez 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. 113-14, 123.) Ms. Lopez-Martinez's application was initially denied on June 7, 2010. (Tr. 48, 49, 52-55.) It was denied again at reconsideration on December 3, 2010. (Tr. 50, 51, 60-72.) On January 24, 2011, Ms. Lopez-Martinez requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 63-64.) The ALJ conducted a hearing on April 4, 2012. (Tr. 28-47.) Ms. Lopez-Martinez appeared in person at the hearing and waived her right to representation.[4] (Tr. 30-31, 96.) The ALJ took testimony from Ms. Lopez-Martinez (Tr. 35-42), and an impartial vocational expert (“VE”), Pamela Bowman. (Tr. 42-46, 89, 91-92.) On June 25, 2012, the ALJ issued an unfavorable decision. (Tr. 8-23.) On August 14, 2013, the Appeals Council issued its decision denying Ms. Lopez-Martinez's request for review and upholding the ALJ's final decision. (Tr. 1-6.)

         On October 11, 2013, Ms. Lopez-Martinez timely filed a Complaint seeking judicial review of the Commissioner's final decision. (USDC Civ. No. 13-989 GBW, Doc. 1.) The parties fully briefed the issues raised for judicial review. (Id., Docs. 17, 18, 21, 24.) On February 26, 2015, Magistrate Judge Gregory B. Wormuth, presiding by consent, entered an Order Granting Plaintiff's Motion to Reverse and Remand. (Id., Doc. 26, Tr. 499-524.) Judge Wormuth held that the ALJ erred in assigning weight to Plaintiff's treating source opinions and in assessing her RFC. (Tr. 524.)

         On March 15, 2016, ALJ Gerald L. Meyer conducted a second hearing pursuant to the Appeals Council's order remanding the case. (Tr. 552-92.) Ms. Lopez-Martinez appeared in person at the hearing with her attorney Michael Liebman. (Id.) The ALJ took testimony from Ms. Lopez-Martinez (Tr. 557-583), and from an impartial VE, Diane Webber (Tr. 583-91). On April 28, 2016, the ALJ issued an unfavorable decision. (Tr. 470-87.) Because this case had already been remanded following judicial review, Ms. Lopez-Martinez 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).

         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; 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); 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. 20 C.F.R. § 404.1520(a)(v); Grogan, 399 F.3d at 1261.

         III. Analysis

         The ALJ made his decision that Ms. Lopez-Martinez was not disabled at step five of the sequential evaluation. He found that Ms. Lopez-Martinez had the residual functional capacity to perform light work as defined in 20 CFR § 404.1567(b). The ALJ explained that

[s]pecifically, the claimant could lift or carry ten pounds frequently or twenty pounds occasionally, stand and walk about six or sit six hours in an eight hour day with normal breaks, but must be allowed to stretch or change positions every hour. The claimant could occasionally climb ramps and stairs, stoop, kneel, and crouch. The claimant could never climb ropes, ladders, or scaffolding, crawl, be exposed to extreme heat or extreme cold, noxious odors or gases, unprotected heights or dangerous machinery, vibrating surfaces, or excessive noise. Mentally, the claimant was limited to understanding, remembering and carrying out only simple instructions (just one to three step tasks) that were routine or repetitive without frequent changes in duties. The claimant was limited to only occasional contact with the public.

(Tr. 479-80.) Based on the RFC and the testimony of the VE, the ALJ concluded that Ms. Lopez-Martinez was not capable of performing her past relevant work, but that considering her age, education, work experience, and RFC, there were jobs that existed in significant numbers in the national economy that she could perform and she was therefore not disabled. (Tr. 486-87.)

         Ms. Lopez-Martinez asserts three arguments in support of her Motion as follows: (1) the ALJ's RFC is not supported by substantial evidence; (2) the ALJ failed to address the VE's testimony that light and sedentary exertional level jobs would be eliminated if Ms. Lopez-Martinez required greater limitations than articulated in the ALJ's hypothetical; and (3) the ALJ's evaluation of Ms. Lopez-Martinez's symptoms pursuant to SSR 16-3p is not supported by substantial evidence. (Doc. 13 at 20-26.) The Court agrees that the RFC is not supported by substantial evidence because the ALJ improperly evaluated the treating physician opinions. For this reason, this case requires remand.

         A. Relevant Medical History

         Ms. Lopez-Martinez has a long history of care and treatment for fibromyalgia, migraines, depression and post-traumatic stress disorder (“PTSD”). On March 8, 2012, Dr. Gerzain Chavez represented in a “To Whom It May Concern” letter that he treated Ms. Lopez-Martinez for six years beginning in 2006 for fibromyalgia, depression, and PTSD.[5] (Tr. 410-11.) The Administrative Record, however, only contains Dr. Chavez's treatment notes for 2009 and 2010. Those treatment notes indicate that from February 9, 2009, through April 6, 2010, Dr. Chavez saw Ms. Lopez-Martinez ten times and consistently assessed, inter alia, myalgias/myositis and depression. (Tr. 221, 226, 230, 234, 237, 240, 244, 250, 255, 258.) Dr. Chavez also consistently noted that Ms. Lopez-Martinez was positive for decreased activity, generalized weakness, fatigue, irritability, lethargy, pallor, insomnia, back pain, muscle weakness, myalgias, neck stiffness, malaise, difficulty concentrating and rheumatologic manifestations. (Tr. 219-220, 225, 228-29, 232-33, 236, 239, 243, 249, 253.) Dr. Chavez prescribed various medications to treat Ms. Lopez-Martinez's pain, depression and PTSD, including Percocet, Lortab, Tramadol, Cymbalta, Xanax, Wellbutrin, Temazepam, Ambien, Imitrex, Treximet, and Phenergan. (Id.)

         On July 24, 2009, Ms. Lopez-Martinez established care at the Santa Fe Community Guidance Center for Suboxone treatment related to chronic pain and opioid addiction. (Tr. 195, 215.) There she received primary physician care for administering and monitoring her Suboxone treatment, and managing her chronic pain and other health-related issues, and received psychiatric and behavioral health care for managing her mental health issues.

         Dr. Mark Reininga provided primary care and Suboxone treatment for Ms. Lopez-Martinez from July 24, 2009, through December 27, 2012. Over the course of this three and a half year period, Dr. Reininga saw Ms. Lopez-Martinez approximately monthly (forty-one times) and consistently assessed, inter alia, opioid dependence and fibromyalgia. (Tr. 203, 205-06, 208-10, 213-15, 355-58, 397, 422-31, 726-88.) Dr. Reininga's treatment notes indicate that Ms. Lopez-Martinez regularly complained of fibromyalgia pain, back pain and migraines. (Tr. 206, 208-09, 210, 214, 398-99, 400-02, 428-31, 720-25, 741, 744, 748, 750, 754, 762, 765-66, 770, 787.) Although her pain level fluctuated, Dr. Reininga generally noted it between 5-7/10. (Tr. 203, 205-06, 208-10, 213-15, 355-58, 397, 422-31, 726-88.) Dr. Reininga noted many times that Ms. Lopez-Martinez's level of distress was anxious, and that her appearance was sad, chronically-ill appearing, and depressed. (Tr. 745, 751, 757, 760, 763, 766, 770.) On March 21, 2012, Dr. Reininga prepared a “To Whom It May Concern” letter and opined that Ms. Lopez-Martinez suffered from serious symptoms of fibromyalgia and migraine headaches that were exacerbated by her ...


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