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Valdez v. Berryhill

United States District Court, D. New Mexico

December 21, 2017

JAVIER VALDEZ, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on Plaintiff Javier Valdez's Motion to Reverse and Remand for a Rehearing with Supporting Memorandum (Doc. 18), filed April 4, 2017. Pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73(b), the parties have consented to me serving as the presiding judge and entering final judgment. Doc.27. Having reviewed the parties' submissions, the relevant law, and the relevant portions of the Administrative Record, the Court will deny the Motion.

         I. Introduction

         Plaintiff claims that he became disabled in 2008 due to various physical impairments. The Administration agrees in part. It has found that Plaintiff became disabled on December 2, 2013, for the purposes of Title XVI of the Act. However, the Administration has now denied Plaintiff's claim under Title II of the Act three times, and affirmed its decision that Plaintiff was not disabled prior to December 2, 2013, for the purposes of Title XVI. In this most recent denial, Administrative Law Judge (“ALJ”) Raul Pardo ascribed “little weight” to the opinion of Elizabeth Etherton, CNP, and found that Plaintiff's physical pain does not preclude him from working. Plaintiff argues that the ALJ erred as a matter of law by failing to give proper consideration to Ms. Etherton's opinions, and that the ALJ's RFC is not based on substantial evidence “because he failed to account for Mr. Valdez's functional limitations stemming from pain and other symptoms.” Doc. 18 at 1. For the reasons stated below, the Court disagrees.

         II. Procedural History

         Plaintiff filed an application with the Social Security Administration for disability insurance benefits under Title II of the Social Security Act on April 22, 2008. AR at 183-187.[1]Plaintiff alleged a disability onset date of February 25, 2008, the day he stopped working, due to “chronic inflammatory arthritis [and] kidney problems.” AR at 183, 207. Plaintiff most recently worked as a roofer. AR at 208. Plaintiff claimed that he can no longer do this work because he has “swelled legs, ankles, [he] can't bend and lift things, can't walk.” AR at 207. See also AR at 515 (testimony) (“I was having problems with my feet. It started getting swollen and also and then it started going up into my back.”).

         The Administration denied Plaintiff's claims initially and upon reconsideration, and he requested a de novo hearing before an administrative law judge. AR at 85-98. ALJ Ann Farris held an evidentiary hearing on December 18, 2009. AR at 45-61. On March 9, 2010, she issued an unfavorable decision, finding that Plaintiff “has not been under a disability within the meaning of the Social Security Act from February 25, 2008, through the date of [her] decision.” AR at 65-79. Plaintiff filed a “Request for Review of Hearing Decision/Order” on March 19, 2010. AR at 122. On November 30, 2010, the Appeals Council remanded the case to ALJ Farris for further analysis, and a supplemental hearing was held on December 15, 2011. AR at 25-44, 80-84, 148. After that hearing, ALJ Farris again issued an unfavorable decision on April 5, 2012. AR at 9-24. Plaintiff then again requested Appeals Council review on May 17, 2012. AR at 7. This time, however, the Council denied review on November 6, 2013, rendering ALJ Farris's decision the final decision of the Commissioner. See AR at 1-4; Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003).

         Plaintiff appealed ALJ Farris's decision to this Court on January 6, 2014. AR at 594-596. Chief District Judge Armijo, acting on the Proposed Findings and Recommended Disposition of Chief Magistrate Judge Molzen, reversed ALJ Farris's findings and remanded the case for further proceedings by the Commissioner on June 29, 2015. See AR at 608-624. The Appeals Council subsequently remanded the case “to an Administrative Law Judge for further proceedings consistent with the order of the court” on October 19, 2015. AR at 629-632. The Appeals Council also determined that the case would be remanded to a different ALJ. AR at 632.

         Meanwhile, Plaintiff filed his claim for supplemental security income under Title XVI of the Act as well as a second claim for disability insurance benefits under Title II of the Act on December 6, 2013, with a protective filing date of December 2, 2013. See AR at 863-870. The Administration issued a favorable decision on Plaintiff's Title XVI application, finding Plaintiff to be disabled as of December 2, 2013, for the purposes of that title. See AR at 581. However, it denied benefits for the period prior to that date. See Id. It also denied Plaintiff's second application for Title II benefits both initially and upon reconsideration. AR at 567-568, 592, 635-642.

         The Appeals Council recognized that Plaintiff's first and second applications for Title II benefits were duplicative, and directed the newly assigned ALJ to “consolidate the claim files, create a single electronic record, and issue a new decision on the consolidated claims[.]” AR at 629. The Appeals Council further directed the new ALJ to examine the period prior to December 2, 2013, for the purposes of Plaintiff's Title XVI claim. Id.

         A third de novo hearing was held before ALJ Pardo (“the ALJ”) on April 26, 2016. See AR at 505-566. Ultimately, the ALJ issued an unfavorable decision on June 2, 2016. AR at 481-504. The Appeals Council did not assume jurisdiction over the case, and so ALJ Pardo's decision became the final decision of the Commissioner. See 20 C.F.R. §§ 404.984(d), 416.1484(d). This Court now has jurisdiction to review the decision pursuant to 42 U.S.C. § 405(g) and 20 C.F.R. § 422.210(a).

         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) 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). The Commissioner must use a five-step sequential evaluation process to determine eligibility for benefits. 20 C.F.R. §§ 404.1520(a)(4) 416.920(a)(4).[2]

         At Step One of the sequential evaluation process, the ALJ found that Plaintiff has not engaged in substantial gainful activity since February 25, 2008, his alleged onset date. AR at 490. At Step Two, he determined that Plaintiff has the following severe impairments: “arthritis, gout, kidney failure, and fibromyalgia[.]” AR at 490. At Step Three, the ALJ concluded that Plaintiff's impairments, individually and in combination, do not meet or medically equal the regulatory “listings.” AR at 491.

         When a plaintiff does not meet a listed impairment, the ALJ must determine her residual functional capacity (“RFC”). 20 C.F.R. §§ 404.1520(e), 416.920(e). “RFC is not the least an individual can do despite his or her limitations or restrictions, but the most.” SSR 96-8p, 1996 WL 374184, at *1; see 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). In this case, the ALJ determined that Plaintiff retains the RFC to

perform light work (lift 20 pounds occasionally, stand/walk for six hours in an eight-hour workday and sit for six hours in an eight-hour workday) as defined in 20 CFR 404.1567(b) and 416.967(b) except he can never kneel, crouch, crawl or climb ladders, ropes or scaffolds. He can occasionally stoop and climb ramps or stairs. The claimant must avoid all exposure to extreme heat. Time off task can be accommodated by normal breaks.

AR at 491.

         Employing this RFC at Steps Four and Five, and relying on the testimony of a Vocational Expert, the ALJ determined that Plaintiff is unable to perform his past relevant work as a cook and roofer. AR at 494. However, the ALJ found that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform despite his limitations. AR at 495. Specifically, the ALJ determined that Plaintiff retains the functional capacity to work as housekeeper and line attendant. AR at 495. Accordingly, the ALJ determined that Plaintiff is not disabled as a matter of law and denied benefits under Title II from February 25, 2008, through the date of his decision, and under Title XVI for the period of February 25, 2008 through December 2, 2013. AR at 496.

         III. Legal Standards

         This Court “review[s] the Commissioner's decision to determine whether the factual findings are supported by substantial evidence and whether the correct legal standards were applied.” Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (quoting Mays v. Colvin, 739 F.3d 569, 571 (10th Cir. 2014)). A deficiency in either area is grounds for remand. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. . . . 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.” Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004) (quoted authority omitted). The Court must “‘meticulously examine the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met.'” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (quoting Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007)). However, the Court “cannot reweigh the evidence or substitute [its] judgment for that of the [Commissioner].” Hargis v. Sullivan, 945 F.2d 1482, 1486 (10th Cir. 1991). Rather, where the Court “can follow the adjudicator's reasoning in conducting [its] review, and can determine that correct legal standards have been applied, merely technical omissions in the ALJ's reasoning do not dictate reversal.” Keyes-Zachary, 695 F.3d at 1166.

         IV. Analysis

         Plaintiff appeals the ALJ's decision on two grounds. See Doc. 18. First, he argues that the ALJ improperly rejected the opinion of Elizabeth Etherton, CNP. Id. at 1. Second, he argues that the ALJ's “RFC is not based on substantial evidence because he failed to account for Mr. Valdez's functional limitations stemming from pain and other symptoms.” Id.

         A) Weight Assigned to Ms. Etherton's Opinion

         Elizabeth Etherton, CNP, treated Plaintiff “approximately 12 times between February 2011 through November 2013.” Doc. 18 at 19 (citing AR at 464-71, 1056-89). On February 8, 2012, Ms. Etherton wrote a letter on Plaintiff's behalf - the opinion that is at issue here. AR at 480. In this letter, Ms. Etherton opined that Plaintiff “suffers from severe chronic inflammatory arthritis which resembles rheumatoid arthritis, but has been diagnosed as severe tophaceous gout and confirmed by characteristic swelling, deformities, elevated uric acid, sodium urate crystals on examination and changes in radiographs.” AR at 480. Ms. Etherton stated that Plaintiff “continues to have synovial thickening in his wrists, MCP joints, knees and ankles.” AR at 480. As a result, Ms. Etherton opined that Plaintiff is “completely disabled for all forms of work[.]” AR at 480. Specifically, Ms. Etherton opined that Plaintiff

can only stand for less than an hour continuously and not more than 1 hour during the 8 hour day. The patient can sit for 1 hour continuously, and 2 hours in an 8 hour day. The patient cannot perform repetitive motions with the upper extremities or lower extremities due to arthritis. Due to the arthritis, the patient can occasionally lift less than 10 pounds, but cannot due (sic) this frequently. Stand and walking are impaired, and the patient can perform these less than 1 hours. The patient can never climb, occasionally balance, occasionally stoop, never crouch, never kneel, and occasionally crawl. The patient is impaired by forceful reaching, handling, pushing/pulling, but is not severely impaired in feeling, memory, speaking or seeing. Due to arthritis and weakness in the legs, heights, moving machinery, temperature extremes, dust, fumes, humidity and vibration are ...

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