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Sears v. Berryhill

United States District Court, D. New Mexico

February 21, 2018

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


         THIS MATTER is before the Court on Plaintiff's Motion to Reverse or Remand Administrative Agency Decision and Memorandum Brief (Doc. 16) filed on August 22, 2017. Having carefully reviewed the parties' positions and the material portions of the record, the Court recommends that Plaintiff's motion be denied and the decision of the Agency affirmed.[1]

         I. Procedural History

         Ms. Tina Marie Sears (Plaintiff) filed an application with the Social Security Administration for Disability Insurance Benefits (DIB) under Title II of the Social Security Act on March 26, 2015. Administrative Record[2] (AR) at 98. Plaintiff alleged a disability onset date of December 17, 2013.[3] See AR at 95-96, 99. Because Plaintiff's earning record showed that she had “acquired sufficient quarters of coverage to remain insured through March 31, 2015[, ]” Plaintiff was required to “establish disability on or before that date in order to be entitled to a period of disability and [DIB].” AR at 15.

         Disability Determination Services determined that Plaintiff was not disabled both initially (AR at 98-109) and on reconsideration (AR at 110-21). Plaintiff requested a hearing with an Administrative Law Judge (ALJ) on the merits of her application. AR at 131. Both Plaintiff and a vocational expert (VE) testified during the de novo hearing. See AR at 32-97. ALJ Lillian Richter issued an unfavorable decision on November 4, 2016. AR at 12-31. Plaintiff submitted a Request for Review of Hearing Decision/Order to the Appeals Council (AR at 6), which the Council denied on February 28, 2017 (AR at 1-5). Consequently, the ALJ's decision became the final decision of the Commissioner. Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003).

         II. Applicable Law and the ALJ's Findings

         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); see also 20 C.F.R. § 404.1505(a). The Commissioner must use a five-step sequential evaluation process to determine eligibility for benefits. 20 C.F.R. § 404.1520(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).

         The claimant has the burden at the first four steps of the process to 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 claimant's residual functional capacity (RFC), she is unable to perform her past relevant work. 20 C.F.R § 404.1520(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 [a claimant] retain[s] in spite of her medical impairments.” Ryan v. Colvin, Civ. 15-0740 KBM, 2016 WL 8230660, at *2 (D.N.M. Sept. 29, 2016) (citing 20 C.F.R. § 404, Subpt. P, App. 1 § 12.00(B); 20 C.F.R. § 404.1545(a)(1)). If the claimant meets “the burden of establishing a prima facie case of disability[, ] . . . the burden of proof shifts to the Commissioner at step five to show that” the claimant 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. § 404.1520(a)(4)(v).

         At Step One of the process, ALJ Richter found that Plaintiff “did not engage in substantial gainful activity during the period from her alleged onset date of December 17, 2013[, ] through her date last insured of March 31, 2015.” AR at 18 (citing 20 C.F.R. §§ 404.1571-1576). At Step Two, the ALJ concluded that “[t]hrough the date last insured, [Plaintiff] had the following severe impairments: degenerative disc disease of the lumbar/cervical spine, chronic pain syndrome, COPD, patellofemoral chondromalacia of the right knee, lateral condyle contusion of the right knee, obesity, depression, vertigo, and insomnia.” AR at 18 (citing 20 C.F.R. § 404.1520(c)). ALJ Richter also noted the following nonsevere impairments: “hypertension, hypothyroid, Reynaud's disease, right-shoulder pain[, ] and gout.” AR at 18.

         At Step Three, the ALJ found that “[t]hrough the date last insured, [Plaintiff] did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 [C.F.R.] Part 404, Subpart P, Appendix 1.” AR at 18 (citing 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). At Step Four, the ALJ considered the evidence of record, including records from David Liscow, M.D., South Haven Family Physicians, Gila Regional Medical Center, Joanne Cardinal, M.D., Michelle Pahl, M.D., Sravanthi Reddy, M.D., Roberto Carreon, M.D., Eliza Cain, M.A., LPCC, function reports from Plaintiff and her husband, and testimony from Plaintiff. AR at 20-24.

         ALJ Richter found that “[t]hrough the date last insured, [Plaintiff] was unable to perform any past relevant work.” AR at 24 (citing 20 C.F.R. § 404.1565). Ultimately, the ALJ found that through the date last insured, Plaintiff

has the [RFC] to occasionally lift 20 pounds and . . . frequently lift or carry up to 10 pounds. [She] is able to stand and walk for approximately six hours in an eight-hour workday and sit for six hours in an eight-hour workday. She can occasionally stoop, kneel, crouch, crawl and climb ramps or stairs but can never balance or climb ladders, ropes or scaffolds. [She] cannot be exposed to unprotected heights, moving mechanical parts, dust, odors, fumes or pulmonary irritants. She is limited to work performed primarily at the work station in a routine environment with few changes in the routine work setting. She can have occasional interaction with supervisors, coworkers and members of the public. . . . [T]his is a limited range of work contained in the light exertional level as defined by 20 [C.F.R. §§] 404.1567 [and] 416.967 and SSR 83-10.

AR at 20, 24. The ALJ determined that, through the date last insured, Plaintiff could have performed the jobs of Hand Presser and Conveyor-line Bakery Worker. AR at 24-25. Relying on testimony of the VE, the ALJ concluded that “considering [Plaintiff's] age, education, work experience, and [RFC], [Plaintiff] was capable of making a successful adjustment to other work that existed in significant numbers in the national economy.” AR at 25. Ultimately, ALJ Richter found that Plaintiff “was not under a disability, as defined in the Social Security Act, at any time from December 17, 2013, the alleged onset date, through March 31, 2015, the date last insured.” AR at 25 (citing 20 C.F.R. § 404.1520(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) (internal citation omitted)). A deficiency in either area is grounds for remand. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161, 1166 (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 (internal quotation omitted)). “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) (internal quotation omitted) (alteration in original)). 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 quotation marks and 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 [C]ourt would justifiably have made a different choice had the matter been before it de novo.'” Id. (quoting Zoltanski, 372 F.3d at 1200 (internal quotation omitted)).

         IV. Discussion

         Plaintiff contends that the following three issues require reversal of the ALJ's decision: (1) the ALJ erroneously believed that Plaintiff's right knee pain arose only after the date last insured; (2) “the ALJ ignored, misrepresented, or minimized significant medical evidence” that she rejected; and (3) the ALJ failed to obtain an explanation from the VE regarding the listed occupations. Doc. 16 at 1-2.

         A. The ALJ adequately accounted for the limiting effects of Plaintiff's right knee pain.

         1. The ALJ's error regarding Plaintiff's right knee pain.

         Plaintiff alleged a variety of impairments on her application for benefits, but the only impairment relevant to this issue involves Plaintiff's right knee pain. Plaintiff originally alleged an onset date of September 1, 2012. AR at 99. During the hearing with ALJ Richter, however, Plaintiff asked to amend the onset date to December 17, 2013, and the ALJ granted her request. Doc. 16 at 12; AR at 15, 95-96. Plaintiff attributes the amendment to her knee injury, which she first reported in early 2014 after a pre-Christmas 2013 fall. Doc. 16 at 12-13; AR at 95-96.

         ALJ Richter outlined the evidence of Plaintiff's right knee pain throughout her decision. At the conclusion of her decision, however, ALJ Richter made the following statement:

Regarding knee pain, the record contains a specific time period of onset, December 2013, which falls after the date last insured. Prior to that, x-rays and ultrasounds of the lower-right extremity were normal. . . . However, because there is a slim possibility that the bone-marrow edema identified on a later MRI existed into the insured period, the [ALJ] has also limited [Plaintiff's] stooping, kneeling, crouching and crawling.

AR at 24. Thus, the ALJ misstated the onset date of Plaintiff's right knee pain as occurring “after the date last insured.” AR at 24 (emphasis added).

         Plaintiff argues that the ALJ's misstatement has made judicial review impossible and rendered the resulting RFC invalid. Doc. 16 at 12-14. The Commissioner contends that a thorough reading of ALJ Richter's entire opinion demonstrates that she adequately examined the relevant evidence, and the RFC correctly reflects Plaintiff's right knee limitations. Doc. 23 at 10-12. The Court agrees with the Commissioner - it is clear from the opinion that ALJ Richter examined the relevant evidence regarding Plaintiff's knee pain. Moreover, Plaintiff has not shown that the ALJ's error has resulted in any prejudice, because Plaintiff has not demonstrated that the ALJ should have included further limitations due to her right knee pain. See, e.g., Keyes-Zachary, 695 F.3d at 1162-63 (finding that an “alleged error in the ALJ's decision did not . . . prejudice [plaintiff], because giving greater weight to [a physician's] opinion would not have helped her”).

         2. Record evidence of Plaintiff's right knee pain.

         The Court has located five relevant medical records, including four office visits and one MRI, that are relevant to Plaintiff's knee pain for the dates in question: (1) the initial January 3, 2014 appointment with Joanne Cardinal, M.D., to assess the knee injury after Plaintiff's pre-Christmas injury (AR at 394-96); (2) a January 8, 2014 appointment with Sravanthi Reddy, M.D. at Southwest Bone & Joint Institute (AR at 433-35); (3) the January 10, 2014 MRI with Tan M. Nguyen, M.D. (AR at 436); (4) a January 13, 2014 follow-up appointment after the MRI with Roberto Carreon, M.D. (AR at 437); and (5) a June 20, 2014 appointment with Michelle T. Pahl, M.D. (AR at 399-402). Notably, ALJ Richter examined each one of these medical records in her opinion. See AR at 22-23.

         At her January 3, 2014 appointment, Dr. Cardinal's notes reflect that Plaintiff's “right knee locked up on her before Christmas” resulting in a “jarring impact to [her] knee . . . .” AR at 394; see also AR at 22. Plaintiff complained of pain, swelling, locking and catching, and a giving way sensation. AR at 394; see also AR at 22. Dr. Cardinal noted “no dependent edema[, ]”a “limited range of motion[, ] tenderness[, ] and swelling, ” but was “unable to check [her] ligaments due to pain.” AR at 394; see also AR at 22. Dr. Cardinal observed that Plaintiff was “leaning on [her] left side” and was “almost manic [and] demanding about her knee and the possibility her knee pain is from her back even though she has had a recent knee injury with swelling [and] effusion.” AR at 394-95; see also AR at 22. Dr. Cardinal advised Plaintiff to obtain an MRI. AR at 395.

         Plaintiff next visited Sravanthi Reddy, M.D. on January 8, 2014, for her knee pain. AR at 433-35. Plaintiff complained of popping, catching, and pain with walking. AR at 433. On examining Plaintiff's right leg, Dr. Reddy noted no atrophy and no effusion in the right knee, but observed “tenderness to palpation in the lateral joint line.” AR at 434; see also AR at 22. Dr. Reddy assessed a negative Lachman's test, a knee range of motion of 3-120 degrees of flexion, a positive McMurray's test laterally, and a negative straight leg raising test. AR at 434; see also AR at 23. Dr. Reddy noted that “[t]esting for ligamentous laxity with valgus and varus stress testing [was] negative.” AR at 434. The examination notes reflect that an x-ray (AP/Lat) of the right knee showed normal findings. AR at 434; see also AR at 22. Dr. Reddy suspected that Plaintiff may have sustained a left lateral meniscus tear and ordered an MRI. AR at 434; see also AR at 23.

         Plaintiff underwent an MRI of her right knee on January 10, 2014, with Tan M. Nguyen, M.D. AR at 436; see also AR at 23. Dr. Nguyen found “[b]one marrow edema centered in the lateral femoral condyle most compatible with contusion” but “[n]o evidence of [a] meniscal tear or ligamentous injury[, ]” and patellar chondrosis. AR at 436; see also AR at 23.

         On January 13, 2014, Plaintiff attended a follow-up appointment with Roberto Carreon, M.D. at Southwest Bone & Joint Institute. AR at 437; see also AR at 23. Dr. Carreon noted Plaintiff's report “that the pain that she was having at the knee has now improved a great deal.” AR at 437. Plaintiff did complain of some “pain mostly on the medial side . . . [, ] but it is improved.” AR at 437. Dr. Carreon observed intact motor function bilaterally, “some tenderness to palpation along the lateral side of the knee . . . at the condyle region” and “extending all the way down to the tibia . . . .” AR at 437. Plaintiff's “range of motion is from 0 degrees of extension to about 120 degrees of flexion.” AR at 437. Plaintiff had a negative Lachman's test and “some mild generalized edema on the right knee.” AR at 437. Dr. Carreon assessed “a contusion of the lateral condyle” and advised Plaintiff “that it could produce some long-term problems if this collapses and leaves her with some irregularity of the joint line . . . .” AR at 437. Dr. Carreon advised Plaintiff to follow up with x-rays, continued use of a knee brace, ice, elevation, and anti-inflammatory medication while advancing her activities slowly. AR at 437. Dr. Carreon noted that he would see Plaintiff in six weeks to follow up and repeat x-rays of her right knee, but the only other record of a visit relevant to Plaintiff's right knee is with Dr. Michelle Pahl on June 20, 2014, more than 22 weeks past this visit with Dr. Carreon.[4] See AR at 399.

         Finally, that visit with Dr. Pahl, M.D. was to establish care, obtain a medication refill, and have a spot on her chest examined. AR at 399-402. Dr. Pahl noted that Plaintiff takes Diclofenac as an anti-inflammatory for her knee as needed. AR at 399. Dr. Pahl advised Plaintiff that she was unwilling to prescribe her narcotic medication for any chronic pain. AR at 401. There are no notes from this appointment to show that Plaintiff specifically complained of knee pain. See AR at 399-402.

         3. The Court finds no legal error in the ALJ's decision regardingPlaintif ...

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