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Temple v. Berryhill

United States District Court, D. New Mexico

December 12, 2017

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


         THIS MATTER is before the Court on Plaintiff's Motion to Reverse and Remand for a Rehearing, with Supporting Memorandum (Doc. 20) filed on April 6, 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, 11. Having considered the record, submissions of counsel, and relevant law, the Court finds Plaintiff's motion is well-taken and will be granted in part.

         I. Procedural History

         On December 31, 2012, Ms. Diane Temple (Plaintiff) protectively filed applications with the Social Security Administration for a period of disability and disability insurance benefits under Title II of the Social Security Act (SSA), and for Supplemental Security Income under Title XVI of the SSA. Administrative Record[1] (AR) at 11, 177-78, 184. Plaintiff alleged a disability onset date of June 1, 2012. AR at 11, 177, 184. Disability Determination Services (DDS) determined that Plaintiff was not disabled both initially (AR at 84-85) and on reconsideration (AR at 112-13). Plaintiff requested a hearing with an Administrative Law Judge (ALJ) on the merits of her applications. AR at 136-37.

         Both Plaintiff and a vocational expert (VE) testified during the de novo hearing. See AR at 26-55. ALJ Eric Weiss issued an unfavorable decision on April 24, 2015. AR at 8-24. Plaintiff submitted a Request for Review of Hearing Decision/Order to the Appeals Council (AR at 6-7), which the council denied on August 10, 2016 (AR at 1-5). Consequently, the ALJ's decision became the final decision of the Commissioner. See 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. § 404.1505(a). The Commissioner must use a sequential evaluation process to determine eligibility for benefits. 20 C.F.R. §§ 404.1520(a)(4), 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 §§ 404.1520(a)(4)(i-iv), 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.” Ryan v. Colvin, Civ. 15-0740 KBM, 2016 WL 8230660, at *2 (D.N.M. Sept. 29, 2016) (citing 20 C.F.R. § 404, Subpt. P, App. 1 § 12.00(B); 20 C.F.R. § 404.1545(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” Plaintiff 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. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).

         At Step One of the process, [2] ALJ Weiss found that while Plaintiff worked cleaning houses in 2012 and 2013, and as a delivery driver in 2014, her earnings since 2010 do not rise to the level of gainful activity. AR at 13. Consequently, Plaintiff had not engaged in substantial gainful activity since her alleged onset date of June 1, 2012. AR at 13 (citing 20 C.F.R. §§ 404.1571-1576, 416.971-976). At Step Two, the ALJ concluded that Plaintiff “has the following severe impairments: depressive disorder, and generalized anxiety disorder . . . .” AR at 14 (citing 20 C.F.R. §§ 404.1520(c), 416.920(c)).

         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 15 (citing 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926). In making his determination, ALJ Weiss considered listings 12.04 (affective disorders) and 12.06 (anxiety related disorders). AR at 15.

         The ALJ first examined whether Plaintiff's mental impairments met the “paragraph B” criteria. He found that Plaintiff has mild restrictions in her activities of daily living (AR at 15 - noting Plaintiff “lives alone and cares for four dogs[, ]” “occasionally works as a housekeeper” and works for a courier service approximately 20 hours/week, in which she drives locally and to Texas and Colorado) (citing AR at 76, 105, 400); moderate difficulties in the area of social functioning (AR at 15 - noting that Plaintiff “testified that she has no problem working with people, . . . is sometimes bothered by crowds, . . . limits her contact with others[, ]” and had a roommate in 2012, 2013, and at the time of the hearing) (citing AR at 232-40); and moderate difficulties in the area of concentration, persistence or pace (AR at 15-16 - noting Plaintiff's work “as a courier evinces her ability to concentrate and persist[, ]” her testimony “that her head pain distracts her attention and” limits her courier work, her report “that she forgets a lot of things and cannot get organized[, ]” and commenting on Plaintiff's “difficulty focusing on [the ALJ's] questions during the hearing”) (citing AR at 237).

         The ALJ acknowledged Plaintiff's two-day emergency admission to a psychiatric unit on July 28, 2012, due to “paranoid delusions in connection with amphetamine toxicity[, ]” “triggered by recent domestic violence against her that resulted in charges of attempted murder and kidnapping against her boyfriend.” AR at 16. He found, however, that Plaintiff has experienced no episodes of decompensation of extended duration, because the episode only lasted two days (AR at 16 - noting that Plaintiff “was assessed with substance induced psychotic disorder (meth) and acute stress disorder”). 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. AR at 16. The ALJ also found that Plaintiff did not meet the “paragraph C” criteria of 12.04 or 12.06. AR at 16.

         At Step Four, the ALJ Weiss concluded that while Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms[, ]” he did not find Plaintiff's “statements concerning the intensity, persistence and limiting effects of these symptoms . . . entirely credible . . . .” AR at 18. The ALJ considered the evidence of record, including the psychological consultative examination performed by David LaCourt, Ph.D., the opinion of state agency DDS consultant Cheryl Woodson-Johnson, and the report by Plaintiff's roommate. AR at 14-19. Ultimately, the ALJ found that Plaintiff

has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: she is limited to perform simple, routine and repetitive tasks and is limited to simple work related decisions in a work environment with only occasional changes in the work setting. She may have only occasional interaction with the public, coworkers and supervisors.

         AR at 17. ALJ Weiss determined that Plaintiff “is capable of performing past relevant work as a cleaner/housekeeper . . . and deliverer/courier[, ]” neither of which “require the performance of work-related activities precluded by” Plaintiff's RFC. AR at 19. The ALJ ultimately decided that Plaintiff “has not been under a disability, as defined in the Social Security Act, from June 1, 2012, through the date of [the ALJ's] decision . . . .” AR at 20 (citing 20 C.F.R. §§ 404.1520(f), 416.920(f)).

         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 two broad issues in her Motion. First, Plaintiff argues that the ALJ failed to correctly weigh both the examining psychologist's and the non-examining psychiatrist's opinions. Doc. 20 at 6-11. Second, Plaintiff proposes a variety of arguments to support her contention that the ALJ's “past work finding is contrary to the evidence.” Id. at 11.

         A. ALJ's Weiss' assessment of Dr. LaCourt's opinion is inadequate to uphold the ALJ's ultimate decision.

         Plaintiff argues that ALJ Weiss's analysis of Dr. LaCourt's opinion constitutes reversible error for two reasons: (1) the ALJ's rejection of Dr. LaCourt's opinion on Plaintiff's marked limitations is not supported by substantial evidence; and (2) the ALJ erred by failing to incorporate in the RFC limitations findings by Dr. LaCourt that Plaintiff has a moderate limitation in her ability to carry out instructions due to “task impersistence, ” and marked limitations in working without supervision and in working with supervisors. Doc. 20 at 8-10.

         DDS referred Plaintiff to a one-time consultation with Dr. LaCourt on June 1, 2013. AR at 400. Dr. LaCourt noted the following background information: Plaintiff lives by herself (with four dogs). AR at 400. She dropped out of school in 9th grade to have her first child; she eventually obtained her GED. AR at 400. Plaintiff has worked over the years for a house-cleaning agency, but she was fired in August 2012. AR at 400. Her ex-boyfriend[3] beat Plaintiff in the head with a rock in June 2012, and Dr. LaCourt noted that it was unclear what type of treatment she received after that beating. AR at 400. Plaintiff stated that she “has been unable to go out of the house after dark since the assault[, ] and that it” is hard to go out even during the daytime. AR at 400-01. Plaintiff also reported that one month after the beating, she checked herself into a psychiatric inpatient “detox” stay because she was having methamphetamine-induced auditory hallucinations and paranoid delusions (she thought someone was after her) which “remitted rapidly . . . .” AR at 400, 401. Plaintiff discussed her other medical history with Dr. LaCourt, including her broken right index finger and her Hepatitis C diagnosis. AR at 401.

         In the “Findings and Interpretation” section of his report, Dr. LaCourt noted: Plaintiff wore clean, appropriate clothing, had normal grooming and hygiene, and functional posture and gait. AR at 401. She neither reported nor exhibited “untoward movements, mannerisms, tremors or tics . . . .” AR at 401. She showed normal attention “with a commensurate level of general concentration.” AR at 401. While Dr. LaCourt did not observe “an appreciable amount of scatter or variability of concentration” during the appointment, Plaintiff reported she was experiencing (both at the appointment and at other times) “ongoing/persisting anxiety of a free-floating kind, i.e., without identifiable recent/proximal antecedents.” AR at 401.

         Dr LaCourt found that Plaintiff was oriented “to time, place, person and partially to the general situation.” AR at 401. Her recall and memory were grossly intact “with varying degrees of low detail/vague retrieval” related to “small gaps associated with the assault.” AR at 401. Plaintiff denied regular counseling or psychotherapy. AR at 401. Plaintiff “reported ongoing sleep issues, . . . even with medications to help her sleep.” AR at 401. While she noted “reduced-awareness perceptions ‘in the shadows' at night[, ] . . . there was no direct evidence of active hallucinatory or delusional process . . . .” AR at 401. Plaintiff had taken self-defense classes to feel more secure. AR at 401. Plaintiffs affect was appropriate; she was pessimistic, anxious, and had a dysphoric mood. AR at 401. She did not report any “untoward preoccupations” including any “self-harm ideation.” AR at 401. Plaintiff displayed average to low-average intellectual functioning and reported “no difficulties with reading or performing everyday math as part of household duties.” AR at 401-02. Dr. LaCourt listed the medications Plaintiff was taking, noted that she had occasional alcoholic beverages but not regularly or to the point of intoxication, and indicated that she had not taken illicit substances since July 2012 (methamphetamine). AR at 402.

         Dr. LaCourt diagnosis of Plaintiff included Generalized Anxiety Disorder, methamphetamine abuse (in sustained full remission), and Depressive Disorder NOS. AR at 402. He opined that Plaintiff had the following limitations:

• Understanding and remembering detailed/complex instructions: no limitation; very short/simple instructions: no limitation
• Sustained concentration/task persistence, for carrying out instructions: moderate limitation associated with task impersistence; attending and concentrating: no limitation; working without supervision: marked limitation
• Social interaction, with the public: moderate limitation; with coworkers: marked limitation; with supervisor: marked limitation associated with anxiety
• Adaptation to changes in the workplace: no limitation; aware of normal hazards/reacting appropriately: mild limitation
• Use of public transportation/travel to unfamiliar places: marked limitation associated with anxiety about being around other ...

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