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Montano v. Berryhill

United States District Court, D. New Mexico

October 17, 2017

NIKKI MONTANO, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER is before the Court on Plaintiff's Motion to Reverse and Remand for a Rehearing with Supporting Memorandum (Doc. 18) filed on April 7, 2017. Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73(b), the parties have consented to me serving as the presiding judge and entering final judgment. See Docs. 4, 7, 8. Having considered the record, submissions of counsel, and relevant law, the Court finds Plaintiff's motion is not well-taken and will be denied.

         I. Procedural History

         On November 19, 2012, Ms. Nikki Montano (Plaintiff) protectively filed an application with the Social Security Administration for Supplemental Security Income (SSI) under Title XVI of the Social Security Act. Administrative Record[1] (AR) at 32, 83, 199. Plaintiff alleged a disability onset date of January 1, 2004. AR at 32, 199. Disability Determination Services (DDS) determined that Plaintiff was not disabled both initially (AR at 83-97) and on reconsideration (AR at 98-114). Plaintiff requested a hearing with an Administrative Law Judge (ALJ) on the merits of her SSI application. AR at 133-35.

         Both Plaintiff and a vocational expert (VE) testified during the de novo hearing. See AR at 58-82. ALJ Barry O'Melinn issued an unfavorable decision on March 4, 2015. AR at 29-57. Plaintiff submitted a Request for Review of Hearing Decision/Order to the Appeals Council (AR at 27-28), which the council denied on June 29, 2016 (AR at 1-6). Consequently, the ALJ's decision became the final decision of the Commissioner. Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003).

         II. Applicable Law and the ALJ's Findings

         A claimant seeking disability benefits must establish that she is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see also 20 C.F.R. § 416.905(a). The Commissioner must use a five-step sequential evaluation process to determine eligibility for benefits. 20 C.F.R. § 416.920(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).

         The claimant has the burden at the first four steps of the process to show: (1) she is not engaged in “substantial gainful activity”; (2) she has a “severe medically determinable . . . impairment . . . or a combination of impairments” that has lasted or is expected to last for at least one year; and (3) her impairment(s) meet or equal one of the listings in Appendix 1, Subpart P of 20 C.F.R. Pt. 404; or (4) pursuant to the assessment of the claimant's residual functional capacity (RFC), she is unable to perform her past relevant work. 20 C.F.R § 416.920(a)(4)(i-iv); see also Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005) (citations omitted). “RFC is a multidimensional description of the work-related abilities [a claimant] retain[s] in spite of her medical impairments.” 20 C.F.R. § 404, Subpt. P, App. 1 § 12.00(B); see also 20 C.F.R. § 416.945(a)(1). If the claimant meets “the burden of establishing a prima facie case of disability[, ] . . . the burden of proof shifts to the Commissioner at step five to show that the claimant retains sufficient . . . RFC to perform work in the national economy, given [her] age, education, and work experience.” Grogan, 399 F.3d at 1261 (citing Williams v. Bowen, 844 F.2d 748, 751 & n.2 (10th Cir. 1988) (internal citation omitted)); see also 20 C.F.R. § 416.920(a)(4)(v).

         At Step One of the process, ALJ O'Melinn found that Plaintiff “has not engaged in substantial gainful activity since November 19, 2012, the application date . . . .” AR at 34 (citing 20 C.F.R. § 416.971). At Step Two, the ALJ concluded that Plaintiff “has the following severe impairments: degenerative disc disease (DDD), obesity, history of bilateral carpal tunnel syndrome (CTS), tennis elbow, knee disorder, anxiety, depression and borderline intellectual functioning (BIF) . . . .” AR at 34 (citing 20 C.F.R. § 416.920(c)). The ALJ noted that Plaintiff's “impairments are severe, in combination if not singly, . . . in that [she] is significantly affected in the ability to perform basic work activities . . . .” AR at 34 (citing 20 C.F.R. §§ 416.920(c), 416.921(b)).

         At Step Three, the ALJ found that Plaintiff “does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 [C.F.R.] Part 404, Subpart P, Appendix 1 . . . .” AR at 34 (citing 20 C.F.R. §§ 416.920(d), 416.925, 416.926). In making his determination, ALJ O'Melinn considered whether Plaintiff's mental impairments met the “paragraph B” criteria. AR at 35-36. The ALJ found that Plaintiff has mild restrictions in her activities of daily living (AR at 36 - noting Plaintiff takes care of her four-year-old son, takes him to bus stop for school, prepares her own meals and household chores, uses public transportation, goes out alone, shops in stores for food, clothes, etc., pays bills and counts change, watches TV and reads) (citing AR at 227-30); moderate difficulties in the area of social functioning (AR at 36 - noting that Plaintiff reported “a fear of being in a crowd and that if she was with more than four people, she would have a panic attack and she would start to hyperventilate”) (citing AR at 382), and she is afraid she will pass out and will have to flee crowds; moderate difficulties in the area of concentration, persistence or pace (AR at 36 - noting Plaintiff reported that she needs help with instructions due to depression and anxiety, can follow spoken instructions well, can pay attention for 20 minutes, and was only able to repeat one of three words at her consultative examination) (citing AR at 231, 383); and Plaintiff has experienced no episodes of decompensation of extended duration (AR at 36). Because the ALJ did not find that Plaintiff has at least two “marked” limitations or one “marked” limitation and “repeated” episodes of decompensation, he determined that her mental impairments did not satisfy the “paragraph B” criteria (or the “paragraph D” criteria of listing 12.05). The ALJ also determined that Plaintiff did not meet the “paragraph C” criteria of 12.04 or 12.06. AR at 37. Finally, the ALJ determined that Plaintiff did not meet the “paragraph A, ” “paragraph B, ” or “paragraph C” criteria of 12.05. AR at 37 (citing AR at 226-27, 387).

         At Step Four, the ALJ found that while Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms[, ] . . . [Plaintiff's] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible . . . .” AR at 39. The ALJ thoroughly considered the evidence of record as well as the opinions of Plaintiff's treating counselor, the consultative psychologists and physicians, a nurse practitioner, and Plaintiff's friend, Debbie Rael. AR at 38-50. Ultimately, the ALJ found that Plaintiff

has the residual functional capacity to perform sedentary work as defined in 20 [C.F.R. §] 416.967(a)[, ] except occasionally lift and/or carry up to ten pounds and frequently lift and/or carry less than ten pounds; stand and/or walk with normal breaks for a total of two hours in an eight hour workday; sit with normal breaks for a total of six hours in an eight hour workday; occasionally climb ramps or stairs, but never climb ropes, ladders or scaffolds; occasionally balance with the use of a handheld assistive device; can occasionally stoop, kneel, crouch, or crawl; she is limited to frequent reaching, handling and fingering, bilaterally; she is to avoid concentrated exposure to operational control of moving machinery and unprotected heights and hazardous machinery; the claimant can understand, carry out and remember simple instructions and make commensurate work related decisions; respond appropriately to supervision, coworkers and work situations; deal with routine changes in work setting; maintain concentration, persistence and pace for up to and including two hours at a time with normal breaks throughout the work day; work limited to simple, routine and repetitive tasks; suitable for jobs involving work primarily with things and not people.

AR at 37-38.

         ALJ O'Melinn concluded that Plaintiff has no past relevant work (AR at 50 (citing 20 C.F.R. § 416.965)), but she is able to perform work as a Dowel Inspector, Nut Sorter, and Laminator. AR at 51. The ALJ ultimately determined that Plaintiff “has not been under a disability, as defined in the Social Security Act, since November 19, 2012 . . . .” AR at 51 (citing 20 C.F.R. § 416.920(g)).

         III. Legal Standard

         The Court must “review 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.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005) (internal citation omitted)). A deficiency in either area is grounds for remand. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161, 1166 (citation omitted). “Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Lax, 489 F.3d at 1084 (quoting Hackett, 395 F.3d at 1172 (internal quotation omitted)). “It requires more than a scintilla, but less than a preponderance.” Id. (quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004) (internal quotation omitted) (alteration in original)). The Court will “consider whether the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases, but [it] will not reweigh the evidence or substitute [its] judgment for the Commissioner's.” Id. (quoting Hackett, 395 F.3d at 1172 (internal quotation marks and quotations omitted)).

         “The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence.” Id. (quoting Zoltanski, 372 F.3d at 1200 (internal quotation omitted)). The Court “may not ‘displace the agenc[y's] choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.'” Id. (quoting Zoltanski, 372 F.3d at 1200 (internal quotation omitted)).

         IV. Discussion

         Plaintiff asserts three issues in her Motion. First, Plaintiff argues that the ALJ “failed to give proper reasons for rejecting the opinion of treating therapist Paul Weeks” who is a Licensed Professional Clinical Counselor (LPCC). Doc. 18 at 1. Second, Plaintiff contends that the ALJ “erred by failing to account for all of the moderate [l]imitations found by 96-6p non-examining psychologist Donald Gucker, Ph.D. . . .” Id. Third, Plaintiff alleges that “the Appeals Council failed to analyze the opinion of treating therapist Paul Weeks, LPCC whose opinion undercuts ALJ O'Melinn's RFC determination.” Id. at 1-2.

         A. The ALJ adequately examined LPCC Weeks' opinion.

         Plaintiff contends the ALJ's “reasons for rejecting LPCC Weeks' opinions are facially dubious and too vague.” Doc. 18 at 18. Plaintiff argues it was error for ALJ O'Melinn to discount LPCC Weeks' opinion because he was an “other source.” Id. at 19-20. She also asserts that the ALJ's failure to specifically identify any alleged inconsistencies between LPCC Weeks' opinions and Plaintiff's testimony is error. Id. at 20-21.

         The record establishes that Plaintiff received individual counseling at Valle del Sol (previously named Valencia Counseling Services) beginning in August 2011. See AR at 367. On July 11, 2014, LPCC Weeks reported that he had seen Plaintiff for weekly individual therapy for about three years. AR at 715. Relevant to Plaintiff's counseling with LPCC Weeks, the record that ALJ O'Melinn examined[2] contains eight “Treatment Plans, ”[3] two “Assessment Updates, ”[4] two “Clinical Assessments, ”[5] one “Diagnosis Review, ”[6] one “Individual Service Plan, ”[7] and one “Medical Opinion Questionnaire (Mental Impairments).”[8]

         ALJ O'Melinn summarized several of LPCC Weeks' treatment notes and the Medical Opinion Questionnaire (Mental Impairments). The ALJ noted that during an April 18, 2013 Assessment Update, LPCC Weeks

noted and observed that [Plaintiff's] appearance was unkempt and her posture was slumped. Her attitude was cooperative and her behavior was agitated. Her speech was rapid and slow. Her mood was euthymic and her affect was anxious. Her thought content was unremarkable and her thought processes were organized, rationale [sic], and concrete. Her recent and remote memories were intact and she was oriented to date, person, place and situation. Her attention was low and her insight and judgment were poor. Mr. Weeks noted that [Plaintiff] was stable and sober for over one year. She had quit smoking four months ago and her memories were returning. She had quit smoking but was presently gaining weight.

         AR at 40 (citing AR at 428-29). The Court notes that LPCC Weeks' April 18, 2013 observations and notes are almost identical to those he made on October 16, 2012. Compare AR at 357-58, with AR at 428-29.

         The ALJ discussed a May 24, 2013 Diagnosis Review that Mr. Weeks had completed. AR at 41 (citing AR at 434-35). LPCC Weeks noted that Plaintiff's presenting problem was anxiety, and her symptoms included “sudden attacks of anxiety, difficulty breathing, rapid heartbeat, racing thoughts[, and] lack of focus.” AR at 41 (citing AR at 434). Plaintiff's diagnosis is Generalized Anxiety Disorder. AR at 41 (citing AR at 434). LPCC Weeks “noted that [Plaintiff] had no income but she was working to get her GED. . . . [Plaintiff] was friendly and articulate and she worried that she was going crazy, but she was not.” AR at 41 (citing AR at 434-35). Mr. Weeks determined that the claimant had a Global Assessment of Functioning (GAF) score of 70. . . .”[9] AR at 41 (citing AR at 434).

         ALJ O'Melinn detailed LPCC Weeks' April 29, 2014 Clinical Assessment of Plaintiff. AR at 43. LPCC Weeks “noted [Plaintiff] had been a long time heroin user but she had been sober for 14 years, she also had been sober from alcohol for 9 months. She had quit smoking two years ago.” AR at 43 (citing AR at 808). Plaintiff, who “struggle[s] with depression, anxiety and anger issues[, ]” has eight children, but only her youngest lives with her. AR at 43 (citing AR at 808).

Mr. Weeks noted and observed that [Plaintiff] appeared disheveled and she had on casual attire. Her behavior was within normal limits and she had adequate speech. Her mood was euthymic and her affect was appropriate. Her thought processes were logical and her thought content was normal. Her concentration was good and insight and judgment were fair. [Plaintiff] was diagnosed with bipolar 1 disorder, most recent episode depressed moderate worse.

         AR at 43 (citing AR at 814). LPCC Weeks assessed Plaintiff's GAF score at ¶ 55, which “indicates moderate symptoms or moderate difficulty in social, occupation[al] or school functioning. AR at 43 (citing DSM-IV 34). Mr. Weeks also “noted that [Plaintiff] responded well to her medications.” AR at 43; see also AR at 815.

         Finally, the ALJ detailed LPCC Weeks' opinions contained in the July 11, 2014 Medical Opinion Questionnaire (Mental Impairments). AR at 47-48 (citing AR at 715-17). The ALJ noted that Mr. Weeks had been seeing Plaintiff “for about three years for therapy and medication management, and presently he was doing weekly individual therapy . . . .” AR at 47 (citing AR at 715). LPCC Weeks “noted that [Plaintiff] had been diagnosed with bipolar 1 disorder, most recent episode depressed[, ]” but she “was making good progress with her prognosis.” AR at 48 (citing AR at 715). Mr. Weeks assessed Plaintiff's “mental abilities and aptitude needed to do any job.” AR at 715-17 (capitalization omitted). The questionnaire lists 25 skills with a ranking system of “unlimited or very good, ” “good, ” “fair, ” or “poor or none.” AR at 715-17. Mr. Weeks ranked Plaintiff on the bottom two levels - “fair” or “poor or none” - for all 25 skills. AR at 715-17. The ALJ commented on several of these:

Mr. Weeks noted that [Plaintiff's] ability to interact appropriately with the general public was fair to poor and that her ability to remember work-like procedures was poor. He further determined that [Plaintiff's] ability to understand and remember very short and simple instructions was poor or none and her ability to carry out very short and simple instructions was poor or none. Her ability to sustain an ordinary routine without special supervision was poor or none and her ability to ask simple questions or request assistance was fair.

AR at 48 (citing AR at 715-17). ALJ O'Melinn also focused on Mr. Weeks' opinions that Plaintiff “had made good progress toward her treatment goals” but “continued to have difficulty with her attention and managing her anxiety and depression.” AR at 48 (citing AR at 717). Mr. Weeks also opined that Plaintiff would miss more than two days of work per month. AR at 717.

         The ALJ gave “little weight” to LPCC Weeks' opinion. AR at 47. He found that while “Mr. Weeks has a longitudinal history with [Plaintiff], under [SSR] 06-03p, a counselor is not considered an ‘acceptable' medical source . . . .”AR at 48; see also Soc. Sec. Ruling, SSR 06-03p, Titles II and XVI: II and XVI: Considering Opinions and Other Evidence from Sources who are not ‘Acceptable Medical Sources' in Disability Claims, 2006 WL 2329939 (Aug. 9, 2006). The ALJ further found that Mr. Weeks' “report appears to contain inconsistencies with [Plaintiff's] testimony, and therefore his opinion is rendered less persuasive and given little weight.” AR at 48; see also SSR 06-03p, 2006 WL 2329939, at *2.

         Plaintiff has two broad complaints about how ALJ O'Melinn assessed Mr. Weeks' testimony. First, Plaintiff argues it was error for the ALJ to discount LPCC Weeks' opinion simply because he was an “other source.” Doc. 18 at 18-20. Plaintiff points out that an “other source” opinion may be entitled to more weight than an “acceptable medical source” regarding the severity and degree of a claimant's limitations. Id. ...


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