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Young v. Berryhill

United States District Court, D. New Mexico

February 13, 2018

JOHN T. YOUNG, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          ORDER

          GREGORY J. FOURATT, UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Plaintiff's “Motion to Reverse or Alternatively Remand for a Rehearing, With Supporting Memorandum” (“Motion”), filed on May 1, 2017. ECF No. 16. The Commissioner responded on June 20, 2017. ECF No. 18. Plaintiff replied on July 14, 2017. ECF No. 19. Having meticulously reviewed the entire record and the parties' pleadings, the Court finds that Plaintiff's Motion is not well taken and that the Administrative Law Judge's (“ALJ's”) ruling should be AFFIRMED. Therefore, and for the further reasons articulated below, the Court will DENY Plaintiff's Motion.

         I. FACTUAL AND PROCEDURAL BACKGROUND

          Plaintiff's background has been well documented through the two previous Orders issued by U.S. Magistrate Judge William P. Lynch. See Order, Mar. 19, 2012, at 3-11, ECF No. 27, 11-CV-478-WPL; Order, Mar. 18, 2015, at 4-11, ECF No. 24, 14-CV-346-WPL.[1] In short, Plaintiff was born on June 3, 1971, and attended school until the eleventh grade. Administrative R. (“AR”) 1047-48. Plaintiff attempted to obtain his General Equivalency Diploma (“GED”), but was unable to do so. AR 375. He worked in various janitorial, landscaping, and stocking jobs from 1993 to 2004, and then worked from 2005 through June 2008 as a janitor and supervisor. AR 187. In 2007, Plaintiff began a decade-long treatment relationship with the University of New Mexico Health Sciences Center, where he consistently sought treatment for his alleged chronic low back pain and pain radiating down his legs, even as his treatment was sometimes complicated by drug seeking behavior. AR 1453.

         Plaintiff filed an application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) on March 27, 2008, claiming disability based on “back and leg problems.” AR 100-15, 244. Plaintiff initially claimed disability starting in 2007, but amended his alleged onset date to July 1, 2008, during his first hearing before an ALJ. AR 26-27. The Social Security Administration (“SSA”) denied Plaintiff's application initially on June 3, 2008, and upon reconsideration on October 17, 2008. AR 52, 58. Following a hearing on November 6, 2009 [AR 23-47], ALJ George Reyes found that Plaintiff was not disabled within the meaning of the Social Security Act (“the Act”). AR 10-19. The SSA's Appeals Council declined review. AR 1-5. Plaintiff sought judicial review of the decision, and on March 19, 2012, Judge Lynch remanded the case based on a step five error. AR 406-29.

         Plaintiff received a new administrative hearing before ALJ Ann Farris on September 25, 2013. AR 358-89. ALJ Farris, like ALJ Reyes before her, found that Plaintiff was not disabled for purposes of the Act. AR 337-51. Plaintiff again sought judicial review of the agency's final decision, and on March 18, 2015, Judge Lynch remanded a second time for further proceedings. AR 1504-18. On this occasion, Judge Lynch remanded for ALJ Farris's failure to support a medical evaluation with substantial evidence, and for failing to properly evaluate a separate medical opinion under SSA standards. AR 1516-18.

         Plaintiff attended his most recent administrative hearing before ALJ Farris along with his attorney, Michael Armstrong, on March 30, 2016. AR 1469-92. Vocational expert (“VE”) Karen Provine also appeared and testified at the hearing. AR 1488-91. On May 17, 2016, ALJ Farris reiterated her finding that Plaintiff was not disabled for purposes of the Act. AR 1446-61.

         Plaintiff filed an appeal with this Court on September 14, 2016. ECF No. 1.[2]

         II. PLAINTIFF'S CLAIMS

         Plaintiff advances three grounds for relief. First, he argues that ALJ Farris violated the mandate rule by failing to comply with Judge Lynch's instructions. Pl.'s Mot. 16-18, ECF No. 16. Second, he contends that ALJ Farris erred by failing to properly evaluate the medical opinion evidence of consultative examiner Dr. John Vigil, M.D. Id. at 18-22. Third, he alleges that ALJ Farris ignored the findings of non-examining consulting psychologist Carol Mohney, Ph.D. Id. at 24-26.

         III. APPLICABLE LAW

         A. Standard of Review

         Because Plaintiff elected not to seek review by the Appeals Council, the ALJ's decision became the final decision of the agency.[3] The Court's review of that final agency decision is both factual and legal. See Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008) (citing Hamilton v. Sec'y of Health & Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992)) (“The standard of review in a social security appeal is whether the correct legal standards were applied and whether the decision is supported by substantial evidence.”).

         The factual findings at the administrative level are conclusive “if supported by substantial evidence.” 42 U.S.C. § 405(g) (2012). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). An ALJ's 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, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214. Substantial evidence does not, however, require a preponderance of the evidence. See 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)). A court should meticulously review the entire record but should neither re-weigh the evidence nor substitute its judgment for that of the Commissioner. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214.

         As for the review of the ALJ's legal decisions, the Court examines “whether the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases.” Lax, 489 F.3d at 1084. The Court may reverse and remand if the ALJ failed “to apply the correct legal standards, or to show . . . that she has done so.” Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996).

         Ultimately, if substantial evidence supports the ALJ's findings and the correct legal standards were applied, the Commissioner's decision stands and the plaintiff is not entitled to relief. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214, Doyal, 331 F.3d at 760.

         B. Sequential Evaluation Process

         The SSA has devised a five-step sequential evaluation process to determine disability. See Barnhart v. Thomas, 540 U.S. 20, 24 (2003); 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (2017). At the first three steps, the ALJ considers the claimant's current work activity, the medical severity of the claimant's impairments, and the requirements of the Listing of Impairments. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4), & Pt. 404, Subpt. P, App. 1. If a claimant's impairments are not equal to one of those in the Listing of Impairments, then the ALJ proceeds to the first of three phases of step four and determines the claimant's residual functional capacity (“RFC”). See Winfrey, 92 F.3d at 1023; 20 C.F.R. §§ 404.1520(e), 416.920(e). In phase two, the ALJ determines the physical and mental demands of the claimant's past relevant work, and in the third phase, compares the claimant's RFC with the functional requirements of his past relevant work to determine if the claimant is still capable of performing his past work. See Winfrey, 92 F.3d at 1023; 20 C.F.R. §§ 404.1520(f), 416.920(f). If a claimant is not prevented from performing his past work, then he is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). The claimant bears the burden of proof on the question of disability for the first four steps, and then the burden of proof shifts to the Commissioner at step five. See Bowen v. Yuckert, 482 U.S. 137, 146 (1987); Talbot v. Heckler, 814 F.2d 1456, 1460 (10th Cir. 1987).

         If the claimant cannot return to his past work, then the Commissioner bears the burden at the fifth step of showing that the claimant is nonetheless capable of performing other jobs existing in significant numbers in the national economy. See Thomas, 540 U.S. at 24-25; see also Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988) (discussing the five-step sequential evaluation process in detail).

         IV. THE ALJ'S DECISION

         ALJ Farris issued her second decision in Plaintiff's case on May 17, 2016.[4] AR 1444. At step one, she found that Plaintiff had not engaged in substantial gainful activity since the alleged disability onset date of June 30, 2008. AR 1448. At step two, ALJ Farris found Plaintiff to suffer from the following severe impairments: (1) degenerative disc disease of the lumbar spine; (2) lumbar radiculopathy; (3) an affective disorder; (4) an anxiety disorder; and (5) polysubstance abuse. AR 1449.

         At step three, ALJ Farris found that none of Plaintiff's impairments, alone or in combination, met or medically equaled the severity of a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 1450-52. ALJ Farris began her analysis with Plaintiff's spinal impairments, and found that Plaintiff's symptoms did not meet or equal the criteria of Listing 1.04 for disorders of the spine. AR 1450.[5] To reach that determination, she relied on the opinions of the non-examining consulting physicians who “reached the same conclusion” as she did, along with Plaintiff's long history of physical examinations. AR 1450. By ALJ Farris's account, Plaintiff's examinations generally showed stable spinal findings, “including positive facet loading signs with diminished range of motion and lateral flexion and point tenderness at the base of the lumbar spine.” AR 1450. ALJ Farris reasoned that Plaintiff's examinations “have not consistently shown any difficulty with ambulation, positive straight leg raising, or motor loss (atrophy with associated muscle weakness) accompanied by sensory or reflex loss, as required by section 1.04.” AR 1450. These findings aligned with Plaintiff's most recent examination, where “[t]here was no mention of any gait abnormality or motor or sensory deficit, ” and ultimately led ALJ Farris to find that Plaintiff did not qualify under Listing 1.04. AR 1450.

         ALJ Farris then turned to Plaintiff's mental impairments, which she scrutinized under Listings 12.04 (affective disorders), 12.06 (anxiety related disorders), and 12.09[6] (substance addiction disorders). AR 1450. She found that the paragraph B criteria of Listings 12.04 and 12.06[7] were not met “[b]ecause [Plaintiff's] mental impairments do not cause at least two ‘marked' limitations or one ‘marked' limitation and ‘repeated' episodes of decompensation, each of extended duration.” AR 1451.

         ALJ Farris found that Plaintiff “has mild restriction in activities of daily living; moderate difficulties in social functioning; mild difficulties with regard to concentration, persistence or pace; and no episodes of compensation.” AR 1450. In support of her findings, ALJ Farris provided a summary of Plaintiff's testimony, including his statements that he: (1) lives in a shack with no utilities; (2) has a driver's license but no car; (3) has problems bathing because he lacks water; (4) receives food stamps and gives them to his friend to go grocery shopping; (5) does not do anything for fun; (6) cannot be around people; (7) sleeps poorly; and (8) is always angry. AR 1451. She then highlighted “evidence of record” which she believed contradicted Plaintiff's claims. See AR 1451. To that end, ALJ Farris marshaled facts from throughout the record, with particular focus on the fact that Plaintiff first reported his depression in 2011, after his girlfriend of five years left him. To ALJ Farris, this harmonized with the fact that Plaintiff's last job was in management, “which suggests at least adequate people skills.” AR 1451. Moreover, ALJ Farris felt that Plaintiff's ability to carry on social relationships was bolstered by Plaintiff's 2013 admission that he had partied with a friend newly returned from Iraq. AR 1451.

         The second prong of ALJ Farris's reasoning derived from the consultative psychological examinations of Susan Flynn, Ph.D. and Dr. Brent Hager, M.D. ALJ Farris observed that Plaintiff presented in 2012 to Dr. Flynn with good eye contact, a friendly attitude, the ability to attend to the examination, and the ability to follow directions. Plaintiff's thought processes at that time were organized and logical, their content appeared to be normal, and their “quality was mostly appropriate but he related feelings and moderate symptoms of anxiety and depression.” AR 1451. Plaintiff's consultation with Dr. Hager in 2014 produced similar findings, with Dr. Hager opining that Plaintiff's affect was “congruent, anxious dysthymic with range to tearfulness, dysphoria, and irritability.” AR 1451. Plaintiff demonstrated appropriate humor and intact associations, and displayed no psychotic features. And, although Plaintiff's remote autobiographical recall, fund of knowledge, insight, and judgment were all rated as poor, Dr. Hager did note that Plaintiff showed “adequate conversational orientation, attention, concentration, recent autobiographical recall, and language.” AR 1451.

         Considered in tandem, these observations led ALJ Farris to find that the paragraph B criteria were not satisfied. ALJ Farris also considered whether the paragraph C criteria of Listings 12.04 and 12.06 were satisfied, and found that “the evidence fails to establish the presence of the ‘paragraph C' criteria.” AR 1451.

         Because none of Plaintiff's impairments satisfied an applicable Listing, ALJ Farris proceeded to step four and assessed Plaintiff's RFC. AR 1452-59. “After careful consideration of the entire record, ” ALJ Farris determined that “[Plaintiff] has the residual functional capacity to perform sedentary work” as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a) “except that he can occasionally climb stairs; never climb ladders, ropes or scaffolds; occasionally balance, stoop, and kneel; never crouch or crawl; and have no more than occasional superficial[ ] interaction with the public and coworkers.” AR 1452.

         To develop Plaintiff's RFC, ALJ Farris relied on two principal grounds. First, she rendered an adverse credibility finding against Plaintiff, opining that his “medically determinable impairments might be expected to cause some of the alleged symptoms; however, [Plaintiff's] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record.” AR 1453. She supported this credibility finding with a comprehensive comparison between Plaintiff's alleged symptoms, their relationship to his substance abuse problem, and the conflict of these symptoms with numerous presentations before medical professionals. AR 1453-57. Furthermore, ALJ Farris documented the interplay between these factors through a meticulous review of Plaintiff's medical documentation from 2007 all the way to 2016. AR 1453-57. ALJ Farris's well-reasoned credibility finding has drawn no objection from Plaintiff.

         Along with Plaintiff's adverse credibility finding, ALJ Farris relied on the medical opinions of record to craft Plaintiff's RFC. Chief among these was the opinion of Dr. Harvey Mallory, M.D., a physician with the University of New Mexico Hospital's (“UNMH's”) Pain Management Clinic. Dr. Mallory began treating Plaintiff for spinal pain in February 2008. See AR 272, 704. ALJ Farris reviewed a letter from Dr. Mallory in 2008, wherein he opined that Plaintiff could no longer work as a janitorial supervisor because the employment involved significant amounts of heavy lifting, bending, stooping, and carrying of heavy objects. AR 1458. ALJ Farris highlighted, however, that the letter “did not set forth specific limitations and did not rule out the possibility of [Plaintiff] performing less strenuous work.” AR 1458.

         ALJ Farris also evaluated a July 23, 2008, request for family leave propounded by Dr. Mallory on Plaintiff's behalf. She observed that the request mentioned Plaintiff's chronic condition being present from 2004 to the time of the request, and that the request referred to Plaintiff as being “‘presently incapacitated' for ‘duration unknown.'” AR 1458 (quoting AR 171). ALJ Farris took exception with these conclusions, and rebutted them by noting that Plaintiff “continued to work full time as a cleaning service supervisor from 2004 to 2008, [and thus, ] clearly had not been incapacitated since 2004.” AR 1458. ALJ Farris further emphasized that Dr. Mallory had completed a medical leave form for Plaintiff, rather than a disability form, which she interpreted as “suggesting that Dr. Mallory expected [Plaintiff] to improve with treatment and return to work.” AR 1458.

         By examining later treatment notes of 2009 and 2010, ALJ Farris believed Dr. Mallory to be “encourag[ing] [Plaintiff's] activities toward improving his employment situation, ” which Dr. Mallory hoped would be in a field “that require[d] less physical activity.” AR 1458 (quotation omitted). ALJ Farris ultimately accorded great weight to Dr. Mallory's opinion, but only to the extent Dr. Mallory believed Plaintiff “would not be able to return to his past strenuous work as a cleaning service supervisor (which also required cleaning offices), but that he was capable of performing other, less strenuous work.” AR 1458.

         ALJ Farris next turned to the opinion of Dr. John Vigil, M.D., who performed a consultative examination of Plaintiff on September 12, 2013, at the request of Plaintiff's attorney. In sum, Dr. Vigil found that Plaintiff “is totally and completely disabled secondary to his chronic pain and co-morbid psychiatric conditions.” AR 1255. ALJ Farris discounted Dr. Vigil's opinion, and the rejection of his opinion forms the greater part of the instant appeal. Accordingly, Dr. Vigil's opinion will be reviewed in detail below. See infra pp. 13-23.

         ALJ Farris also assigned “limited weight” to the opinion of Dr. Susan Flynn, Ph.D., who performed a consultative psychological examination of Plaintiff on August 1, 2012. AR 1449, 1459. At that evaluation, Dr. Flynn diagnosed Plaintiff with a “major depressive disorder, recurrent, moderate, and a generalized anxiety disorder.” AR 1449. Plaintiff related to Dr. Flynn “that he became depressed in 2011 when his girlfriend of five years left him.” AR 1451. Plaintiff also reported that he smoked marijuana for his pain, “and when he doesn't smoke he can get upset.” AR 1048. Dr. Flynn documented that Plaintiff's affect seemed “to be constricted with a fatigued energy level, ” and that his “quality is mostly appropriate but he relates feelings and moderate symptoms of anxiety and depression.” AR 1049. Nevertheless, Dr. Flynn observed that Plaintiff maintained good eye contact and attention span, and was both friendly and able to follow directions. His thought processes appeared organized, logical, and normal, and he denied hallucination and thoughts of suicide. AR 1451. Furthermore, Dr. Flynn opined that Plaintiff's “impulse control seems intact, ” and although his “insight seems mildly impaired, ” she believed that his “reasoning appears to be at the concrete level.” AR 1049. Ultimately, while ALJ Farris discounted Dr. Flynn's opinion with little explanation, she nonetheless described the examination as “thorough and competent.” AR 1446.

         ALJ Farris then collectively weighed the opinions of the non-examining consultative physicians in Plaintiff's case, without mentioning any by name, and accorded them “great weight” to the extent they found that Plaintiff “retains the ability to perform the exertional requirements of sedentary work, with appropriate postural limitations.” AR 1459. She adopted the same anonymous, collective approach toward the non-examining consultative psychologists -including Dr. Carol Mohney, Ph.D. - assigning their opinions “significant weight” with “regard to the nature and severity of [Plaintiff's] mental impairments and functioning.” AR 1459. She reflected that “[t]he consultants found that [Plaintiff's] mental impairments were severe, but that he had mild restriction[s] in activities of daily living; moderate difficulties in social functioning; mild difficulties with regard to concentration, persistence or pace; and no episodes of decompensation, under the ‘B criteria.'” AR 1459. ALJ Farris explained that she “accept[ed] those findings, ” but stressed that she did “not accept the limitation to simple work.” AR 1459. The substantiation she provided for discounting the limitation to simple work forms the second component of the instant appeal, and along with Dr. Vigil's opinion, will be scrutinized in detail below. See infra pp. 23-30.

         In the second phase of step four, ALJ Farris identified past relevant work as a janitorial supervisor, commercial/institutional cleaner, and tow truck operator. AR 1460. Then, at the third and final phase of step four, ALJ Farris found that Plaintiff's RFC ruled out his return to any of these lines of work. AR 1460. Accordingly, ALJ Farris proceeded to step five. AR 1460. Based on Plaintiff's age, education, work experience, and RFC, ALJ Farris found that Plaintiff could perform other jobs that exist in significant numbers in the national economy. AR 1460-61. As described by the VE, these jobs included stuffer, DOT # 731.685-014, addresser, DOT # 209.587-010, and document preparer, DOT # 249.587-018. AR 1461. Finally, ALJ Farris concluded that Plaintiff had not been under a disability, as defined by the Act, during the relevant time period and she denied the claim. AR 1461.

         V. ANALYSIS

         Plaintiff is no stranger to judicial review. The Court appreciates and is cognizant of his decade-long battle to secure benefits from the SSA and the multiple interim successes he has already achieved on appeal. But here, on his third appeal to the U.S. District Court, Plaintiff presents only the following three allegations of error: (1) that ALJ Farris violated the mandate rule; (2) that ALJ Farris failed to properly evaluate the opinion of Dr. Vigil; and (3) that ALJ Farris ignored the findings of Dr. Mohney. See Pl.'s Mot. 16-26. And upon closer scrutiny, these three issues present as one larger, interrelated argument. In fact, by analyzing the merits of Plaintiff's first claim - which essentially asserts that ALJ Farris violated the mandate rule by erring in the manner described in claims two and three - the merits of his second and third claims are necessarily exposed. And, unfortunately for Plaintiff, the latter two allegations are as bereft of support as the first. Thus, although it does so reluctantly, the Court must conclude that Plaintiff has failed to identify reversible error in ALJ Farris's 2016 decision. The Court's reasoning follows below.

         A. ALJ Farris Complied With the Mandate Rule and Supported Her Finding on Dr. Vigil's Opinion With Substantial Evidence

         Plaintiff's first claim is best understood in context. On March 18, 2015, Judge Lynch issued a final order in Plaintiff's second judicial appeal. See Order, Mar. 18, 2015, ECF No. 24, 14-CV-346-WPL (also located at ¶ 1504-17). Therein, Judge Lynch reversed and remanded ALJ Farris's decision of December 12, 2013 [see AR 337-51], finding that ALJ Farris had “erred at step four by failing to properly evaluate Dr. Mohney's opinion and failing to support with substantial evidence her treatment of Dr. Vigil's opinion.” AR 1517. Judge Lynch also ordered that “[o]n remand, the ALJ will address all medical source opinions under the guidelines in 20 C.F.R. §§ 404.1527(c), 416.927(c), and any applicable SSRs.” AR 1517. The order ended with two final instructions:

(1) I remand this case to the ALJ at step four to examine the record and compare Dr. Vigil's opinion to the findings ...

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