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Chavez v. Berryhill

United States District Court, D. New Mexico

November 16, 2017

KELLY CHAVEZ, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          OPINION AND ORDER DENYING MOTION TO REVERSE OR REMAND AND DISMISSING CASE WITH PREJUDICE

          KEVIN R. SWEAZEA, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Kelly Chavez seeks review of the Social Security Administration's denial of his application for disability insurance benefits. See 42 U.S.C. § 423. With the consent of the parties to conduct dispositive proceedings in this matter, see 28 U.S.C. § 636(c); Fed.R.Civ.P. 73(b), the Court has considered Chavez's motion to reverse and remand the agency's decision, the Commissioner's response in opposition, and Chavez's reply. [See Docs. 21; 26; & 27]. Because the Administrative Law Judge (“ALJ”) correctly determined that Chavez failed to establish a per se disability as of December 31, 2006 and appropriately addressed the retrospective opinions of two doctors in concluding Chavez could perform sedentary work, the Court DENIES Chavez's motion to reverse and remand and DISMISSES the case with prejudice.

         I. BACKGROUND

         Chavez alleged disability as of December 31, 2006 at the age of forty-four and on the last date he last qualified for benefits (“date last insured”).[1] Following a hearing, ALJ Lilian Richter denied Chavez's application for benefits. [AR 377-98; 399-463]. At step three of the five-part framework[2] used to evaluate disability, the ALJ concluded that Chavez's hip problems did not meet or equal Listing 1.02 as of December 31, 2006. A finding that the hip impairment satisfied Listing 1.02 would have required an award of benefits for major joint dysfunction. [AR 383-84]; 20 C.F.R. part 404, subpt P, app. 1, § 1.02. At steps four and five, the ALJ determined that Chavez could not return to his past work as a janitor or auto mechanic, but as of his last-insured date retained the residual functional capacity (“RFC”) to perform sedentary work. [AR 385-92]. Relying on the testimony of a vocational expert, the ALJ concluded that sufficient jobs existed in the national economy that matched Chavez age, education, work experience, and limitations, such as nut sorter and brake-linings coater. [AR 392-93]. Chavez subsequently filed the instant action and moved to reverse or remand the agency's adverse determination. [Docs. 1; 21].

         II. STANDARD OF REVIEW

         This Court reviews the ALJ's decision to determine whether it is supported by substantial evidence and the ALJ applied the correct legal standards. See Hendron v. Colvin, 767 F.3d 951, 954 (10th Cir. 2014). If substantial evidence supports the conclusion that the plaintiff is not disabled and the ALJ followed the law, the plaintiff is not entitled to relief. See Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004). The term “substantial evidence” means that which “a reasonable mind might accept as adequate to support a conclusion.” Id. at 1118 (citation and internal quotation marks omitted). Even if the Court could reach the opposite conclusion, the decision must stand if the record as a whole is not “overwhelmed by other evidence” to the contrary or unless a “mere scintilla” supports it. Salazar v. Barnhart, 468 F.3d 615, 621 (10th Cir. 2006).

         III. ANALYSIS

         Chavez makes three arguments in support of remand: (1) the ALJ erred at step three in concluding that Chavez's hip impairment did not meet or equal Listing 1.02; (2) as an alternative to the first argument, the ALJ failed to develop the administrative record as to whether Chavez could “ambulate effectively”; and (3) the ALJ improperly rejected the opinions of two physicians in fashioning Chavez's RFC.

         A. Step-Three Determination

         To qualify for benefits under Listing 1.02, Chavez was required to prove his hip impairment “me[t] [or equaled] all of the specified medical criteria” on December 31, 2006 and had done so for at least twelve continuous months. See Sullivan v. Zebley, 493 U.S. 521, 530 (1990). “An impairment that manifests only some of those criteria, no matter how severely, does not qualify.” Id. In determining whether a plaintiff satisfies a Listing, the ALJ may consider only medical evidence. See 20 C.F.R. § 404.1526(b). Moreover, the ALJ must “set out specific findings and . . . reasons for accepting or rejecting evidence at step 3.” Clifton v. Charter, 79 F.3d 1007, 1009 (10th Cir. 1996).

         Listing 1.02 mandates a finding of disability where the plaintiff proves “major dysfunction of a joint due to any cause.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.02. “Major dysfunction, ” refers to “gross anatomical deformity . . . and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and findings on appropriate medically acceptable imaging of joint space narrowing, bony destruction or ankylosis of the affected joint(s).” Id. As is relevant here, the plaintiff must also demonstrate an inability to “ambulate effectively.” Id. In this case, the agency does not dispute that Chavez's hip impairment meets Listing 1.02's anatomical criteria. The issue therefore is whether Chavez satisfied his burden to show he could not ambulate effectively on his date last insured.

         An “[i]nability to ambulate effectively, ” is “an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes very seriously with the individual's ability to independently initiate, sustain, or complete activities.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.00B2. Relatedly, “[i]neffective ambulation” is synonymous with “insufficient lower extremity functioning . . . to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities.” Id. By contrast, effective ambulation concerns an individual's “capab[ility] of sustaining a reasonable walking pace over a sufficient distance to be able to carry out activities of daily living.” Id. A person “must have the ability to travel without companion assistance to and from a place of employment or school.” Id.[3] In addressing Listing 1.02, the ALJ concluded that “the evidence does not demonstrate that [Chavez] . . . had the degree of difficulty in ambulating as defined in [the Listing].” [Id.]. Chavez asserts this determination is both legally erroneous and factually unsupported.

         1. Legal challenge

         Chavez argues that the ALJ did not weigh the evidence and make specific findings in considering Listing 1.02. The Court is not persuaded that Chavez's contention is correct. The ALJ indicated in her decision that she gave “particular attention to . . . listing 1.02 for major dysfunction of a joint, ” and the Court is required to take the ALJ at her word, unless shown otherwise. See Wall v. Astrue, 561 F.3d 1048, 1070 (10th Cir. 2009) (explaining “[w]here, as here, the ALJ indicates he has considered all the evidence our practice is to take the ALJ at his word”) (citation and internal alterations omitted)). The ALJ extensively discussed treatment providers' notes, x-rays, and other tests done prior to the date last insured. Those records document a workplace injury to the low back, spasms, discitis, right-leg pain, degenerative disc disease, degenerative changes in both hips, a probable degenerative femoral cyst, antalgic gait, limited right-hip flexion, and occasional use of a cane.[4] [AR 383-86]. The ALJ also reviewed medical records after 2006 showing additional degenerative changes culminating in a total right hip replacement in 2008. [AR 387-92].

         Significantly, the ALJ observed the “medical evidence of record demonstrates that [Chavez] was ambulatory well after December 31, 2006, ” including reports “during physical therapy evaluation [in June, 2008] that his condition had progressed particularly in the last year, that he went to the gym five days a week, walked on a treadmill, lifted weights with his upper body, and stretched.” [AR 391]. Additionally, the ALJ explained “[t]reatment notes indicated that [Chavez] used no assistive devices to ambulate and that he walked at a normal community ambulation pace.” [AR 38; 657]. The ALJ further noted Chavez “reported [in 2010] that he ha[d] been doing odd jobs for the past eight years.” [AR 757].

         Taken as a whole, the ALJ's decision is sufficiently supported and reasoned to permit meaningful appellate review.[5] Cf. Clifton, 73 F.3d at 1009 (noting at step three that a “bare conclusion is beyond meaningful judicial review”). To the extent Chavez suggests that the ALJ did not consider a combination of impairments under Listing 1.02, Chavez does not explain how the involvement of two weight bearing joints, lumbar spine arthritis, and carpal tunnel syndrome combine to preclude him from being able to effectively ambulate on December 31, 2006. See Wall, 561 F.3d at 1048. Thus, Chavez has not demonstrated a legal basis for remand based upon his contention that the ALJ did not weigh the evidence and make specific findings in considering Listing 1.02.

         2. Substantiality of the evidence

         Chavez contends that the ALJ's discussion of Listing 1.02 itself demonstrates he satisfied the medical criteria and the record otherwise objectively presents a question as to his ambulatory capacity. The Court takes Chavez to mean the ALJ's step-three determination was unsupported by substantial evidence.[6] There is no dispute that Chavez suffered degenerative and anatomical changes and eventually required a total hip replacement. The ALJ's discussion of the evidence illustrates this point well. The medically observable changes certainly relate to-and may well establish-Listing 1.02's “anatomical deformity” component. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.02. The presence of changes in 2006 and before, however, neither relieve Chavez of nor satisfy his burden to show he was unable to ambulate effectively on December 31, 2006. See Sullivan, 493 U.S. at 530 (“An impairment that manifests only some of those criteria, no matter how severely, does not qualify.”)

         The portions of the record Chavez points to do not persuade the Court that the ALJ's decision lacks support.[7] That evidence includes doctors' observations as to the quality and abnormality of Chavez's gait before December 31, 2006, but does not contain opinions suggesting an inability to “ambulate effectively.” AR 266 (documenting in 2001, “a slight antalgic gait carrying most of [Chavez's] weight through his lower extremity”); AR 279 (documenting an “irregular gait” in 2003); 594 (commenting after date last insured but prior to hip replacement surgery that Chavez “ambulates with an antalgic gait”); 619 (observing after date last insured but prior to hip replacement surgery that Chavez “does ambulate with a bilaterally antalgic gait”; & 657 (observing “a bilateral antalgic Trendelenburg gait pattern”)]. Chavez does not present authority that a deviation from normal walking is the same as “an extreme limitation on the ability to walk.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.00. An abnormal gait may well precede or go hand in hand with ineffective ambulation, but the former is not definitive proof of the latter.

         This conclusion is underscored by other uncontested evidence. After 2006, Chavez “went to the gym five days a week, walked on a treadmill, lifted weights with his upper body, and stretched.” [AR 390-91; 657]. As discussed above, Chavez was able to walk without an assistive device at a normal community pace. [AR 391; 657]. Chavez later clarified at the hearing that he walked “maybe 10” minutes on the treadmill per day in preparation for surgery in 2008. [AR 441]. In sum, the ALJ's determination at step three is supported by substantial evidence. The Court, therefore, affirms the determination by the ALJ that Chavez did not establish that his impairment, or combination of impairments, met or equaled listing 1.02.

         B. Sufficienc ...


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