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Sedillo v. Berryhill

United States District Court, D. New Mexico

December 20, 2017

JOANNE SEDILLO, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER [2]

          KIRTAN KHALSA United States Magistrate Judge

         THIS MATTER is before the Court on the Social Security Administrative Record (Doc. 17) filed December 8, 2016, in support of Plaintiff Joanne Sedillo's (“Plaintiff”) Complaint (Doc. 1) seeking review of the decision of Defendant Nancy A. Berryhill, Acting Commissioner of the Social Security Administration, (“Defendant” or “Commissioner”) denying Plaintiff's claim for Title II disability insurance benefits. On February 23, 2017, Plaintiff filed her Motion to Reverse or Remand for Rehearing, With Supporting Memorandum (“Motion”). (Doc. 22.) The Commissioner filed a Response in opposition on May 10, 2017 (Doc. 26), and Plaintiff filed a Reply on May 23, 2017. (Doc. 27.) The Court has jurisdiction to review the Commissioner's final decision under 42 U.S.C. §§ 405(g) and 1383(c). Having meticulously reviewed the entire record and the applicable law and being fully advised in the premises, the Court finds the Motion is not well taken and is DENIED.

         I. Background and Procedural Record

         Claimant Joanne Sedillo (“Ms. Sedillo”) alleges that she became disabled on September 15, 2009, at the age of forty because of osteoporosis, fibromyalgia, inflammatory bones and joints, depression, mood swings, restless sleep, headaches, swelling hands and feet, falling and back pain. (Tr. 308, 344.[3]) Ms. Sedillo completed twelfth grade, and worked as a receptionist, phone operator, housekeeper, caregiver and beverage server. (Tr. 320-25, 345.) Ms. Sedillo last met the insured status requirements of the Social Security Act on December 31, 2011.[4] (Tr. 308.)

         On September 6, 2012, Ms. Sedillo protectively filed an application for Social Security Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (the “Act”), 42 U.S.C. § 401 et seq. (Tr. 293-294, 308.) Ms. Sedillo's application was initially denied on May 10, 2013. (Tr. 210-16, 217, 227-30.) It was denied again at reconsideration on January 27, 2014. (Tr. 218-25, 226, 236-40.) On February 13, 2014, Ms. Sedillo requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 242-43.) The ALJ conducted a hearing on September 16, 2015. (Tr. 178-208.) Ms. Sedillo appeared in person at the hearing with Attorney Ronald Harris.[5] (Id.) The ALJ took testimony from Ms. Sedillo (Tr. 183-205), and an impartial vocational expert (“VE”), Diane Weber. (Tr. 206-08.) On December 11, 2015, the ALJ issued an unfavorable decision. (Tr. 12-24.) On June 27, 2016, the Appeals Council issued its decision denying Ms. Sedillo's request for review and upholding the ALJ's final decision. (Tr. 1-6.)

         On July 27, 2016, Ms. Sedillo timely filed a Complaint seeking judicial review of the Commissioner's final decision. (Doc. 1.)

         II. Applicable Law

         A. Disability Determination Process

         An individual is considered disabled for purposes of Social Security disability insurance benefits if 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). The Social Security Commissioner has adopted the familiar five-step sequential analysis to determine whether a person satisfies the statutory criteria as follows:

(1) At step one, the ALJ must determine whether the claimant is engaged in “substantial gainful activity.”[6] If the claimant is engaged in substantial gainful activity, she is not disabled regardless of her medical condition.
(2) At step two, the ALJ must determine the severity of the claimed physical or mental impairment(s). If the claimant does not have an impairment(s) or combination of impairments that is severe and meets the duration requirement, she is not disabled.
(3) At step three, the ALJ must determine whether a claimant's impairment(s) meets or equals in severity one of the listings described in Appendix 1 of the regulations and meets the duration requirement. If so, a claimant is presumed disabled.
(4) If, however, the claimant's impairments do not meet or equal in severity one of the listing described in Appendix 1 of the regulations, the ALJ must determine at step four whether the claimant can perform her “past relevant work.” Answering this question involves three phases. Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996). First, the ALJ considers all of the relevant medical and other evidence and determines what is “the most [claimant] can still do despite [her physical and mental] limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). This is called the claimant's residual functional capacity (“RFC”). Id. §§ 404.1545(a)(3), 416.945(a)(3). Second, the ALJ determines the physical and mental demands of claimant's past work. Third, the ALJ determines whether, given claimant's RFC, the claimant is capable of meeting those demands. A claimant who is capable of returning to past relevant work is not disabled.
(5) If the claimant does not have the RFC to perform her past relevant work, the Commissioner, at step five, must show that the claimant is able to perform other work in the national economy, considering the claimant's RFC, age, education, and work experience. If the Commissioner is unable to make that showing, the claimant is deemed disabled. If, however, the Commissioner is able to make the required showing, the claimant is deemed not disabled.

See 20 C.F.R. § 404.1520(a)(4); Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). The claimant has the initial burden of establishing a disability in the first four steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146, n.5, 107 S.Ct. 2287, 2294, n. 5, 96 L.Ed.2d 119 (1987). The burden shifts to the Commissioner at step five to show that the claimant is capable of performing work in the national economy. Id. A finding that the claimant is disabled or not disabled at any point in the five-step review is conclusive and terminates the analysis. Casias v. Sec'y of Health & Human Serv., 933 F.2d 799, 801 (10th Cir. 1991).

         B. Standard of Review

         This Court must affirm the Commissioner's denial of social security benefits unless (1) the decision is not supported by “substantial evidence” or (2) the ALJ did not apply the proper legal standards in reaching the decision. 42 U.S.C. § 405(g); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); Casias, 933 F.2d at 800-01. In making these determinations, the Court “neither reweigh[s] the evidence nor substitute[s] [its] judgment for that of the agency.'” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008). A decision is based on substantial evidence where it is supported by “relevant evidence . . . 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[, ]” Langley, 373 F.3d at 1118, or “constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). The agency decision must “provide this court with a sufficient basis to determine that appropriate legal principles have been followed.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005). Therefore, although an ALJ is not required to discuss every piece of evidence, “the record must demonstrate that the ALJ considered all of the evidence, ” and “the [ALJ's] reasons for finding a claimant not disabled” must be “articulated with sufficient particularity.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996).

         III. Analysis

         The ALJ made her decision that Ms. Sedillo was not disabled at step four of the sequential evaluation. She found that Ms. Sedillo had the residual functional capacity to perform medium work as defined in 20 CFR § 404.1567(b). The ALJ explained that

I determined the claimant has the ability to perform no more than the full range of medium work. Thus, the claimant can lift, carry, push or pull no more than 50 pounds at a time and frequently lift, carry, push or pull objects weighing up to 25 pounds. “Frequent” means occurring from one-third to two-thirds of an eight-hour workday. The claimant can walk off-and-on for no more than about six hours during an eight-hour workday, stand off-and-on for no more than about six hours during an eight-hour workday, and can stand or walk off-and-on for a total of about six hours during an eight-hour workday. The claimant can sit for approximately six hours total during an eight-hour workday. The claimant may stoop and bend frequently, which means stooping for one-third to two-thirds of the time during an eight-hour workday (404.1567; SSR 83-10).

         (Tr. 19.) Based on the RFC and the testimony of the VE, the ALJ concluded that Ms. Sedillo was capable of performing her past relevant work as an administrative assistant. (Tr. 22-23.) In the alternative, the ALJ concluded at step five that considering Ms. Sedillo's age, education, work experience, and RFC, Medical-Vocational Rule 203.29 directed a finding of “not disabled.” (Tr. 23.)

         Ms. Sedillo asserts the following three arguments in support of her Motion: (1) the ALJ's RFC is not supported by substantial evidence; (2) the ALJ's RFC error tainted the past work analysis, and the ALJ failed to determine the physical and mental demands of Ms. Sedillo's past relevant work; and (3) the ALJ's RFC error tainted the step five findings and she failed to consider nonexertional limitations related to Ms. Sedillo's fibromyalgia. (Doc. 22 at 3-18.)

         A. Medical History During the Relevant Period of Time [[7]]

         On February 25, 2010, Ms. Sedillo presented to University of New Mexico Health Sciences Urgent Care with complaints of cough, increased fatigue, and right ear and neck pain. (Tr. 462-63.) Ms. Sedillo reported a two week history of cough, sweats and chills; a ten day history of right ear and neck pain at the lymph area; nausea and dizziness; and stated she wanted to sleep all the time. (Tr. 462.) Ms. Sedillo denied

[a]cute hearing or vision changes, tinnitus; Chest pain and pressure; Headaches, numbness, tingling, weakness, particularly in extremities; Change in bowel and bladder habits (including loss of bowel and bladder control); Vomiting, hematemesis; hemoptysis; Diarrhea, melena, hematochezia, Pain in extremities, neck, back, and abdominal.

         (Tr. 462.) CFNP Diane Cummings performed a physical exam, which was normal except for enlarged tonsils and poor dentition. (Tr. 462-63.) CFNP Cummings assessed suspected strep given the constellation of signs and symptoms, and possibly developing acute bronchitis. (Tr. 463.) She prescribed Amoxicillin and advised Ms. Sedillo to seek care if her symptoms persisted or worsened, and to follow up with dental care. (Tr. 463.)

         On June 25, 2010, Ms. Sedillo presented to the University of New Mexico Health Sciences Outpatient Clinic with complaints of low back and tooth pain. (Tr. 438-49.)Ms. Sedillo reported a one year history of low back pain, worse in the morning, and a one week history of pain in her teeth. (Tr. 438.) She described the back pain as stiffness, and stated that at times she had shooting pain that radiated down her lateral and medial thighs into her feet. (Id.)She stated the pain was better with walking and she had been trying to walk a mile or so most days of the week. (Id.) She stated she had been under major stress with the recent loss of her mother. (Id.) Ms. Sedillo believed that her teeth were “rotten” and the source of her teeth pain. (Id.) She explained she could not afford out of pocket dental care. (Id.) On physical exam, PA-C Karen Wesslowski noted a shallow ulceration parallel to Ms. Sedillo's left maxillary molar. (Tr. 439.) She also noted in pertinent part

no costal vertebral tenderness. No spinal tenderness with palpation, no gross deformities or signs of trauma. Tenderness with deep palpation in the mid gluteal area bilaterally. Negative straight leg raises. . . . Muscle strength is 5 on upper and lower extremities bilaterally. No obvious deformities, no trauma. . . . Patient had good eye contact. Mood is appropriate. Not anxious. Speech is not pressured. Thoughts are coherent and on tangent.

         (Tr. 439.) PA-C Wesslowski assessed “[l]ow back pain - chronic in nature” and “apthous ulcer.” (Id.) PA-C Wesslowski ordered an RF, CCP and ANA to check for autoimmune disease, [8] and ordered sacral and lumbar spine radiology studies.[9] (Id.) She prescribed Acyclovir for Ms. Sedillo's mouth ulcer, provided her with a list of free dental clinics, and encouraged her to go to one as soon as possible. (Id.) PA-C Wesslowski noted that Ms. Sedillo would follow up with Dr. Archambault to establish care at UNM. (Id.)

         On October 11, 2010, Ms. Sedillo presented to University of New Mexico Health Sciences Outpatient Clinic to establish care with Mara R. Archambault, M.D., and to follow up on her lower back pain. (Tr. 435-37.) Ms. Sedillo complained of a two year history of lower back pain that radiated as shooting pain down her legs bilaterally along the posterior aspect of her legs to the level of her ankles. (Tr. 435.) She also complained of being tired and having occasional dizziness when she turned her head. (Tr. 436.) Ms. Sedillo reported a recent history of abdominal pain with fevers and vomiting, but stated it was resolved. (Tr. 435-36.) Ms. Sedillo denied any lower extremity weakness, numbness, tingling or bowel or bladder incontinence or urine retention. (Tr. 435.) Ms. Sedillo reported taking Tylenol “here and there” for the pain, and stated she had not done any physical therapy or other treatments, and currently was not exercising. (Id.) On physical exam, Dr. Archambault noted in pertinent part that Ms. Sedillo had no extremity edema, negative straight leg raise bilaterally, strength grossly intact, normal gait, mild tenderness to palpation over lumbar paraspinous musculature, and no significant tenderness over the L-spine. (Tr. 436.) Dr. Archambault assessed chronic low back pain with sciatica. (Id.) She prescribed Ibuprofen 800 milligrams three times daily for 14 days and instructed her to follow up with her primary care physician. (Id.) Dr. Archambault provided Ms. Sedillo with an informational handout describing stretches for her back. (Id.) Ms. Sedillo stated she was not interested in physical therapy at that time. (Id.)

         B. RFC Assessment

         At step two, the ALJ determined that Ms. Sedillo had severe impairments of degenerative disc disease and fibromyalgia through her date of last insured.[10] (Tr. 17.) At step three, the ALJ considered whether her impairments met or medically equaled the severity of a listing, and determined that the medical evidence did not establish the ...


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