United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
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
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 (AR) at 98. Plaintiff
alleged a disability onset date of December 17,
2013. 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.
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).
Applicable Law and the ALJ's Findings
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).
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).
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.
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.
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,
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)).
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)).
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)).
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.
The ALJ adequately accounted for the limiting effects of
Plaintiff's right knee pain.
The ALJ's error regarding Plaintiff's right knee
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.
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).
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”).
Record evidence of Plaintiff's right knee pain.
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.
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.
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.
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.
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. See AR
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.
The Court finds no legal error in the ALJ's decision