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Perea v. Berryhill

United States District Court, D. New Mexico

July 12, 2018

CHRISTINE PEREA,, 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. 16) filed July 7, 2017, in support of Plaintiff Christine Perea'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 XVI supplemental security income benefits. On August 30, 2017, Plaintiff filed her Motion to Reverse or Remand and Memorandum Brief in Support (“Motion”). (Docs. 19, 20.) The Commissioner filed a Response in opposition on November 6, 2017 (Doc. 22), and Plaintiff filed a Reply on November 14, 2017. (Doc. 23.) 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 Christine Perea (“Ms. Perea”) alleges that she became disabled on November 4, 2013, [2] at the age of forty-four because of posttraumatic stress syndrome (“PTSD”), bipolar disorder, arthritis, and back problems. (Tr. 210, 214.[3]) Ms. Perea completed the tenth grade in 2004, and has worked as a variety store cashier, club dancer, restaurant hostess, house cleaner, and gift shop sales associate. (Tr. 215, 221-31, 235-40.) Ms. Perea reported she stopped working on November 22, 2008, due to her medical conditions. (Tr. 214.)

         On November 7, 2013, Ms. Perea filed an application for Supplemental Security Income (“SSI”) under Title XVI of the Act, 42 U.S.C. § 1381 et seq. (Tr. 191-96.) Ms. Perea's application was initially denied on March 12, 2014. (Tr. 66-76, 77, 92-95.) It was denied again at reconsideration on August 8, 2014. (Tr. 78-90, 91, 102-06.) On August 15, 2014, Ms. Perea requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 108-09.) The ALJ conducted a hearing on November 12, 2015. (Tr. 29-65.) Ms. Perea appeared in person at the hearing with attorney representative Barbara Jarvis. (Id.) The ALJ took testimony from Ms. Perea (Tr. 33-58), and an impartial vocational expert (“VE”), Pamela Bowman (Tr. 58-64). On December 17, 2015, ALJ Myriam C. Fernandez Rice issued an unfavorable decision. (Tr. 9-23.) On March 17, 2017, the Appeals Council issued its decision denying Ms. Perea's request for review and upholding the ALJ's final decision. (Tr. 1-6.) On April 3, 2017, Ms. Perea 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 her decision that Ms. Perea was not disabled at step five of the sequential evaluation. (Tr. 22-23.) Specifically, the ALJ determined that Ms. Perea had not engaged in substantial gainful activity since November 4, 2013. (Tr. 14.) She found that Ms. Perea had the following severe impairments: migraine headaches, degenerative disc disease, arthritis, borderline personality disorder, posttraumatic stress disorder, bipolar disorder, depression and alcoholism. (Id.) The ALJ also found that Ms. Perea had nonsevere impairments of hip and knee pain. (Id.) The ALJ determined, however, that Ms. Perea's impairments did not meet or equal in severity one the listings described in Appendix 1 of the regulations. (Tr. 15-17.) As a result, the ALJ proceeded to step four and found that Ms. Perea had the residual functional capacity to perform light work as defined in 20 CFR 416.967(b) except:

the claimant may never climb ladders, ropes or scaffolds; occasional climbing of ramps or stairs; occasional crouching, kneeling or crawling; she must avoid concentrated exposure to moving machinery or exposure to heights; she can maintain, understand and remember simple work instructions with only occasional changes in work setting and only occasional interaction with the public and co-workers.

(Tr. 17-18.) The ALJ then determined at step five that considering Ms. Perea'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. 22-23.)

         In support of her Motion, Ms. Perea argues that (1) the ALJ failed to assign proper weight to the medical source opinions; (2) the ALJ erred in her analysis under the mental Listings of Impairments; and (3) the ALJ failed to meet her burden at step five. (Doc. 20 at 9-20.) For the reasons discussed below, the Court finds that the ALJ failed to properly weigh the medical source opinion evidence and this case requires remand.

         A. Physical Impairment Medical Opinion Evidence

         1. State Agency Examining Medical Consultant Scott Evans, M.D.

         On February 17, 2014, Ms. Perea presented to Scott Evans, M.D., on a referral from the Disability Determination Services for a medical consultative exam. (Tr. 477-81.) Ms. Perea reported her chief complaints as (1) low back pain, with numbness to the right lower extremity posteriorly, extending past the knees and down to the ankles; and (2) posttraumatic stress disorder. (Tr. 477.) Ms. Perea stated she underwent local cortisone injections for her back pain, but that they provided only a few days of relief before the pain returned. (Id.) She reported that (1) she could dress herself most of the time; (2) could feed herself; (3) did not drive due to back spasms; and (4) could cook, shop and clean at home, although her boyfriend did chores that involved sweeping, mopping, vacuuming, dishes, laundry, and mowing the grass. (Tr. 477-78.) Ms. Perea reported that she avoided activities that required any bending of her low back. (Tr. 478.) Ms. Perea stated that she was able to (1) stand for a total of two hours on a good day and one hour on a typical day; (2) walk approximately 42-50 feet on level ground; (3) sit in 20-45 minute intervals without needing to stand or lie down; and (4) could lift eight pounds. (Tr. 477-78.) She stated she was unable to sit through an entire movie. (Tr. 478.) On clinical exam, Dr. Evans noted that Ms. Perea ambulated with a slow gait and took a significant amount of time to get on and off the exam table and in and out of the chair, although she undressed and dressed appropriately in adequate time. (Tr. 479.) Dr. Evans also noted that Ms. Perea appeared to give a decreased effort throughout some portions of the clinical exam. (Id.) Dr. Evans' findings included, inter alia, a loss of lumbar lordosis appreciated, and that Ms. Perea appeared to be somewhat hypersensitive to moderate touch in the lumbar spine region, as well as the sciatic right buttock region. (Tr. 481.) Dr. Evans noted in his functional assessment that Ms. Perea's symptoms appeared to be somewhat exaggerated and that she did not appear to give a full effort on some of the exam findings. (Id.) Dr. Evans nonetheless adopted some of Ms. Perea's reported functional limitations and assessed that in an eight hour work day she could (1) stand for approximately 2 hours, (2) walk for one hour, and (3) sit for two hours. (Id.) Dr. Evans further assessed that Ms. Perea could lift approximately eight pounds regularly and fifteen pounds occasionally. (Id.)

         The ALJ accorded Dr. Evans' opinion partial weight. (Tr. 20.)

         2. State Agency Nonexamining Medical Consultant Nancy Armstrong, M.D.

         On March 12, 2014, State agency nonexamining medical consultant Nancy Armstrong, M.D., reviewed the available medical evidence record[5] and assessed that Ms. Perea was capable of a full range of medium work, [6] except that she should avoid concentrated exposure to “[f]umes, odors, dusts, gases, poor ventilation, etc., ” due to a history of reactive airway disease. (Tr. 71-73.) Dr. Armstrong explained that she considered Dr. Evans' assessment, but believed that he had overstated Ms. Perea's limitations and that his assessment was not supported by his exam findings. (Id.)

         The ALJ accorded Dr. Armstrong's opinion partial weight. (Tr. 20.)

         3. State Agency Nonexamining Medical Consultant Karine Lancaster, M.D.

         On August 7, 2014, State agency nonexamining medical consultant Karine Lancaster, M.D., reviewed the available medical evidence record at reconsideration.[7] (Tr. 85-87.) Dr. Lancaster explained that the evidence did not show a significant change to Ms. Perea's physical condition and she affirmed Dr. Armstrong's initial assessment for medium work as written. (Id.)

         The ALJ accorded Dr. Lancaster's opinion partial weight. (Tr. 20.)

         4. Steven Hartman, M.D.

         On October 31, 2014, Ms. Perea saw Steven Hartman, M.D., at El Pueblo Health Services, with chief complaints of right hip pain and left leg pain. (Tr. 624-25.) On physical exam, Dr. Hartman noted lumbosacral tender to palpation left greater than right; negative straight leg raise for impingement, but painful in lumbar spine bilaterally; and paraspinous tender to palpation in cervical and thoracic spine. (Tr. 625.) Dr. Hartman assessed lumbago, and planned to refer Ms. Perea for radiographic studies. (Id.)

         Ms. Perea saw Dr. Hartman eight more times over the next eight months. On December 22, 2014, she saw Dr. Hartman for an acute care visit related to headache and dizziness. (Tr. 621-23.) On January 21, 2015, Ms. Perea presented for an annual adult physical. (Tr. 617-19.) On March 3, 2015, Ms. Perea saw Dr. Hartman for follow up on her Lumber Spine MRI.[8] (Tr. 615-16.) Dr. Hartman discussed physical therapy, potential future spinal injections, or surgery if ever indicated. (Tr. 616.) He referred Ms. Perea for physical therapy.[9] (Id.) On April 20, 2015, Ms. Perea saw Dr. Hartman in follow up after a recent motorcycle accident for which she had been hospitalized for three days.[10] (Tr. 613-14.) Dr. Hartman assessed knee sprain and abrasion, head abrasions, and possible reinjury of knee ligaments. (Tr. 614.) On April 28, 2015, Ms. Perea saw Dr. Hartman in follow up for her motorcycle accident, and noted musculoskeletal pain “localized to one or more joints R knee, lower back with chronic pain, exacerbated by prolonged sitting, standing or walking.” (Tr. 636-37.) On May 12, 2015, Ms. Perea saw Dr. Hartman for headaches. (Tr. 639-41.) Dr. Hartman noted neck and upper back pain/tension and administered trigger point injections. (Id.) On June 11, 2015, Ms. Perea followed up with Dr. Hartman for upper back and neck pain. (Tr. 611-12.) Dr. Hartman assessed muscle spasm and administered trigger point injections. (Tr. 612.) Dr. Hartman also prescribed Methocarbamol. (Id.) On August 10, 2015, Ms. Perea saw Dr. Hartman with complaints of lower back pain, and left shoulder pain related to a fall one month earlier. (Tr. 608-09.) Ms. Perea reported that certain positions made her back pain worse and that walking caused radiating pain into her right leg. (Tr. 608.) Dr. Hartman assessed arthropathy and muscle spasm. (Tr. 609.) He administered trigger point injections for Ms. Perea's back pain, and referred her for a shoulder MRI. (Id.)

         On April 28, 2015, Dr. Hartman prepared a Physician's Questionnaire on Ms. Perea's behalf. (Tr. 602-06.) Dr. Hartman noted (1) the dates on which he had treated Ms. Perea;[11](2) her diagnoses;[12] (3) the objective bases for her diagnoses;[13] (4) the treatment provided and referred;[14] (5) prescribed medications;[15] and (6) his recommendation and treatment plans.[16] (Tr. 602.) Dr. Hartman assessed that during an eight-hour workday, Ms. Perea would (1) require fifteen minute breaks less than every two hours; (2) that she was only capable of working four hours a day, three to five days a week; and (3) that she would miss two to four days of work per month due to her conditions. (Tr. 603.) He further assessed that Ms. Perea (1) could sit, stand or walk for less than one hour at one time; (2) could sit for a total of four hours; (3) could stand for a total of two hours; (4) could walk for a total of one hour; (5) could occasionally lift or carry up to five pounds; (6) could continuously use her hands; (7) could not use her feet for repetitive motions; (8) could never bend, squat, or crawl; (9) could occasionally climb a few steps and reach; and (10) was restricted from activities involving unprotected heights, being around moving machinery, exposure to marked changes of temperature and humidity, driving automotive equipment, and exposure to dust, fumes and gases. (Tr. 605.)

         The ALJ accorded Dr. Hartman's opinion little weight. (Tr. 20.)

         B. The ALJ Failed To Properly Weigh the Medical Source Opinion Evidence Related to Ms. Perea's Physical Impairments

         Ms. Perea argues generally that the ALJ failed to properly weigh the medical source opinion evidence. (Doc. 20 at 9-14.) Specifically, Ms. Perea argues that the ALJ failed to consider that the State agency nonexamining medical consultant assessments were made based on limited evidence. (Id. at 13-14.) She further argues that in rejecting Dr. Hartman's opinion, the ALJ cited to no specific inconsistent evidence and failed to provide any legitimate basis for discrediting his findings. (Id. at 10.) The Commissioner argues that the ALJ properly evaluated the medical opinion evidence and reasonably determined that Ms. Perea was capable of unskilled light work. (Doc. 22 at 12-21.)

         “An ALJ must evaluate every medical opinion in the record, although the weight given each opinion will vary according to the relationship between the disability claimant and the medical professional.” Hamlin, 365 F.3d at 1215. Specifically, when assessing a claimant's RFC, an ALJ must explain what weight is assigned to each opinion and why. SSR 96-5p, 1996 WL 374183 at *5.[17] “An ALJ must also consider a series of specific factors in determining what weight to give any medical opinion.” Hamlin, 365 F.3d at 1215 (citing Goatcher v. United States Dep't of Health & Human Servs., 52 F.3d 288, 290 (10th Cir. 1995)).[18] An ALJ need not articulate every factor; however, the ALJ's decision must be “sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight.” Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007). In deciding how much weight to give a treating source opinion, an ALJ must first determine whether the opinion qualifies for controlling weight. Langley, 373 F.3d at 1119 (citing Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003)). Even if a treating physician's opinion is not entitled to controlling weight, “[t]reating source medical opinions are still entitled to deference and must be weighed using all of the [regulatory] factors.” Id. Generally the opinion of a treating physician is given more weight than that of an examining consultant, and the opinion of a non-examining consultant is given the least weight of all. Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004). Ultimately, ALJs are required to weigh medical source opinions and to provide “appropriate explanations for accepting or rejecting such opinions.” SSR 96-5p, 1996 WL 374183 at *5 (emphasis added); see Keyes-Zachary v Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (citing 20 C.F.R. § 416.927(e)(2)(ii))).

         Here, the ALJ failed to properly weigh the medical source opinion evidence related to Ms. Perea's physical impairments as discussed below.

         1. Dr. Evans

         In according partial weight to Dr. Evans' opinion, the ALJ explained, on the one hand, that she found Dr. Evans' report “reasonable, ” and that she assessed an RFC consistent with light work.[19] (Tr. 20.) The ALJ explained, on the other hand, without more, that certain of Dr. Evans' remarks were not supported by evidence in the record. (Id.) The ALJ's explanation, however, is both unclear and confusing because the ALJ's RFC assessment for light work is inconsistent with all of Dr. Evans' functional limitations; i.e., that Ms. Perea could (1) stand for a total of two hours; (2) walk for one hour; (3) sit for two hours; and (4) lift eight pounds regularly and fifteen pounds occasionally.[20] (Tr. 481.) In other words, the ALJ implicitly rejected all of Dr. Evans' assessed functional limitations even though she purported to find it “reasonable, ” to accord it partial weight, and to rely on it to support her RFC determination for light work. The ALJ erred both in failing to make clear to the Court the reasons for the weight she accorded Dr. Evans' opinion and in assessing an RFC that is wholly inconsistent with his opinion to which she purportedly assigned some weight.

         2. Dr. Armstrong ...


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