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Yotter v. Berryhill

United States District Court, D. New Mexico

December 4, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.



         THIS MATTER is before the Court on Plaintiff Anthony Louis Yotter, II's, Motion to Reverse and Remand for a Rehearing with Supporting Memorandum, (Doc. 17), filed September 8, 2017; Defendant Commissioner Nancy A. Berryhill's Brief in Response to Plaintiff's Motion to Reverse and Remand the Agency's Administrative Decision, (Doc. 20), filed November 7, 2017; and Mr. Yotter's Reply in Support of Motion to Reverse and Remand for a Rehearing, (Doc. 21), filed November 17, 2017.

         On July 30, 2013, Mr. Yotter filed an application for disability insurance benefits alleging disability beginning June 12, 2009. (AR 94-95). Mr. Yotter's application was denied initially on October 11, 2013, (AR 105-06), and upon reconsideration on May 8, 2014, (AR 121-22). Mr. Yotter requested a hearing before an Administrative Law Judge (“ALJ”), which was granted, and a hearing was held on November 12, 2015, before ALJ Eric Weiss. (AR 57-93). Mr. Yotter and his wife, Angie Nunez-Yotter, testified at the hearing, along with Karen Provine, an impartial vocational expert (“VE”). (AR 57). Michael Armstrong, Mr. Yotter's current counsel, represented him at the hearing. Id.

         On January 7, 2016, ALJ Weiss issued his decision finding Mr. Yotter not disabled between his alleged disability onset date and the date he was last insured. (AR 26-51). Mr. Yotter requested review by the Appeals Council, (AR 22), which was denied, (AR 1-4), making the ALJ's decision the Commissioner's final decision for purposes of this appeal.

         Mr. Yotter has appealed to this Court alleging the ALJ committed reversible error by: (1) improperly evaluating and weighing the opinions of Mr. Yotter's treating physicians; (2) failing to analyze medical opinions at step three of the sequential evaluation process; (3) applying an incorrect legal standard when evaluating the opinions of state agency non-examining consultants; and (4) improperly questioning the VE. (Doc. 17 at 2). The Court has considered the Motion, Response, Reply, and the relevant law. Additionally, the Court has meticulously reviewed the entire administrative record. Because the ALJ did not err in evaluating and weighing the opinions of Mr. Yotter's treating physicians, and any other error committed was harmless, the Court finds that Mr. Yotter's Motion should be DENIED.

         I. Standard of Review

         The standard of review in a Social Security appeal is whether the Commissioner's final decision is supported by substantial evidence and whether the correct legal standards were applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008); Hamilton v. Sec'y of Health & Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992). If substantial evidence supports the Commissioner's findings and the correct legal standards were applied, the Commissioner's decision stands and the plaintiff is not entitled to relief. Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). The ALJ's failure to apply the correct legal standards or demonstrate that he has done so is grounds for reversal. Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996) (citing Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994)). A court should meticulously review the entire record but should neither re-weigh the evidence nor substitute its judgment for the Commissioner's. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214. A court's review is limited to the Commissioner's final decision, 42 U.S.C. § 405(g), which is generally the ALJ's decision, rather than the Appeals Council's denial of review. O'Dell v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994).

         “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214; Doyal, 331 F.3d at 760. An ALJ's decision “is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting” it. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214. While the Court may not re-weigh the evidence or try the issues de novo, its examination of the record must include “anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met.” Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005). “The possibility of drawing two inconsistent conclusions from the evidence does not prevent [the ALJ]'s findings from being supported by substantial evidence.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).

         II. Applicable Law and Sequential Evaluation Process

         For purposes of disability insurance benefits, a claimant establishes a disability when 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) (2015), 42 U.S.C. § 1382c(a)(3)(A) (2004); 20 C.F.R. § 416.905(a). In order to determine whether a claimant is disabled, the Commissioner follows a five-step sequential evaluation process (“SEP”). Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 416.920.

         At the first four steps of the SEP, the claimant bears the burden of showing: (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 either (3) her impairment(s) either meet or equal one of the “Listings”[1] of presumptively disabling impairments; or (4) she is unable to perform her “past relevant work.” 20 C.F.R. § 416.920(a)(4)(i-iv); see Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). If the ALJ determines the claimant cannot engage in past relevant work, the ALJ will proceed to step five of the evaluation process. At step five the Commissioner must show the claimant is able to perform other work in the national economy, considering the claimant's RFC, age, education, and work experience. Grogan, 399 F.3d at 1261.

         III. Background

         Mr. Yotter alleged disability due to post-traumatic stress disorder (“PTSD”), depression, anxiety, bipolar disorder, shoulder impingement/bursitis, hearing problems, right eye problems, gastrointestinal problems, and high blood pressure. (AR 208). At step one, the ALJ determined Mr. Yotter did not engage in substantial gainful activity between his alleged disability date and the last date he was insured. (AR 28). At step two, the ALJ found Mr. Yotter has the following severe impairments: PTSD, bipolar II disorder not otherwise specified, mood disorder not otherwise specified, left and right shoulder and biceps tendinitis/bursitis, and lumbar disc herniation. Id.

         At step three, the ALJ found none of Mr. Yotter's impairments, either singly or in combination, met or medically equaled a Listed impairment. (AR 29). Regarding Mr. Yotter's mental impairments, the ALJ found Mr. Yotter has only moderate impairments in daily living, social functioning, and concentration, persistence, and pace, and no prolonged episodes of decompensation. (AR 30-31). The ALJ focused on Mr. Yotter's own testimony, though he did note that two psychotherapists consistently described Mr. Yotter as friendly, cooperative, candid, and actively engaged in therapy. (AR 30).

         Prior to step four, the ALJ concluded Mr. Yotter has the residual functional capacity to perform light work with the following limitations: Mr. Yotter may frequently stoop, occasionally climb ladders, but never climb ropes or scaffolds; occasionally reach overheard; and frequently reach front and laterally with his arms. (AR 32). As for nonexertional impairments, Mr. Yotter can adjust to routine changes in work settings and maintain concentration, persistence, and pace for two hours at a time with normal breaks, but he is limited to understanding, remembering, and carrying out simple instructions and making commensurate work-related decisions. Id. Finally, Mr. Yotter “is able to interact occasionally with supervisors, co-workers, and the public.” Id.

         In formulating Mr. Yotter's RFC, the ALJ exhaustively discussed the testimony at the hearing and the medical evidence of record, including Mr. Yotter's and his wife's statements, psychotherapy treatment notes from treating physicians Jolanta Gurdek, M.D., and Karen Cusack, Ph.D., and the opinions of agency non-examining consultants. (AR at 33-46). Ultimately, the ALJ gave the opinions of the agency consultants “great weight” because they were consistent with the evidence as a whole. (AR 46). On the other hand, the ALJ discounted Mr. Yotter's and his wife's statements because they were not consistent with the record. (AR 35, 47).

         Regarding Dr. Cusack, the ALJ gave her opinion limited weight after finding that it was inconsistent with the medical record as a whole and her own treatment notes. Dr. Cusack opined that Mr. Yotter is markedly limited in activities of daily living and social functioning. (AR 47, 714-15). But, the ALJ noted that Dr. Cusack indicated Mr. Yotter has only slight or moderate limitations elsewhere in her assessment. (AR 711, 713). Further, Dr. Gurdek did not find marked limitations in daily living, and Dr. Cusack's own treatment notes showed Mr. Yotter improved his anger management, ...

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