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Rawles v. Berryhill

United States District Court, D. New Mexico

March 2, 2018

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



         THIS MATTER is before the Court on Plaintiff's “Motion to Reverse and Remand for Payment of Benefits, or in the Alternative, for Rehearing, With Supporting Memorandum” (“Motion”), filed on July 17, 2017. ECF No. 20. The Commissioner responded on September 14, 2017. ECF No. 22. Plaintiff replied on October 2, 2017. ECF No. 23. 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. BACKGROUND

         Plaintiff was born on August 4, 1961, in Clovis, New Mexico. Administrative R. (“AR”) 70, 412. Plaintiff grew up in a family of fourteen and completed the ninth grade. AR 233, 412. Although she did not obtain a high school diploma, Plaintiff later studied for and received her certification as a certified nurse assistant (“CNA”). AR 48. Plaintiff worked as a CNA until she quit working in 2009. AR 233.

         On August 24, 2009, Plaintiff filed her first application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”), alleging a disability onset date of August 21, 2009. AR 90. The Social Security Administration (“SSA”) denied Plaintiff's application at the initial and reconsideration stages, see AR 90, and following a de novo hearing, an ALJ also denied Plaintiff's claim. AR 90-99. Plaintiff's first claim concluded when the SSA Appeals Council declined review. AR 106-08. Plaintiff elected not to pursue judicial review of that claim.

         Plaintiff filed a subsequent application for DIB and SSI on March 6, 2013. AR 217-19. That claim, which forms the basis of the instant appeal, alleged disability beginning on November 16, 2012, based on post-traumatic stress disorder (“PTSD”), chronic obstructive pulmonary disorder (“COPD”), gastroesophageal reflux disease (“GERD”), rhinitis, anemia, weak ankles and knees, hypothyroidism, depression, anxiety, plantar fasciitis, diverticulitis, headaches, and panic attacks.[1] The SSA denied Plaintiff's application initially on June 27, 2013, and upon reconsideration on November 12, 2013. AR 128, 147. At her request, Plaintiff received a de novo hearing before ALJ Larry Miller on May 19, 2015, at which Plaintiff, her attorney, and vocational expert (“VE”) Ann Neulicht appeared. AR 42-86. On July 6, 2015, the ALJ issued his decision, finding that Plaintiff was not disabled within the meaning of the Social Security Act (“the Act”). AR 23-37. Plaintiff appealed to the SSA Appeals Council, but it declined review on February 17, 2016. AR 1-3. 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 her appeal with this Court on November 23, 2016. ECF No. 1.


         Plaintiff advances five grounds for relief. First, she argues that the ALJ improperly evaluated the opinion of examining consultative psychologist Dr. Jerome Albert, Ph.D. Pl.'s Mot. 9-11, ECF No. 20. Second, she alleges that the ALJ impermissibly disregarded moderate limitations identified by two non-examining consultative psychologists. Id. at 11-12. Third, she contends that the ALJ's RFC assessment is flawed and that the ALJ erroneously evaluated the opinion of examining consulting physician Dr. Everett Bolz, M.D. while crafting the RFC. Id. at 12-17. Fourth, Plaintiff claims the ALJ erred by failing to conduct a function-by-function assessment of her physical capabilities. Id. at 17-18. Finally, she asserts that the ALJ's credibility finding is contrary to the evidence and to established law. Id. at 18-20.


         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.[2] 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 [he] 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. 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 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 her 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 she 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).


         The ALJ issued his decision on July 6, 2015. See AR 20. At step one, he found that Plaintiff had not engaged in substantial gainful activity since the alleged disability onset date of November 16, 2012. AR 25. At step two, the ALJ found Plaintiff to suffer the following severe impairments: (1) obesity, (2) COPD, (3) plantar fasciitis, (4) osteoarthritis of the knee, (5) hypothyroidism, (6) GERD, (7) diverticulitis, (8) anxiety disorder, (9) depression, and (10) PTSD. AR 25.

         At step three, the ALJ 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 25-28. The ALJ declared at the outset that he had “considered the impact of [Plaintiff's] obesity, as discussed in Social Security Ruling 02-01p . . . [and] the impact on limitation of function including [Plaintiff's] ability to perform routine movement and necessary physical activity within the work environment.” AR 26. See Social Security Ruling (“SSR”) 02-01p, 2002 WL 34686281 (Sep. 12, 2002). The ALJ then proceeded sequentially through Plaintiff's physical impairments, finding first that Plaintiff's COPD did not meet Listing 3.03, as her symptoms were neither sufficiently chronic nor of sufficient frequency to satisfy the Listing. The ALJ also found that Plaintiff's diverticulitis failed to satisfy Listing 5.06, as it had not “caused obstruction of stenotic areas requiring hospitalization” or resulted in anemia, abdominal masses, perineal disease, weight loss, or the need for supplemental nutrition by gastrostomy or catheter. AR 26. The ALJ similarly found that Plaintiff's GERD failed to qualify under Listing 5.03, as it had not resulted in stricture, stenosis, blockage of the esophagus, or weight loss as required by the Listing. The ALJ considered Plaintiff's plantar fasciitis and osteoarthritis of the knee and found neither to qualify as presumptively disabling, as Plaintiff had not “lost the ability to ambulate effectively or perform fine and gross movements” as required by Listings 1.02 and 1.03. AR 26. Lastly, the ALJ found that Plaintiff's hypothyroidism had not resulted in any of complications necessary to qualify under Listing 9.00. AR 26.

         The ALJ then turned to Plaintiff's mental impairments, which he considered under Listing 12.04 (affective disorders) and 12.06 (anxiety-related disorders). AR 53. The ALJ determined the paragraph B criteria of these Listings[3] were not met “[b]ecause the claimant'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 27. He then explained his reasoning regarding paragraph B's four subparts.

         First, the ALJ evaluated Plaintiff's activities of daily living and found her to have only a mild restriction. The ALJ observed that Plaintiff had been able to “maintain her daily care, ” including feeding, bathing, and clothing herself. AR 27. Additionally, he reported that Plaintiff cooked, drove occasionally, went grocery shopping, vacuumed, did laundry and folded clothes. And although she sat in the back to avoid a panic attack, Plaintiff was able to go to church. AR 27.

         Second, the ALJ found Plaintiff to have moderate difficulties in social functioning. In support of this finding, he recounted Plaintiff's testimony “that she was anxious around people, ” paranoid, distrustful, and had no friends. AR 27. The ALJ further cited to Plaintiff sitting in the back of church to avoid others and the fact she did not go grocery shopping alone. AR 27.

         Third, as to Plaintiff's concentration, persistence, and pace, the ALJ found Plaintiff had moderate difficulties. To buttress the finding, the ALJ turned to Plaintiff's testimony that she had panic attacks that engendered shortness of breath and feelings of dread. This testimony corresponded to Plaintiff's clinical presentation, where she “was observed with some symptoms of anxiety, ” and “rambled [and] twisted her hair as she spoke.” AR 27. But, “[d]espite these difficulties, ” the ALJ emphasized that Plaintiff “admitted resolution with Ativan and Xanax, and she appeared with fair attention and concentration.” AR 27.

         Lastly, regarding episodes of decompensation, the ALJ found that Plaintiff “has experienced no episodes of decompensation, which have been of extended duration.” AR 27. This corresponded with his finding that the paragraph C criteria of the relevant listings were not met. AR 27.

         Because none of Plaintiff's impairments satisfied an applicable Listing, the ALJ moved on to the first phase of step four and assessed Plaintiff's RFC. AR 28-35. “After careful consideration of the entire record, ” the ALJ determined that Plaintiff:

[H]ad the residual functional capacity to perform light work as defined in [20 C.F.R. § 404.1567(b)]. However, she requires a sit/stand option which allows her to change from sitting to standing every 45 minutes; [Plaintiff] can do no climbing and frequent balancing, stooping, crouching, kneeling, and crawling; [Plaintiff] cannot work at heights or around dangerous machinery; she cannot work in environments with concentrated exposure to respiratory irritants such as dust, fumes, or smoke; [Plaintiff] has had a decrease in the ability to concentrate on and attend to work tasks to the extent that she can only do simple, routine, repetitive tasks (i.e., can apply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form and deal with problems involving several concrete variables in or from standardized situations). [Plaintiff] can frequently interact with co-workers and supervisors and never interact with the public. Furthermore, [Plaintiff] is unable to work at jobs requiring complex decision making, constant changes, or dealing with crisis situations.

AR 28.

         To develop Plaintiff's RFC, the ALJ relied on three separate grounds. First, the ALJ rendered an adverse credibility finding against Plaintiff, opining that Plaintiff's “statements concerning the intensity, persistence[, ] and limiting effects of [her] symptoms are not entirely credible or disabling for the reasons explained in this decision.” AR 29. The ALJ supported this finding with a five-page comprehensive comparison between Plaintiff's testimony and the medical evidence, which concluded with a paragraph summarizing his findings. AR 28-33. In that summary paragraph, the ALJ observed that while Plaintiff alleged disability “due to joint pain, COPD, heel pain, anxiety, depression, and PTSD . . . the evidence does not support disabling limitations.” AR 32. She explained that Plaintiff's “depression was treated with Lexapro and Lorazepam and her anxiety was treated with Ativan and Xanax, ” and as a result, while Plaintiff “often appeared sad . . . she continued to function.” AR 32. Furthermore, even while discussing with mental health professionals difficult episodes from her past, Plaintiff “exhibited fair attention and concentration” and “coherent and focused thinking.” AR 32.

         The ALJ's summary communicated similar reservations about Plaintiff's physical impairments. As to Plaintiff's plantar fasciitis, the ALJ opined that Plaintiff sought the same injections for the condition “every few months” as they seemed to resolve her pain “for some period of time.” AR 32. The ALJ also believed that Plaintiff's “breathing problems were mostly attributed to her weight and not COPD.” AR 33. She reasoned that Plaintiff had never been hospitalized for the COPD, that Plaintiff's oxygen saturation remained within acceptable ranges, and that the bronchitis and respiratory infections which she was prone to were likely traceable to a sensitivity to pulmonary irritants. AR 33. The ALJ also stressed that Plaintiff failed to complete a pulmonary function test in May 2013 “due to lack of effort” and her “failure to follow directions.” AR 33. Regarding Plaintiff's knee pain, the ALJ stated that Plaintiff had good range of motion in both knees, full strength, could squat halfway without help, and reported improved knee pain after being prescribed Ultram and Medrol. Further, Plaintiff's hypothyroidism, GERD, and diverticulitis were all treated with medication “without complication.” AR 33. The ALJ noted that, “throughout this time, ” Plaintiff “remained able to cook, do some chores, and drive” along with going to church and the store. AR 33. These facts ultimately led the ALJ to conclude that “[t]he evidence supports some limitation in functioning but it does [not] preclude all ability to work.” AR 33.

         Along with Plaintiff's adverse credibility finding, the ALJ also relied on the medical opinions in the record to determine Plaintiff's RFC. The ALJ began with the nonexamining consultative physicians, and accorded their opinions limited weight. AR 34. He recounted that at the initial stage, Dr. Stephen Levin, M.D., concluded that Plaintiff “could do medium level work with lifting and carrying 50 pounds occasionally and 25 pounds frequently, and standing/walking and sitting six hours in an eight-hour day.” AR 33. At reconsideration, Dr. Hari Kuncha, M.D., found the same. AR 33. The ALJ discounted these opinions, as he believed they did “not acknowledge [Plaintiff's] joint pain, the effect of obesity on her joints, her intermittent heel pain, or her respiratory sensitivities.” AR 34.

         The ALJ then evaluated the opinions of the nonexamining consultative psychologists. He observed that at the initial stage, Dr. James Mendelson, Ph.D., found that Plaintiff “had no restriction in activities of daily living, mild difficulties in maintaining social functioning, moderate difficulties in maintaining concentration, persistence, or pace, and no repeated episodes of decompensation of extended duration.” AR 33. Dr. Mendelson further reasoned that Plaintiff's “concentration and persistence were sufficient to permit the completion of simple repetitive work[-]like tasks within her medical parameters, ” but cautioned that she “would benefit from a work[-]like environment that de-emphasized social interactions and provided ...

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