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Garcia v. Berryhill

United States District Court, D. New Mexico

December 14, 2017

NANCY A. BERRYHILL,[1] Acting Commissioner of Social Security Administration, Defendant.



         THIS MATTER is before the Court on Plaintiff's Motion to Reverse and Remand for Rehearing, with Supporting Memorandum [Doc. 20] (“Motion”), filed on August 21, 2017. The Commissioner responded on October 3, 2017. [Doc. 22]. Plaintiff replied on November 8, 2017. [Doc. 23]. The parties have consented to the undersigned's entering final judgment in this case. [Doc. 12]. Having meticulously reviewed the entire record and being fully advised in the premises, the Court finds that Plaintiff fails to meet her burden as the movant to show that the Administrative Law Judge (“ALJ”) did not apply the correct legal standards or that her decision was not supported by substantial evidence. Accordingly, the Motion will be denied and the Commissioner's final decision affirmed.

         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). Courts must meticulously review the entire record, but may neither reweigh the evidence nor substitute their 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. The 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 a court may not re-weigh 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 [Commissioner]'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) (citing Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (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 omitted).

         Applicable Law and Sequential Evaluation Process

         In order to qualify for disability benefits, a claimant 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), 1382c(a)(3)(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) she is not engaged in “substantial gainful activity”; and (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) either meet or equal one of the “Listings”[3]of presumptively disabling impairments; or (4) 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); Grogan, 399 F.3d at 1261. If she cannot show that her impairment meets or equals a Listing, but she proves that she is unable to perform her “past relevant work, ” the burden of proof then shifts to the Commissioner, at step five, to show that the claimant is able to perform other work in the national economy, considering her residual functional capacity (“RFC”), age, education, and work experience. Grogan, 399 F.3d at 1261.

         Procedural Background

         Plaintiff applied for a period of disability, disability insurance benefits, and supplemental security income on November 19, 2010. Tr. 10. She alleged a disability-onset date of September 30, 2009. Id. Her claims were denied initially, on reconsideration, and by an ALJ. Id. She appealed. The Appeals Council remanded the case for rehearing and a new decision. Id. ALJ Donna Montano held a second hearing on September 2, 2015, in Pasadena, California. Id. Plaintiff and her attorney appeared by videoconference from Santa Fe, New Mexico. Id., see Tr. 34-74. The ALJ heard testimony from Plaintiff and an impartial vocational expert (“VE”), Thomas A. Grenier. Tr. 10, 69-73.

         The ALJ issued her unfavorable decision on December 7, 2015. Tr. 26. She found that Plaintiff met the insured status requirements through September 30, 2013. Tr. 12. At step one she found that Plaintiff had not engaged in substantial gainful activity since the onset date of her alleged disability. Tr. 13. Because Plaintiff had not engaged in substantial gainful activity for at least 12 months, the ALJ proceeded to step two. Id. There she found that Plaintiff suffered from the following severe impairments: “a history of cardiomyopathy, anxiety and depression, alternatively diagnosed as bipolar disorder.” Id. Further she found that Plaintiff's hypertension, temporomandibular joint disorder (“TMJ”), back pain, pain disorder, and migraine headaches were not severe. Tr. 15-17.

         At step three the ALJ determined that none of Plaintiff's impairments, alone or in combination, met or medically equaled a Listing. Tr. 17-19. Because none of Plaintiff's impairments met or medically equaled a Listing, the ALJ went on to assess Plaintiff's RFC. Tr. 19-24. The ALJ found that:

[Plaintiff] has the [RFC] to perform light work as defined in 20 [C.F.R. §§] 404.1567(b) and 416.967(b). [Plaintiff] can lift and/or carry twenty pounds occasionally, ten pounds frequently, stand and/or walk six hours and sit six hours in an eight-hour workday. [Plaintiff] is limited to the performance of simple repetitive tasks and working primarily with things rather than people. [Plaintiff] is unable to perform in-tandem tasks and she can have only superficial contact with coworkers.

Tr. 19. At step four the ALJ found that Plaintiff was not able to return to her past relevant work as a hotel clerk. Tr. 24. Proceeding to step five, the ALJ considered Plaintiff's RFC, age, education, and work experience. Tr. 25-26. She found that Plaintiff could perform work that exists in significant numbers in the national economy and, therefore, was not disabled. Id. Plaintiff requested review from the Appeals Council a second time, but that request was denied on November 7, 2016. Tr. 1. Plaintiff timely filed the instant action on December 22, 2016. [Doc. 1].


         Plaintiff fails to show reversible error in the ALJ's assessment of her RFC or in the ALJ's reliance on the VE's testimony. Remand is not warranted.

         I. Plaintiff fails to show reversible error in the evaluation of her cardiomyopathy.

         Plaintiff challenges the ALJ's finding that her cardiomyopathy is resolved and/or asymptomatic. [Doc. 20] at 8 (citing Tr. 19). Plaintiff discusses portions of the medical record that show that her cardiomyopathy, in fact, still intermittently causes dyspnea with exertion and requires medication. Id. at 6-8 (citing Tr. 719, 725). The Court is not persuaded that the ALJ erred. Even if Plaintiff continues to suffer dyspnea with exertion, the RFC accounts for it. The ALJ found that Plaintiff's history of cardiomyopathy was severe, and the RFC limited Plaintiff to light work, which is a limitation on exertion. Plaintiff fails to show any reversible error.

         II. Plaintiff fails to show reversible error in the evaluation of Dr. Hassemer's records and his statement that Plaintiff is “basically disabled.”

         Plaintiff takes issue with the ALJ's finding that Plaintiff's primary care physician, Donald Hassemer, M.D., did not perform any mental status examinations (“MSEs”). [Doc. 20] at 12-13. Plaintiff argues that Dr. Hassemer's notes show that he did perform MSEs or their equivalent. Id. Plaintiff fails to explain what difference this makes, and the Court sees no difference. The RFC limits Plaintiff to simple work and, further, restricts her contact with others. Tr. 19. Plaintiff fails to show how the RFC is inconsistent with Dr. Hassemer's records.

         In a medical record dated January 24, 2011, Dr. Hassemer noted that Plaintiff “is basically disabled from anxiety, depression and chronic back pain.” Tr. 671. Plaintiff argues that the ALJ's failure to “weigh” or “discuss” Dr. Hassemer's statement was “legal error.” [Doc. 23] at 3; [Doc. 20] at 13. The Court does not agree.

         The ALJ, in fact, did discuss Dr. Hassemer's statements. The ALJ stated that she had “careful[ly] consider[ed] the entire record[, ]” Tr. 19, and the Court takes her at her word, see Wall v. Astrue, 561 F.3d 1048, 1070 (10th Cir. 2009). Further, the ALJ explicitly discussed Dr. Hassemer's statements that Plaintiff was “disabled.” The ALJ wrote:

In January 2011, Dr. Hassemer noted that [Plaintiff] visited Espa[ñ]ola Medical Group for routine follow-up for severe anxiety and that he filled out her “disability form” [Tr. 671]. Dr. Hassemer did not perform a mental status examination at that time. It appears that the doctor merely recorded [Plaintiff]'s subjective complaints [Tr. 671]. While Dr. Hassemer filled out forms for [Plaintiff]'s “disability” to continue in March 2011 [Tr. 670], I again find ...

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