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Trujillo v. Berryhill

United States District Court, D. New Mexico

March 2, 2018

TIMMY TRUJILLO, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          ORDER

          THE HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Plaintiff Timmy Trujillo's (“Plaintiff's”) “Motion to Reverse and Remand for Payment of Benefits, or in the Alternative, for a Rehearing, With Supporting Memorandum” (“Motion”), filed on May 15, 2017. ECF No. 20. The Commissioner responded on July 13, 2017. ECF No. 22. Plaintiff filed his Reply on August 1, 2017. ECF No. 23. Having meticulously reviewed the entire record and the parties' briefing, 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. BACKGROUND

         Plaintiff was born on May 7, 1965. Administrative R. (“AR”) 20. Plaintiff attended high school through the eleventh grade, and also attended art school for eighteen months. AR 20, 37. Plaintiff previously did construction work and worked in a warehouse. AR 80-84, 121. Plaintiff filed an application for Supplemental Security Income (“SSI”) on December 10, 2010, alleging a disability onset date of May 1, 2010. AR 112. The Social Security Administration (“the SSA”) denied Plaintiff's claim on January 11, 2011, and again upon reconsideration on February 23, 2011. AR 112. Plaintiff then requested a hearing, which was held in front of Administrative Law Judge (“ALJ”) Ben Willner on July 17, 2012. AR 112. Plaintiff testified at the hearing, as did Leslie J. White, a vocational expert (“VE”). AR 112. Plaintiff was represented by counsel. AR 112.

         On March 6, 2013, ALJ Willner issued his decision that Plaintiff was not disabled from May 1, 2010, through the date of his decision. AR 122. Plaintiff subsequently asked the SSA's Appeals Council (“AC”) to review ALJ Willner's decision, and on August 6, 2014, the AC vacated ALJ Willner's decision and remanded the case to a different ALJ. AR 128-130.

         The next ALJ, Michelle K. Lindsay, held a hearing on January 26, 2015, at which Plaintiff testified. AR 11. A different VE, Pamela A. Bowman, also testified. AR 11. Plaintiff was again represented by an attorney during the hearing. AR 11. To comply with the AC's directive that the next ALJ must obtain additional evidence concerning Plaintiff's organic mental impairment, ALJ Lindsay referred Plaintiff for a consultative psychological evaluation, which ALJ Lindsay considered in rendering her decision.[1] AR 11.

         On May 19, 2015, ALJ Lindsay found that Plaintiff was not disabled from the date he filed his application[2], December 10, 2010, through the date of her decision. AR 21-22. Plaintiff then requested that the AC review ALJ Lindsay's decision, a request the AC denied on August 25, 2016. AR 1-4. As a consequence, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. § 422.210(a) (2017). Plaintiff timely filed his appeal in this Court on September 22, 2016. ECF No. 1.

         II. PLAINTIFF'S CLAIMS

         Plaintiff argues that the residual functional capacity (“RFC”) that ALJ Lindsay determined was based upon an improper weighing of evidence. Pl.'s Mot. 12, ECF No. 20. Specifically, Plaintiff asserts that the ALJ did not properly evaluate the opinions of Dr. Harry Burger, D.O., Dr. John Owen, Ph.D., and Certified Family Nurse Practitioner (“CFNP”) Susette Eaves. Id. at 12-19. Second, Plaintiff argues that ALJ Lindsay improperly found Plaintiff to be only partially credible. Id. at 19-21. Third, Plaintiff contends that ALJ Lindsay did not resolve conflicts between the VE's testimony and the Dictionary of Occupational Titles (“DOT”). Id. at 22-25. Had the ALJ done so, Plaintiff argues, two of the three jobs identified by the VE would have been eliminated. Id.

         III. APPLICABLE LAW

         A. Standard of Review

         When the Appeals Council denies a claimant's request for review, the ALJ's decision becomes 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 reviews “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) (2016). 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'x 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 or her 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[4]

         At step one, ALJ Lindsay determined that Plaintiff had not engaged in substantial gainful activity since December 10, 2010, the application date[5]. AR 13. At step two, she found that Plaintiff had the following severe impairments: moderate left ventricular hypertrophy; history of chronic heart failure and acute kidney failure; chronic kidney disease with normal creatinine levels; hypertension; obesity; obstructive sleep apnea; adjustment disorder with mixed anxiety and depressed mood; and mild neuro-cognitive disorder. AR 13. ALJ Lindsay also considered Plaintiff's allegations of bumps in his fingers, arthritis, and problems gripping with his left hand, but concluded that the alleged impairments were not medically determinable, and thus not severe. AR 13.

         At step three, ALJ Lindsay determined that 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 13-14.

         At step four, ALJ Lindsay determined Plaintiff's RFC as follows:

I find that [Plaintiff] has the residual functional capacity to perform light work as defined in [20 C.F.R. § 416.967(b)] including the ability to lift and carry up to 20 pounds occasionally and 10 pounds frequently; push and pull 20 pounds occasionally and 10 pounds frequently; stand and/or walk at least 6 hours during 8 hours; and sit at least 6 hours during 8 hours. He is further limited in that he should never climb ladders, ropes, or scaffolds; must avoid unprotected heights; is limited to understanding, remembering, and carrying out only simple instructions; is able to maintain attention and concentration to perform only simple tasks for two hours at a time without requiring redirection to task; requires work involving no more than occasional change in the routine work setting; can have only occasional contact with the general public; and interaction with co-workers should be incidental to the work performed.

AR 16. To determine Plaintiff's RFC, ALJ Lindsay evaluated Plaintiff's credibility and reviewed medical evidence in the record. AR 16-20. ALJ Lindsay concluded that while Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms, ” Plaintiff was only partially credible because his “statements concerning the intensity, persistence and limiting effects of these symptoms [were] not entirely credible[.]” AR 17.

         ALJ Lindsay also considered opinions from consultative examiner Dr. Burger, consultative psychologist Dr. Owen, CFNP Eaves, and non-examining state agency medical consultants Dr. Janice Kando, M.D., Dr. Allen Gelinas, M.D., and Dr. Lawrence Kuo, M.D. AR 17-20, 393-94, 420-21, 431. In addition, ALJ Lindsay reviewed medical records from First Choice Community Healthcare, University of New Mexico Hospital, Presbyterian Hospital, and Cardiac Care Consultants of NM, P.C. AR 16-20. ALJ Lindsay also reviewed a third party functional report from Plaintiff's sister Suzanne Trujillo-Bergey, Plaintiff's testimony during the hearing, and the VE's testimony during the hearing. AR 15-20. Although ALJ Lindsay gave significant weight to Ms. Trujillo-Bergey's statements, she noted that her statements were “not completely consistent with the evidence as a whole.” AR 19. The issues Plaintiff raises on appeal concern only the opinions of Dr. Burger, Dr. Owen, and CFNP Eaves, and consequently the Court will review only those opinions in detail.

         Dr. Harry Burger, D.O.

         Dr. Burger evaluated Plaintiff on August 28, 2010, as a consultative examiner. AR 385. Although the ALJ did not assign a specific weight to Dr. Burger's opinion, the Court infers that the ALJ nonetheless adopted the opinion because she referred to the following in her decision: Dr. Burger's observations regarding Plaintiff's hands and his grip strength [AR 13]; Plaintiff's statements to Dr. Burger that he can dress, wash, and feed himself without assistance [AR 18]; Plaintiff's statements to Dr. Burger that he can stand and sit without difficulty, can walk a mile or two if he had to, can lift thirty-five pounds, and can help around the house with sweeping, vacuuming, cooking, trash, dishes and laundry [AR 19]; and Dr. Burger's findings during his physical examination that Plaintiff was obese, ambulated normally, got on and off the exam table and out of a chair without difficulty, could walk on his heels and toes, and could squat [AR 20]. The only medical record Dr. Burger reviewed was one two-page note from Plaintiff's appointment at Presbyterian Heart Group on June 2, 2009. AR 385. Dr. Burger also reviewed Plaintiff's two-year history of hypertension, noting that while Plaintiff had some degree of congestive heart failure, according to the note from Presbyterian Heart Group, his congestive heart failure had improved. AR 386.

         During the physical examination, Dr. Burger noted that Plaintiff's blood pressure was 133/140, and that Plaintiff stated that he had not taken his blood pressure medicines for two days because he had run out of them. AR 387. Dr. Burger observed that Plaintiff was not in acute distress and that he ambulated normally. AR 387. Dr. Burger noted normal range of motion in Plaintiff's elbows, forearms, wrists, shoulders, cervical spine, lumbar spine, hips, knees, ...


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