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Gomez v. Berryhill

United States District Court, D. New Mexico

June 13, 2018

DENNETTE MIERA GOMEZ,, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security,, Defendant.

          MEMORANDUM OPINION AND ORDER [1]

          KIRTAN KHALSA, UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on the Social Security Administrative Record (Doc. 11) filed June 29, 2017, in support of Plaintiff Dennette Miera Gomez's (“Plaintiff”) Complaint (Doc. 1) seeking review of the decision of Defendant Nancy A. Berryhill, Acting Commissioner of the Social Security Administration, (“Defendant” or “Commissioner”) denying Plaintiff's claim for Title II disability insurance benefits and Title XVI supplemental security income benefits. On September 8, 2017, Plaintiff filed her Motion to Reverse and Remand For A Rehearing With Supporting Memorandum (“Motion”). (Doc. 18.) The Commissioner filed a Response in opposition on October 26, 2017 (Doc. 20), and Plaintiff filed a Reply on November 13, 2017. (Doc. 22.) Having been granted leave of the Court, the Commissioner filed a Surreply on November 28, 2017. (Doc. 24.) The Court has jurisdiction to review the Commissioner's final decision under 42 U.S.C. §§ 405(g) and 1383(c). Having meticulously reviewed the entire record and the applicable law and being fully advised in the premises, the Court finds the Motion is well taken and is GRANTED.

         I. Background and Procedural Record

         Claimant Dennette Miera Gomez (“Ms. Gomez”) alleges that she became disabled on July 1, 2011, at the age of thirty because of migraines, posttraumatic stress syndrome (“PTSD”), anxiety, and depression. (Tr. 208, 211.[2]) Ms. Gomez completed the twelfth grade in 1999, and has worked as a gas station cashier, home healthcare provider, and call center representative. (Tr. 212, 213, 226-30.) Ms. Gomez reported she stopped working on July 1, 2011, due to her medical conditions. (Tr. 212.)

         On August 15, 2013, Ms. Gomez filed an application for Social Security Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (the “Act”), 42 U.S.C. § 401 et seq. (Tr. 182-83.) She also filed an application for Supplemental Security Income (“SSI”) under Title XVI of the Act, 42 U.S.C. § 1381 et seq. (Tr. 184-87.) Ms. Gomez's applications were initially denied on October 17, 2013. (Tr. 68-78, 79-89, 90, 91, 120-24.) They were denied again at reconsideration on January 16, 2014. (Tr. 92-103, 104-15, 116, 117, 128-32.) On February 18, 2014, Ms. Gomez requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 134-35.) The ALJ conducted a hearing on June 10, 2015. (Tr. 30-67.) Ms. Gomez appeared in person at the hearing with non-attorney representative John Bishop.[3](Id.) The ALJ took testimony from Ms. Gomez (Tr. 36-60), and an impartial vocational expert (“VE”), Nicole King (Tr. 60-66). On July 15, 2015, ALJ Eric Weiss issued an unfavorable decision. (Tr. 12-25.) On November 30, 2016, the Appeals Council issued its decision denying Ms. Gomez's request for review and upholding the ALJ's final decision. (Tr. 1-3.) On February 2, 2017, Ms. Gomez timely filed a Complaint seeking judicial review of the Commissioner's final decision. (Doc. 1.)

         II. Applicable Law

         A. Disability Determination Process

         An individual is considered disabled if 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) (pertaining to disability insurance benefits); see also 42 U.S.C. § 1382(a)(3)(A) (pertaining to supplemental security income disability benefits for adult individuals). The Social Security Commissioner has adopted the familiar five-step sequential analysis to determine whether a person satisfies the statutory criteria as follows:

(1) At step one, the ALJ must determine whether the claimant is engaged in “substantial gainful activity.”[4] If the claimant is engaged in substantial gainful activity, she is not disabled regardless of her medical condition.
(2) At step two, the ALJ must determine the severity of the claimed physical or mental impairment(s). If the claimant does not have an impairment(s) or combination of impairments that is severe and meets the duration requirement, she is not disabled.
(3) At step three, the ALJ must determine whether a claimant's impairment(s) meets or equals in severity one of the listings described in Appendix 1 of the regulations and meets the duration requirement. If so, a claimant is presumed disabled.
(4) If, however, the claimant's impairments do not meet or equal in severity one of the listing described in Appendix 1 of the regulations, the ALJ must determine at step four whether the claimant can perform her “past relevant work.” Answering this question involves three phases. Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996). First, the ALJ considers all of the relevant medical and other evidence and determines what is “the most [claimant] can still do despite [her physical and mental] limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). This is called the claimant's residual functional capacity (“RFC”). Id. §§ 404.1545(a)(3), 416.945(a)(3). Second, the ALJ determines the physical and mental demands of claimant's past work. Third, the ALJ determines whether, given claimant's RFC, the claimant is capable of meeting those demands. A claimant who is capable of returning to past relevant work is not disabled.
(5) If the claimant does not have the RFC to perform her past relevant work, the Commissioner, at step five, must show that the claimant is able to perform other work in the national economy, considering the claimant's RFC, age, education, and work experience. If the Commissioner is unable to make that showing, the claimant is deemed disabled. If, however, the Commissioner is able to make the required showing, the claimant is deemed not disabled.

See 20 C.F.R. § 404.1520(a)(4) (disability insurance benefits); 20 C.F.R. § 416.920(a)(4) (supplemental security income disability benefits); Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). The claimant has the initial burden of establishing a disability in the first four steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146, n.5, 107 S.Ct. 2287, 2294, n. 5, 96 L.Ed.2d 119 (1987). The burden shifts to the Commissioner at step five to show that the claimant is capable of performing work in the national economy. Id. A finding that the claimant is disabled or not disabled at any point in the five-step review is conclusive and terminates the analysis. Casias v. Sec'y of Health & Human Serv., 933 F.2d 799, 801 (10th Cir. 1991).

         B. Standard of Review

         This Court must affirm the Commissioner's denial of social security benefits unless (1) the decision is not supported by “substantial evidence” or (2) the ALJ did not apply the proper legal standards in reaching the decision. 42 U.S.C. § 405(g); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); Casias, 933 F.2d at 800-01. In making these determinations, the Court “neither reweigh[s] the evidence nor substitute[s] [its] judgment for that of the agency.'” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008). A decision is based on substantial evidence where it is supported by “relevant evidence . . . a reasonable mind might accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118. A decision “is not based on substantial evidence if it is overwhelmed by other evidence in the record[, ]” Langley, 373 F.3d at 1118, or “constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). The agency decision must “provide this court with a sufficient basis to determine that appropriate legal principles have been followed.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005). Therefore, although an ALJ is not required to discuss every piece of evidence, “the record must demonstrate that the ALJ considered all of the evidence, ” and “the [ALJ's] reasons for finding a claimant not disabled” must be “articulated with sufficient particularity.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996).

         III. Analysis

         The ALJ made his decision that Ms. Gomez was not disabled at step five of the sequential evaluation. (Tr. 23-25.) Specifically, the ALJ determined that Ms. Gomez met the insured status requirements of the Social Security Act through December 31, 2015, and that Ms. Gomez had not engaged in substantial gainful activity since July 1, 2011. (Tr. 17.) He found that Ms. Gomez had the following severe impairments: panic disorder without agoraphobia, depressive disorder not otherwise specified, psychotic disorder not otherwise specified, attention deficit hyperactivity disorder, borderline personality disorder, mood disorder, and posttraumatic stress disorder. (Id.) The ALJ, however, determined that Ms. Gomez's impairments did not meet or equal in severity one the listings described in Appendix 1 of the regulations. (Tr. 18-19.) As a result, the ALJ proceeded to step four and found that Ms. Gomez had the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations:

she can understand, remember and carry out simple instructions and make commensurate work related decisions, but not at a production rate pace. The claimant can deal with routine changes in work setting; maintain concentration, persistence and pace for 2 hours at a time during an 8-hour workday, with normal breaks; and have occasional interaction with supervisors, co-workers and the public.

(Tr. 19.) The ALJ then determined at step five that considering Ms. Gomez's age, education, work experience, and RFC, there were jobs that existed in significant numbers in the national economy that the claimant could perform. (Tr. 24-25.)

         In support of her Motion, Ms. Gomez argues that (1) the ALJ improperly rejected the opinion of treating nurse practitioner Nicholas Farrey; and (2) the ALJ's decision does not include a function-by-function assessment of Ms. Gomez's mental limitations. In her Reply, Ms. Gomez further argues that the ALJ's reference to a “production rate pace” is not a recognized work-related mental limitation.[5] Specifically, Ms. Gomez asserts that the ALJ failed to analyze Nurse Farrey's opinion regarding her ability to appropriately respond to normal work pressure and changes in a routine work setting. (Doc. 18 at 10-12.) She also asserts that the ALJ's mental RFC only addressed the frequency of Ms. Gomez's ability to interact with co-workers, supervisors and the public, i.e., occasionally, but did not address the appropriateness or quality of her interactions. (Id. at 13-16.)

         For the reasons discussed below, the Court finds that the ALJ's reasons for according only some weight to NP Farrey's medical source statements are not supported by substantial evidence, and that the ALJ's mental RFC failed to properly account for Ms. Gomez's limitations in responding appropriately to supervisors, coworkers and the public.

         A. Relevant Medical History

         1. Presbyterian Medical Group

         a. John Guttmann, M.D.

         On December 23, 2010, Ms. Gomez presented to John Guttmann, M.D., of Presbyterian Medical Group with complaints of sinusitis and anxiety. (Tr. 321-22.) Dr. Guttman prescribed medication for sinusitis and counseled Ms. Gomez regarding her anxiety. (Tr. 322.) Ms. Gomez returned on April 28, 2011, with complaints of migraines, allergies, anxiety, and depression. (Tr. 279-84.) Dr. Guttmann assessed, inter alia, panic attacks and prescribed Citalopram and Trazamine. (Tr. 283.) On May 19, 2011, Ms. Gomez saw Dr. Guttman again for ongoing anxiety, sinus problems, and migraines. (Tr. 285-90.) Dr. Guttman assessed panic attacks, counseled Ms. Gomez on her panic attacks and anxiety, and prescribed Trazadone to aid with her sleep. (Tr. 289.) Ms. Gomez returned to see Dr. Guttmann next on January 28, 2013, for, inter alia, anxiety. (Tr. 291-300.) Ms. Gomez reported that she was “irritable with road rage, impatient, yells a lot, [and] very frustrated with little things.” She stated that she had problems controlling her anger, and was facing battery and other criminal charges that were serious. (Tr. 298.) Dr. Guttmann assessed depressive disorder and referred Ms. Gomez for mental health care. (Tr. 298-99.) Dr. Guttmann prescribed Paxil. (Tr. 299.)

         b. Francisco P. Sanchez, Ph.D.

         On February 27, 2013, Ms. Gomez presented to Francisco P. Sanchez, Ph.D., also with Presbyterian Medical Group, on referral from Dr. Guttmann. (Tr. 301-07.) Ms. Gomez presented with complaints of depression. (Tr. 303.) Ms. Gomez reported a history of abuse and neglect, auditory hallucinations, and ADHD. (Tr. 305.) Ms. Gomez stated she got in many fights while in school and was kicked out of ninth grade for fighting. (Tr. 304-05.) She stated she was treated for anger management at Desert Hills and Hogares, and was prescribed Ritalin and Wellbutrin. (Tr. 303, 305.) She stopped anger management counseling and taking those prescribed medications at age 14. (Tr. 303.) Ms. Gomez stated she has trouble getting along with people, does not have much patience, and that lately things were getting worse. (Id.) She reported being on Paxil for a month, but her anxiety was worse. (Id.) Finally, she told Dr. Sanchez that she was taking Trazadone for sleep, but that she had trouble falling asleep because her mind was racing. (Id.) Dr. Sanchez performed a mental status exam and indicated Axis I diagnoses of Depressive Disorder and R/O Bipolar Disorder, and assessed a GAF score of 62.[6](Tr. 306.) Dr. Sanchez planned to engage in counseling to decrease depressive symptoms and increase mood stability, and to refer Ms. Gomez to a psychiatric provider to be evaluated for appropriate medications. (Id.)

         Ms. Gomez next saw Dr. Sanchez on April 18, 2013. (Tr. 308-13.) She reported that she started a “Seeking Safety Group, ” and would be starting an anger management group, through Partners in Wellness. (Tr. 311.) She stated she stopped taking Paxil because it was making her anxiety worse and caused her heart to race. (Id.) She told Dr. Sanchez that someone had called CYFD on her, but that the investigation had gone well. (Id.) She also told him that her court date for pending battery charges was approaching, that her husband would soon be getting out of jail, and that her five year old son was taking Adderall for ADHD. (Id.) Dr. Sanchez indicated Axis I diagnoses of Depressive Disorder and R/O Bipolar Disorder, and assessed a GAF score of 63.[7] (Tr. 312.) Dr. Sanchez noted that Ms. Gomez was getting counseling and psychiatric help at Partners in Wellness, but that if she did not get a psychiatric appointment by her next appointment, he would refer her to Kaseman for evaluation of medications for possible bipolar disorder. (Id.)

         Ms. Gomez last saw Dr. Sanchez on May 23, 2013. (Tr. 314-18.) Ms. Gomez reported that she remained anxious. (Tr. 317.) She told Dr. Sanchez that her court date resulted in two years of probation. (Id.) Dr. Sanchez facilitated an appointment for Ms. Gomez with a psychiatrist at NM Solutions, and provided her with handouts on anger management and negative cognitions. (Id.) ...


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