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Kenney v. Berryhill

United States District Court, D. New Mexico

January 8, 2018

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 to Agency for a Rehearing, with Supporting Memorandum (Doc. 20), filed on August 24, 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 a final judgment. See Docs. 4, 8, 9. Having considered the record, submissions of counsel, and the relevant law, the Court finds Plaintiff's motion is well-taken and will be granted in part.

         I. Procedural History

         Ms. Charie Lynn Kenney (“Plaintiff”) filed an application for Supplemental Security Income (“SSI”) with the Social Security Administration on October 18, 2012. Administrative Record[2] (“AR”) at 170, 316-27. She alleged a disability onset date of June 1, 2009 (AR at 170, 228-29); however, the Social Security Administration will pay SSI benefits, at the earliest, the month after the month the application was filed, or November 2012. See 20 C.F.R. § 416.335. Disability Determination Services (“DDS”) found Plaintiff was not disabled on its initial review (AR at 227-39), and upon reconsideration (AR at 240-54). Plaintiff requested and received a hearing before Administrative Law Judge (“ALJ”) John Rolph on May 19, 2015. AR at 282-86. Following the de novo hearing (AR at 191-226), ALJ Rolph issued an unfavorable decision on July 27, 2015 (AR at 170-83). The Appeals Council denied Plaintiff's subsequent request for review (AR at 1-4), making the ALJ's decision the final decision of the Commissioner. See Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). Plaintiff then filed suit in this Court. Doc. 1.

         II. Applicable Law and the ALJ's Findings

An applicant seeking disability benefits must establish that she cannot “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. § 416.905(a). The Commissioner determines eligibility for benefits through a five-step sequential evaluation process. 20 C.F.R. § 416.920(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).

         At the first four steps, the applicant must 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 applicant's residual functional capacity (“RFC”), she is unable to perform her past relevant work. 20 C.F.R § 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 [an applicant] retain[s] in spite of [her] medical impairments.” 20 C.F.R. § 404, Subpt. P, App. 1 § 12.00(B); 20 C.F.R. § 404.1545(a)(1)). If the applicant meets “the burden of establishing a prima facie case of disability[, ] . . . the burden of proof shifts to the Commissioner at the final step to show that the [applicant] 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. § 416.920(a)(4)(v).

         At Step One of the sequential evaluation process, ALJ Rolph found that Plaintiff “has not engaged in substantial gainful activity since October 18, 2012, the application date.” AR at 172 (citing 20 C.F.R. §§ 416.971-976). At Step Two, the ALJ concluded that Plaintiff's severe impairments are “degenerative disc disease (bqck [sic] and neck problems) with peripheral neuropathy, chronic obstructive pulmonary disease (COPD)/ asthma, post-traumatic stress disorder (PTSD), depressive disorder, anxiety disorder, and pain disorder with psychological factors.” AR at 172 (citing 20 C.F.R. § 416.920(c)).

         At Step Three, the ALJ determined that Plaintiff “does not have an impairment or combination of impairments that meet or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.” AR at 173 (citing 20 C.F.R §§ 416.920(d), 416.925, 416.926). In making this determination, the ALJ considered listings 1.04 (Disorders of the Spine), 3.02 (Chronic Pulmonary Insufficiency), and 12.04 and 12.06 (mental impairments). AR at 173-74.

         ALJ Rolph next defined Plaintiff's RFC, and in doing so “considered all [Plaintiff's] symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence . . . .” AR at 175 (citing 20 C.F.R. § 416.929; SSR 96-4p, 1996 WL 374187 (July 2, 1996); SSR 96-7p, 1996 WL 374186 (July 2, 1996)). The ALJ found that while Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms[, ]” Plaintiff's “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible . . . .” AR at 176. The ALJ considered the evidence of record, including Plaintiff's physical impairment medical records from October 2012 to June 2015, Plaintiff's mental impairment medical records from September 2012 to February 2015, records from consultative examinations with John Owen, Ph.D., Myron Watkins, M.D., Karine Lancaster, M.D., Elizabeth Chiang, M.D., and Julian Lev, Ph.D., medical source statements from treating provider Kathryn Fraser, M.D., Plaintiff's global assessment of functioning scores, a function report from Plaintiff's mother, and Plaintiff's testimony. AR at 176- 81. Ultimately, the ALJ determined that Plaintiff's RFC includes that Plaintiff can

lift, carry, push and pull 20 pounds occasionally and 10 pounds frequently in light work as defined in 20 C.F.R [§] 416.967(b). She is able to stand, walk and sit for six hours each in an eight-hour day, for 45 to 60 minutes at one time. She can occasionally reach overhead with the bilateral upper extremities, and can frequently engage in gross and fine manipulation with the same. She may occasionally climb ramps and stairs, balance, stop, kneel, crouch and crawl but never climb ladders, ropes or scaffolds. She may frequently engage in activities requiring flexion and extension of the neck. She must avoid more than occasional contact with extreme cold, vibration and irritants such as fumes, odors, dust, gases, chemicals and poorly ventilated spaces. She must avoid all exposure to hazards such as dangerous machinery and unsecured heights. She is fully capable of learning, remembering and performing simple, routine and repetitive work tasks, involving simple work instructions, which are performed in a routine, predictable and low stress environment, defined as one in which there is regular pace, few work place changes and no “over the shoulder” supervision. She can attend and concentrate for two hours at a time with normal breaks. She may have occasional and superficial contact with supervisors and coworkers, but she should only have minimal contact with the public.

AR at 175.

         At Step Four of the sequential evaluation process, the ALJ noted that Plaintiff “has no past relevant work.” AR at 181 (citing 20 C.F.R. § 416.965). Finally, at Step Five, the ALJ determined that, “[c]onsidering [Plaintiff's] age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform.” AR at 182 (citing 20 C.F.R. §§ 416.969, 416.969(a)). The ALJ made this determination based on testimony of a vocational expert (“VE”). AR at 182. The VE testified that a person with Plaintiff's “age, education, work experience, and residual functional capacity . . . would be able to perform the requirements of representative occupations such as a hand presser . . .; press operator . . .; and egg processor . . . .” AR at 182. Ultimately, ALJ Rolph determined that Plaintiff “has not been under a disability, as defined in the Social Security Act, since October 18, 2012, the date the application was filed.” AR at 182 (citing 20 C.F.R. § 416.920(g)).

         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)). A deficiency in either area is grounds for remand. See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161, 1166 (10th Cir. 2012) (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). “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)).

         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 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).

         IV. Discussion

         Plaintiff asserts two grounds for remand: (1) the ALJ did not properly consider the opinion evidence from examining psychologist John Owen, Ph.D. and treating psychiatrist Kathryn Fraser, M.D., and (2) the ALJ failed at step five to resolve conflicts between Plaintiff's RFC and information contained in the Dictionary of Occupational Titles (“DOT”).

         A. Substantial evidence supports the weight ALJ Rolph gave to Dr. Owen's and Dr. Fraser's opinions.

         Plaintiff first complains that the ALJ failed to properly consider the opinion evidence from examining psychologist John Owen, Ph.D. and treating psychiatrist Kathryn Fraser, M.D. Doc. 20 at 4. To determine an applicant's disability, the ALJ must consider the medical opinions in the case record. 20 C.F.R. § 416.927(b). The ALJ decides the weight to give a medical opinion by determining if the opinion is well-supported and is consistent with other substantial evidence in the record. See Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). The weight given also depends on whether the opinion is that of an examining, non-examining, or treating source. See 20 C.F.R. § 416.927(c).

         The ALJ must provide “good reason in [the] notice of determination or decision for the weight . . .” he assigned to an opinion. Watkins, 350 F.3d at 1300 (citations omitted). “The ALJ's decision [must] be ‘sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight.'” Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007) (quoting Watkins, 305 F.3d at 1300). The court cannot review the ALJ's determination if he does not provide an explanation for rejecting medical evidence. Drapeau v. Massanari, 255 F.3d 1211, 1214 (10th Cir. 2001); see also Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (remanding for the ALJ to explain his decision on credibility because the ALJ just listed conclusions and not reasons for those conclusions).

         Here, ALJ Rolph gave great weight to the opinions of both John Owen, Ph.D., a consultative examiner, and Kathryn Fraser, M.D., a treating provider. AR at 179, 180. However, the AJL discounted specific portions of both opinions (see AR at 179, 180), which Plaintiff now challenges. The ALJ explained his determination of weight for both opinions, and his conclusions are supported by substantial evidence, such that remand is not required on this ground, as discussed below.

         1. John Owen, Ph.D., ...

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