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Maez v. Berryhill

United States District Court, D. New Mexico

December 14, 2017

GERALDINE MAEZ, on behalf of MIGUEL E. MAEZ, Jr., Plaintiff,
NANCY A. BERRYHILL,[1] Acting Commissioner of the Social Security Administration, Defendant.


          Laura Fashing United States Magistrate Judge.

         THIS MATTER comes before the Court on plaintiff Geraldine Maez's (ex rel. Miguel E. Maez, Jr.) Motion to Reverse and Remand for Rehearing with Supporting Memorandum (Doc. 19), which was fully briefed June 12, 2017. See Docs. 23, 24, 25. The parties consented to my entering final judgment in this case. Docs. 4, 8, 9. Having meticulously reviewed the entire record and being fully advised in the premises, I find that the Administrative Law Judge (“ALJ”) erred in her application of the treating physician rule to the opinion of Mr. Maez's treating cardiologist, Dr. Luther B. Weathers. I therefore GRANT Ms. Maez's motion and remand this case to the Commissioner for further proceedings consistent with this opinion.

         I. Standard of Review

         The standard of review in a Social Security appeal is whether the Commissioner's final decision[2] is supported by substantial evidence and whether the correct legal standards were applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008). 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). “The failure to apply the correct legal standard or to provide this court with a sufficient basis to determine that appropriate legal principles have been followed is grounds for reversal.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (internal quotation marks and brackets omitted). The Court must meticulously review the entire record, but may neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007).

         “Substantial evidence is such relevant evidence as 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 or if there is a mere scintilla of evidence supporting it.” Id. While the Court may not reweigh the evidence or try the issues de novo, its examination of the record as a whole 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] findings from being supported by substantial evidence.'” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).

         II. Applicable Law and Sequential Evaluation Process

         To qualify for disability benefits, a claimant must establish that he or 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); 20 C.F.R. §§ 404.1505(a), 416.905(a).

         When considering a disability application, the Commissioner is required to use a five-step sequential evaluation process. 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At the first four steps of the evaluation process, the claimant must show: (1) the claimant is not engaged in “substantial gainful activity;” (2) the claimant 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) the impairment(s) either meet or equal one of the Listings[3] of presumptively disabling impairments; or (4) the claimant is unable to perform his or her “past relevant work.” 20 C.F.R. §§ 404.1520(a)(4)(i-iv), 416.920(a)(4)(i-iv); Grogan, 399 F.3d at 1260-61. If the claimant cannot show that his or her impairment meets or equals a Listing but proves that he or she is unable to perform his or her “past relevant work, ” 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 residual functional capacity (“RFC”), age, education, and work experience. Id.

         III. Procedural History

         Mr. Maez was born in 1964, had a seventh-grade education, [4] and worked in construction and in the oil fields as a roustabout. AR 153, 169, 861-62, 869.[5] Mr. Maez was laid off in December 2008. AR 168. On April 6, 2009, Mr. Maez sustained an aortic aneurysm, and underwent an aortic dissection repair. AR 236, 414, 556. Mr. Maez filed applications for supplemental security income and disability insurance benefits on April 22, 2009, alleging disability since April 6, 2009 due to heart problems, high blood pressure, and his recent heart surgery. AR 133-41, 153-55, 168. The Social Security Administration (“SSA”) denied his claims initially on August 20, 2009. AR 85-88. The SSA denied his claims on reconsideration on June 11, 2009. AR 90-96. Mr. Maez requested a hearing before an ALJ. AR 97. On July 22, 2011, ALJ Ann Farris held a hearing. AR 52-78. The ALJ issued her unfavorable decision on September 23, 2011. AR 35-51. Mr. Maez requested that the Appeals Council review the ALJ's unfavorable decision, and submitted additional medical evidence. AR 30-33, 230-34. On February 21, 2013, the Appeals Council denied the request for review. AR 7-13. Mr. Maez appealed to this Court on April 24, 2013. Maez. v. Social Security Admin., No. CV 13-381 WPL, Doc. 1 (D.N.M.). On July 21, 2014, Magistrate Judge Lynch remanded this case, due in part to the ALJ's failure to evaluate “all of the evidence in the record to determine the extent to which Dr. Weather's [July 20, 2011, AR 810] opinion that Maez is unable to work is supported by that record, ” and due to her failure to “describe how Dr. Weather's opinion was inconsistent with the medical evidence.” AR 896 (emphasis added).

         On March 11, 2013, while his first appeal was pending with this Court, Mr. Maez filed a second claim for SSI. AR 836, 929. On November 4, 2014, after receiving Judge Lynch's remand order, the Appeals Council vacated the decision of the Commissioner, remanded the case to the ALJ, and consolidated Mr. Maez's claims. Id. On August 4, 2015, ALJ Farris held a second hearing. AR 855-78. On September 26, 2015, Mr. Maez died from a ruptured abdominal aortic aneurysm. AR 1020. His widow, Geraldine Maez, filed a notice to become a substitute party and proceed with Mr. Maez's claim. AR 1018. The ALJ issued her second decision, which was partially favorable, on March 7, 2016. AR 832-54.

         The ALJ found that Mr. Maez met the insured status requirements of the Social Security Act through March 31, 2010. AR 839. At step one, the ALJ found that Mr. Maez had not engaged in substantial, gainful activity after his alleged onset date of April 6, 2009. Id. At step two, the ALJ found that Mr. Maez had the following medically determinable impairments: “hepatitis C infection, hypertension, and status post aortic aneurysm and dissection repairs.” Id. The ALJ found that his anxiety and depression were nonsevere. Id. At step three, the ALJ found that none of Mr. Maez's impairments, alone or in combination, met or medically equaled a Listing. AR 839-40. Because the ALJ found that none of the impairments met a Listing, the ALJ assessed Mr. Maez's RFC. AR 840-44. The ALJ found Mr. Maez had the RFC to perform sedentary work except that “he could only occasionally climb stairs, balance, and stoop; never kneel, crouch, or crawl; and should avoid exposure to hazardous conditions including unprotected heights and dangerous machinery, and to extremes of heat and cold.” AR 840.

         At step four, the ALJ concluded that Mr. Maez was unable to perform his past relevant work as a roustabout. AR 844. At step five, the ALJ found that, prior to September 5, 2014, Mr. Maez was classified as a “younger individual, ” and could perform unskilled, sedentary jobs that exist in significant numbers in the national economy-such as motor polarizer, vinyl assembler, and ink printer. AR 844-45. On September 5, 2014, Mr. Maez's age category changed to “an individual closely approaching advanced age.” AR 844. The ALJ applied Medical-Vocational Rule 201.10[6] to find him disabled beginning on this date. AR 845-46. Because this Court previously remanded Mr. Maez's case, Mr. Maez was not required to seek Appeals Council review again, and the ALJ's decision stands as the final decision of the Commissioner. See 20 C.F.R. § 404.984(a). Mr. Maez timely appealed to this Court on July 1, 2016. Doc. 1.[7]

         IV. Mr. Maez's Claims

         Mr. Maez raises two arguments for reversing and remanding this case: (1) the ALJ erred by failing to provide adequate reasons for rejecting the medical opinions of treating cardiologist Dr. Luther B. Weathers; 2) the ALJ deprived him of his due process rights to question the vocational expert. Doc. 19 at 2, 18-25. The Commissioner argues that the ALJ did not err in rejecting Dr. Weathers' opinions because the ALJ's decision is supported by substantial evidence, and “the ALJ's RFC finding reasonably accounted for all of [Mr. Maez's] credible limitations.” Doc. 23 at 4.[8] Because I agree that the ALJ erred in her application of the treating physician rule to Dr. Weathers' opinions, I grant the motion to remand to give the ALJ an opportunity to remedy this error. I do not reach Mr. Maez's other alleged error, which “may be affected by the ALJ's treatment of this case on remand.” Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003).

         V. Analysis

         A. Relevant Law

         In analyzing whether a treating physician's opinion is entitled to controlling weight, the ALJ must perform a two-step process. “The initial determination the ALJ must make with respect to a treating physician's medical opinion is whether it is conclusive, i.e., is to be accorded ‘controlling weight, ' on the matter to which it relates.” Krauser v. Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011) (quoting Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir.2003)). In making this initial determination, the ALJ must consider whether the opinion “is well supported by medically acceptable clinical and laboratory diagnostic techniques and is consistent with the other substantial evidence in the record.” Pisciotta v. Astrue, 500 F.3d 1074, 1077 (10th Cir. 2007) (citing 20 C.F.R. § 404.1527(d)(2)); Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). If the opinion meets both criteria, the ALJ must give the treating physician's opinion controlling weight. Id. To give anything less than controlling weight, the ALJ must demonstrate with substantial evidence that the opinion (1) is not “well-supported by medically acceptable clinical and laboratory diagnostic techniques, ” or (2) is “inconsistent with other substantial evidence” in the record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). “Under the regulations, the agency rulings, and our case law, an ALJ must ‘give good reasons in [the] notice of determination or decision' for the weight assigned to a treating [source's] opinion.” Watkins, 350 F.3d at 1300 (quoting 20 C.F.R. § 404.1527(d)(2) and citing SSR 96-2p, 1996 WL 374188, at *5; Doyal v. Barnhart, 331 F.3d 758, 762 (10th Cir. 2003)).

         If the ALJ does not assign a treating source's opinion controlling weight, step two of the analysis requires the ALJ to apply the six factors listed in the regulations to determine whether to reject a treating source's opinion altogether, or to assign it some lesser weight:

I. Examining relationship: more weight is given to the opinion of a source who has examined the ...

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